Subsection 15(1) of the Charter guarantees that 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. The essence of this right is equality without discrimination. The section does not guarantee absolute equality or identity of treatment. It protects only against inequality caused by the application or operation of laws which are discriminatory in their effect.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143
It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of section 15 of the Charter. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. The discrimination contemplated by section 15 is a distinction based on grounds in relation to personal characteristics of an individual or a group. It must also result in the imposition of disadvantages on such individual or groups which is not imposed upon others. Therefore, only certain legislative distinctions attract the scrutiny of section 15, namely, those involving the enumerated or analogous grounds.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (S.C.C.)
George v. Minister of National Revenue, [1991] 1 F.C. 344 (F.C.A) A-507-89
In Law v. Canada, the Supreme Court of Canada held that the underlying enquiry in determining the existence of discrimination is whether the differential treatment offends human dignity. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society.
Law v. Canada, [1999] 1 S.C.R. 497 (S.C.C.)
However, the Supreme Court has now unanimously backed away from the test for section 15 of the Charter which it set out in Law v. Canada and has now re-emphasized the approach in had taken in Andrews v. Law Society of British Columbia. Specifically, the Court has now held that dignity of the person is no longer a test of discrimination and the Law factors need not be slavishly followed. Human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors in Law, cannot only become confusing and difficult to apply but has also proven to be an additional burden on equality claimant. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of section 15 as identified in Andrews; combating discrimination, defined in terms of perpetuating disadvantage and stereotyping.
R. v. Kapp, [2008] S.C.J. No., 42 (S.C.C.)
The Supreme Court of Canada and the Federal Court of Appeal have held that complex social benefit programs often make distinctions in order to deliver the programs properly and that Parliament must be accorded some flexibility in the extension of social benefits. It is entirely legitimate for government to make choices in the allocation of benefits and it must be permitted some leeway to do so.
Egan v. Canada, [1995] 2 S.C.R. 513 (S.C.C.)
Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703 (File: 26615)
Lovelace v. Ontario, [2000] 1 S.C.R. 37 (S.C.C.)
Sollbach v. Canada (A.G.) (1999), 252 N.R. 137 (F.C.A.)
Canada (A.G.) v. Brown, 2001 FCA 385
Miller v. Canada (A.G.), A-731-01 (F.C.A.); leave to appeal to Supreme Court of Canada denied
Krock v. Canada (A.G.), 2001 FCA 188
Nishri v. Canada (A.G.), 2001 FCA 115
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2011-01-24