Editor’s Note
ABlawg is pleased to announce the launch of our second ebook on equality rights. Our ebooks will be accessible from a new tab at the top of the ABlawg website, and each ebook will be introduced with a post that will go out by email, RSS feed, and Twitter to our subscribers. Each ebook will have a table of contents with hyperlinks to the collected posts and will be fully searchable.
If readers have ideas for ebooks in particular areas or other feedback on this initiative we would be pleased to hear from you.
The introduction to this ebook is by Jonnette Watson Hamilton and Jennifer Koshan. We also thank Evelyn Tang (JD 2016) for her hard work in producing the ebook.
Introduction: By Jonnette Watson Hamilton and Jennifer Koshan
The Supreme Court of Canada has developed three different analytical frameworks for the analysis of claims under section 15 of the Canadian Charter of Rights and Freedoms since the equality guarantee came into force just over thirty years ago. During the first era, 1989 to 1999, Andrews v Law Society of British Columbia, [1989] 1 SCR 143, was the leading case. Between 1999 and 2008, the test crafted in Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 prevailed. The third and current era began in June of 2008 with the Court’s decision in R v Kapp, 2008 SCC 41. Kapp simplified the test for determining whether there has been a violation of section 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? — and created a separate approach to claims under section 15(2). Although there was no ABlawg post on the Kapp decision when it was first released, most of the posts focusing on the Charter’s equality guarantee are comments on the application of the Kapp analytical framework. For a review of Supreme Court section 15 equality jurisprudence from Andrews to Quebec (Attorney General) v A, 2013 SCC 5 (CanLII), readers are referred to Jennifer Koshan and Jonnette Watson Hamilton “The Continual Reinvention of Section 15 of the Charter” (2013) 64 University of New Brunswick Law Journal 19, available on SSRN.
When it was first handed down, it was not clear that Kapp did set out a new analytical framework for all Charter equality claims. The case very deliberately set out a new approach to section 15(2), the affirmative action subsection. However, the Court’s brief comments on the approach to section 15(1) initially had little impact on lower courts. Re-reading the posts written in the two years immediately following Kapp offers numerous reminders that courts were still using the test from Law v Canada. See, for example, Differential Treatment of Equality Law post-Kapp, commenting on Woodward v Council of the Fort McMurray No. 468 First Nation, 2010 FC 337 (CanLII) and the trio of posts about the Alberta Court of Appeal decision in Morrow v Zhang, 2009 ABCA 215 (CanLII): Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries and Supreme Court denies equality claimants leave to appeal insurance cap. A post about the Supreme Court’s 2009 decision in Ermineskin Indian Band and Nation v Canada, 2009 SCC 9 (CanLII), argued that decision made it clear that the legal framework for analyzing section 15(1) claims would be very different than it has been for the past decade: The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges.
By January 2010, Kapp’s status had solidified enough that it was nominated on ABlawg as the leading equality rights case of the 2000s: A Vote for R v Kapp as the Leading Equality Case of the Past Decade. And so it has proven to be, with the addition of two further Supreme Court decisions elaborating on the framework for section 15(1) claims and one decision concerning underinclusive section 15(2) claims.
With respect to section 15(1), the Court’s decision in Withler v Canada (Attorney General), 2011 SCC 12, can be seen as a companion case to Kapp. Numerous ABlawg posts comment on Alberta cases that applied — or misapplied— the Kapp/Withler framework. See, for example, Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights, A Vital Judgment: Upholding Transgendered Rights in Alberta, and Fowl Play? A Look into Recent Canadian Reform Efforts for Backyard Chicken Legislation. For an extended critique of the Withler decision itself, see Jennifer Koshan and Jonnette Watson Hamilton, “Meaningless Mantra: Substantive Equality after Withler” (2011) 16:1 Review of Constitutional Studies 31, available on SSRN.
The Supreme Court’s second major elaboration of the Kapp approach can be found in Quebec (Attorney General) v A, 2013 SCC 5, commented on in Roundtable on Quebec v A: Searching for Clarity on Equality. That case expanded the approach to discrimination beyond Kapp’s focus on prejudice and stereotyping, but also referenced “arbitrary discrimination”, which became an emphasis in the Supreme Court’s latest section 15(1) decision in Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII); see The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness.
As already mentioned, Kapp was clearer in instituting a new approach to section 15(2), giving that section independent status to protect ameliorative laws, programs and activities For a comment on a case applying the new approach from Kapp to save the Aboriginal Court Worker Program under section 15(2), see Access to Justice and Representation by Agents.
The question of whether that new approach to section 15(2) would also apply to claims of underinclusive ameliorative programs was answered in the affirmative in Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37 (CanLII). A series of four ABlawg posts commented on the Alberta Court of Appeal decision in that case —the first judgment of the Court of Appeal to consider section 15 since Kapp — as well as the appeal to the Supreme Court of Canada: Evidence of Amelioration: What Does Kapp Require of Governments Under s.15(2) of the Charter? What Will Courts Permit?; Another Take on Equality Rights by the Court of Appeal; Leave to Appeal Granted by the SCC in Métis Status Case; and Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham.
In addition to collecting the cases that apply and extend the Kapp framework, the compilation also brings to light a few themes. Topics include the extension of the equality guarantee to grounds analogous to those enumerated in section 15; adverse effects discrimination claims challenging facially neutral laws; and the Supreme Court’s preference for deciding cases on section 2 or section 7 grounds, rather than under section 15.
A fairly large number of the cases featured in this collection focus on one particular aspect of the first step in the Kapp test: (1) Does the law create a distinction based on an enumerated or analogous ground? The contentious issue here is often whether a new ground on which a claim is advanced is analogous to the grounds enumerated in section 15. Two posts celebrate anniversaries of the Supreme Court’s decision in Vriend v Alberta, [1998] 1 SCR 493 — Vriend Ten Years Later and The Vriend Case 15 Years Later — and remind us that sexual orientation had to be recognized as an analogous ground. The issue of homelessness as an analogous ground is discussed in Should Homelessness be an Analogous Ground? Clarifying the Multi-Variable Approach to Section 15 of the Charter and Can the Homeless Find Shelter in the Courts?. Whether the status of stepchildren could be an analogous ground was the question in Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights and whether the status of parent should include a non-biological gay male who intended to be a parent is discussed in Non-biological Father from Separated Same-Sex Couple Declared a Legal Parent. As noted in A Vital Judgment: Upholding Transgendered Rights in Alberta, section 15 claims can include multiple, intersecting grounds of discrimination, some enumerated and some analogous, such as sex, mental or physical disability, gender identity, and transgender status.
Some of the claims under section 15(1) have been adverse effects discrimination claims, rather than claims of direct discrimination. In an adverse effects claim, the challenged legislation is neutral on its face and, as a result, evidence linking the legislation and the adverse impact is often a stumbling block for claimants. Notably, two 2015 judgments of the Supreme Court includes adverse effects section 15 claims: Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) and Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII). The Carter case was decided by the Supreme Court on section 7, rather than on section 15, but the equality claim made and allowed at the trial level was the subject of two ABlawg comments: Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?, and Supreme Court of Canada Strikes Down Ban on Physician Assisted Death. The Supreme Court did decide the Taypotat case on section 15, the only Charter claim brought in that case, as discussed in The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat and The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness. Another adverse effects case that failed because the evidentiary record was found to fall short is noted in National Day of Remembrance and Action on Violence Against Women and the Failed Challenge to the Repeal of the Long Gun Registry.
A number of the posts comment on the Supreme Court’s preference for deciding cases on claims other than those brought under section 15. Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?, for example, acknowledged that the Court was far more likely to decide Carter on section 7 grounds. The post on Teaching Bedford: Reflections on the Supreme Court’s Most Recent Charter Decision, also speaks to the relative success that section 7 claims have had in the Supreme Court in comparison to the lack of success of section 15 claims. The Supreme Court decided Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 on freedom of religion, spending only one paragraph on the section 15(1) claim: see Security Trumps Freedom of Religion for Hutterite Drivers. Nonetheless, Hutterian Brethren has been cited numerous times by the Supreme Court and other courts as a leading precedent on section 15.
Finally, it should be noted that we have not included posts about the exclusion of farm workers from Alberta labour and employment legislation even though section 15 arguments were made in some of those posts; see, for example, The Statutory Exclusion of Farm Workers from the Alberta Labour Relations Code. The primary hurdle for a section 15 challenge in this context is to establish occupational status as an analogous ground, and the Supreme Court has not been receptive to such arguments in the past — or in 2015. See The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta. The posts commenting on the farm workers exclusions will be collected in a separate ebook.
This ebook is organized chronologically by date of post (oldest first) except that we have grouped together trial and appellate decisions so that any appellate decisions are printed immediately after the trial or first instance decision, as are other related posts. Where appropriate the text also includes any commentary and response received on the individual posts. There is no index to the volume but it should be readily searchable in this electronic form using key words and the “find” function in Adobe Acrobat or a similar program.
We are responsible for the selection of posts for this ebook. Evelyn Tang (JD 2016) is responsible for the hard work of weaving this all together.
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