I here intend to problematize the approaches pleading respectively a Charter infringement and a violation of human rights codes.
It is necessary to start out by saying that s. 15 challenges are on the decline. In the first years of their Charter jurisprudence, Canadian courts have been hesitant about letting the suit to move ahead on equality grounds. Some alleged reasons for the decline cut against pursuing change through Charter-based claims.
Section 15 pleadings rates have been fluctuating quite a lot over the time. In the 1989-2009 period a decline from an average of 40 cases ruling on s. 15 per year, to 7 cases in the first semester of 2010, has been noted.57 In the 2010-2013 period, again, has been noted an average of 23 cases per year disposing of s. 15 claims, with a strikingly low success rate of 7.2 per cent of cases.58 However, it seems that recent rates show
55 There is a long-standing debate around whether there are negative or positive Charter rights, ever since at least Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624, 1997 CanLII 327 (Supr. Ct. Can.) and Vriend v. Alberta, [1998] 1 SCR 493, 1998 CanLII 816 (Supr. Ct. Can.). For a brief overview of this debate see: Jonnette Watson Hamilton, The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions, ABLAWG.CA, July 12, 2018,
https://ablawg.ca/2018/07/12/the-supreme-court-of-canadas-approach-to-the-charters-equality-guarantee-in-its-pay-equity-decisions/ (last visited May 28, 2018).
56 See infra par. 5.
57 This section draws heavily on Bruce Ryder & Taufiq Hashmani, Managing Charter Equality Rights:
The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases n.4 (Comparative Research in Law & Political Economy, Research Paper No. 41, 2010).
58 Bruce Ryder, The Strange Double Life of Canadian Equality Rights, 62 SUPR.CT.L.REV. 261, 270-271 (2013). The trend in s. 15 leave cases is even more illustrative: while in the period 1994-‐1999 such rate was 47.1%, in the five-year period 2004-‐2009 it went down to 22.0%. This declining rate is more visible when an s. 15 violation has not been established by the Court of Appeal. Under such circumstances, a leave is even more likely to be denied.
an increasing willingness of claimants to bring equality claims and of lower courts to consider them.59
Hence, it is not possible to identify a unified trend in section 15 pleadings. What is apparent, again, is that the Supreme Court has been since recently quite reluctant to accept equality-based challenges to laws. Some tentative reasons for the relative marginality of the equality jurisprudence in that period can be traced.
For one thing, litigation has been prevented by the states’ “voluntary compliance” with the equality clause. In the aftermath of the enactment of the Charter, there has been a massive implementation at both the federal and state level, leading to amending the legislation to bring it in line with the Charter values. Later, after the Supreme Court recognized marital status60 and sexual orientation61 as analogous grounds for discrimination, states reacted by amending hundreds of statutes and regulations. This proactive attitude has played a key role in reducing litigation rates.
A second reason could be the enhanced familiarity of courts with “individualistic”
rights. Comparatively, it has been shown that s. 7 claims (implicating a breach of the right to the security of the person,) raised along with equality claims, proved much more successful.62 In a similar vein, when a violation of the equality rights and freedom of association protected by s. 2(d) of the Charter were simultaneously raised, the Court showed willingness to uphold the latter, not the former.63
Detecting the reasons for the Court’s reliance on s. 7 and s. 2(d) is too much of an endeavor. What can be said is that there is a much greater comfort in the Canadian top
59 This point was raised by Bruce Ryder during the conference “Italo-Canadian conference: Celebrating the 150° anniversary of the Canadian constitution,” held at the University of Toronto on 17 September, 2017.
60 Miron v. Trudel, [1995] 2 SCR 418, 1995 CanLII 97 (Supr. Ct. Can.).
61 M. v. H., 2 SCR 418.
62 See the recent cases: Carter v. Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5 (CanLII) (finding that the criminal law on assisted suicide violated the security of the person under s. 7 of the Charter and that was unnecessary to move on to the equality claims), and Canada (Attorney General) v.
Bedford, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII) (finding that the criminal prohibitions on prostitution was in breach of the security of the person protected by s. 7). A shift to s. 7 claims has been strategically promoted by feminist and anti-discrimination legal scholars. See, e.g., Kerri A. Froc, Constitutional Coalescence: Substantive Equality as a Principle of Fundamental Justice, 42 OTTAWA
L.REV. 411 (2010).
63 For instance, in the case Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 SCR 391, 2007 SCC 27 (CanLII), the issue concerned the limitation of collective bargaining rights which had a disproportionate impact on women, mostly employed in this sector. The court’s finding was in the sense that the B.C. legislation run afoul the constitutional freedom of association, while it dismissed the s. 15 claim alleging a violation of the constitutional prohibition to discriminate on grounds of sex.
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court in dealing with rights articulated in individualistic and universalistic terms.64 One of the chief examples for this was the Carter case,65 on medical assistance in dying.
The case was originally framed both in terms of discrimination on the basis of disability and infringement of the right to life and security of the person. While the lower courts upheld the claims finding an actual discrimination toward those in need of assistance based on disability, along with a s. 7 violation, the Supreme Court discarded the equality claim. In a similar vein, in Alberta v. Hutterian Brethren of Wilson Colony,66 the Supreme Court conceded that the universal photo requirement on the driving license was an infringement of the freedom of religion of those who objected to having their photographs taken on religious grounds (despite upholding the requirement under s. 1).67 At the same time, the court discarded the claim that the requirement was a form of religious-based discrimination altogether.
However, the scope of s. 7 is different, due to its focus on the individual sphere, compared to s. 15, which engages with group and collective identities.68 Similarly, s.
2(d) cannot act as a surrogate. Associational rights tend to be more process-oriented, compared to (substantive) equality rights, which have a more pronounced focus on redistributive justice.69
A third tentative reason for the relative marginality of the equality jurisprudence is perhaps the most important one: The central axis of litigation has shifted from constitutional claims to legislative claims. Human Rights Commissions, where statutory claims are filed, tend to be preferred over ordinary courts in that they are a less costly, conciliatory and faster means of protection. Second, Commissions are specialized in human rights law, thereby showing a much broader expertise in this field of law.
64 This consideration has emerged in a speech that Prof. Bruce Ryder gave at the “Italo-Canadian conference: Celebrating the 150° anniversary of the Canadian constitution,” hosted by the University of Toronto on September 23, 2017, Toronto.
65 Carter, 1 SCR 331.
66Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567, 2009 SCC 37 (CanLII).
67 Id.
68 Under a s. 7 analysis, the holding of the case does not necessarily apply to other similarly situated people, where even marginal factual circumstances differ. Furthermore, one is to be aware of the theoretical hurdles traditionally associated with the doctrine of individualism, such as its heavy reliance on rationalism and depersonalization. RAINER KNOPFF,HUMAN RIGHTS AND SOCIAL TECHNOLOGY: THE NEW WAR ON DISCRIMINATION chap. 4 (1989).
69 Jennifer Koshan, Inequality and Identity at Work, 38 DALHOUSIE L.J. 497 (2015).
Yet, human rights codes litigation is not a surrogate for constitutional litigation. When inequality is embedded in a statute, the proper remedy is that of striking down the law, rather than granting access to benefits on a case-by-case basis; second, the systematic inequalities that underlie the non-recognition of new families are not easily discernible in concrete cases. Hence, the most appropriate fora to disentangle them are the ordinary courts, endowed with the power of constitutional control.
However, two characteristics of the human rights codes make them suitable to the challenge. First, the codes apply to governmental actors and the services they provide, and this has led the human rights commissions to address the compatibility with anti-discrimination values of a broad array of rules or practices. Particularly, the expansion of the notion of service has been conducive to framing charter claims under the human rights code and to generate an overlap between the two jurisdictions.70
This must be combined with the quasi-constitutional nature of the human rights codes, which reflects inwards and outwards. Such a nature affects the rules of interpretation that judges are required to follow in interpreting the codes themselves (such statutes ought to be interpreted purposively, while the limitations to the rights are to be construed narrowly.) It also reflects outwards on the relationship with other sources of law. Since quasi-constitutional statutes are considered “more important than other laws,”71 when a conflict with a statute arises, the code shall prevail and “supersede”
the statute, “except where a contrary intention is clearly and unequivocally expressed by the Legislature”72 (i.e., except when the latter statute is a quasi-constitutional source as well.) This power to supersede conflicting laws renders the legislative claims much more powerful in disentangling inequalities, compared to ordinary legislative claims.
In the end, the constitutional approach still maintains its importance, since it is the main forum to disentangle systemic inequalities and the principal means to wipe away unconstitutional laws with erga omnes effects. Yet, there is a trend showing the courts’
reluctance, at least until recently, to uphold s. 15 challenges.
By contrast, pleadings a violation of human rights codes proved much more successful.
Applicants have benefited from the conciliatory and more specialized nature of these
70 Claire Mummé, At the Crossroads in Discrimination Law: How the Human Rights Codes Overtook the Charter in Canadian Government Services Cases, 9 J.L.&EQUALITY 103 (2012).
71 Insurance Corporation of British Columbia v. Heerspink, [1982] 2 SCR 145, 1982 CanLII 27 (SCC), at par. 178.
72 Id.
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tribunals, from the quasi-constitutional nature of the rules being enforced, and from the possibility of extending the services provided by governmental actors.
The potential and shortcomings associated with each anti-discrimination system suggest caution in finding that one system is preferable over the other. I would rather approach such systems as alternative routes for disentangling inequalities.