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3136 Final Exam Review

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York University
Political Science
POLS 3136
Ray Bazowski

Review for 3136 Final exam Equality Rights (section 15) Andrews v. Law Society of British Columbia (1989) was the first s. 15 case to reach the Supreme Court. Issue: *whether the requirement of Canadian citizenship for admission to the British Columbia bar is an infringement upon or denial of the equality rights guaranteed by the s. 15(1) of the Charter. * and if so, whether it is justified under s. 1 McIntyre wrote for unanimous court on the interpretation of s. 15. The court stated that the discrimination must be based on an “enumerated(race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability) or analogous grounds,” and the individual seeking to strike down a law must demonstrate the existence of differential treatment based on either of the two grounds. From there the onus shifts to the Crown who must show that the law is justified under s. 1. The Court held that citizenship qualified as an analogous (to national or ethnic origin) ground of discrimination. The "Andrews test" asked two questions: 1. Has the law made a distinction based on personal characteristics (either those listed in s.15 or characteristics that are "analogous" or like the characteristics listed in s.15). 2. Has there been discrimination, within the meaning set out above? Thibaudeau v. Canada (1995) – marital status The claimant was unable to establish that she had suffered a disadvantage by reason of her marital status. She argued that the tax provision discriminated against separated custodial parents, because in an intact family the income tax on money spent on child support would be paid by the spouse who earned the income. The SCC by the majority of 5 to 2 held that Section 56(1)(b) ITA does not infringe the equality rights guaranteed by s.15(1) of the Charter. Cory and Iacobucci JJ: * the group of single custodial parents receiving child support payments is not placed under a burden by the inclusion/deduction regime. * Although there may be some cases in which the gross-up calculations shift a portion of the payer's tax liability upon the recipient spouse, one cannot necessarily extrapolate from this that a "burden" has been created, at least not for the purposes of s.15(1). Sections 56(1)(b) and 60(b) operate at the level of the couple and are designed to minimize the tax consequences of support payments, thereby promoting the best interests of the children by ensuring that more money is available to provide for their care. In Miron v. Trudel (1995), there was a first debate over marital status as being an analogous ground, but the opinion of the Court was very controversial(4 – support, 4 – against, 1 – does not matter). However, in Nova Scotial v. Walsh(2002), the Court was unanimous that marital status was an analogous ground. The majority of the Court held that the matrimonial property regime of Nova Scotia, which was restricted to the persons who were legally married, did not breach the s. 15, because it did not impair the human dignity of the common-law spouses who were excluded by reason of their marital status. *applying Law test* Argument: Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ: Examination of the context in which the discrimination claim arises also involves a consideration of the relationship between the grounds and the claimant’s characteristics or circumstances. The MPA deems married persons to have agreed to an economic partnership wherein both pecuniary and non-pecuniary contributions to the marriage partnership are considered to be of equal worth entitling each spouse, inter alia, to an equal division of a pool of assets upon marriage breakdown. The MPA also confers other benefits and imposes other obligations on the spouses. The decision to marry, which requires the consent of each spouse, encapsulates within it the spouses’ consent to be bound by the MPA proprietary regime. Unmarried cohabitants, on the other hand, maintain their respective proprietary rights and interests throughout the duration of their relationship and at its end. If they so choose, however, they are able to access all of the benefits applicable to married couples under the MPA. They are free to marry, enter into domestic contracts, own property jointly or register as domestic partners. There is thus no discriminatory denial of a benefit in this case because those who do not marry are free to take steps to deal with their personal property in such a way as to create an equal partnership between them. Per Gonthier J.: There is agreement with the majority reasons. Legislative provisions that attach burdens and advantages to marriage are not discriminatory in and of themselves. Legislatures are entitled to define and promote fundamental institutions such as marriage, which is founded on the consent of the parties and is contractual in nature. It is therefore fitting that certain attributes, rights and obligations which serve to give marriage its unique character are not conferred on unmarried couples. Law v. Canada (1999) facts: The case involved Nancy Law, a 30-year old widow without dependents who was denied survivors benefits under the Canada Pension Plan, which are usually given to those 65 or over, or to the disabled, or to those with dependents at the time of death. She appealed to the Pension Plan Review Tribunal on the basis that the age requirement was in violation of her equality rights under section 15(1) of the Charter (which specifically names age as a grounds on which one has rights against discrimination). Issues: "whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the ground that they discriminate on the basis of age against widows and widowers under the age of 45, and if so, whether this infringement is demonstrably justified in a free and democratic society under s. 1." Decision and Reasoning: The unanimous court, in an opinion written by Iacobucci J., held that the Canada Pension Plan did not violate section 15(1). The test must make three broad inquiries.[1] (A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and (C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? The entire analysis must focus on the purpose of section 15 which is: to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally de
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