Examining Canadian Discrimination within a Society in Charter of Rights and Freedoms

Every individual in society is guaranteed a certain amount of protection and equality from the state regardless of their situation or background. Depending on how the terms discrimination and equality are interpreted in the courts will those rights apply.

In the Charter of Rights and Freedoms, section 15 consists of two subsections which will be examined in terms of discrimination within society. As stated in section 15 (1) “Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination......”.1 The term discrimination here refers to all the forms of discrimination such as race, ethnicity, or any forms of disabilities. However, discrimination can also be applied in a general sense to social classes or conditions. If a person were to be at an economic disadvantage, they would be treated differently than others thus making it a form of discrimination.2

An example of a case that is known for examining section 15 is Andrews v. Law Society of British Columbia which dealt with section 15 and prima facie violations.3 Mr. Andrews has been a permanent resident in Canada, yet did not have a citizenship. He was not accepted at British Columbia’s provincial bar because he did not have a citizenship. He took the case to court on the grounds that it violated his section 15 rights of the Charter. The case went to the Supreme Court of British Colombia where he appealed his case to test if there was a prima facie violation of equality and the appeal was dismissed3

If the courts were to use the Andrews case as precedent to exclude economic disadvantages from section 15, and used the two stages from the precedent case, it would pass.7 If the definitional balancing test is applied it ...

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...erstands that social conditions could be seen as an analogous ground, but do not refer to it as such. The courts tend to refrain including economic status as a form of analogous ground and acknowledging it as a violation of section 15. Their reasoning is that their task concerning section 15 is to make decisions for specific cases, not concrete guidance for economic equality issues.6

Before the Andrews case was brought up, the courts dealt with the issue of an overflowing amount of trivial cases that concerned section 15. This was later solved by using a stricter definitional balancing test and the Ad-hoc-Balancing.7 The definitional balancing test became stricter after the Andrew case and narrowed the definition of discrimination in relation to disadvantages and harm. In terms of the ad-hoc-balancing, it is based on whether the discrimination is justifiable or not.