Canadian Charter of Rights Decisions Digest

SECTION 15(1)

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Updated: April 2005

OVERVIEW

In general terms, the purpose of s. 15(1) 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 deserving of concern, respect and consideration: Law v. Canada (Minister of Employment and Immigration),1999 CanLII 675 (S.C.C.), 1999 CanLII 675 (S.C.C.), 1999 CanLII 675 (S.C.C.), [1999] 1 S.C.R. 497.

The analysis under s. 15(1) proceeds in three stages, with close regard to context. At the first stage the claimant must show that the law, program or activity imposes differential treatment between the claimant and others with whom the claimant may fairly claim equality. The second stage requires the claimant to demonstrate that this differentiation is based on one or more of the enumerated or analogous grounds. The third stage requires the claimant to establish that the differentiation amounts to a form of discrimination that has the effect of demeaning the claimant's human dignity. The "dignity" aspect of the test is designed to weed out trivial or other complaints that do not engage the purpose of the equality provision: Law v. Canada (Minister of Employment and Immigration), supra; Lovelace v. Ontario, 2000 SCC 37 (CanLII), 2000 SCC 37 (CanLII), 2000 SCC 37 (CanLII), [2000] 1 S.C.R. 950, 2000 SCC 37.

A person asking for equal treatment necessarily does so by reference to other people with whom he or she can legitimately invite comparison. Claims of discrimination under s. 15(1) can only be evaluated by comparison with the condition of others in the social and political setting in which the question arises. A s. 15(1) claim will likely fail unless it can be demonstrated that the comparison, thus invited, is to a "comparator group" with whom the claimant shares the characteristics relevant to qualification for the benefit or burden in question apart from the personal characteristic that is said to be the ground of the wrongful discrimination: Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (CanLII), 2004 SCC 65 (CanLII),2004 SCC 65 (CanLII), [2004] 3 S.C.R. 357, 2004 SCC 65.

The enumerated grounds are only indicators of suspect grounds of distinction. It follows that decisions on these grounds are not always discriminatory. The same applies to the grounds recognized by the courts as “analogous” to the grounds enumerated in s. 15. To say that a ground of distinction is an analogous ground is merely to identify a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (S.C.C.), 1999 CanLII 687 (S.C.C.), 1999 CanLII 687 (S.C.C.), [1999] 2 S.C.R. 203; Gosselin v. Quebec (Attorney General), 2002 SCC 84 (CanLII), 2002 SCC 84 (CanLII), 2002 SCC 84 (CanLII), [2002] 4 S.C.R. 429, 2002 SCC 84.

Canadian Charter of Rights Decisions Digest

SECTION 24(1)

24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Updated: April 2005

OVERVIEW

Section 24 provides a remedy only to the individual whose own Charter rights have been infringed. A claimaint who relies on the infringement of a third party’s rights has no standing to seek a remedy: R. v. Edwards, 1996 CanLII 255 (S.C.C.), 1996 CanLII 255 (S.C.C.), 1996 CanLII 255 (S.C.C.), [1996] 1 S.C.R. 128. While the claim must be a personal one, it is not always necessary for an applicant to await the actual violation of his or her rights. Relief may be granted for a prospective violation where there is a high degree of probability that the Charter infringement will occur: Phillips v. Nova Scotia (Westray Mine Inquiry), 1995 CanLII 86 (S.C.C.), 1995 CanLII 86 (S.C.C.), 1995 CanLII 86 (S.C.C.), [1995] 2 S.C.R. 97.

The applicant bears the burden of establishing that his or her rights have been infringed or denied. The standard of persuasion required is only the civil standard of the balance of probabilities: R. v. Collins, 1987 CanLII 84 (S.C.C.), 1987 CanLII 84 (S.C.C.), 1987 CanLII 84 (S.C.C.), [1987] 1 S.C.R. 265.

A “court of competent jurisdiction” is a tribunal that has jurisdiction over the person and the subject matter and, in addition, has the authority to make the order sought: R. v. Mills, 1986 CanLII 17 (S.C.C.), 1986 CanLII 17 (S.C.C.), 1986 CanLII 17 (S.C.C.), [1986] 1 S.C.R. 863. Whether a court or tribunal enjoys the power to grant the remedy sought is, first and foremost, a matter of discerning the intention of Parliament or the Legislature: R. v. 974649 Ontario Inc., 2001 SCC 81 (CanLII), 2001 SCC 81 (CanLII), 2001 SCC 81 (CanLII), [2001] 3 S.C.R. 575. A justice presiding over a preliminary inquiry does not have the jurisdiction to grant a remedy under s. 24 since the justice’s only task is to determine whether prosecution in other proceedings is warranted: R. v. Hynes, 2001 SCC 82 (CanLII), 2001 SCC 82 (CanLII), 2001 SCC 82 (CanLII), [2001] 3 S.C.R. 623. By contrast, where a labour arbitrator is, by statute, empowered to deal with all disputes arising between parties to a collective agreement, the arbitrator has the requisite authority to consider Charter questions and grant the appropriate remedies: Weber v. Ontario Hydro, 1995 CanLII 108 (S.C.C.), 1995 CanLII 108 (S.C.C.),1995 CanLII 108 (S.C.C.), [1995] 2 S.C.R. 929.

The language of s. 24(1) gives a wide discretion to fashion remedies, and it cannot be reduced to some formula for application in all cases: R. v. Mills, supra. However, it does not provide an alternative basis to s. 24(2) for the exclusion of evidence, except where the admission of evidence obtained in conformity with the Charter would infringe a Charter right (as with compelled statements subject to use immunity which are sought to be introduced in subsequent criminal proceedings): R. v. White, 1999 CanLII 689 (S.C.C.), 1999 CanLII 689 (S.C.C.), 1999 CanLII 689 (S.C.C.), [1999] 2 S.C.R. 417.

In my opinion this section of the Canadian Charter of Rights and Freedoms should Guarantee Equal Parenting unless there is a danger to the child. It also should protect against Bias and Discrimination in the Courts to the self-represented.