Section 15 of the Canadian Charter of Rights and Freedoms sets out the right to equal protection and equal benefit of the law without discrimination. The Supreme Court of Canada (the Court) has consistently interpreted this right as protecting substantive equality. This means that laws – as well as government activities and policies – must not simply treat people the same. Instead, the effect that a law has on different groups must be considered.
A law will be found to be unconstitutional under section 15 if it further disadvantages groups based on certain characteristics. These characteristics include race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. These are referred to as “enumerated grounds” because they are explicitly listed in section 15. In addition, “analogous grounds” of discrimination, such as citizenship and sexual orientation, have also been recognized by the courts.
Since 1985, when section 15 came into full effect, courts have tried to find a way to assess section 15 claims consistently and fairly in order to protect substantive equality. The Court‘s guidance on how to apply section 15 has changed over time.
In its 1999 decision Law v. Canada (Minister of Employment and Immigration), the Court set out guidelines for applying section 15. These guidelines were often used as a three‑part test, which included establishing a “comparator group” of people who were in similar circumstances and demonstrating that the disadvantage caused by the law amounted to an impairment of human dignity.
In its 2008 decision R. v. Kapp (Kapp), the Court acknowledged that aspects of this test had become a barrier for disadvantaged groups. It moved away from the concepts of comparator groups and impairment of human dignity. Instead, it suggested that a section 15 analysis should answer two questions:
- Does the law create a distinction based on an enumerated or analogous ground?
- Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
This approach has emerged as the key test for section 15 cases, with some modifications since Kapp. In Quebec (Attorney General) v. A (2013) and Kahkewistahaw First Nation v. Taypotat (2015), the Court clarified that evidence of prejudice or stereotyping is not necessary under the second part of the test. Instead, the analysis should be flexible and look to the full context of the situation, with a focus on whether distinctions created by the law either reinforce, perpetuate or exacerbate disadvantages.
In Fraser v. Canada (Attorney General) (2020), the Court clarified that section 15 protects against differential treatment regardless of whether it is explicitly stated in law or is simply the result of negative effects stemming from the law.
As a result of the Court‘s decisions since Kapp, the current version of the section 15 test can be stated as follows:
- Does the law, on its face or in its impact, create a distinction based on an enumerated or analogous ground?
- Does it impose burdens or deny benefits in a way that has the effect of reinforcing, perpetuating or exacerbating disadvantage?
This HillStudy outlines the historical development of this test and related issues in the Supreme Court’s section 15 jurisprudence.
By Robert Mason, Library of Parliament