all right hi everyone welcome to our course i'm professor lord and as you saw for this course um we generally focus on public law you might have seen from the general course description that i i kind of moved away from what prior professors have done and this is a course that really focuses on public law specifically generally on section 15 of the canadian charter of rights and freedoms which guarantees the right to equality and most of our focus is going to be on section 15 for about two-thirds of the course and i think it's the most relevant um protection of equality in canada as we'll see there's various protections and in provinces and human rights codes but section 15 is really given some thrust to these provisions and to a large extent has caused their your creation in various provinces so first from the reading from this week there's nothing um that we're not that there's nothing important that we're not going to look at again over the course but still helpful to have kind of an overview of section 15. i think they're reading this that pretty well one thing to know about section 15 to start with is that it's really not used that much generally courts have seen it as kind of a nuclear bomb where it has a lot of potential right the protections are very broad and it's very easy to claim unequal treatment or discrimination when other rights are engaged so the result of that is when someone is claiming that the rights have been infringed on under the charter right generally they'll go to court prior to getting the supreme court they'll go to superior court then on appeal then they'll ask for permission and eventually get to the supreme court well they want the whole thing to work generally they'll claim that more than one of their rights was infringed and for the reason i just mentioned generally courts are going to find that it's better to rule under these other rights if someone says the right to life has been infringed generally courts will find an infringement under section 7 of the charter as opposed to section 15 because it's drafted very broadly and courts can be afraid of the presidential value of that right can be afraid that section 15 is going to trump other rights in the charter and is going to be successfully invoked every time you have section 15 it's reproduced in full um on the first page of your reading and it's relevant to look at it here in great detail you'll see from this course that every single word in there is extremely relevant first you have two sub-sections there to do two different things as we'll see 15 1 says you can't discriminate basically section 15 2 says well sometimes you can discriminate if you have a good reason we'll see what a good reason mean generally it means addressing existing disadvantage so legislator was likely worried of some problems in the united states with what we call substantive equality right basically giving rights to certain groups of people who've traditionally been disadvantaged and courts have found that that can be a violation of equality because essentially you're not treating everyone the same which is a conception of equality which we call formal equality as opposed to substantive equality which looks at more context which looks at historical disadvantage and the situation of people before you give them these rights and so the legislator was careful there to include that in section 15 2 and to say if you're trying to have what's called an ameliorative purpose if you're trying to correct existing inequality or disadvantage you're okay even though as we'll see you are in fact perhaps infringing upon the equality provision which is section 15 1. i'll read it out loud because it's worth it section 15 1 says every individual we'll see what individual means is equal before and under the law and has a right to equal protection and equal benefit of the law without discrimination right so equality generally means discrimination you don't treat people the same and you do that in a way that's illegitimate and in particular without discrimination based on and then you have a list of things what does that mean right and in particular so the list that comes after that is not what we call exhaustive they're examples it's not the only thing that you can discriminate upon it's a list again not exhaustive so you can go to court and claim something else race national or ethnic origin color religion sex age or mental or physical disability that is what the legislator wrote down in 1982 when they came up with the charter of course the way it's phrased courts have the ability to and did avail themselves that ability after 1982 to add to that list section 15 2 says again this is the ameliorative purpose there right when you can discriminate because you're trying to do something good next 52 says sex subsection one does not preclude any law program or activities it has as its object the amelioration of conditions of disadvantaged individuals or groups including again this is not exhaustive those that are disadvantaged because of and then you have the same list as in subsection 15 1. as i mentioned as we move down you have the statement that oftentimes these rights are protected in greater detail under provincial or human rights codes provincial laws or human rights code why is that you ask well it's because we have to be mindful here that it's section 15 of the charter which is part of the constitution the section also so the canadian charter of rights and freedoms says you have these rights which we think are very important and so we'll give them more value than any other law so someone tries to come up with a law that violates one of these enumerated rights the law is likely going to be invalid making things simple here and section 15 is part of that and so a law that violates this guarantee of equality and to be protected from discrimination if it violates that it is most likely going to be invalid but the charter only applies to essentially the government so it only applies to public bodies so there is no such thing as you going into a convenience store then someone treating you poorly and then you going to court and suing the convenience store clerk saying they discriminated against you the charter just doesn't work that way in the same way you can't claim that your other rights under the charter have been infringed upon by private individuals can't go to court and say someone infringed upon my right to liberty right might be a crime might go to jail for it but of course it doesn't mean that you can claim that they violated the charter and try to get damages specifically under the charter therefore that is where provincial laws or human rights codes come in generally they have a broader and better protection they don't just apply the public action which is not really that narrow to start with of course because it covers laws right it ensures that laws don't violate section 15 your quality rights but generally human rights codes and provincial laws are going to go further and cover your relationship to companies or relationships between two private individuals anything not having to do with a private individual and the government you have that at page two of the reading basically says the same thing in greater detail you also have a bit later on the fact that corporations do not have section 15 rights because section 15 says persons generally that's what the charter says even though it doesn't necessarily say it explicitly in section 15 a moral person right a corporation's a moral person under the law has many of the same attributes as a person but you're told corporations don't have section 15 rights and you have this idea that i already discussed a bit of substantive equality so what does the quality mean right because section 15 says you have a right to be treated essentially equally and without discrimination what does equality mean a substantive conception so again not just treating everybody the same but ensuring that people are treated the same effectively when taking into account various circumstances including historical disadvantage that some groups might have faced what's the test for that well it's in the case called law which we'll read i think um for for the next session or next week um and you have a a framework there that's basically not particularly complicated right first step is stir distinction right distinction between different people different groups people and second is it discriminatory so it's is it based upon the things we said right race color and so forth right race disability right the list that we saw in sections in sub sections 15 1 and 2 is the distinction based upon that then of course you still have section 15 to the kind of catch-all there right so even though you do have a distinction right after you've shown that there's a distinction and even that it might be discriminatory right it's your burden as we'll see if the person going accord the person saying you've infringed upon my rights you have to show that it's not true by default well then after you've shown that the government can still use section 15 2 and say yeah it's discriminatory but we got a good reason namely that we're trying to do something good having to do with making people more equal and then the burden is on the governments the government wants to invoke section 15 tuesday we'll call it a defense not exactly true but as it defends to as a reason for that infringement it is for the government to meet its burden of proof and show that then you have a statement that the analysis is contextual and comparative essentially right we consider the the specific facts of each case and each case is going to turn on its own facts it's significant because initially right in in the early cases around the 90s we had a requirement to compare so we had a requirement to come up with this imaginary or somewhat artificial group of people who were in the same position as the person claiming discrimination except for the specific characteristic based upon which you know they were alleging discrimination and that led to all sorts of problems no it's not exactly true right we that changed um after cap and and with various other cases that kind of redefine that which will read on either wednesday or next week and that remove that that focus on the comparator group and even though the section um even though section 15 remains what they call inherently comparative right in the sense that discrimination or inequality means you're being treated differently than someone else right the someone else we don't focus on that much right we don't draw artificial boundaries and try to be very specific it's to who that someone else is and why it is that you are different from them then you have a statement page four right the burden as i said lies upon the claimant as i said if you're alleging discrimination you have to prove that and what is your burden of proof well generally you're going to have to consider various facts as i said and generally that's going to mean reducing evidence so basically right the reading tells you if you're not saying something and that's just me kind of rephrasing it a bit here but if you're not saying something that is obvious you'll have to prove it so if you're saying right that say deaf people have a harder time hearing things that's going to be considered obvious you're not going to have to come up with scientific studies that say deaf people can't hear however if you're saying something more nuanced or if you're saying something like well deaf people have a harder time accessing the job market and therefore they tend to be poorer than most people right it's going to be kind of an indirect right statement well in that case you'll generally have to reduce we call social evidence you'll have to reduce evidence that that's actually true and generally it's going to mean evidence that links these two characteristics of the groups you're claiming together right this is there is a relationship between being deaf and being economically disadvantaged so back to this framework that i discussed right under section 15 1 right as i said two things you have to show a distinction that's all going to be expanded upon in the readings of course right through the next couple sessions so first the distinction second has to be discriminatory based upon the list of things that we saw in subsections 15 1 and 2 or some other analogous grounds something similar that wasn't mentioned because as we said the list isn't exhaustive and that means also right that you don't have to directly have an impact upon the person right so of course if you have a law that says right you will get social assistance unless you're a jew what's a law that is on its face discriminatory right so the text of it says we treat jews differently right you don't have to dig around it's written in there it's what we mean by on its face it's going to be a law that is in itself discriminatory of course often times right governments aren't that dumb right governments aren't going to write such a law because they know that they'll get struck down and often times also because of the ways in which right our identities are created because of the ways in which various things kind of combine to create who we are right how various things also interrelate how race interrelate with gender and social status to create someone's identity but also to create the barriers that people face in their lives well as a result of that oftentimes the law will be discriminatory not on its face but based on its effect so the law in effect is going to treat people differently right the example you have is if people have to take saturdays and sundays off well if your religious holiday is not on a saturday or sunday of course it's going to impact you in a different way it's going to impact your ability to practice your religion in a way that is not true for people who are who are who have their religious holidays on a saturday or a sunday so that's to apply the framework i just mentioned first a distinction right and again these are all things that we'll look at in greater detail but first a distinction simplifying things that is discriminatory and discriminatory means you'll see my handwriting doesn't get much better over the semester the distinction is discriminatory which means basically based upon either the list of things that we saw or something similar you see on page six of the readings some grounds that were held by the supreme court to be analogous why is that relevant because once the court says it once you don't have to prove it again so if the court says right someone comes to court and says i've been discriminated upon based on my marital status right how does that apply well say there's various laws that say you get a pension if your husband dies but only if you are married it's very common right well if you are not married there's a distinction upon marital status that has an impact on you namely that you don't get the money the court says in a case straight marital status is an analogous ground so not one of the things that are listed in 15 1 and 15 2 but similar enough and so it counts it is one of the things that you can discriminate upon once the court says that you're good you don't have to prove it again so in subsequent cases right you don't have to again say that marrow status is an analogous ground once the case law says it is it is it's really as if it had been written down in the list in 1982 by whoever wrote down the list of course you'll still have to show that there is indeed discrimination on the facts based on marital status right but you don't have that preliminary step you also have things there that are not right analogous grounds generally things having to do with what the court considers overly indirectly so poverty the court says this is highly debatable but the court says not as much of an immutable characteristic something that's that you can't really change or that you can't change without it not making sense without the effort making no sense where it says this is not the kind of thing poverty is not the kind of thing that that is an immutable characteristic same for professional occupation prisoner status as well is not an analogous ground kind of surprising um when you think of the criteria i just mentioned then you have a list of factors that we'll see in greater detail in a case called law right so the lady in that case her last name was vaughn so that's what the case is and essentially right page 8 of the reading you're told these things don't really matter and they're particularly confusing and so the reason i'm mentioning them here is to tell you to basically ignore them so the chord sent out and again we're under section 15 1. so in determining whether there is discrimination in the first place before section 15 2 the government comes in and says well we got a good reason right so before that whether or not there's discrimination the court says there's four factors four contextual factors and they're still useful as we call interpretive aids so stuff that you can look at to try to see whether there is a violation so there's still things that you can look at generally commonsensical things that you can look at they're not things that you have to look at or things that where you don't meet one of the four things then it's not discrimination it's just indicative not mandatory and what are these right pre-existing disadvantaged of the person or the group kind of makes sense right degree of correspondence between the treatment and the group basically write discriminatory distinction see whether it has an ameliorative purpose and that's where it gets confusing if that's basically section 15 2 which the court seems to have gone wrong and which is now a distinct aspect of the analysis as i said basically a defense or rebuttal government can come in and say well we got a good reason so it is no longer accurate to say that it's a factor under the preliminary right the the discrimination part which is section 15 1. indeed the nature of the interest affected right whether whatever you're taking away is important so my pension example right taking away someone's right to get money for um for their entire lives until they die well the interest affected is significant because the person is losing something very important to them namely money until they die and you have these factors right which are expounded in greater detail there's nothing important there particularly even though it does give you a sense of what discrimination means right so discrimination is the sense of not treating people with you know in a fair and equal way in a way that preserves their human dignity right their ability to be treated like people right like animals not like trees not like lamps like people right having a respect for that aspect of human life we're also told that stereotypical distinctions are often discrimination which makes sense right so taking characteristics and blowing them out of proportion or making a distinction based on a historical aspect or characteristic is generally going to amount to discrimination then you're told that page 10 essentially what i just said the part where they get the sections wrong is no longer the law in canada finally the framework under section 15 2 so that ameliorative purpose i've just mentioned that defense right the government's saying it is discrimination but we got a good reason we're trying to do something good and something good having to do with section 15 something good having to do with right creating more equality and less discrimination and therefore you should allow it the typical example of that is as i said right if a group has historically been disadvantaged the government provides them specific benefits to try to account for that historical disadvantage and as we said earlier right they work together to promote substantive equality right so we set substantive equality underlies section one so in determining under section 15 1 subsection 1 sorry whether there is discrimination we consider substantive equality we don't consider whether people are treated the same we consider whether in effect they are being treated the same well section 15 2 is also underlined by that purpose because it says rate if the government is trying to provide specific benefits to further equality and reduce discrimination right we allow that under section 15 2 and that amounts to furthering that same vision it's of substantive inequality again we have a two-step test under section 15-2 which we'll again look at in greater detail right basically right the program has to do something having to do with section 15 2 so amelia rate and second rate it has to target the group of people so this is important because rate first it has to have an ameliorative what purpose and we'll see it's significant because it means the government doesn't have to actually do it and generally of course when you pass a law right you don't know for sure if it's going to work yet and so the government has to go to court the next day and try to prove that the law is consistent with the charter well the government might have trouble doing that because even though the law will work there's no there's not yet any proof that it does so what we look at is the law's purpose so the government can't just say we're trying to do something that's not enough right but once there's a good sense that there is indeed a reason to believe that the government's trying to do something good right they didn't just say it it makes sense then we don't look at whether the law actually works right actually achieves that purpose the significance an ameliorative purpose second right the program targets the groups again the groups we mentioned based on enumerated or analogous grounds enumerated being the ones we saw in sections 15 1 and 2 right race mental ability and so forth and analogous grounds being right the ones that are added by courts subsequently because as we said the lists are not exhaustive significant though 100 i'll underscore it again under the second part there right you can't target say white caucasian people you have to target people in the list or in something kind of like the list and so section 15 2 doesn't serve to pass laws that help some people they serve to pass laws that help some people who have been historically disadvantaged generally based on the list of things that we saw in the text of section 15 2. so that kind of narrows the scope of what you can do with section 15 2. even though you might be trying to do something very good and that further is equality for caucasian people it's not enough because there's no historical disadvantage so section 15 2 is not going to save you there then there's a distinction that's drawn in the reading with section one of the chart which is something that really comes up in all of our courses but we never really look at in great detail section one says you can infringe basically any right it's not actually true but for our purposes it is under the charter for some reason right because of course governments are going to infringe upon people's right quite often right if you put someone in jail then you're really taking away all their rights right they're like the life liberty security the person lots of rights but still we're allowed to put people in jail because we think we have good reasons for that it's under section one so section one says right has an external limitation some rights have an internal limitation section seven is an example so section seven is gonna say right you have a right to life liberty as i said except for right we call principles of fundamental justice second right you have an external limitation under section one so all the rights right except for some that don't have an internal limitation and those that do right have a further limitation you can infringe upon under section one section one allows the government to infringe upon all these rights there's tests right that we under a precedent called oak right that essentially looks at right whether the government's trying to do something good right so generally the government has a purpose there has to be what we call a rational connection between the purpose and the intent right what the government's trying to do and on top of that right it has to be proportional so the government can't right try to say prevent two crimes by putting everyone in jail for 10 years minimum it's not proportional even though of course it might be rational the connection might be rational right might be a way to prevent the two crimes it's not a proportional way to prevent the two crimes it's the test under the precedent evokes which we call the oaks test what's important here is the the the same word is being used under section 15 2 right so section 15 2 under the ameliorative purpose is going to look at whether there's a rational connection between what the government's trying to do so as i said right it's not enough for the government to say we're trying to solve inequality it has to make sense it doesn't have to be proven right that it does but it has to make sense and we look at whether there's a rational connection basically whether the law seems to be irrational a sensical way to do that to combat inequality and discrimination so that in some way right for our purposes as is emphasized in the reading is a limitation of some kind right so not any law a lot it has a rational connection and confusingly we won't look at that in great detail so i'll go to mention it because it is the same word section one also requires basically the same thing section one again to limit the right so including section 15. there's a discriminatory law that violates section 15 well then you can go under section one and say well we got a good reason right well one of the things required for it to be a good reason is a rational connection between what i call the intent and the purpose so the the the intent and the what the law is effectively trying to do so the law does and what the law tries to do there has to be a rational connection and the same is true under the framework for section 15 2.