POLI 478 Lecture Notes - Lecture 9: Affirmative Action, Judicial Restraint, Auton
12 Jun 2018
School
Department
Course
Professor
Equality Rights
s.15 understood as potentially intrusive section of Charter: legislation makes distinctions by its nature →
constitutional guarantee of equality could make certain laws vulnerable.
• Equality rights sections delayed from coming into force until 1985: to allow gov. to amend laws
• Two parts to s.15:
o s.15(1): equality guarantee
o s.15(2): exempts affirmative action programs from s.15(1)
▪ Context: high-profile debates in US re. affirmative action (trend that they were
found unconstitutional) - interest groups wanted to avoid a similar situation
• s.15(1) provides 4 types of guarantee: equality before + under law; equal protection of + benefit
under law without discrimination - applies to individuals, not groups
o i.e. there might be permissible inequality under law – as long as it does not discriminate
o Enumerated grounds of discrimination listed
▪ Concern from interest groups that jurisprudence might devalue some grounds,
which are harder to justify, e.g. sex?
• Contrast to age – easie to justif + oe diffiult to attak: a life-cycle
tait hih ill appl to eeoe at soe poit
Lawyers = first group to get to SCC under s.15, with Andrews v. LSBC (1989).
• Issue: did LSBC require citizenship as precondition for practice of law in BC?
o Ades lai e. ieualit ased o itizeship, a goud hih does ot epliitl
appear in s.15
▪ He as a Bitish hite ale lae: ot eatl a oppessed litigat
Andrews was significant in SCC s.15 jurisprudence for two reasons:
1) Jurisprudential development: SCC had to try to try to figure out - what are discriminatory
inequalities? What to do with an inequality claim not in the text of the Charter?
• Two main avenues of thought:
o Court should treat all distinctions based on s.15(1) as discriminatory
▪ View taken by most of legal community
o Discrimination not inherent in s.15 – only some inequalities are discriminatory
▪ i.e. laiat had to poe oe tha just a distitio
• Court spent next decade trying to understand what discriminatory inequality was
2) Addressing whether Court had authority to add prohibited grounds of discrimination to s.15(1)
• Yes: the phase in particular i s.151 suggests that eueated gouds ae sipl a
illustrative order – other, aalogous gouds might also be identified
SCC decision in Andrews: citizenship added to list of prohibited grounds of discrimination via
development of these analogous grounds.
• Certainly a case of SCC judicial activism – ut a stage hid of itepetiist + o-
interpetiist Mafedi
o Judicial restraint exerted in defining discrimination, but Court also gave itself authority
to add analogous grounds
• Nonetheless, SCC has not recognized many analogous grounds since 1989:
o Citizenship (Andrews)
o Marital status (Miron v. Trudel, 1995)
o Sexual orientation (Egan, see below)
o Off-reserve Aboriginal status (Corbiere v. Canada, 1999)
• Court also held that discrimination could be direct/indirect: law could discriminate in its effects
find more resources at oneclass.com
find more resources at oneclass.com
o Direct discrimination in Andrews, but reach of s.15 still expanded
Grouping of s.15(1) cases: direct discrimination-analogous grounds cases most successful.
Direct
Indirect
Enumerated grounds
- Law (age, N)
- McKinney (age, N)
- Tetrault-Gadoury (age, Y)
- Benner (sex, Y)
- Adler (religion, N)
- Kapp (ethnicity, N)**
- Eldridge (PD, Y)
- Auton (PD, N)*
- Weatherall (sex, N)
- Symes (sex, N)
- Thibaudeau (sex, N)
- Rodriguez (PD, N)
Analogous grounds
- Andrews (citizenship, Y)
- Egan (sexual orientation, N)
- Vriend (sexual orientation, Y)
- M v H (sexual orientation, Y)
- Corbiere (Aboriginal, Y)
- Miron (marital status, Y)
* case transformed from indirect to direct discrimination
** brought under s.15(1), but decided under s.15(2): treated as affirmative action
A Sexual Orientation Trilogy
Cases on s.15 coverage of sexual orientation show remarkable change in law in short period of time.
Egan v. Canada (1995): added sexual orientation as analogous ground under s.15(1).
• Old Age Security Act only provided spousal benefits to opposite-sex couples: Egan + Nesbitt, as a
same-sex couple, challenged this
• SCC unanimous that sexual orientation = AG, but split on discriminatory inequality (5-4)
o However, it split 4-5 on whether the Act was a reasonable limit under s.1 → upheld
opposite-sex definitio of spouse ude Act, based on legislative purposes
Vriend v. Alberta (1998): ruled that failure to prohibit discrimination on grounds of sexual orientation
violates Charter.
• Vriend fired from his job for gay rights activism: argued that Alberta Individual Rights Protection
Acts failue to potet hi = ostitutioal iolatio
• SCC unanimously ruled on violation (8-0): majority (7-1 deised eed of eadig i seual
orientation into Act
M v. H (1999): definition of spouse in ON Family Law Act extended to same-sex partners.
• M + H were a lesbian couple; after their relationship ended, M threw H out → H sued M for
spousal support
• Context: failure of Bill 167 (same-sex recognition) in ON legislature
• SCC majority struck down litigated sections of the Act (8-1), but notably emphasized non-
appliailit to defiitio of aiage
3 key features of M v. H:
• Mootness: by the time SCC decided case, M + H had reached settlement
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lawyers = first group to get to scc under s. 15, with andrews v. lsbc (1989). Scc decision in andrews: citizenship added to list of prohibited grounds of discrimination via development of these analogous grounds: certainly a case of scc judicial activism (cid:271)ut a (cid:862)st(cid:396)a(cid:374)ge h(cid:455)(cid:271)(cid:396)id of i(cid:374)te(cid:396)p(cid:396)eti(cid:448)ist + (cid:374)o(cid:374)- interp(cid:396)eti(cid:448)ist(cid:863) (cid:894)ma(cid:374)f(cid:396)edi(cid:895) Grouping of s. 15(1) cases: direct discrimination-analogous grounds cases most successful. * case transformed from indirect to direct discrimination. ** brought under s. 15(1), but decided under s. 15(2): treated as affirmative action. Cases on s. 15 coverage of sexual orientation show remarkable change in law in short period of time. Egan v. canada (1995): added sexual orientation as analogous ground under s. 15(1). Vriend v. alberta (1998): ruled that failure to prohibit discrimination on grounds of sexual orientation violates charter: vriend fired from his job for gay rights activism: argued that alberta individual rights protection.
