The Lawyers Weekly - April 13, 2012

Supreme Court is
conflicted on what s. 15
provisions should mean

In the 30th anniversary year of the Charter (but only the 27th anniversary of section 15) equality rights remain a puzzle.

Equality jurisprudence seems to arrive in waves. The first was in 1989 with Law Society of British Columbia v. Andrews. There, the Supreme Court rejected “ similarly situated” analysis as an incomplete account of equality as a constitutional value. Section 15 has both formal and substantive aspects. Most laws draw distinctions between persons, and such distinctions are not presumptively unequal. Section 15 prohibits those distinctions, intentional or not, which impose burdens or withhold benefits on the basis of irrelevant personal characteristics.

First wave decisions were bold and assertive. The court turned away from discredited Bill of Rights case law, recognized new

CARISSIMA
MATHEN

analogous grounds of discrimination, and insisted on a robust section 1 standard.

The second wave began in 1999 when, after a period of internal fracturing, the court regained a single voice and identified section 15’s purpose as preventing violations of “essential human dignity.” Yet the price of unanimity was doctrinal incoherence and an extremely complex framework. Section 15 began to resemble section 7 — with most of the work occurring at the prima facie stage and almost none at justification. The second wave also was marked by a shift in equality litigation with far more challenges against large benefits programs. Perhaps as a response, the court developed a stringent approach to “comparator groups” which proved a difficult hurdle for equality claimants.

The third and final wave began in 2008 and now includes the cases of Kapp, Withler and Cunningham. Though arising in distinct areas (Aboriginal fishing rights; pension benefits; and Metis status) they reflect a blend of first wave rhetoric and second wave pragmatism.

In Kapp the court stated that “human dignity” was no longer the focus of a section 15 claim. Instead, discrimination requires a showing of disadvantage stemming from laws that either perpetuate prejudice or stereotype. The actual dispute in Kapp was resolved under section 15( 2) (affirmative action programs). Rejecting second wave case law which had treated section 15( 2) as a mere interpretative device, the court said that section 15( 2)’s protection operates independently. So long as the state can demonstrate a program rationally ameliorative of group-based disadvantage, the equality claim will fall.

In Withler and Cunningham, the court addressed some questions from Kapp while raising others.

In Withler, the court said that pinpointing a “mirror” comparator group was no longer necessary. Yet the court declined to cast doubt on second wave decisions which had relied heavily on that approach. Comparison has not disappeared, but it must be incorporated into a contextual analysis that takes account of all the circumstances. An important circumstance, it seems, is the underlying legislative goal (a section 1 consideration now explicitly considered under section 15). The court warned that an equality claim directed at a large scale benefit program must account for the reality that such programs are designed to benefit a number of different groups and necessarily will draw lines. The law’s impact on the particular group must be assessed in terms of its entire operation.

Finally, in Cunningham, the court left no doubt that the deferential approach to affirmative action programs is firmly entrenched. In particular, no particular proof is required that an ameliorative program will work.

The government need not solve all disadvantage associated with a particular group at once. Thus, equality no longer offers much protection to those left out of ameliorative programs.

The Chief Justice has termed equality “the most difficult right.” And to the extent that it uncovers deeply held assumptions and prejudice, it surely is. But the last 27 years also have shown the particular challenges in applying an equality guarantee drafted in response to early forms of discrimination to a modern welfare state. The Supreme Court has been cautious. One hopes that it will regain some of its initial boldness and recognize that some of the most trenchant equality issues can arise in otherwise positive programs, that it matters deeply who counts, and who is left out. n

Carissima Mathen is Associate Professor of Law at the University of Ottawa.

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From minor drug case to a Charter landmark

GEOFF ELLWAND

The Supreme Court of Canada decision in R v. Oakes is widely considered the most significant ruling in the first 30 years of the Charter of Rights.

Below, the story about the people behind the case and how a seemingly innocuous arrest led to a decision that sets out the test for section one of the

Charter (this is a condensed version of an article originally published in The Lawyers Weekly on May 20, 2011).

This vastly influential and far-
reaching test grew out of a routine
drug arrest in Ontario. In Decem-
ber 1981, 23-year-old David Edwin
Oakes, an injured construction
worker, was approached by a uni-
formed police officer while sitting
in his car with a woman outside
The Barn tavern in London. In
one pocket police found $619.45,
and in the other there were eight
one-gram vials of hashish oil.
Oakes said at the time, and main-
tains today, that the oil was for
his personal use and the money
came from a worker’s compensa-
tion payment.

Oakes was charged under s. 8 of the old Narcotic Control Act. The Act required that the prosecution prove possession. Once that was done, accused persons were considered guilty of trafficking unless they could prove otherwise. Oakes’ lawyer, Geoffrey Beasley, argued that this offended

See Landmark Page 23

GEOFF ELLWAND FOR THE LAWYERS WEEKLY

Geoffrey Beasley was just out of law school when he first represented Oakes.

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