Formal equality: treat likes alike
Social equality: everyone deserves equal treatment unless there’s a good reason to distinguish
-impugned: Law Soc of BC regulation requiring lawyers to be citizens.
-Mark Andrews: UK citizen, took law in UK, married a Canadian, wanted to practice in BC. Had to wait 3 yrs for citizenship. Claimed reg. violated S. 15.
-Andrews lost at trial, won in BC CA and SCC.
-McIntyre wrote opinion re how Ct would interpret s. 15:
-Formal equality approach rejected.
-Formal equality might justify differential treatment on account of race.
-Broader dn of equality in Charter a signal to adopt a social equality approach: “all … are recognized at law as human beings equally deserving of concern, respect and consideration.”
-Many laws distinguish, some legitimately. S. 15 prohibits discrimination, which is a distinction that imposes burdens, obligations, or disadvantages on an individual or group, or withholds benefits available to others, based on personal characteristics rather than merit or capacity.
-Prohibited personal characteristics include the enumerated grounds in S. 15 (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) or analogous grounds.
-McIntyre adopted the approach recommended by LEAF (Women's Legal Education and Action Fund, an intervenor)
-Once “discrimination” established, it’s up to party wishing to discriminate to justify under s.1.
-Is there discrimination against Andrews? All judges agree yes,
because citizenship is analogous to national origin, and a burden is placed
on non-citizens who want to be lawyers.
-Can the discrimination be justified under s. 1?
-Majority (Dickson, Wilson, L’Heureux-Dube, La Forest) No.
-Objective of citizenship requirement: ensure lawyers have knowledge of Can govt and commitment to it. Passes Part I of Oakes, but not rational connection test. Many citizens don’t have much knowledge of Can govt.
-McIntyre & Lamer dissented: this is a limit which is reasonable for the legislature to impose; courts should not second-guess legislature too closely.
-Impugned: section of Crim Code that allows those charged with murder in Alberta to opt for trial by judge alone, where in other provinces accused must be tried by judge and jury.
-Sharon Turpin & other accuseds in Ontario: claimed this provision violates S. 15.
-S. 11(f): right to a trial by jury does not imply a right not to have a jury.
-Wilson: the section violates equality before the law. However, there’s no discrimination. Accused persons outside Alberta are not members of the enumerated or analogous groups. S. 15 is aimed at minorities that have been disadvantaged because of unequal treatment.
Ontario Roman Catholic High School Funding Case (1987)
-S. 93 of CA, 1867: guarantees denominational school rights at Confederation.
-1915: Ontario decided to fund RC schools only to Gr 10. Challenged by Tiny Township RC school board. Lost in JCPC in 1928. In 1867, schools only went to Gr 10. Besides, Ont just regulating education, and the regulations didn’t result in undue hardship.
-1984-5: Cons gov’t extended funding to Gr 13, supported by Libs and NDP.
-S. 15 came into effect in 1985.
-Met Tor Sch Bd: claimed extension violated S. 15.
-Gov’t sent ref Q to Ont CA to settle the issue.
-S. 29 of Charter: preserves separate school rights, but Tiny decision said RC rights not violated.
-JCPC dec in Tiny overruled.
-As well, the Charter is not superior to other parts of the constitution. S. 93 & S. 15 are equal. “Bargain of confederation” has to be respected.
Schachter v. Canada (1992)
• S. 15 issues re S. 32 of Unempl Ins Act:
– Does availability of paternity leave for adoptive fathers (up to 15 weeks shared) and not birth fathers violate s.15?
– If yes, is the correct remedy (s.24) to “read in” birth fathers, even if this causes significant new expenditures?
• Schachter won in Fed Ct (trial div - Strayer J) and Fed Ct (Appeal Div)
– Clear violation of S. 15; no S. 1 arguments
– remedy (S. 24): give birth fathers the same benefits as adoptive fathers, even though this would mean significant additional expenditures
– decision considered by many as too “activist”
• SCC decision:
• Lamer’s (+4) test for remedy in positive rights cases:
– principle: least interference with leg.
– violation of Oakes Part I or II a): strike down under s. 52.
– Violation of Oakes Part II b) or c): reading in, selective severance, or strike down plus suspension.
• SCC agreed with Fed CA that there’s a Charter violation (still no S. 1 arguments)
• SCC overturned Fed CA decision on remedy
– appropriate remedy: declaration of unconstitutionality, and temporary suspension to give Parliament time to amend legislation.
– But suspension not necessary in this case, because in 1990, Parl provided equal treatment for fathers, mothers whether adoptive or birth, but cut leave to 10 wks to save money.
• La Forest & L’Heureux-Dubé dissented: Lamer’s test for appropriate remedy is too rigid.
Symes v. Canada, (1993)
• Issue: Does the limit to the child care deduction in ITA constitute discrimination based on sex?
– In early 1980s, limit then set at between $1000 and $4,000, depending on parent’s income. Symes actually spent between $10,000 and $13,500 per year between 1982 and 1985.
– Symes: not allowing the full cost to be deducted discourages women from working; thus, discrimination.
• Supreme Court: no convincing evidence that the impact of the limit to child care deduction results in an adverse effect on women, or that it impacts women more than men. Therefore, no convincing evidence of discrimination based on sex.
• All 9 judges heard this case. The two women judges, L'Heureux-Dube and McLaughlin, dissented. They argued that the cost of child care is disproportionately borne by women -- a violation of the equality guaranteed by Sections 15 and 28 of the Charter.
Thibaudeau & the Queen (1995)
– Income Tax Act forced spouse receiving maintenance payments to pay inc. tax, rather than the income earner.
– Most custodial spouses are women, and most women earn less than men; therefore this provision left more $$ in hands of divorced couples for child care.
– But Thibaudeau earned more than her former spouse, and wanted him to pay the tax, like married spouses.
• Majority (Sopinka, LaForest, Cory, Iacobucci, Gonthier): no violation of s.15.
• But McLaughlin & L’Heureux-Dubé dissented: violation of s. 15, & can’t be justified under s. 1. Objected to the gender stereotypes built in to the program.
• Feds expected to lose, and were surprised to win. Just after the SCC decision was announced, the gov't announced that it would amend the ITA anyway in the way that Thibaudeau had wanted, and happily took in the extra tax revenue. The gov't promised to earmark the additional revenue received for child support programs.