CONSTITUTIONAL
LAW
42 EQUALITY RIGHTS
I: GENRAL
FRAMEWORK
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Shigenori Matsui
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 s. 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) Subsection (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 physical2
disability.
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 The meaning of equality
 The general framework of analysis
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I THE MEANING OF EQUALITY
 Formal equality and substantial equality
 Formal equality and substantive equality
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 Andrews v. Law Society of British Columbia
 McLachlin J.A. in the Court of Appeal expressed the
view, …that:. . . the essential meaning of the
constitutional requirement of equal protection and
equal benefit is that persons who are "similarly
situated be similarly treated" and conversely, that
persons who are "differently situated be differently
treated" . . . .
 The similarly situated test is a restatement of the
Aristotelian principle of formal equality -- that "things
that are alike should be treated alike, while things
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that are unalike should be treated unalike in
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proportion to their unalikeness”…
 The test as stated, however, is seriously deficient in
that it excludes any consideration of the nature of the
law. If it were to be applied literally, it could be used
to justify the Nuremberg laws of Adolf Hitler. Similar
treatment was contemplated for all Jews.
 …Thus, mere equality of application to similarly
situated groups or individuals does not afford a
realistic test for a violation of equality rights. For, as
has been said, a bad law will not be saved merely
because it operates equally upon those to whom it
has application. Nor will a law necessarily be bad
because it makes distinctions….”
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 “…the test cannot be accepted as a fixed rule
or formula for the resolution of equality
questions arising under the Charter.
Consideration must be given to the content of
the law, to its purpose, and its impact upon
those to whom it applies, and also upon those
whom it excludes from its application.”
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II FRAMEWORK OF ANALYSIS
 Andrews v. Law Society of BC [1989]
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 It is not every distinction or differentiation in treatment at law
which will transgress the equality guarantees of s. 15 of the
Charter.
 I would say then that discrimination may be described as a
distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or
disadvantages on such individual or group not imposed upon
others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society.
Distinctions based on personal characteristics attributed to an
individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based on
an individual's merits and capacities will rarely be so classed.
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 Three main approaches have been adopted
in determining the role of s. 15(1), the
meaning of discrimination set out in that
section, and the relationship of s. 15(1) and s.
1. The first one, which was advanced by
Professor Peter Hogg… would treat every
distinction drawn by law as discrimination
under s. 15(1). There would then follow a
consideration of the distinction under the
provisions of s. 1 of the Charter.
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 The second approach put forward by
McLachlin J.A. in the Court of Appeal
involved a consideration of the
reasonableness and fairness of the impugned
legislation under s. 15(1)… She assigned a
very minor role to s. 1 which would, it appears,
be limited to allowing in times of emergency,
war, or other crises the passage of
discriminatory legislation which would
normally be impermissible.
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 A third approach, sometimes described as an
"enumerated or analogous grounds" approach,
adopts the concept that discrimination is generally
expressed by the enumerated grounds. Section
15(1) is designed to prevent discrimination based on
these and analogous grounds. ...
 The analysis of discrimination in this approach must
take place within the context of the enumerated
grounds and those analogous to them. The words
"without discrimination" require more than a mere
finding of distinction between the treatment of groups
or individuals.
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 I would accept the criticisms of the first approach
made by McLachlin J.A. in the Court of Appeal. She
noted that the labelling of every legislative distinction
as an infringement of s. 15(1) trivializes the
fundamental rights guaranteed by the Charter and,
secondly, that to interpret "without discrimination" as
"without distinction" deprives the notion of
discrimination of content.
 In rejecting the Hogg approach, I would say that it
draws a straight line from the finding of a distinction
to a determination of its validity under s. 1, but my
objection would be that it virtually denies any role for13
s. 15(1).
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 I would reject, as well, the approach adopted
by McLachlin J.A. She seeks to define
discrimination under s. 15(1) as an
unjustifiable or unreasonable distinction. In
so doing she avoids the mere distinction test
but also makes a radical departure from the
analytical approach to the Charter which has
been approved by this Court. In the result,
the determination would be made under s.
15(1) and virtually no role would be left for s.
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1.
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 The third or "enumerated and analogous grounds"
approach most closely accords with the purposes of s. 15
and the definition of discrimination outlined above and
leaves questions of justification to s. 1. However, in
assessing whether a complainant's rights have been
infringed under s. 15(1), it is not enough to focus only on
the alleged ground of discrimination and decide whether
or not it is an enumerated or analogous ground. The
effect of the impugned distinction or classification on the
complainant must be considered. Once it is accepted
that not all distinctions and differentiations created by law
are discriminatory, then a role must be assigned to s.
15(1) which goes beyond the mere recognition of a legal 15
distinction.
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 A complainant under s. 15(1) must show 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.
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II 1995 TRILOGY
 Miron v. Trudel [1995]
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 Egan v. Canada [1995]
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 Thibaudeau v. Canada [1995]
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 Three different approaches were adopted:
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Cory, McLachlin and Iacobucci JJ.: The analysis under s.
15(1) of the Charter involves two steps. First, the claimant
must show a denial of "equal protection" or "equal benefit" of
the law, as compared with some other person. Second, he or
she must show that the denial constitutes discrimination. To
establish discrimination, the claimant must show that the
denial rests on one of the grounds enumerated in s. 15(1) or
an analogous ground and that the unequal treatment is
based on the stereotypical application of presumed group or
personal characteristics, although in rare cases distinctions
made on enumerated or analogous grounds may prove to be,
upon examination, non-discriminatory. Once a violation of s.
15(1) is established, the onus then shifts to the party seeking
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to uphold the law, usually the state, to justify the
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discrimination under s. 1 of the Charter.
 L'Heureux-Dubé J.: The following factors
must be established by a rights claimant
before the impugned distinction will be found
to be discriminatory: (1) there must be a
legislative distinction; (2) this distinction must
result in a denial of one of the four equality
rights on the basis of the rights claimant's
membership in an identifiable group; and (3)
this distinction must be "discriminatory" within
the meaning of s. 15.
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 Lamer C.J. and La Forest, Gonthier and Major JJ.
(dissenting): The s. 15(1) analysis involves three
steps. The first looks to whether the law has drawn a
distinction between the claimant and others. The
second questions whether the distinction results in
disadvantage, and examines whether the impugned
law imposes a burden, obligation or disadvantage on
a group of persons to which the claimant belongs
which is not imposed on others, or does not provide
them with a benefit which it grants others. It is at this
second step that the direct or indirect effect of the
legislation is examined.
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 The third step assesses whether the
distinction is based on an irrelevant personal
characteristic which is either enumerated in s.
15(1) or one analogous thereto. This third
step thus comprises two aspects: determining
the personal characteristic shared by a group
and then assessing its relevancy having
regard to the functional values underlying the
legislation.
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III LAW
 Law v. Canada [1999]
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 It may be said that the purpose of s. 15(1) 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. Legislation which effects
differential treatment between individuals or groups will violate
this fundamental purpose where those who are subject to
differential treatment fall within one or more enumerated or
analogous grounds, and where the differential treatment reflects
the stereotypical application of presumed group or personal
characteristics, or otherwise has the effect of perpetuating or
promoting the view that the individual is less capable, or less
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worthy of recognition or value as a human being or as a
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member of Canadian society.
 Human dignity is harmed by unfair treatment
premised upon personal traits or circumstances
which do not relate to individual needs, capacities, or
merits. It is enhanced by laws which are sensitive to
the needs, capacities, and merits of different
individuals, taking into account the context underlying
their differences. Human dignity is harmed when
individuals and groups are marginalized, ignored, or
devalued, and is enhanced when laws recognize the
full place of all individuals and groups within
Canadian society.
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 Accordingly, a court that is called upon to determine a
discrimination claim under s. 15(1) should make the
following three broad inquiries:
 (A) Does the impugned law (a) draw a formal distinction
between the claimant and others on the basis of one or
more personal characteristics, or (b) fail to take into
account the claimant’s already disadvantaged position
within Canadian society resulting in substantively
differential treatment between the claimant and others on
the basis of one or more personal characteristics?
 (B) Is the claimant subject to differential treatment based
on one or more enumerated and analogous grounds?
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 and
 (C) Does the differential treatment discriminate, by
imposing a burden upon or withholding a benefit from
the claimant in a manner which reflects the
stereotypical application of presumed group or
personal characteristics, or which otherwise has the
effect of perpetuating or promoting 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?
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 In general terms, the purpose of s. 15(1) 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.
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 Some important contextual factors influencing
the determination of whether s. 15(1) has
been infringed are, among others:
 (A) Pre-existing disadvantage, stereotyping,
prejudice, or vulnerability experienced by the
individual or group at issue…
 (B) The correspondence, or lack thereof,
between the ground or grounds on which the
claim is based and the actual need, capacity,
or circumstances of the claimant or others… 30
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 (C) The ameliorative purpose or effects of
the impugned law upon a more
disadvantaged person or group in society…
 and
 (D) The nature and scope of the interest
affected by the impugned law.
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IV KAPP
 R. v. Kapp [2008]
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 “The template in Andrews, as further developed in a
series of cases culminating in Law v. Canada
(Minister of Employment and Immigration), [1999] 1
S.C.R. 497, established in essence a two-part test for
showing discrimination under s. 15(1): (1) Does the
law create a distinction based on an enumerated or
analogous ground? (2) Does the distinction create a
disadvantage by perpetuating prejudice or
stereotyping? These were divided, in Law, into three
steps, but in our view the test is, in substance, the
same.”
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 “Andrews, McIntyre J. viewed discriminatory impact
through the lens of two concepts: (1) the perpetuation
of prejudice or disadvantage to members of a group
on the basis of personal characteristics identified in
the enumerated and analogous grounds; and (2)
stereotyping on the basis of these grounds that
results in a decision that does not correspond to a
claimant’s or group’s actual circumstances and
characteristics. Additionally, McIntyre J. emphasized
that a finding of discrimination might be grounded in
the fact that the impact of a particular law or program
was to perpetuate the disadvantage of a group
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defined by enumerated or analogous s. 15 grounds.” 34
 “A decade later, in Law, this Court suggested that
discrimination should be defined in terms of the
impact of the law or program on the “human dignity”
of members of the claimant group, having regard to
four contextual factors: (1) pre-existing disadvantage,
if any, of the claimant group; (2) degree of
correspondence between the differential treatment
and the claimant group’s reality; (3) whether the law
or program has an ameliorative purpose or effect;
and (4) the nature of the interest affected ”
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 The achievement of Law was its success in unifying what
had become, since Andrews, a division in this Court’s
approach to s. 15. Law accomplished this by reiterating
and confirming Andrews’ interpretation of s. 15 as a
guarantee of substantive, and not just formal, equality.
Moreover, Law made an important contribution to our
understanding of the conceptual underpinnings of
substantive equality.
 At the same time, several difficulties have arisen from the
attempt in Law to employ human dignity as a legal test.
There can be no doubt that human dignity is an essential
value underlying the s. 15 equality guarantee. In fact, the
protection of all of the rights guaranteed by the Charter 36
has as its lodestar the promotion of human dignity. ..
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 But as critics have pointed out, human dignity is an
abstract and subjective notion that, even with the
guidance of the four contextual factors, cannot only
become confusing and difficult to apply; it has also
proven to be an additional burden on equality
claimants, rather than the philosophical enhancement
it was intended to be. Criticism has also accrued for
the way Law has allowed the formalism of some of
the Court’s post-Andrews jurisprudence to resurface
in the form of an artificial comparator analysis
focussed on treating likes alike.
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 Viewed in this way, Law does not impose a new
and distinctive test for discrimination, but rather
affirms the approach to substantive equality
under s. 15 set out in Andrews and developed in
numerous subsequent decisions. The factors
cited in Law should not be read literally as if they
were legislative dispositions, but as a way of
focussing on the central concern of s. 15
identified in Andrews — combatting
discrimination, defined in terms of perpetuating
disadvantage and stereotyping.”
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V WHAT IS AN APPROPRIATE
FRAMEWORK?
 Is the formal equality approach an inadequate
framework?
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 Three basic criteria:
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Distinction
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Listed ground or analogous ground
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Discrimination
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 Is it necessary to limit the scope of s. 15 to
discrimination based only on listed or
analogous ground?
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 Is it necessary to consider the violation of
human dignity or irrelevancy in the s. 15
analysis?
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