Charter section 15

In Mathur v Ontario Court Rejects Charter Challenge to Ontario’s Emissions Target  

Posted on by Tal Schreier

by Daniel Kiesman

In Mathur v Ontario[1] the Ontario Superior Court of Justice rejected the constitutional challenge to the greenhouse gas emissions target set by Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

Background

In 2018, the Government of Ontario through s. 3(1) of the CTCA set an emissions reduction target at 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030.  The Applicants, a group of young Ontarians, argued the target set by Ontario was too low, failing to adequately address climate change and leading to adverse future consequences for young people and for future generations.

The Applicants advanced two Charter arguments. First, by failing set the target high enough Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the Applicants argued the CTCA violates s. 15 of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change. In so doing, the Applicants argued the CTCA perpetuated a disadvantage since young people and future generations lack political decision making power and their interests are often ignored.

Justiciability

The judge found the challenges regarding the emissions target set by Ontario to be justiciable.[3] This is notable because the Federal Court found a past challenge to government climate action to be non-justiciable. In La Rose v Canada, the Federal Court held that a constitutional challenge of the Federal Government’s greenhouse gas emissions target was non-justiciable because the challenge was not focused on specific government action or legislation but rather focused on the Federal Government’s overarching policy positions regarding climate change.[4] The La Rose case was similarly brought by a group of young people concerned about the impacts of climate change and the decision in that case is currently under appeal to the Federal Court of Appeal. Nevertheless, the ruling in Mathur signifies that Charter challenges to government climate action can be justiciable when they are focused on a specific government action, which in this case was the target set under s. 3(1) of the CTCA.

Section 7

Under the s. 7 analysis the judge characterised the Applicants’ complaint as being that the emission target set by Ontario was not high enough. Therefore, the judged interpreted the Applicants’ s. 7 claim as a positive right claim, suggesting the Applicants were seeking a declaration that Ontario has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[5] While noting in Gosselin v Quebec (Attorney General) the Supreme Court rejected the idea s. 7 creates a general positive obligation on governments to ensure citizens have the benefits of life, liberty and security of the person, the judge highlighted that Gosselin left open the possibility of positive obligations under s. 7 in certain unique circumstances.[6] The judge found that, “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under s. 7 of the Charter.”[7] The Court appeared open to the idea that the impacts of climate change could be special enough to for a court to impose a positive obligation but noted that if such a positive obligation were to be found there would likely be a different s. 7 analytical framework used in such cases. Ultimately, the judge assumed without deciding that a positive obligation under s. 7 arose in this case but went on to reject the s. 7 claim on the grounds that Ontario, in setting the emissions target, did not violate any principles of fundamental justice.[8]

While the result of the s. 7 analysis in this case may be disappointing to those concerned about the effects of climate change and government inaction, the Court’s analysis in Mathur presents a potentially important pathway forward for climate change focused constitutional litigation. The decision shows that courts may be open to imposing positive obligations on governments under s. 7. The decision is also notable for recognizing the unique and pressing challenges climate change posses to Canadian society such that climate change can be considered a special circumstance as articulated in Gosselin which may give rise to a positive obligation under s. 7. Furthermore, this decision adds to a growing chorus of courts across Canada which have expressed openness to the possibility that there may be a positive obligation on governments to adequately combat climate change. In La Rose the Federal Court did not foreclose the possibility that such positive obligations could exist.[9] In Kreishan v Canada (Citizenship and Immigration) the Federal Court of Appeal cautioned that s. 7 should not remain simply “frozen in time”[10] and expressly listed climate rights as a domain in which positive obligations under s. 7 could arise.[11] These decisions show that future litigation may be able to persuade a court that there are positive obligations on governments, under s. 7, to adequately combat climate change.

Section 15

With respect to the Applicants’ s. 15 claim, the Court applied the s. 15 test following the guidance given recently by the Supreme Court in R v Sharma.[12] At the first step of the test the judge accepted that young people are disproportionately affected by climate change.[13] However, the judged stressed that any disproportionate impact is caused by climate change itself and not by emissions targets set by Ontario through s. 3(1) of the CTCA.[14] As such, the Applicants’ claim failed to show Ontario’s actions created or contributed to the disproportionate affects of climate change faced by young people. While the emissions target is not high enough to thwart the impacts of climate change, the emissions target itself does not cause or contribute to the adverse effects of climate change that young people will face. Given the requirements set out in Sharma for claimants to show causation at the first stage of the s. 15 analysis, the judge concluded the s. 15 must fail because the requisite causation could not be established in this case.[15]

The judge, echoing the Supreme Court in Sharma, also noted there is no positive obligation of governments to address inequalities through remedial legislation.[16] The emission target is part of a remedial scheme aimed at addressing climate change. The Supreme Court stated that when a government chooses to address inequality it can legislate incrementally and leave gaps between members of protected groups who may be affected by such legislation and members of non-protected groups unaffected by such legislation.[17] The emissions target in question were viewed by the Court as incremental and remedial legislation Ontario chose to enact to address the issue of climate change. Therefore, any gap the CTCA creates does not in itself infringe s. 15.[18]

The Applicants also advanced a s. 15 argument claiming that since the impacts of climate change will only get worse over time, young people and future generations will face the brunt of impacts of climate change since they will live longer into the future. The judge also rejected this argument. The Court again noted that a claim relating to the effects of climate change on future generations fails to meet the causal burden at the first step of the s. 15. The more impactful future effects of climate change are not caused by Ontario’s emissions target but caused by climate change.[19] Furthermore, the judge appeared skeptical that the Applicants could even advance a s. 15 claim on behalf of future generations. Since everyone who lives into the future will be affected by climate change, this is not a distinction based on age because people of all ages will face the impacts of climate change in the future. Therefore, the judge held the Applicant’s claim is based solely on a temporal distinction and cannot succeed because such a distinction is not an enumerated or analogous ground.[20] Even if future generations could be considered to fall under the enumerated ground of age, or recognized as an analogous ground itself, the judge held that the claim would still fail. Citing Sharma, the judge noted that the disproportionate effects felt by future generations, would be a “gap” which already existed and was left unaffected by emissions target set by Ontario and therefore would not infringe s. 15.[21]

Mathur illustrates the impact of the decision in Sharma on s. 15 claims. The evidentiary burden on claimants to show a government action “creates or contributes to a disproportionate impact,”[22] at the first stage s. 15 test and the Supreme Court’s assertion that it does not infringe s. 15 to leave gaps between different groups so long as government action did not cause those gaps are important developments which drive the judge’s s. 15 analysis in this case.[23] This guidance in Sharma may prove to be difficult hurdles to climb for litigants bringing s. 15 challenges to government climate actions. Governments do not create or cause climate change. While governmental inaction will not abate the adverse consequences of climate change, it may prove difficult to show inadequate government action independently cause the impacts of climate change to worsen. Furthermore, as the judge accepted, young people already bear the brunt of the impacts of climate change. However, the gap between young people and other groups in society in relation to the adverse effects of climate change is again created by climate change. Government actions which will fail to remedy the issue of climate change will simply leave these gaps unaffected and therefore, per Sharma would not infringing s. 15.

Looking Forward

Mathur was the first case to substantively tackle a constitutional challenge to a government climate change policy and there are important takeaways to consider moving forward. First, constitutional challenges to government climate actions need to be aimed at specific government actions or legislation in order to be justiciable. Simply pointing to a broad constellation of government policies or positions on climate change will likely be viewed by courts as non-justiciable. Second, courts appear to be open to entertain arguments that climate is a special domain in which positive obligations on governments could potentially arise under s. 7. Given the right case with the right facts this could prove to be an exciting area for significant development of the law and advance climate activists’ cause. Third, the decision in Mathur illustrates that, given the majority decision in Sharma, s. 15 challenges to government climate actions will likely prove difficult to successfully make out. Overall, while the result in Mathur may be discouraging for individuals concerned about climate change, the decision shows there remain potentially viable avenues for future successful constitutional challenges to government climate actions.

Daniel Kiesman is a 1L JD candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant

[1] Mathur v Ontario, 2023 ONSC 2316 [Mathur].

[2] Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3] Mathur, supra note 1 at para 106.

[4] La Rose v Canada, 2020 FC 1008 at paras 40—41 [La Rose].

[5] Mathur, supra note 1 at paras 122, 124, 132.

[6] Ibid at paras 125, 137 citing Gosselin v Quebec (Attorney General), 2002 SCC 84 at paras 81—83.

[7] Ibid at para 138.

[8] Ibid at paras 142.

[9] La Rose, supra note 4 at paras 69—72.

[10] Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 139.

[11] Ibid.

[12] R v Sharma, 2022 SCC 39 [Sharma].

[13] Mathur, supra note 1 at para 178.

[14] Mathur, supra note 1 at para 178.

[15] Ibid citing Sharma, supra note 12 at para 42.

[16] Mathur, supra note 1 at para 178 citing Sharma, supra note 12 at paras 40, 63.

[17] Sharma, supra note 12 at paras 40, 63—64.

[18] Mathur, supra note 1 at para 178.

[19] Ibid at para 179.

[20] Ibid at para 180.

[21] Ibid at para 182.

[22] Sharma, supra note 12 at para 42.

[23] Ibid at paras 40, 42; Mathur, supra note 1 at para 178.

Litigating Equality in Canada Symposium

In the past decade, several decisions from the Supreme Court of Canada have articulated a revised understanding of the way that section 15 of the Charter is to be applied in Charter litigation. In particular, Fraser has been interpreted by some as modifying the approach by claimants in establishing a section 15 breach and placing more focus on the government’s burden of justification. Most recently, Sharma has articulated an evidentiary burden as part of the test. The Courts have also been challenged to examine the implication of equality rights in Charter challenges and sentencing cases in the criminal law context in ways that place a heavy focus on racial inequities. The events of the summer of 2020 and the Black Lives Matter movement have highlighted the importance of cases such as R v Sharma and R v Morris, that have recently been considered by our courts. The Supreme Court of Canada has also shown an increasing interest in scholarship in the analysis of the law, while at the same time, we are seeing an increased interest and influence of interveners in these cases.

In light of the above developments, the Asper Centre convened a one-day Symposium (in-person and via Webinar) on Friday May 26th, 2023, to critically examine the status and future of equality litigation in Canada. The Symposium was aimed at both practitioners (lawyers and NGOs) who are engaged in public interest litigation and scholars and students who study and analyze the impact of these cases.

Some of the themes that were covered in the Symposium include an analysis of the recent Supreme Court rulings under s.15 of the Charter and their impact on litigation strategies on behalf equality seeking groups and the government; whether and how interveners have made an impact on these cases; the nature of the evidence required to successfully argue or defend these cases; and, lessons from successful as well as unsuccessful litigation in this area extracted from individual cases.

This Symposium builds on some of the themes explored in the Asper Centre’s 2018 Public interest Litigation Conference (and the publication following that Conference) in order to contribute to the practical scholarship on equality litigation in Canada and to produce a follow-up publication to this earlier work.

The Symposium included a morning plenary session on the role of interveners in equality litigation in Canada, a closing panel offering reflections and perspectives from the bench, as well as a full day of panel discussions by academics and practitioners focusing on the above-noted issues.

Link to the BOOK published following the Symposium

View Symposium AGENDA with Speakers Bios and Abstracts

View archived webcast of the Symposium

The Curious Case of Section 15 and Courts of First Instance: The Joint Asper Centre, LEAF and West Coast LEAF Intervention in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al 

Posted on by Student

by Caitlin Salvino

In the Fall of 2022, the Supreme Court of Canada (SCC) will hear the case Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.[1] The David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund (West Coast LEAF), and Women’s Legal Education and Action Fund (LEAF) have been jointly granted intervener status.[2] Their joint intervention focuses on the treatment of claims under section 15 of the Canadian Charter of Rights and Freedoms (Charter) by courts of first instance.

The Safe Third Country Agreement with the United States

In Canada, an individual can apply for refugee status at an official Port of Entry or at an Immigration, Refugees and Citizenship Canada office. To qualify for refugee status the claimant must either: (1) have a well-founded fear of persecution or (2) are at risk of torture, or cruel or unusual punishment in their home countries.[3]

In Canada, the federal government has restricted Port of Entry asylum claims through the Safe Third Country Agreement (STCA) with the United States (US). The STCA bars refugee claimants that arrive at the Canadian border from the US, unless they meet a narrow category of exceptions.[4] The STCA expects refugees to make an asylum claim in the first safe country they enter, in this case the US. The Canadian government maintains that countries will only be recognised as a “safe third country” if they respect human rights and offer a high degree of protection to refugee claimants.[5]  The Immigration and Refugee Protection Act (IRPA) requires the Government of Canada to continuously review the STCA with the US to ensure that it meets  four conditions listed in the IRPA.[6] The STCA with the US has been criticised by refugee and human rights organisations, based on increasing evidence of mistreatment of refugee claimants in the US.[7]

Challenging the Constitutionality of the Safe Third Country Agreement

In 2017, the STCA was jointly challenged by refugee claimants barred under the STCA, together with the Canadian Council of Refugees, Amnesty International and the Canadian Council of Churches. In addition to arguing that provisions of the STCA were ultra vires, the Applicants argued that the combined effect of sections 101(1)(e) of IRPA and 159.3 of the Immigration and Refugee Protection Regulations unjustifiably infringed sections 7 and 15 of the Charter.[8]

Under section 7, the Applicants argued that many asylum seekers rejected under the STCA are automatically imprisoned upon their return to the US as a form of punishment depriving the claimants of their section 7 rights to liberty and security of the person.[9] With respect to section 15, the Applicants argued that the STCA with the US has a disproportionate impact on female-identifying refugee claimants. This claim was supported by evidence of a narrower interpretation of gender persecution asylum claims in the US[10] and a one-year bar on all refugee claims in the US.[11] The one-year ban on refugee claims requires an individual to seek asylum within one year of experiencing persecution – a restriction that poses a barrier for women and 2SLGBTQQIA[12] individuals who experience gender persecution that involve unique forms of trauma that often result in delayed reporting.[13]

The Applicants succeeded at the Federal Court in 2020. The Federal Court declared that the provisions[14] enacting the STCA unjustifiably infringed section 7 of the Charter.[15] The Federal Court held that the STCA was intra vires federal authority and declined to address the arguments put forward on section 15 of the Charter.[16] As a remedy for the section 7 violation, the impugned provisions were declared to have no force or effect and the declaration of invalidity was suspended for six months.[17]

The Federal Court ruling was overturned by the Federal Court of Appeal in 2021.[18] The Federal Court of Appeal agreed with the lower court that the STCA is intra vires the federal authority[19] but disagreed with the findings with respect to section 7 of the Charter.[20] The Federal Court of Appeal, held that the two impugned provisions, which recognise the US as a safe third country, do not cause the harms being challenged under the Charter.[21] Instead, the Federal Court of Appeal held that section 102(3) of IRPA, which includes the criteria for safe third country designation, should have been challenged under judicial review in relation to the alleged harms under the Charter.[22] Regardless of the appropriate approach, the Federal Court of Appeal disagreed with the lower court’s factual findings on section 7, which the Federal Court of Appeal deemed insufficient and unrepresentative of the experiences of refugee claimants on the whole.[23] On section 15, the Federal Court of Appeal agreed with the Federal Court’s approach to judicial restraint and also declined to address the claim based on equality rights.[24]

Joint Asper Centre, LEAF and West Coast LEAF Intervention

In Canada, there is a growing recognition of the relevance of gender-related persecution in refugee asylum claims. Although it is not yet recognised as an independent ground to establish fear of persecution, if claimed, gender-related persecution must be assessed by the Refugee Division panel considering the claim.[25] The assessment of gender-related persecution claims requires an examination of the link between gender persecution and the enumerated grounds in the Refugee Convention.[26]

The Applicants argued that the STCA violated both sections 7 and 15 of the Charter. Under section 15, the Applicants argued that the STCA disproportionately impacts female-identifying refugees[27] and provide an extensive evidentiary record of gender discrimination under the STCA.  After determining that provisions of the STCA unjustifiably infringed section 7 of the Charter the Federal Court declined to address the section 15 claim.[28] In doing so, the Federal Court made no factual findings on the evidence of gender-based discrimination within the STCA legal regime. The Federal Court’s disregard of the section 15 claim was upheld by the Federal Court of Appeal who determined that lower courts are not required to consider all Charter claims because section 15 “does not enjoy ‘superior status in a hierarchy of rights’”.[29]

The joint Asper Centre, West Coast LEAF and LEAF intervention for the upcoming SCC hearing focuses on the Federal Court’s decision to not consider and make factual findings on all Charter issues raised that are supported by an extensive evidentiary record. The joint interveners argue that the Federal Court should have decided the section 15 claim and the refusal to consider the section 15 claim inappropriately applied the doctrine of judicial restraint.[30]

The joint interveners support their position with three arguments. First, a purposive interpretation of the Charter as a whole requires a ruling on all Charter claims raised with an extensive evidentiary record. The Federal Court’s decision to decline considering the section 15 issue altered the subsequent justificatory analysis of section 1 and the appropriate remedy.[31] Second, the lower court erred in its application of the principle of judicial restraint, which does not permit a court to favour one Charter claim over another.[32] This flawed interpretation of the principle of judicial restraint has the practical implication of creating a hierarchy of Charter rights, within which section 15 is relegated to the bottom.[33] Third, the Federal Court’s failure to address the section 15 claim minimises the issue of gender-based violence and historic disadvantage experienced by women and 2SLGBTQQIA individuals.[34]

Looking Ahead

The SCC hearings in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. will be heard in Fall 2022.[35] The joint intervention by the Asper Centre, West Coast LEAF and LEAF argues that this case represents a unique opportunity for Canada’s highest court to send a directive to lower courts regarding the treatment of court cases with multiple Charter claims. This guidance on the treatment of multiple Charter claims in a single case is particularly relevant to equality rights under section 15 – a Charter provision that has been historically dismissed[36] and has experienced uncertainty based on its “continual reinvention” in the jurisprudence.[37]

The Asper Centre, West Coast LEAF and LEAF filed their joint intervention factum on June 15, 2022 and it can be read here. 

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. is October 3, 2022.

[2] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759. 

[3] Immigration, Refugees and Citizenship Canada, “How Canada’s refugee system works”, (27 November 2019), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/canada-role.html.

[4] Immigration, Refugees and Citizenship Canada, “Canada-U.S. Safe Third Country Agreement”, (23 July 2020), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html.

[5] Overview of the Canada–United States Safe Third Country Agreement Background Paper, 4, by Madalina Chesoi & Robert Mason, 4 2020-70-E (Library of Parliament, 2021) at 1–2.

[6] The four conditions that are evaluated in each review are: (1) if they are a party to the Refugee Convention and Convention Against Torture; (2) its policies and practices are in line with those two international treaties; (3) its human rights record and (4) whether they are party to an STCA agreement with Canada. See Immigration, Refugees and Citizenship Canada, supra note 3.

[7] “US as a Safe Third Country Infographic”, (June 2017), online: Canadian Council for Refugees <https://ccrweb.ca/en/us-safe-third-country-infographic>; Contesting the Designation of the US as a Safe Third Country, by Amnesty International & Canadian Council for Refugees (2017); “Refugees entering from US and Safe Third Country: FAQ”, (February 2017), online: Canadian Council for Refugees https://ccrweb.ca/en/refugees-entering-us-and-safe-third-country-faq.

[8] Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770, at paras 82–83 [Canadian Council for Refugees FC].

[9] Ibid.

[10] Ibid at para 151.

[11]  Ibid at para 153.

[12] The acronym 2SLGBTQQIA refers to Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual.

[13]  Canadian Council for Refugees FC, supra note 8 at para 153.

[14] Immigration and Refugee Protection Act, SC 2001, c 27, s 101(1)(e), 159.3.

[15] Canadian Council for Refugees FC, supra note 8 at para 162.

[16] Ibid at paras 151–154.

[17] Ibid at para 163.

[18] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, at para 179 [Canadian Council for Refugees FCA 2021].

[19] Ibid at para 179.

[20] Ibid at paras 132–168.

[21] Ibid at paras 46–47.

[22] Ibid at paras 92–93.

[23] Ibid at paras 132–168.

[24] Ibid at paras 169–174.

[25] Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, online: https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx.

[26] The enumerated grounds under the Refugee Convention are having a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. See UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, 1951.

[27] Canadian Council for Refugees FC, supra note 8 at para 151.

[28]  Ibid at para 154.

[29] Canadian Council for Refugees FCA 2021, supra note 19 at para 172 citing Gosselin, supra note 25 at para 26.

[30] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759 (Factum of Joint Interveners Asper Centre, West Coast LEAF and LEAF, at para 3).

[31] Ibid at para 4.

[32] Ibid at para 18.

[33] Ibid at para 4.

[34] Ibid at para 26.

[35] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.is October 3, 2022.

[36] Bruce Ryder & Taufiq Hashmani, “Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010” (2010) 51 SCLR 505; Jonnette Watson Hamilton & Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2014) 19 Rev Const Stud 191.

[37] Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19.

Fraser v. Canada: What’s the Point of S. 15?

Posted on by Tal Schreier

by Jeffrey Wang

On October 16th, 2020, the Supreme Court of Canada released the landmark decision of Fraser v Canada, clarifying how adverse effect discrimination fits into the s. 15 framework. Adverse effect discrimination can be defined as when a facially neutral law has a disproportionate impact on members of a group. This is distinct from direct discrimination where a law makes a facial distinction among groups based on an enumerated or analogous characteristic.

Fraser is a significant development in Charter jurisprudence since the Court has rarely allowed adverse effect discrimination claims. Although the Court has repeatedly proclaimed that s. 15 does cover both types of discrimination and has recognized numerous adverse effect discrimination cases under human rights codes, the SCC has only affirmed one case of adverse effect discrimination under s. 15 prior to Fraser. In Eldridge v British Columbia, the Court found that a hospital that did not provide sign-language interpreters discriminated against people with hearing loss, even though the lack of sign-language interpreters applied neutrally to both hearing and non-hearing individuals.[1] Other adverse effect discrimination cases have come across the Court but have all been rejected for a variety of reasons.

Fraser

The Eldridge case is a stark contrast from Fraser’s complex fact-scenario. In Fraser, three female RCMP officers challenged a policy that reduced pension benefits for officers who took part in a job-sharing program. This job-sharing program was created so that RCMP employees did not have to take unpaid leaves of absence in order to balance childcare responsibilities. However, officers taking such a leave would not see reduced pension benefits unlike those participating in job-sharing. The evidence showed that a vast majority of the participants in the job-sharing program were women that balanced childcare with work. The appellants thus argued that the policy reducing pension benefits for job-sharers discriminated against women.

Writing for the majority of the Court, Abella J agreed with the appellants and clarified the law on adverse effect discrimination. She asserted that adverse effect discrimination claims can fall within the existing s. 15 test. Under step one, claimants must show that a law creates a distinction based on an enumerated or analogous ground. To satisfy this step in adverse effect discrimination claims, Abella J posited that claimants must prove that the impugned law has a disproportionate impact on members of a protected group.[2] She suggested that this can be established “if members of protected groups are denied benefits or forced to take on burdens more frequently than others” and Courts should specifically assess the result of the law and the social situation of the claimant group.[3] Abella J further notes that there is no need to prove that all members of the claimant group are identically affected, that the law is responsible for the social situation of the claimant group, the law’s discriminatory intention, or any element of causation.[4] There is also no “universal measure for what level of statistical disparity is necessary to demonstrate that there is a disproportionate impact.”[5]

In the second step of the s. 15 test, the claimants must prove that the law perpetuates or reinforces disadvantage. Abella J cautioned that under adverse impact discrimination cases, the Court should not assess the objectives of the law at this stage but should rather leave this analysis to s. 1.

Applying this test to the case, Abella J found that the RCMP pension scheme in relation to job-sharers disproportionately impacted women due to their childcare responsibilities and that this perpetuated the economic disadvantage of women. In addition, she found that this law was not justified under s.1 since there was no pressing objective in denying the pension benefits for job-sharers. Therefore, the majority of the Court struck down the law.

Implications for Future Cases

The majority’s decision in Fraser is a welcome development in the fight for substantive equality. Adverse effect discrimination claims have long been recognized in human rights code cases, and the Fraser decision finally brings this uncontroversial understanding of equality into s. 15 jurisprudence with a paradigmatic adverse impact fact-scenario.

However, while the overall conclusion in Fraser undoubtedly moves the law in a positive direction, there are issues with Abella J’s reasoning. In our current heterogenous society, it is likely that most laws have a disproportionate effect on one group of people. For example, many human rights code cases have explored whether the lack of funding for prostate cancer testing is discriminatory against men[6]; whether a municipal policy limiting the number of garbage bags per family picked up by waste disposal discriminates against larger families[7]; and whether the lack of coroner’s inquests for migrant workers’ deaths discriminates on the basis of race[8]. Under the Fraser majority, many of these difficult cases would pass the s. 15 test for adverse effect discrimination. All that is required under step one of the test is a law’s disproportionate impact without proof of intention, causation, or statistical significance and step two merely requires historical disadvantage.

This is the problem with the Fraser decision – it does not precisely define the boundaries of adverse effect discrimination. Under direct discrimination, the requirement that a law creates a distinction based on a protected ground is meaningful, since there are many laws that do not facially distinguish between groups. However, the Fraser majority decision could render this first step of the s. 15 test meaningless by simply allowing evidence of a law’s disproportionate effect which is rife in society. Additionally, with Abella J’s comment that the objectives of the law should not be analyzed under the second step of the s. 15 test, historical advantage would similarly be easy to establish by looking to social science evidence. In effect, the Fraser majority has watered down the s. 15 analysis and pushed the bulk of the legal reasoning to s. 1. But if everything violates s. 15, nothing violates s. 15. This cannot be the state of our equality jurisprudence. S. 15 must include meaningful internal limits that filter out laws that incidentally or reasonably have disproportionate impacts on one group without being discriminatory. Otherwise, what’s the point of s. 15 at all?

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624.

[2] Fraser v Canada (Attorney General), 2020 SCC 28 at para 52 [Fraser].

[3] Fraser at para 55.

[4] Fraser at paras 69-72.

[5] Fraser at para 59.

[6] Armstrong v British Columbia (Ministry of Health), 2010 BCCA 56.

[7] Harrington v Hamilton (City), 2010 HRTO 2395.

[8] Peart v Ontario (Community Safety and Correctional Services), 2014 HRO 611.

 

LEAF and the Asper Centre welcome the Ontario Court of Appeal’s Decision in R. v. Sharma

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A majority of the Ontario Court of Appeal has struck down Criminal Code provisions which made conditional sentences unavailable for certain offences. The ruling comes in response to Cheyenne Sharma’s constitutional challenge to these provisions, and explicitly acknowledges and draws on the arguments and information provided by LEAF and the Asper Centre in their joint intervention.

Ms. Sharma – a young Indigenous woman, an intergenerational residential school survivor, and a single mother – faced financial hardship and potential eviction for her and her young daughter. She acted as a drug courier, importing 2 kg of cocaine into Canada, and then pleaded guilty to importing drugs.

As an Indigenous person, Ms. Sharma is entitled to the use of the Gladue framework. The Gladue framework is an individualized approach to sentencing that requires judges to consider the impact of systemic factors such as intergenerational trauma of residential schools and the harms of colonial oppression, and to consider alternatives to incarceration when sentencing Indigenous offenders. These options include conditional sentences, a community-based alternative to a custodial sentence.

However, 2012 amendments to the Criminal Code made conditional sentences unavailable for offences with a maximum penalty of 14 years or life in prison, and for offences involving the import, export, trafficking, or production of drugs, with a maximum penalty of 10 years in prison. As a result, Ms. Sharma was not eligible for a conditional sentence. Ms. Sharma argued that the provisions violated her rights under section 15 of the Charter, but the trial judge did not accept these arguments and imposed a custodial sentence.

LEAF and the Asper Centre intervened before the Ontario Court of Appeal to argue that the constitutionality of the provisions needed to be assessed in the context of systemic discrimination against Indigenous people, especially Indigenous women, in the administration of criminal justice.

This discrimination is clearly evident in the overwhelming overincarceration of Indigenous people, particularly Indigenous women, in Canada. In 2017/2018, Indigenous persons represented approximately four percent of the adult population in Canada, but accounted for 30 percent of admissions to provincial or territorial custody, and 28 percent of admissions to federal custody. The crisis of overincarceration has worsened over time. Between 2007/2008 and 2017/2018, for example, the number of admissions of Indigenous women to provincial/territorial custody increased by 66 percent.

The majority’s decision means that conditional sentences will now be an available option for trial judges to consider in sentencing Indigenous offenders for a wide variety of offences, provided other requirements are also met (including that the sentence is less than two years, and serving the sentence in the community will not endanger the community).

Ms. Sharma will not get to see the direct benefit of her victory, having already served her jail sentence before the appeal. The decision, however, will help to ensure that, moving forward, Indigenous offenders receive the benefit of the different approach to sentencing enshrined in the Gladue framework. It will also serve as a small step towards reducing the overincarceration of Indigenous people and in particular Indigenous women.

The majority’s decision represents an important articulation of substantive equality under section 15 of the Charter. Section 15, despite its potential for advancing equality, remains complex and under-applied. The majority’s analysis provides a clear example of how to apply section 15 where an applicant argues that a law appearing neutral on its face is discriminatory in its effect – and illustrates the potential of section 15 to be used as tool for addressing the overincarceration of Indigenous people, and Indigenous women in particular.

“We are extremely pleased with the decision in R. v. Sharma,” said Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights. “The Court’s decision affirms our position that substantive equality requires a different approach to criminal justice for Indigenous people. Allowing judges to consider conditional sentences in these cases should help contribute, incrementally, to reducing the overincarceration of Indigenous people.”

“This decision is a breakthrough in how courts think about section 15 of the Charter and criminal law, and affirms the substantive equality rights of Indigenous women in the criminal justice context.” said Megan Stephens, Executive Director and General Counsel of LEAF. “The majority decision is remarkable for both its analytical rigor and its compassion concerning the devastating consequences of the overincarceration of Indigenous women, and the ongoing intergenerational harms to Indigenous women caused by colonialism, sexism, and racism.”

Case Committee and Counsel

LEAF and the Asper Centre’s arguments were informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The committee members for this intervention are (in alphabetical order): Emma Cunliffe (Allard School of Law, University of British Columbia), Gillian Balfour (Department of Sociology, Trent University), Martha Shaffer (University of Toronto Faculty of Law), Mary Eberts OC, Naiomi Metallic (Schulich School of Law, Dalhousie University), Rakhi Ruparelia (Faculty of Law – Common Law Section, University of Ottawa), and Renée Pelletier (Olthius Kleer Townshend LLP).

We are grateful to pro bono counsel Adriel Weaver and Jessica Orkin of Goldblatt Partners LLP, who acted for LEAF and the Asper Centre in this important case.

About Women’s Legal Education and Action Fund (LEAF)

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.

To support our work to protect the equality rights of women and girls, please consider donating today.

About David Asper Centre

The David Asper Centre for Constitutional Rights is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). For more information please visit www.aspercentre.ca.

For media inquiries, contact:

Megan Stephens, Executive Director & General Counsel
Women’s Legal Education and Action Fund (LEAF)
T: 416-317-4440
E: m.stephens@leaf.ca

Cheryl Milne, Director
The David Asper Centre for Constitutional Rights
T: 416-540-7619
E: cheryl.milne@utoronto.ca