Equality & Language Rights under the Charter Flashcards
Section 15(1)
1) Requires consideration of substantive equality (as opposed to purely formal questions of whether the law is applied equally).
2) Only particular types of distinction in the legislation can be subject to the constitutional challenge.
3) Only the law that imposes a burdens on the disadvantaged on grounds that were expressly enumerated can give rise to a claim.
(from the Andrews case)
Andrews v Law Society of British Columbia [1989]
This was about a British man who wanted to practice law in British Columbia. The Law Association said that he could do whatever he wanted; he ticked all the boxes to practice law, except for his passport.
He challenged this on the basis of equality. He said that they could not discriminate against him on the basis of his nationality.
But where is nationality? Is it within one of the grounds? It is not listed. However, it is analogous.
The analysis that Justice McIntyre ran is that it is analogous to the first ground – race.
This is like the Michael Jackson example and me — if I want to remove the half black part of me, it is going to be quite painful.
Removing somebody, and stripping someone of nationality, is practically impossible. But we have a hard time with refugees. They have to have some some sort of nationality.
So, Andrews could not remove himself from his nationality. It was a fundamental characteristic of his being. Then again, it’s not an action, it’s a state. Therefore, it was deemed by the court that that was discriminatory on the grounds of Section 15.
That is where the analysis of the enumerated ground and the analogous ground came into place. You have to be able to mix and match. There needs to be a clear link – there needs to be what is called a “congruence” between the discrimination that you are living, and the list is grounds. There is a difference in treatment.
So, on the basis of this analogous ground, it had the effect of imposing a disadvantage. This inherent characteristic that he had and cannot remove was actually effecting him while seeking employment as a lawyer.
What warrants a constitutional remedy is the claim that a law has treated an individual unfairly by reason of a condition over which the person has no control.
Committing a murder, writing a will, being in a contract… All of that is not included. That will not rise to a Section 15 analysis. You will not be able to claim that.
However, your nationality, your gender, your ethnicity, your religion, and potentially your language (hasn’t entered the grounds, but it could)…are things you cannot change.
So, what you need to understand is that we know that Charter rights apply to (Dolphin case) to public figures/bodies.
Miron v Trudel [1995]
That is a denial of a car accident benefit to common-law spouses. The court held with a 5 to 4 majority that automobile accident benefits to an unmarried opposite sex couple …and this is very important - in equality cases beware (are you dealing with same-sex cases, or are you dealing with opposite sex, and the date the cases occur) because the analysis changes.
Here we are dealing with an opposite sex couples. The fact that they were unmarried was the basis of the discrimination; it was said the lady was not entitled to the benefit because she was not married before the law.
The majority held that the discrimination could not be justified under the Section 1 analysis — under the Oakes Test.
So, means other than marriage had to be found to identify the economically interdependent family relationship rather than to the legislative objective.
So, the fact that you are married puts you in a relationship of interdependence. You lean on each other as a married couple; financially and emotionally. The court said that the fact that you are not married does not translate into the fact that you are not interdependent. That is what the court basically said.
It would be discriminatory to say that because you didn’t choose to have the particular contract between you and your partner, you are not suffering from any dependence if your spouse dies in a car accident.
So, this particular marital status enter, indirectly, the list of analogous grounds.
We are expanding the list. It doesn’t of course come as a explicitly enumerated ground. It is an analogous ground – marital status is an analogous ground.
Egan v Canada [1995]
This is the denial of an old age spousal allowance to a same-sex couple. This is a same-sex couple case where there was a monthly benefit that couples were entitled to from age 60 to 65 if you are widowed from a pensioner that was a beneficiary under that particular plan.
The problem was that the spouse in this instance did not fulfil the opposite sex component that was required by the pension plan. That was found to be discriminatory under Section 15.
Sexual orientation was introduced as an analogous ground.
So now we have had a change in marital status and sexual orientation.
Thibaudeau v Canada [1995]
This was the income tax challenge. It was saying that in cases of divorce, the person who will be taxed for the alimony – for the spousal support – will be the one receiving the support.
We are married and we get divorced. I received millions of dollars from you, and I am taxed on the millions of dollars I received from you, and you get a tax exemption on this.
This case said this was, in its effect, discriminatory based on gender. 98% of support is received by women. That was because that was just the way that family courts adjudicated; they usually provide women with financial support protection because they were the ones that were the homemakers and not necessarily on the job market. Therefore, indirectly they were penalized for the fact that they were receiving spousal support, which was something out of their control, and being discriminated against for their gender as well. The fact the family courts did not take those facts into consideration when they were adjudicating on those issues was found to be discriminatory.
It was found to be an analogous ground. Meaning, a significant portion of the population – women receiving spousal support – were subject to discrimination.
Law v Canada [1999]
Here we have the federal Canada Pension Plan (CPP) that says survivor benefits are payable to the spouse of a deceased (contributory), but not under the age of 35.
If you are under the age of 35 you are not entitled to that particular benefit. Of course, the lady, Law, in this case is under the age of 35, and she brings a claim that the benefits have been withheld on the basis of her age – that is discriminatory under Section 15.
If we look at that particular case, it would have been enough for her to say ‘clearly I can identify one of the grounds’. Age is one of the enumerated grounds; she does not even need an analogous ground.
There is clearly a burden on her; there is a disadvantage imposed on her because she is not entitled to the benefits. Therefore, there is a violation of Section 15. She has proven enumerated ground, burden, and discrimination. Under Andrews this would have been enough.
Of course, however, it is not that easy.
Justice Iacobucci says ‘no’, there needs to be more than that to have a Section 15 claim. He says that discrimination needs to be evaluated with regards to a component that is important – human dignity.
“The law is discriminatory when it demeans an individual’s essential human dignity [through 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 worthy of recognition or value as a human being or as a member of Canadian society.”
Justice Iacobucci introduces “human dignity”.
We need to understand what he means by “human dignity”.
Iacobucci: “Laws are not discriminatory when they are sensitive to the needs, capacities and merits of different individuals, taking into account the context underlying their differences”.
Here, Law is young and under 35 years of age and she is more capable than other groups of people over the age of 35 of seeking new employment and bouncing back.
R v Kapp [2008]
This is where they changed the test. They substituted the “human dignity” test for the “discrimination test”.
The Court found that human dignity was too blurry of a concept. However, they ended up by replacing it with something just as blurry.
The fact that the human dignity test was abstract was overly burdensome on the equality claimant. This is because the burden is on whom when you make that claim at this stage of the analysis? It is for the claimant to find either an enumerated or analogous ground; it is for the claimant to find discrimination; it is for the claimant to find the human dignity impairment.
So, it is a lot of burdens placed on the claimant, especially when it is so broad and blurry.
The Court wanted to simplify this by asking two main questions:
Does the law in question create a distinction based on an enumerated or analogous ground? This is not really different from the Andrews case.
Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
Basically, what happens here is that we substitute “human dignity” for “discrimination”.
How did they do that? They took the pre-existing advantage and the nature of interest, and merged them together, along with ameliorative purpose. These three grounds become “perpetuation of disadvantage and prejudice”.
Correspondence becomes stereotyping.
When you need to understand, and what you need to remember, is the two questions.
1) Does the law in question create a distinction based on an enumerated or analogous ground? We will see what that entails in order to find this. You need to find whether or not you can tick the box of that list. Is there something in that list, or something similar to that list that is at stake here?
This question actually asks two sub-questions, because you also need to find a comparative group. We will see that later.
2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
Is there a burden; is there indirectly an impairment on the claim that is perpetrated by a prejudice, or by a stereotype?
Corbiere
This is the case about the fact that some off-reserve members of the First Nations were regulated differently than Indian bands on Reservations. So, they found that the Indian Act was an analogous ground for discrimination.
Basically, it required the ordinary person on the Reserve to be a resident on the Reserve in order to vote in the Band election. So, that automatically created discrimination. If you were an Indian person living off the Reservation, but you don’t know a say in the election of your Band…that is a bit of a problem.
A non-resident Band member brought a challenge under Section 15 alleging that residence was an irrelevant personal characteristic in which was depriving non-residents a voice in decisions that could affect them.
That was introduced an analogous ground.
This case is only brought forward to show you that the definition of ‘enumerated grounds’ can be expanded. However, we have seen that before.
Residence, citizenship obviously, is not something that you can strip yourself from. It is kind of something that is imposed on you. That is what the case said.
Hodge v Canada
This is again about the CPP survivor plan benefit, and this is where you have a opposite sex common-law spouse who claims that she would want to be benefiting from the fact that she is the survivor of a CPP contributor.
She had a relationship for 21 years, but it ended, and then the man died. In 1994, she wanted, after his death, to apply for Survivor benefits under CPP.
Her application is denied on the grounds that she was no longer the spouse. So, what did she do? They were common-law spouses.
She compares herself to a married couple, and she says that when you are married you are waiting for your divorce while being separated at the time, you are still entitled to the CPP benefit if your spouse dies in the meantime. In other words, there is still a marital link between the two people.
The lady in this case said that it was the same for her. Her partner died while they were separated, but technically they were still common-law married.
The court said no and was not an appropriate group (legally married couples) to compare to. The appropriate comparison group was actually divorced couples; that would be the appropriate comparative group.
This is because technically she was separated from her spouse; they had already severed the relationship. That is equivalent of already being divorced. Therefore, she was not entitled to the CPP benefits.
So, you need to understand that if you pick the wrong people to compare yourself to you can lose your Section 15 claim.
Auton v BC
This is where the comparator needs to be very alike the claimant; it cannot just resemble it. It needs to be identical.
And the difference needs to lack/look/law???? in the discrimination.
This case is about treatment that was provided to children suffering from autism. If there was a very particular treatment was unavailable in any other province. They compared it to another type of technology in treatment that was offered to children in that group, and they said that they were discriminated against because they were not provided the same services.
The court said no. This is because it was such a novelistic??? technology, you should have compared it to something that was a novelist??? treatment.
It is not as similar so you cannot actually make a case for determination here.
M v H [1999]
Finally there needs to be a disadvantage or discrimination.
Here we are talking about a same-sex couple. These two women were living together. One of them was actually more dependent on the other. They had bought a house together. They were living in it, and they were starting to advertise their own business within the house.
H’s contribution to the business was greater than M’s, who devoted most of her time to the domestic tasks around the house than to the business. So when the business failed because of an economic downturn, H was able to find other employment but M wasn’t able to.
So, after they broke up, M, who at the time was unemployed, commenced an action against H advancing a number of claims, including claims for support pursuant to family law.
M asserted that the definition of ‘spouse’ found in Section 29 (dependent spouse) was unconstitutional because it excluded same-sex couples and that the appropriate remedy was an extension of the definition to include same-sex couples.
The Supreme Court agreed that the first step of the two-step analysis – the two questions – of Section 15 were satisfied. The definition of ‘spouse’ resulted in the differential treatment on the basis of sexual orientation, a prohibited ground of discrimination.
What is very interesting here is that the court said, in the majority, that the objective of the legislation is equal resolution of economic disputes that arise when intimate relationships between individuals have been financially interdependent break.
So, there is no rational connection between the goal and the exclusion of same-sex couples.
Here they said – yes, it is not because you are two girls, or two guys, in a relationship that the interdependence of an intimate relationship is gone. It doesn’t matter what the gender of the couple is. What matters is the type of relationship.
If you are in an intimate relationship you are as valid a couple as somebody who is married and in an opposite sex relationship.
What is very controversial is the dissent. The dissent by Justice Gonthier is rather radical and horrible. It says that lesbians cannot form economically interdependent relationships like heterosexual couples because both partners are able to seek work afterwards.
So, according to him there is no potential vulnerability because you are in a same-sex couple relationship. At the end of the day, what he is implying here is that there is not going to be a family unit and no vulnerability; therefore both partners would be able to go out on the job market because they are actually just to individuals that happen to live together. Therefore, he pretty much said, it does not matter that they are excluded from that particular section of family law.
AG Quebec v Blaikie (No 1) [1979]
This was a controversial case. What you need to understand is the background behind this. This is 1979. In 1967 there was the introduction of the Bill that we called Bill 101. It was a bill that was introduced in Québec that said that French would be the official language, and nothing else would be accepted as the official language.
This Bill gave rise to this case, and also the Ford case which we will see later on.
It is a bit controversial because, as I just told you, there is a right to education, for example, and there is an underlying right to the official languages, and for the country to be bilingual.
What happened is that here the litigant said that the fact that a law was introduced to the national assembly only in French, and it was only a draft unofficial version of the bill in English, was enough to fulfil the requirement and not an infringement.
The court said no to this. It was an infringement of language rights. You cannot just have an official draft version in English; you need to have two official versions of that Bill introduced, and the final version of the law in two official languages.
Courts have to be bilingual.
The litigants may submit and plead either languages before the tribunal. That is interesting you can do whatever you want when you are introducing… A lot of people do that as a tactic. If you ever have interprovincial litigation and you are involved in the case, a lot of people like to trick the courts of Quebec and just introduce the pleas in English, because they know that they will piss off the other party. This is because most often times the other lawyers do not speak very good English. This is normally a bad call because normally the judge on the bench is a Francophone.
Here the tribunal can issue any document in either language. So, it is not forced to issue in English or in French, but English and French are equal in the courts and in tribunals.
That is the outcome of the Blaikie case.
Societe des Acadiens du Nouveau Brunswick Inc v Association of Parents for Fairness in Education [1986]
Here this case says that French and English are equal again. This is the case where they actually litigated on Section 19 of a New Brunswick Act. Then, going forward they had a panel of three judges…and one of the judges did not understand French.
The parties said that they had a right to present their proceedings in English or in French.
Justice Beats says that you don’t have a right to be heard; you can present your proceedings in either languages, but being heard in both languages is not a right.
That means that I can just argue my entire case in English in front of a judge, for example, in Quebec who speaks only French.
What I am I trying to say here…is it is part of a fair hearing and fair proceedings to be heard in both languages. It is part of a general and larger right…but the burden is not on the public power to have bilingual judges, because that is too bold of a policy move.
If you do impose a policy of having bilingual judges, that means that you need to offer training to all of the judges. At this point there’s a whole generation of judges who are not bilingual.
That is one of the reasons why there is no right to be heard in both languages. That is the outcome of that case.
Mahe v Alberta [1990]
There is a group of approximately 400 parents, with around 200 children concerned… They bring forward in action and say that their language rights were not respected because they were French-speaking. They wanted a proper French speaking school. They had no representation on the school board on of their English speaking school. They wanted a French speaking school, and they wanted some say in the management.
They go in front of the school board of the province. The province says ‘no’ and that they had no right, and that they were not going to receive a public school. They did not believe that there was enough students and that there is no such duty.
This case goes all of the way to the Supreme Court. The people argue that they had Section 23 rights, and they said that the purpose of Section 23 was to preserve two official languages, and the corresponding culture, whether they are minorities.
Since they were minorities in Alberta, they felt that there rights have been discriminated against and violated.
What happened was that Justice Dickson said that there is a right to receive education. However, he said that the number of children was not sufficient enough to sponsor a school, although he recognize that there is a right for them to receive their education in French.
Justice Dixon gave them full power with regards to the education of French and all French led education courses with regards to the School Board of the public school that they had in their city — Edmonton.
Where numbers warranted, Section 23 mandates management and control of school boards for parents.
So, where numbers don’t warrant a separate board, there can be representation on a school board.
The court said that they would not give them a separate school or a separate school board, but that they would still have sufficient representation nonetheless, despite not having high enough numbers of students.
However, jurisprudence says that 100 or more students is enough.
Ford v Quebec
This case is about a woman, Ford, and this is again a Bill 101 challenge where it was said that the official language of the province of Quebec would be French only, and signage should only be in French. She claimed that this is a violation of her Charter rights to language — she has a right to read both English and French.
So, here the Court simply held that freedom of expression include the freedom to express oneself in the language of one’s choice.
Because Ford, as a retailer, was forced to put her sign’s language only in French, and she didn’t believe in that; she wanted to put her sign in both English and French. The Court said that this violated her right to freedom of expression.
While Section 1 would have saved some of the law designated to protect the French language, the total prohibition of other languages on commercial signs and advertisement was a disproportionately severe measure that could not be saved under Section 1.
This is a very controversial case because we had Bill 101 which really prohibited any English language on any signage. After this particular litigation the court said no — you have to put both languages.
So, what the compromise has been is that you have ‘BONJOUR’ and underneath you have ‘Hello’.
