2. How do courts decide an equality case? – Application of Equality Rights

In Canada, discrimination can be defined in everyday terms as actions, situations or policies that have the effect, whether intentional or not, of putting some people at an unnecessary disadvantage due to their personal characteristics, such as race, sex or religion (New Brunswick Human Rights Commission). Discriminatory practices usually result from bigotry , prejudice, stereotypes and the failure to accommodate the particular characteristics of minorities.

· Two Types of Discrimination Prohibited by Law<

Canadian courts have recognized two types of illegal discrimination: (1) direct discrimination and (2) adverse effects discrimination (also called indirect discrimination or systemic discrimination) (New Brunswick Human Rights Commission).

Direct discrimination, is a practice where people are treated differently (usually less favourably) based on personal characteristics such as their race or gender. Accordingly, employers, service providers and others who are required not to discriminate must go beyond treating everyone the same without regard to race, sex and the other personal characteristics protected in human rights laws (New Brunswick Human Rights Commission).

Adverse effects discrimination (Systemic discrimination) is, a uniform practice or standard which has a negative or adverse effect on a group of persons because it does not accommodate them, even though this could be done without sacrificing legitimate objectives or incurring undue hardship.

Adverse effect is the discriminatory effect that certain conditions, practices and rules, that are applied to everyone, have on a group of persons because of the particular characteristics of the group. Such discrimination is also called indirect discrimination or systemic discrimination. It may occur even when everyone is treated the same and there is no intent to discriminate. What makes a practice discriminatory is its impact and the failure to accommodate the particular characteristics of the affected group short of undue hardship (New Brunswick Human Rights Commission).

They must, in addition, accommodate as much as reasonably possible the protected characteristics of those to whom such uniform treatment would have a discriminatory effect. That is, they must avoid standards that have a discriminatory effect where this can be done without sacrificing their own legitimate objectives or incurring undue hardship.

· Determining An Equality Seekers’ Case Against the Government

In this section, we will learn about the criteria with which to prove a case pertaining to Equality Rights.

Cases that convey a basic framework within which particular

s. 15(1) claims can be analyzed. The court must first determine

whether the claimant has shown that one of the four basic equality

rights has been denied. This inquiry will focus largely on whether

the law has drawn a distinction (intentionally or otherwise) between

the claimant and others, based on personal characteristics. Next,

the court must determine whether the denial can be said to result in

“discrimination.” This second inquiry will focus largely on whether

the differential treatment has the effect of imposing a burden,

obligation or disadvantage not imposed upon others or of withholding

or limiting access to opportunities, benefits and advantages available

to others. Furthermore, in determining whether the claimant’s s. 15(1)

rights have been infringed, the Court must consider whether the

personal characteristic in question falls within the grounds enumerated

in the section or within an analogous ground, so as to ensure the claim

fits within the overall purpose of s. 15; namely, to remedy or prevent

discrimination against groups subject to stereotyping, historical

disadvantage and political and social prejudice in Canadian society

(Hurly, Mary C.).

The courts generally use a three-step approach when deciding an equality seeker’s case against the government (Court Challenges Program).

1. Does the law treat or affect you differently due to one or more personal characteristic(s) — or due to your membership in a group identified by personal characteristics?

As mentioned earlier, there are two kinds of discriminating treatments to be classified: direct discrimination, and adverse effects discrimination.

The following two laws are examples that illustrate direct discrimination.

Case Example 2 (B.C. Native Women’s Society v. Canada (T.D.)): A law which says that an Aboriginal women loses her legal status as an Aboriginal person if she marries someone without this status, but that an Aboriginal man may marry whomever he pleases without affecting his status

This law creates a direct difference in treatment on the basis of sex (gender) by singling out Aboriginal women and taking away their rights.

Case Example 3: A law which says only married and opposite-sex common law couples can get certain tax breaks

This law creates a direct difference in treatment on the basis of sexual orientation by singling out people in same-sex relationships and denying them tax breaks.

The next example shows adverse effects discrimination.

Case Example 4: A law which says you must pay a very high fee to immigrate to Canada

This law may seem to treat everyone the same. However, it has a different impact if you think about how it operates within the social and economic environment or context. This law creates different obstacles for people on low-incomes and/or people from countries where the money is worth a lot less once it is converted into Canadian dollars. It has a different impact based on your income and/or your national origin.

2. Is the characteristic a “ground” of discrimination which is covered by section 15 of the Charter?

To satisfy this criteria, here you must show that the characteristic or group membership which forms the basis for the difference in treatment or impact is a “ground of discrimination”.

The ground may be either listed (“enumerated”) in section 15 or like (“analogous to”) the grounds listed in section 15.

· Enumerated/Listed Grounds: The “grounds of discrimination” listed or enumerated in section 15 describe certain personal characteristics (or groups in which we may be members) which have been linked to oppression or disadvantage in our society, and around the world(Court Challenges). In the above example, high immigration fee has a different impact on some people based on the listed ground of “national origin”.

· Analogous/Similar Grounds: If the difference in treatment or impact is not based on a listed ground of discrimination, it must be shown that it is based on a similar (analogous) ground.

The grounds of discrimination identify bases for different treatment or effect which we think are dangerous because they contribute to a society where some of us are not full participants and where some are seen as more worthy human beings than others. In the previous example, a lesbian couple denied tax breaks have been treated differently based on their sexual orientation. While “sexual orientation” is not found in the words of section 15, the Supreme Court of Canada has said that it is an “analogous” ground of discrimination and can be addressed using section 15(Court Challenges Program).

The enumerated and analogous grounds approach concentrates on the personal characteristics of those claiming to have been treated unequally, and asks whether those in that group have been subjected to historical disadvantage, stereotyping and prejudice (Hurly, Mary C.).

It is not, however, sufficient to focus on whether the claim is based on an enumerated or a non-enumerated, analogous ground. The effect of the challenged distinction must also be weighed. A complainant must establish “not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.” (Hurly, Mary C.)

3. Is the difference in treatment or effect truly discrimination (as meant by section 15 of the Charter)?

The final question the courts ask is whether the difference in treatment or impact is truly discrimination. In other words, does this difference in treatment go against the purpose of section 15? According to the Supreme Court of Canada, the goal of section 15 is:

to prevent the violation of essential human dignity and freedom

through the imposition of disadvantage, stereotyping, or political

or social prejudice, and to promote a society in which all persons

enjoy equal recognition at law as human beings or as members of

Canadian society, equally capable and equally deserving of

concern, respect and consideration (Court Challenges Program).

To convince the court that the difference in treatment or impact is truly discrimination, you must show the court how the law or policy goes against this purpose. This is done by discussing various factors in the social environment within which the law operates (Court Challenges Program). Four of the most important factors are as follows:

· Whether the group to which the equality seeker belongs already experiences disadvantage in society, quite apart from the difference in treatment or impact brought about by the law or policy

This is true of all of the groups identified in the previous examples. Aboriginal women, same-sex couples, and newcomers to Canada from developing countries already experience disadvantage as groups in society.

· Whether there is a link between the difference in treatment or impact and the actual needs, capacities or circumstances of the equality seeker

As the Supreme Court has said, Legislation which takes into account the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society will be less likely to have a negative effect on human dignity. A good example is the case of the deaf person requiring sign language interpretation for doctor and hospital visits. A hearing person might argue that this is discrimination because different treatment is given to deaf people based on their disability. The Courts would say that this different treatment does not go against the purpose of section 15, but rather promotes this purpose. For this reason, this policy would not be discriminatory.

· Whether the law or policy has an ameliorative purpose or effect

Laws or policies which are meant to ameliorate or improve conditions for an equality seeking group do not discriminate against people from the relatively more advantaged group. For instance, it is not discrimination for the government to provide sign language interpretation for people with hearing impairments and not for able-bodied people who do not have difficulty hearing. This policy is meant to improve conditions in health care for people with hearing impairments.

· The Nature of the Interest

The court will look at the economic, social or constitutional importance of the interests affected by the difference in treatment or impact. A court would hopefully view the ability to receive medical care, to maintain one’s unique rights as an aboriginal person, to receive important tax benefits, or to immigrate to Canada, as important interests for ensuring that we are all equal participants in Canadian society.