Charterpedia – Section 15 – Equality rights – Department of Justice

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Provision

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Section (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Similar provisions

Equality rights provisions can be found in article 1(b) of the Canadian Bill of Rights as well as the Canadian Human Rights Act and similar provincial and territorial legislation. The Charter section 15 framework for analysis described here is not directly applicable to these provisions, although there is often cross-referencing between Charter and human rights law jurisprudence (see generally: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3).

The following international instruments, which are binding on Canada, include similar provisions: articles 2 and 26 of the International Covenant on Civil and Political Rights; article 2(2) of the International Covenant on Economic, Social and Cultural Rights; article 2 of the Convention on the Rights of the Child; and article II of the American Declaration of the Rights and Duties of Man; International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination Against Women; article 5 of the Convention on the Rights of Persons with Disabilities.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include Similar provisions: articles 1, 2 and 7 of the Universal Declaration of Human Rights; article 24 of the American Convention on Human Rights; article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; the Fifth and Fourteenth Amendments of the Constitution of the United States of America.

Purpose

As articulated by the Supreme Court in its first section 15 case and subsequently reaffirmed, “[t]he promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration” (R. v. Kapp, [2008] 2 S.C.R. 483 at paragraph 15 citing Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at 171, per McIntyre J.). See also more recently Quebec (A.G.) v. A, [2013] 1 S.C.R. 61, at paragraph 417, where McLachlin C.J., concurring with the majority on section 15, noted that discrimination perpetuates or promotes “the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.”

Analysis

1. Application

Section 15 applies to government action in the form of legislation, regulations, directions, policies, programs, activities and the actions of government agents carried out under lawful authority. It has been found to apply to:

  • Collective agreements with government (Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570);
  • The common law (R. v. Swain, [1991] 1 S.C.R. 933);
  • Decisions of government-delegated decision-makers (the failure to provide sign language interpretation to deaf patients to ensure effective communication with their physician as an aspect of the public funding of medical services) (Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624);
  • Programs developed in partnership with third parties (Casino Rama project with Ontario First Nations) (Lovelace v. Ontario, [2000] 1 S.C.R. 950);
  • Administrative action (e.g., the implementation of an otherwise non-discriminatory statute in a discriminatory way by government officials) (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120).

In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, a majority of the Court found that universities are not part of government.

Section 15 does not impose positive obligations on governments to counteract inequalities in Canadian society (Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657). However, if government does act, it must not discriminate (Eldridge, supra; Vriend v. Alberta, [1998] 1 S.C.R. 493). Section 15(2) is aimed at enabling government action intended to combat discrimination proactively through affirmative measures (Kapp, supra, at paragraphs 25, 33 and 37; see also Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670, at paragraphs 40-1, hereafter Cunningham).

The guarantee in section 15 applies to “[e]very individual”, which the Supreme Court has interpreted to exclude estates of individuals (Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, at paragraphs 72-73 — but note paragraphs 74-77 dealing with timing of the individual’s death relative to bringing the claim). Although no majority of the Court has ruled on corporations’ standing under section 15, the reasoning in Hislop, as well as lower court decisions, suggest that they do not have section 15 rights (Hislop, supra at paragraph 73).

2. Retroactivity

Section 15 of the Charter does not apply to discrete events that were completed before the section came into effect on April 17, 1985 (Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (C.A.)). However, it may apply to government action post-1985 that results in differential treatment based on a continuing status established prior to that date (Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358).

3. General approach

Since its first section 15 case through to its more recent pronouncements, the Supreme Court has consistently characterized the guarantee of equality as substantive. That is, the Court has underscored that “the concept of equality does not necessarily mean identical treatment and that the formal ‘like treatment’ model of discrimination may in fact produce inequality” (Kapp, supra, at paragraph 15 citing Andrews, supra, at 165; see also Withler v. Canada, [2011] 1 S.C.R. 396 at paragraph 39; Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548, at paragraph 17; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, [2018] 1 S.C.R. 464, at paragraph 25; Fraser v. Canada (Attorney General), 2020 SCC 28 at paragraphs 41-42; and Ontario (Attorney General) v G., 2020 SCC 38 at paragraphs 43 and 47). This is to be contrasted with the Court’s decontextualized and formal approach to equality under the Canadian Bill of Rights (see for instance Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183 where the Supreme Court cited with approval the statement that “[i]f section 46 treats unemployed pregnant women differently from other unemployed persons, be they male or female, it is…because they are pregnant and not because they are women” — this statement was later expressly disavowed in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219).

In Law v. Canada [1999] 1 S.C.R. 497 (hereafter Law), the Court synthesized its approach into a three-step framework, which it rearticulated in Kapp, supra, Withler, supra, Quebec v. A, supra, Taypotat, supra, and Fraser, supra, as comprising two steps. The test can be stated as:

  1. Does the law, on its face or in its impact, create a distinction based on an enumerated or analogous ground?
  2. Is the distinction discriminatory? (Kapp, supra at paragraph 17; see also Withler, supra at paragraph 30; Quebec v. A, supra at paragraphs 324 and 418; Taypotat, supra at paragraphs 19-20; Alliance, supra at paragraph 25; Centrale des syndicats, supra at paragraph 22; Fraser, supra at paragraph 27; Ontario v. G., supra at paragraph 40; and R. v. C.P., 2021 SCC 19 , at paragraph 56).

After the claimant has satisfied the first step of the section 15(1) analysis, it is open to the defendant (government) to establish that the impugned distinction qualifies under section 15(2) as an affirmative action-type measure, designed to ameliorate the conditions of a historically disadvantaged group. If the requirements of section 15(2) (elaborated below) are met by the government, this ends the analysis as there is no discrimination within the meaning of section 15(1).

  • The focus of section 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping.

  • The focus of section 15(2) is on enabling governments to pro-actively combat discrimination.

In addition to being purposive and substantive, the section 15 analysis is fact-driven, highly contextual and comparative.

The role of comparison in the section 15 analysis has evolved. Prior to Kapp, supra, a number of Supreme Court decisions paid considerable attention to the specifics of framing the appropriate comparator group. However, in Kapp, the Court noted concerns over a formalistic and “artificial” approach to comparisons (at paragraph 22), and in Withler, supra, the Court rejected the “mirror comparator” group approach used in some earlier decisions (Auton, supra, at paragraphs 48-55; see also Hodge v. Canada, [2004] 3 S.C.R. 357). The “mirror comparator” approach required claimants to identify comparators who are “…like the claimants in all ways save for the characteristics relating to the alleged ground of discrimination” (Auton, supra at paragraph 55). The Supreme Court in Withler explicitly eliminated the “mirror comparator” requirement. At the same time, it confirmed that section 15 is inherently comparative in that claimants have to establish distinctive treatment (which presupposes comparison with others) based on a prohibited ground (paragraph 62).

4. Burden of proof

The burden of proving a limit of section 15 lies with the claimant (Law, supra at paragraphs 76-83). The amount and nature of the evidence required can vary greatly depending on the nature of the claim. Proof of legislative intent to discriminate is not required; the claimant must establish that either the purpose or the effect of the law or action is discriminatory (Law, supra at paragraph 80). In relevant cases, it will be for the government to demonstrate that a measure falls within the scope of section 15(2) and is therefore not discriminatory (Kapp, supra at paragraphs 39-41).

While the courts generally require evidentiary support for a claim of discrimination, as a practical matter, the claimant does not have to adduce evidence to prove every element of the analysis (Law, supra at paragraph 82). Nor does the claimant have to adduce data or other sophisticated social science evidence not generally available in order to establish a limit of section 15 (1); where appropriate, the courts may rely on judicial notice or logic (Law, supra at paragraph 77).

However, the claimant does have the burden of ensuring that the court is aware of the relevant historical, social, political and legal context of the claim (Law, supra at paragraph 83). An equality rights claim may fail if the court finds that the evidentiary record is inadequate, particularly where the claim is premised on the court’s acceptance of societal patterns not substantiated by statistical or social science evidence (Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429).

In challenges based on “adverse effect” discrimination, where it is alleged that a seemingly neutral law or action has a disproportionate adverse impact on a group characterized by a prohibited ground, claimants may show that the law or action affected individuals in a qualitatively different way, or that members of a group were affected at a higher rate as compared to other groups. The existence and nature of the impact is assessed in light of the full context of the claimant group’s situation and the outcome of the law or action, using any relevant evidence, including statistics if useful and available. Both evidence of statistical disparity and of broader group disadvantage may demonstrate disproportionate impact, but neither is mandatory and their significance will vary depending on the case. Claimants need not prove that the ground was the cause of the harmful impact, nor that the law or action was solely responsible for the harmful impact, nor that all members of the group were impacted in the same way (Fraser, supra at paragraphs 51-75).

5. Two-part framework for analysis under section 15(1)

The section 15 (1) framework for analysis involves two steps:

(i) Does the law create a distinction based on an enumerated or analogous ground?

A distinction may be made expressly by a law or government action (e.g., a benefit provided only to persons over 65 years of age) or may arise due to the adverse effect of a law or government action on an individual claimant because of his/her particular personal characteristic(s) (e.g., a rule that requires all employees to work on Saturdays but not on Sundays, which affects individuals differently depending on their religious affiliation). Another way of determining if there has been an adverse distinction is to ask whether the government has failed to take into account the already disadvantaged position of a group within Canadian society resulting in substantively different treatment based on personal characteristics (e.g., failure to provide government documents in alternative formats accessible to persons with visual impairments). The issue of whether the government intended to cause the disadvantageous distinction is not relevant to the inquiry. This part of the analysis focuses on the comparative effect of government action on the claimants and other groups.

The first inquiry (whether the law creates a distinction based on a ground) can be seen as imposing a threshold requirement in that a claim will fail if the claimant cannot demonstrate that a government law or action withholds a benefit that is provided to others or imposes a burden that is not imposed on others, based on an enumerated or analogous ground (Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698; Auton, supra).

With respect to establishing that the distinction is based on a prohibited ground, the list of grounds “enumerated” in section 15 (1) (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) is not closed and courts may identify additional prohibited grounds analogous to those listed. Analogous grounds are similar to the enumerated grounds in that they identify a basis for stereotypical decision-making or a group that has historically suffered discrimination. Analogous grounds describe personal characteristics that are either immutable (characteristics that people cannot change) or constructively immutable (characteristics that are changeable only at unacceptable cost to personal identity). Once a ground has been found to be analogous, it will always be a ground in the future (Corbiere, supra, at paragraphs 13-15 and 58-62).

To date, the Supreme Court has held that the following are grounds analogous to those enumerated in section 15 (1):

  • Non-citizenship (Andrews, supra; Lavoie v. Canada, [2002] 1 S.C.R. 769);
  • Marital status (Miron v. Trudel, [1995] 2 S.C.R. 418; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325; Quebec v. A., supra);
  • Sexual orientation (Egan v. Canada, [1995] 2 S.C.R. 513; Vriend, supra; M. v. H., [1999] 2 S.C.R. 3: Little Sisters, supra); and
  • Aboriginality-residence as it pertains to a member of an Indian Band living off the reserve (Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203).

In Cunningham v. Alberta (Aboriginal Affairs and Northern Development),2009 ABCA 239, the Alta. Court of Appeal found that registration as a status Indian is an analogous ground, though the Supreme Court declined to rule on the issue, deciding that there was no discrimination in any event. In Taypotat, supra, without there having been argument or evidence from the parties, the Supreme Court was unprepared to accept that “Aboriginality-residence” encompasses residence on reserve based solely on “a simple mirror inference” from the fact of residence off reserve being protected (paragraph 26). However, this does not preclude a claimant in the future establishing that on-reserve residence constitutes an analogous ground.

It is also important to look to lower court decisions as well as to grounds set out in human rights legislation for other possible analogous grounds, such as family status or gender identity or expression.

The Supreme Court has held that the following are not analogous grounds:

  • Place or province of residence (Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6; R. v. Turpin, [1989] 1 S.C.R. 1296);
  • Professional status, occupational status or employment by a particular organization has not been recognized as an analogous ground (Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Baier v. Alberta, [2007] 2 S.C.R. 673; Health Services and Support-Facilities Subsector Collective Bargaining Association v. British Columbia, [2007] 2 S.C.R. 391 at paragraph 165). However, both the majority and Deschamps J.’s concurring reasons in Ontario v. Fraser, [2011] 2 SCR 3 [Fraser 2011] seem to open the door slightly wider for claimants to assert that distinctions based on occupational status unjustifiably limit section 15;
  • substance orientation” such as marihuana use as a personal characteristic (R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571).

While there is still no Supreme Court guidance on point, lower courts have generally found that poverty in and of itself is not an analogous ground (see generally: Alcorn v. Canada (Commissioner of Corrections) (1999), 163 F.T.R. 1, aff’d. 2002 FCA 154, as one’s economic condition is not akin to the “immutable characteristics” enumerated in section 15(1)). See, however, Falkiner v. Ontario (Director, Income Maintenance Branch, Ministry of Community and Social Services) (2002), 212 D.L.R. (4th) 633 (Ont. C.A.), which found that “receipt of social assistance”, intersecting with grounds of sex and marital status, was an analogous ground. In addition, lower courts have found that prisoner status is not an analogous ground (see: Alcorn, supra; Sauvé v. Canada, [2000] 2 F.C. 117, affirmed on this point by SCC minority [2002] 3 SCR 519).

The Supreme Court has recognized that some grounds of discrimination are “embedded” in others and that discrimination can be based on multiple or intersecting enumerated and analogous grounds (Law, supra; Gosselin, supra). For example, while the Supreme Court has not yet recognized family or parental status as an analogous ground, it has indicated that a robust analysis of gender and parenting “can be carried out under the enumerated ground of sex, by acknowledging that the uneven division of childcare responsibilities is one of the “persistent systemic disadvantages [that] have operated to limit the opportunities available” to women in Canadian society” (Fraser, supra at paragraph 116, citing Taypotat, supra at paragraph 17; Withler, supra at paragraph 43; Quebec v. A, supra at paragraphs 327‑32; Alliance, supra at paragraph 28; Centrale, supra at paragraph 35). There can also be discrimination as between members of a group (e.g., among persons with different types of disabilities — see: Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504 (hereafter “ Martin; Laseur”) at paragraphs 76-81).

Pregnancy, which is distinct from but fundamentally interrelated with gender, is an example of a personal characteristic that does not apply to all members of the group in question (women) at any given time, which has been held to be the basis for discrimination under human rights legislation. (See generally: Brooks, supra). Embedded analogous grounds may be necessary to permit meaningful consideration of intra-group discrimination (Corbiere, supra at paragraph 15).

Note that when the government enacts legislation aimed at remedying previous inequality or disadvantage, it may still unjustifiably limit section 15 if it does not fully remediate that inequality, or if it introduces another inequality. The fact that legislation is remedial does not immunize it from Charter review (Hislop, supra at paragraph 39).

Also note that where the government has created an affirmative action or targeted ameliorative program aimed at improving the situation of a particular historically disadvantaged group (e.g., programs targeted at First Nations, Inuit or Métis groups or a subset thereof), the government may argue that the program in question falls within the scope of section 15(2). The 15(2) defense is raised at this stage of the analysis without needing to go to step “2” of the section 15(1) analysis. (See the detailed discussion of section 15(2) below).

(ii) Is the distinction discriminatory?

This second stage is generally aimed at determining whether the distinction in question amounts to discrimination in the substantive sense. The focus of this analysis has evolved over the years. While in Law, supra, the Supreme Court approached this question by assessing the law’s impact on the claimant’s “essential human dignity”, it acknowledged in Kapp, supra, that “several difficulties have arisen from the attempt…to employ human dignity as a legal test” (paragraph 21). Accordingly, this stage of the analysis was refocused on the guiding concepts from Andrews, supra of “the perpetuation of disadvantage and stereotyping as the primary indicators of discrimination” (Kapp, supra at paragraph 23; Withler, supra at paragraph 30; Quebec v. A., supra at paragraphs 324 and 418). In Taypotat, supra, the Supreme Court suggested a further shift in emphasis at this stage of the inquiry to focus on whether a distinction has “the effect of perpetuating arbitrary disadvantage on the claimant” (Taypotat, supra at paragraph 16; Quebec v. A., supra at paragraph 331). In Fraser, supra, the Supreme Court suggested a shift in emphasis to focus on whether the distinction “imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage” (Fraser, supra at paragraphs 27, 81). Historical discrimination need not be demonstrated for a court to find that a law infringes s. 15(1) (Ontario v. G., supra at paragraph 39).

The Supreme Court has repeatedly underscored the importance of addressing the broader context in the substantive equality analysis (Turpin, supra at 1331; Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222 at paragraph 193; Withler, supra at paragraph 43). While some of the formal requirements of previous s. 15 tests have been streamlined in Fraser, the Supreme Court has reiterated that the equality analysis remains sensitive to context (Fraser, supra at paragraphs 86-113; see also Ontario v. G., supra, at paragraph 43 and R. v. C.P., supra, at paragraph 57).

In Law, the Supreme Court had elaborated four contextual factors to help guide the analysis at this stage: (a) pre-existing disadvantage, if any, of the claimant group; (b) degree of correspondence between the differential treatment and the claimant group’s reality; (c) whether the law or program has an ameliorative purpose or effect, including the multiplicity of interests that such a law or program attempts to balance as described in Withler, supra at paragraph 38 (largely, but not wholly subsumed, since Kapp, supra, within the section 15(2) analysis); and (d) the nature of the interest affected. In recent decisions, the Supreme Court stated that it is not necessary or desirable to apply a step-by-step consideration of these factors and described them “as a way of focusing on the central concern of section 15 – combating discrimination (Kapp, supra at paragraph 24; Quebec v. A., supra at paragraph 331; Alliance, supra at paragraph 28).

In Fraser, supra, the Supreme Court has stated that in determining whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage, there is no “rigid template” of factors to be applied (Fraser, supra at paragraph 76). The goal is to examine the impact of the harm caused to the affected group, in light of any systemic or historic disadvantages that this group has faced. The harm may include economic exclusion or disadvantage, social exclusion, psychological harms, physical harms, and political exclusion (Fraser, supra at paragraph 76). Whether these harms establish discrimination depends centrally on whether they relate to systemic or historical disadvantages faced by the claimant group (Fraser, supra at paragraphs 76-77). At the root of s. 15 is the awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed (Fraser, supra, at paragraph 78, citing Quebec. v. A, supra at paragraph 332; Taypotat, supra at paragraph 20). Notably, “the presence of social prejudices or stereotyping are not necessary factors in the s. 15(1) inquiry. They may assist in showing that a law has negative effects on a particular group, but they “are neither separate elements of the Andrews test, nor categories into which a claim of discrimination must fit” (Fraser, supra, at paragraph 78, citing Quebec v. A, supra, at paragraph 329). Once a group has been found to suffer pre-existing disadvantage, this will be “settled law” which can be relied on in subsequent cases no matter what the nature of the impugned law is (Lavoie, supra at paragraph 45).

The majority in Fraser found that an RCMP job-sharing program which did not allow members to buy back full-time pension benefits had a differential impact on women and perpetuated their disadvantage in light of a number of contextual factors: the economic and gendered constraints affecting the “choice” to work part-time; the persistence of gender divisions in domestic labour and childcare; the disadvantages women face in balancing professional and domestic work; the historical gender biases within pension plans based on male-pattern employment; and the negative financial consequences of all these factors for women upon retirement (Fraser, supra at paragraphs 86-113).

The Supreme Court has also stated that the second step of the s. 15 inquiry should focus on whether the law or government action has a discriminatory impact on disadvantaged groups, not on the issue of whether the distinction is justified in the sense that it is relevant to a legitimate state objective, an inquiry properly left to section 1 of the Charter (Fraser, supra at paragraph 79; see also Ontario v. G., supra at paragraph 69). Similarly, there is no longer any obligation for the claimant to demonstrate that the distinction is arbitrary in order to prove a prima facie breach of s. 15(1) (Fraser, supra at paragraph 80).

(iii) Framework of analysis for section 15(2)

The basic purpose of section 15(2) is to shield ameliorative programs from the charge of “reverse discrimination”. That is, section 15(2) enables governments to combat discrimination through programs aimed at helping disadvantaged groups without fear of challenge under section 15(1) by groups that do not share that disadvantage (Kapp, supra at paragraph 16). In addition, section 15(2) enables governments to assist one disadvantaged group, or subset thereof, without being paralyzed by the necessity to assist all, including others who may suffer similar or equal disadvantage (Cunningham, supra at paragraph 41).

The Supreme Court has stated that “[s]ections 15(1) and 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole” (Kapp, supra at paragraph 16). Affirmative action programs accommodating disadvantage are an expression of equality, not an exception (Kapp, supra at paragraph 37, citing P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. 2007), volume 2, at page. 55-53; see also Andrews, supra at 169.

In Kapp, the Court elaborated an independent role for section 15(2), whereas before it had been viewed as an “interpretive aid” to section 15(1) (Law, supra; Lovelace, supra). This was likely done with a view to simplifying the analysis for these types of measures and reinforcing the message that, far from constituting a form of “reverse discrimination” against more advantaged individuals, they are consistent with the section 15 equality guarantee. Under the new approach, once the claimant has established a distinction on a prohibited ground (”step (i)” above), it is open to the government to establish that the impugned law, program or activity is ameliorative within the meaning of section 15(2) and accordingly, constitutional, obviating the “step (ii)” analysis of whether or not the distinction amounts to discrimination in the substantive sense. To satisfy the requirements of section 15(2), the government must establish that:

  1. The program has a genuinely ameliorative or remedial purpose; and
  2. The program targets a disadvantaged group identified by the enumerated or analogous grounds (Kapp, supra at paragraph 41).

If the government fails to meet these requirements, it can still argue that the impugned measure does not have a substantively discriminatory impact within the meaning of section 15(1) (Kapp, supra at paragraph 40).

(a) Ameliorative or remedial purpose

Under (i), the government must establish that its goal in creating the program or benefit in question was to “improve the conditions of a group that is disadvantaged” (Kapp, supra at paragraph 48). While adopting an “intent-based analysis”, courts need not adhere slavishly to the government’s own statement of intent and should also consider whether it was “rational for the state to conclude that the means chosen to reach its ameliorative goal would contribute to that purpose”. To be “rational”, “there must be a correlation between the program and the disadvantage suffered by the target group” (Cunningham, supra at paragraph 44; Kapp, supra at paragraph 49). This standard permits “significant deference”. At the same time, it allows judicial review of colourable initiatives, where the impugned program only nominally seeks to serve the disadvantaged and should not be immunized from the full section 15(1) analysis (Kapp, supra at paragraph 49).

The impugned program’s ameliorative purpose need not be its exclusive objective. However, where an ameliorative program is part of, or relates to a larger legislative scheme, section 15(2) protects only those distinctions “that serve and are necessary to the ameliorative purpose” (Kapp, supra, at paragraph 52). Laws or programs aimed at restricting or punishing the behaviour of a targeted group would not qualify under section 15(2) (Kapp, supra at paragraph 54).

Section 15(2) is not a stand-alone defence to any and all claims brought under s. 15(1). Section 15(2) cannot bar s. 15(1) claims by the very group the legislation seeks to protect. The purpose of s. 15(2) dictates that, for the government to invoke a s. 15(2) defence, there must first be a claim by a person or group excluded from the program alleging that the exclusion is discriminatory (Fraser, supra, at paragraph 69; Centrale des syndicats, supra at paragraph 39; Alliance, supra at paragraph 32).

(b) Disadvantaged group identified by the enumerated or analogous ground

The types of programs protected under section 15(2) are those “targeting the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs” (Kapp, supra at paragraph 55). “‘Disadvantage’ under section 15 connotes vulnerability, prejudice, and negative social characterization”. The interpretation of “disadvantage” is as explored in key section 15 cases such as Andrews, supra, Miron v. Trudel, supra, and Law, supra. For a program to qualify, not all members of the group targeted need to be disadvantaged, as long as the group as a whole has experienced discrimination (Kapp, supra at paragraph 55).

(iv) Underinclusive ameliorative programs

Until the Supreme Court’s decision in Cunningham, supra, it was unclear how section 15(2) would operate where the claimant group shares a history of disadvantage equal and perhaps similar to that of the targeted beneficiary group. Cunningham was an ‘intra-Aboriginal’ discrimination claim brought by status Indians impugning provincial legislation which authorized Métis settlements to exclude status Indians from their membership. The Court drew on its approach in Lovelace, supra, in which a program benefitting only Indian Act bands was found to not discriminate against the claimants, non-Indian Act bands and Métis. Likewise in Cunningham, the exclusion of the claimant status Indians, a group similarly disadvantaged to the Métis, was allowed under section 15(2). The Court confirmed that its deferential approach under section 15(2) in Kapp prevails even where the claimants share a similar history of disadvantage and marginalization with the targeted beneficiary group (at paragraph 53).

Cunningham involved “a special type of ameliorative program” insofar as the impugned legislation came out of self-government negotiations with the Métis and was designed to “enhance and preserve [their] identity, culture and self-governance” (paragraph 54). It was not a typical ameliorative program that confers benefits on a group. As such, the exclusion of status Indians was seen as necessary to the objective of the program. In this unique factual context, the Court stated that the exclusion of the claimant group must “serve or advance the ameliorative goal” (paragraph 46).

Taken at face value, the “serve or advance” standard appears unusually stringent in light of the generally deferential approach taken by the Court in Cunningham. Outside of cases such as Cunningham that deal with the preservation of cultural identity, it is difficult to see how the exclusion of another disadvantaged group would serve or advance an ameliorative purpose. Accordingly, it is reasonable to expect that outside the unique context of programs designed to preserve specific cultural identities, ameliorative programs will be upheld as long as the exclusion of the claimant group is not an irrational means of pursuing the stated ameliorative goal.

The relationship between section 15 and section 1

The relationship between section 15 and section 1 has been difficult to determine over the years on a wholly satisfactory basis. This is because certain aspects of the s. 15 analysis adopted by the Supreme Court at various points (the correspondence factor established in Law, supra; the arbitrary perpetuation of disadvantage in Quebec v. A and Taypotat, supra; and the ameliorative purpose or effect, including the multiplicity of interests being balanced, in Withler, supra) have dovetailed with aspects of the s. 1 analysis, which assesses the rationality of the impugned distinction relative to the government’s asserted legislative or policy goal).

In Quebec v. A., supra, the majority of the Supreme Court emphasized the importance of maintaining the analytic distinction between section 15 and section 1. Specifically, the Court’s approach in Walsh, supra, was disavowed insofar as it addressed the broad policy goals of respecting individual autonomy and freedom of choice in the context of the section 15 analysis, rather than in the section 1 justification, where the government bears the onus of proof (see paragraphs 340, 343, 384, and 422).

In Fraser, supra, the Supreme Court reiterated the importance of keeping the analyses under these two provisions distinct. The Supreme Court stressed that any government arguments about the necessity or reasonableness of the impugned law or action are to be advanced under s. 1. This justification requires a pressing and substantial objective for the discrimination and proof of proportionality between that objective and the means used to achieve it (Fraser, supra at paragraphs 79-80; see also R. v. C.P., supra, at paragraph 57).

On a number of occasions, the Supreme Court has found that an otherwise discriminatory law or program was justified under section 1 of the Charter (see McKinney, supra; Weatherall v. Canada (Attorney General) [1993] 2 S.C.R. 872; Egan, supra; Lavoie, supra; Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381; and Quebec v. A., supra).

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