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
First wave decisions were bold
and assertive. The court turned
away from discredited Bill of
Rights case law, recognized new
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
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
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
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
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.
We want to hear from you!
Email us at: email@example.com
From minor drug case to a Charter landmark
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-
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.
Subscribe to The Lawyers Weekly digital edition and
Get 30 Weeks For $30*.
The Lawyers Weekly is celebrating Law Day, a national event honouring the signing
of Canada’s Charter of Rights and Freedoms, with a special, one-day offer.
ORDER your 30-week subscription for $30* on Tuesday,
April 17, 2012, ONLY!
on April 17, 2012, to take advantage of this outstanding offer.
* Plus applicable taxes, credit card payments only. New subscribers only.