Sex Discrimination and the Spirit of Section 15 of the Canadian Charter of Rights and Freedoms - Essay Example

 Sex Discrimination and the Spirit of Section 15 of the Canadian Charter of Rights and Freedoms Introduction Concepts of equality are perhaps the most fundamental theme that runs throughout the socio-political, legal and moral traditions of most Western nations.1 Equality represents notions of fairness and justice and legal and moral traditions seek to ignore distinctions among gender, race and social status.2 Consistent with Western themes of equality, Section 15 of the Canadian Charter of Rights and Freedoms which forms a part of the Constitution Act 1982 guarantees indiscriminate equal treatment and protection and benefit under and by the law of all Canadian residents.3 The Canadian courts are charged with the responsibility of interpreting and ensuring the application of Charter rights, with the Canadian Supreme Court sitting as the final authority. Since its inception, social and political changes have challenged fundamental notions of gender equality so that the Courts have faced significant challenges in striking the correct balance and ensuring that eradicating gender differences are consistent with public policy and changing social and political trends and traditions. This is primarily accomplished by recognizing the distinction between formal equality and substantive equality and attempting to reconcile the differences. This essay explores how the Canadian courts have made this distinction and attempted to strike a fair balance between the two concepts in their interpretation and application of the spirit of Section 15 of the Canadian Charter of Rights and Freedoms. Section 15 of the Canadian Charter of Rights and Freedoms Section 15 of the Canadian Charter of Rights and Freedoms makes provision for the equal rights.4 Section 15(1) of the Charter provides the Canadian Charter’s substantive equality protections and guarantees providing 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 and, in particular without discrimination on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”5 It is largely intended that Section 15(1) of the Charter be read together with other “orienting principles” under the Constitution.6 To this end, Section 28 of the Charter which contains a gender equality clause is relevant. Section 28 provides that: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”7 While Section 28 does not in and of itself contain a substantive right, it provides a guide by which Section 15(1) should be interpreted.8 In other words gender equality should be applied equally to both male and females within the spirit and intent of Section 15 of the Charter. Even so, as will all rights under the Charter, are subject to a Section 1 test.9 While Section 1 of the Charter maintains that all rights listed under the Charter are guaranteed, those guarantees are subject to reasonable limits which permits the government to place limitations on the rights contained in the Charter. Section 1 provides as follows: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”10 The reasonable limits test has been articulated in R v Oakes [1986] 1 SCR 103 and is two-tiered.11 First, the limitation on Charter rights must have a “pressing and substantial objective.”12 Secondly, a “proportionality test” is administered which requires that the party supporting the limitation demonstrate to the court’s satisfaction that: “First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’”.13 The Canadian Supreme Court issued its first Section 15(1) ruling in 1989 in the case of Andrews v Law Society of British Columbia [1989] 1 S.C.R. 143 and provided an initial interpretive guideline for applying Section 15(1) equality rights and obligations. The following principles of law under Section 15(1) were set forth in Andrews: Section 15 is primarily focuses in the impact of law on a specific group or individual and encapsulates a “large remedial component.”14 Equality is relative and is discerned by comparisons to the conditions of others comprising a relevant social or political stratum. It therefore follows that differential treatment might not always be contrary to Section 15(1) whereas equal treatment can also render inequitable consequences. The law is therefore not calculated to bar all distinctions, only those that are discriminatory in nature. Section 15 applies to discrimination that distinguishes between groups and/or individuals based on personal characteristics and results in disadvantages that are not likewise imposed on others. Discrimination under Section 15 also relates to denying access to benefits or advantages to one group or individual that is accessible by others. Personal characteristics are not only those enumerated in Section 15(1) such as race, sex, class or nationality but can also include other non-enumerated characteristics such as citizenship. Non-enumerated characteristics are those that are analogous to those enumerated in Section 15(1). In all instances the impact or effect of the different treatment is required to be weighed.15 In short the Canadian Supreme Court ruled that in order for a complainant to succeed under Section 15(1), he or she must demonstrate to the court’s satisfaction: “...not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded law but, in addition, must show that the legislative impact of the law is discriminatory.”16 It is against this background that the Canadian courts interpret and enforce Charter 15 rights in the context of equal protection and benefits under the law, including sex and gender equality. The definition of sex discrimination and the application of Section 15(1) in that regard has expanded over the years so much so that the gap between formal and substantive sex discrimination has narrowed. This is in large part, a result of the Canadian courts’ willingness to adhere to the spirit and intent of Section 15(1) of the Charter. Formal and Substantive Equality within the Context of Sex Discrimination Formal equality logic defines discrimination as applying divergent rules of law to similar situations or applying similar rules of law to divergent situations.17 Substantive equality on the other hand, takes the position that different treatment may be necessary when one looks at the impact of the treatment.18 In Canadian jurisprudence the courts have, guided largely by the Andrews decision intensified efforts to interpret the meaning of sex discrimination under Section 15(1) by reference to an amalgamation of both the substantive and formal equality approach. In essence the Andrews decision marked a turning point for the concept of equality by promoting a more substantive form of equal justice, while maintaining a hold on formal equality. However, the decision in Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 witnessed a more intense reliance on substantive equality. In this case a widow aged 30 was denied survivors benefits under a Canadian Pension plan since the plan required the widowed spouse to be age 65, or disabled or to have dependents.19 The Canadian Supreme Court found that the pension plan was not contrary to Section 15(1) of the Charter and delineated two approaches to the question of inequality. First the approach cannot be purely clinical, it must be flexible as well as “purposive and contextual.”20 There must be room for considering the impact on future cases and must therefore take a remedial approach in order to identify and resolve discrimination. Secondly, the approach taken to a discrimination claim should be focused on the following issues: Does the law impose differential treatment on the claimant as other individuals and groups either purposively or effectively? Is there at least one enumerated or analogous non-enumerated ground forming the basis of the discriminatory or differential treatment? Does the law complained of such that it has a discriminatory purpose or effect pursuant to the meaning of equality guaranteed under Section 15 of the Charter?21 In applying this logic the equality test requires a broader inquiry than that which is applied under the formal test. This necessitates focusing on the spirit and intent of Section 15(1) which was stated as: “...to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.”22 The idea is to advance Canadian society more profoundly toward an equality based orientation so that virtually all injustices in society can be eradicated or at the very least minimized. This means circumventing injustices to the entire community as a whole as well as to the individual. Therefore opting between the formal equality and the substantive approach primarily means balancing the overall impact of the discriminatory measure taken. In many cases, in order to obtain normative justice, courts will have to depart from the formal equality approach or temper it with a substantive equality approach. Canadian judicial conscience has been guided by two socio-economic factors in determining whether or not to adapt the formal or substantive approach to equality pursuant to Section 15(1) of the Canadian Charter.23 They are: Judicial awareness of the economic results for governments being held accountable for taking positive steps to avoid discrimination. Careful attention to the protection of human dignity as the underlying purpose of Section 15 of the Canadian Charter.24 By adhering to these principles, the Canadian courts have shifted back and forth between meting out formal equality strands of justice and substantive equality. In appropriate cases, a cross between the two have been used. Law v Canada took a substantive approach to equality while Andrews encapsulated both. The foundational constitutional principle of substantive equality is entirely necessary. Its most significant function is to take account of distinctions which necessarily demand different treatment in order that equanimity can be achieved. Hughes refers to this aspect of substantive equality as “affirmation of difference.”25 The uniform approach to equality as envisaged under the doctrine of formal application cannot achieve this objective since it is far to rigid in its application. Patricia Hughes further submits that substantive equality also ensures that Canadian society is ordered and offers a reflection of Canadian values.26 Formal equality does not take into account future consequences whereas substantive equality does. To this end, substantive equality permits a form of response to current and developing moral concerns and issues. Substantive equality invites an inquiry into social norms and what requires change.27 The Judicial Approach to Sex Discrimination under Section 15(1) of the Canadian Charter The case of Egan v Canada [1995] 2 SCR 513 represents the administration of substantive equality within the realm of sex discrimination within the meaning of Section 15(1) of the Canadian Charter. It effectively responds to changing norms in society by encapsulating a non-enumerated basis of sex discrimination by interpreting discrimination on the grounds of sexual orientation as prohibited by the spirit and intent of Section 15 of the Charter.28 In Egan v Canada [1995] 2 SCR 513 the plaintiffs James Egan and John Nesbitt were a gay couple living together since 1948. In 1986 when Egan attained the age of 65 he was eligible for old age security benefits under the Old Age Security Act which provides that a pensioner’s spouse can receive allowance if their joint income was below a specific amount. When Nesbit attained the age of 65 he made an application to the Department of National Health and Welfare for the spousal allowance. His application was declined on the grounds that Section 2 of the Old Age Security Act did not cover same-sex spouses.29 Nesbit and Egan challenged the finding by filing a suit seeking a declaration that Section 2 of the Old Age Security Act was ultra virus the constitution. The suit was filed in the Federal Court of Canada and the pair alleged that the words “spouse’ as defined by the Old Age Security Act infringed their respective rights to equal benefit and protection of the law as provided for under Section 15 of the Canadian Charter. Moreover, such contravention was discriminatory on the grounds of sexual orientation.30 The judge at first instance dismissed the case, ruling that the distinction contained in Section 2 of the Old Age Security Act was no more than a divisive line between spouses and non-spouses. As such it was not discriminatory in nature.31 The Federal Court of Appeal affirmed the lower court’s decision, essentially ruling that the application was no more than “an indirect challenge to the common law and statutory concept of marriage.” 32 Dissenting, Linden J.A. argued however, that the definition of spouse in the Old Age Security Act was in and of itself discriminatory on the grounds of sexual orientation.33 On Appeal to the Canadian Supreme Court, the court was divided with one vote making the difference in the affirmation of the lower court’s decision. The plurality reasons submitted that the aim of the Old Age Security Act was the “support and protection of legal marriage.”34 Marriage per se was an institution: “firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally care for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.”35 The dissenting decisions however, recognized that the Old Age Security Act was discriminatory and could not be justified on the grounds exhorted by the plurality decision. Cory J.A. argued that the purpose of the Old Age Security Act was to alleviate “poverty in elderly household.”36 While that objective constitutes a “pressing and substantial” need, the exclusion of a same-sex couples cannot not rationally be linked to that objective. Cory J.A. went on to add: “If there is an intention to ameliorate the position of a group, it cannot be considered entirely rational to assist only a portion of that group. A more rationally connected means to an end would be to assist the entire group, as that is the very objective which is sought.”37 Despite the plurality decision holding which was primarily founded on formal equality, a substantive approach was entailed in the dissenting decisions which took full account of the purpose of the Old Age Security Act together with the spirit and intent of Section 15 of the Canadian Charter. Even so, a collective approach to substantive equality surfaced in that each of the judges sitting in the Canadian Supreme Court ruled that discrimination on the grounds of sexual orientation was an analogous non-enumerated basis of discrimination within the meaning of Section 15(1) of the Canadian Charter. Such a view reflected the changing norms in Canadian society. The dissenting decision in Egan which embraced a substantive approach to equality with respect to sex discrimination was echoed in the case of M v H [1999] 2 SCR 3. In this case, a lesbian couple challenged the definition of common law spouses in Section 29 of the Ontario Family Law Act which effectively excluded same-sex spouses. The challenged alleged that Section 29 contravened Section 15(1) of the Canadian Charter and was not capable of justification under Section 1 of the Charter. The Canadian Supreme Court ruled that: “The exclusion of same-sex partners from the benefits of s. 29 promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic interdependence as compared to opposite-sex couples, without regard to their actual circumstances. Such exclusion perpetuates the disadvantages suffered by individuals in same‑sex relationships and contributes to the erasure of their existence.”38 Although this case did not change the definition of spouse in terms of marriage, it indorsed and recognized an important shift in Canadian values. The Canadian Supreme Court adamantly insisted that the Family Law Act be amended so as to afford equal benefits to all conjugal couples. To this end the Act was amended so that same-sex couples could become entitled to the same property divisions and benefits as heterosexual common law spouses.39 Discrimination on the grounds of sexual orientation has now become a hybrid basis of sex discrimination within the meaning of Section 15(1) of the Canadian Charter. It is a hybrid basis of discrimination because it has been interpreted by the Canadian Supreme Court as an analogous non-enumerated discriminatory act. This interpretation is made possible by the flexible nature of substantive equality. Vriend v Alberta [1998] 1 SCR 493 delved even further into the ambit of sex discrimination on the grounds of sexual orientation. In this case, a teacher had been dismissed from his position as a lab coordinator at King’s College on the basis of his sexual orientation. He was unable to lodge a complaint under the Alberta Individual Rights Protection Act because there was no provision for discrimination on the basis of sexual orientation. Vriend made an application to the Alberta Court of the Queen’s Bench seeking a declaration that the failure to include sexual orientation as a discriminatory ground contravened Section 15(1) of the Canadian Charter. The judge of first instance agreed with Vriend’s submissions. However, the Alberta Court of Appeal quashed the lower court’s decision.40 On Appeal to the Canadian Supreme Court two issues were analysed: Does a failure to include sexual orientation as a prohibited “ground of discrimination” under the Individual’s Rights Protection Act contravene or deny protections secured under Section 15(1) of the Canadian Charter?41 If so, is such a contravention or denial “demonstrably justified” under the limitation clause contained in Section 1 of the Canadian Charter?42 Ultimately, the Canadian Supreme Court responded by holding that that the answer to the first question was yes and the correct answer to the second question was no. The Canadian Supreme Court emphasised that: “Far from being rationally connected to the objective of the impugned provisions, the exclusion of sexual orientation from the Act is antiethical to that goal. Indeed, it would be nonsensical to say that the goal protecting persons from discrimination is rationally connected to, or advanced by denying such protection to a group which this Court has recognized as historically disadvantaged.”43 This case demonstrates that courts would take a substantive approach to equality and would not hesitate to in cases where the government failed to take action.44 In Vriend, the Canadian Supreme Court ruled that the offending provision should be read to include protection of individuals who are discriminated against on the basis of sexual orientation. This changing trend in the interpretation of sex discrimination under the Canadian Charter is an ongoing norm. It has evolved under the auspices of both the formal and substantive concept of equality. Previously, sex discrimination typically arose in situations where women were facing stereotypical and archaic concepts of “what they can and cannot do.”45 Earlier cases, by and large were straightforward and could reasonably be dealt with by a formal equality approach. There was little left to interpretation. For example, a number of complaints were based on “advertising and hiring for female jobs and male jobs.”46 The arguments made in defence of these kind of discriminatory actions were easily nullified. Employers would systematically take the position that “women are inherently unsuited for dirty or dangerous work.”47 Such arguments did not find favour with the courts. With the introduction of the Canadian Charter of Rights and Freedoms and more substantive approach was made possible. In fact the more recent trends in society and discrimination required a more flexible approach to the interpretation and enforcement of equal protection of all genders. The more recent cases of sex discrimination have been well oiled in the art of deception. A formal approach to sex discrimination could quite possibly allow these kinds of tactics to go unchecked and unaccounted for. This is so, because formal equality sets uniform standards with little room for flexibility in the construction of what amounts to sex discrimination. In the most recent cases: “Physical strength, height, and weight requirements for certain jobs have been found to create adverse effect discrimination on the basis of sex.” 48 In Chapdelaine v Air Canada [1987] 9 CHRR D.4449 the minimum height required for pilots ultimately excluded 82 percent of the Canadian female population. Such a requirement with the extent of its exclusion capacity amounted to adverse effect discrimination. The plaintiffs in this case were regional airline pilots, qualified for the position but for the height restriction. The respondents tried to justify the height requirement by reference to cockpit sizes. The court rejected this contention ruling that it was not capable of justifying a height requirement and therefore amounted to discrimination on the basis of gender.49 Other straightforward complaints based on sex discrimination have been centred on working conditions and discriminatory treatment of both men and women in the workplace. For example in Allan v Chrysalis Restaurant Enterprises Inc. [1987] 9 CHRR D/4516 a dress code requiring women to wear sexually explicit clothing while men were not required to subscribe to the same dress code was found to be discriminatory.50 Likewise in Manitoba Food and Commercial Workers Union v Canada Safeway Ltd. [1983] 4 CHRR D/1495, a prohibition against males wearing beards could be discrimination on the basis of sex if the prohibition was not related to health and safety considerations.51 In Doherty and Meelan v Lodger’s International Ltd. [1982] 3 CHRR C/133 the court found that a requirement that a waitress wear clothing that accentuated her sexuality was only discriminatory on the basis of gender is a similar requirement was not extended to male employees.52 Each of these cases are easily dealt with by virtue of a formal approach to equality and the court’s simplistic approach is evidenced by the ruling in Doherty. In other words, applying the formal rule, the court looks to see if males are treated differently and if not the conduct was not discriminatory. A substantive approach would look at consequences and hold that equal treatment does not always elicit like consequences. It could be argued that a female forced to wear sexually explicit clothing in the work place may be more prone to unwanted sexual advances from male patrons. Such a scenario would be more threatening to a female than a male. While this may appear to be a sexist assessment of the position of men and women, it is nonetheless a reality. There are also cases from the past which have warranted a substantive approach to equality in the context of sex discrimination. For instance in the case of Canada (Canadian Human Rights Commission) v Canadian National Railway [1987] 1 SCR 1114, the court found that the notable absence of women in blue-collar jobs was evidence of “pervasive systematic discrimination.”53 In response the court ordered that the employer implement a hiring program with a view to taking corrective measures to the obvious method of discriminatory hiring.54 Substantive equality was required in the case of Poirer v British Columbia (Ministry of Municipal Affairs) [1997] 29 CHRR D/11. In this case, a female employee, having recently given birth, made arrangements with her supervisor and colleagues to facilitate her breast-feeding of the infant while at work. Each lunch break the infant was brought to the work place and she would breast-feed the infant in her assigned cubicle. At some stage the employee obtained permission to breast-feed the baby during some seminars. A number of complaints were made about the employee feeding the baby in the open area.55 Responding to the complaints the Ministry of Municipal Affairs implemented a policy forbidding children in the workplace, although they made allowances for the employee to continue to breastfeed the infant in the confines of cubicle. The employee’s supervisor asked not to feed the baby at work for at least two weeks in order to allow the controversy to cool off. As a result the employee stopped bringing the infant to work altogether and breastfed it at restaurant instead. In her complaint to the court she argued that it had been made clear to her that the infant was not wanted on the job at all. That the situation caused her distress and discomfort as well as additional expenses in restaurant lunches.56 The tribunal ruled that discriminatory treatment on the ground of breast-feeding amounted to sex discrimination. More specifically the rule against children at work had an adverse impact on the employee in her position as a breast-feeding parent. 57 This case, like others that followed such as the Vriend case, M v H and the Egan case demonstrate that a formal approach to sex discrimination is not adequate. The courts are required to go beyond the legislation and construct so as to include the conduct complained of. This is necessary in situations where the conduct complained of is not specifically contemplated by the protective or prohibitive legislation. Conclusion Section 15(1) of the Canadian Charter seeks to prohibit unjust and unfair treatment of individuals and groups in such a way that one group or individual is disadvantaged or burdened while another is not. Section 15(1) also seeks to remove discriminatory barriers that confer a benefit over one group or individual while denying the same for another. The formal approach takes an entirely narrow approach to these objectives leaving little room to wander from the enumerated list of discriminatory conduct. The substantive approach permits more creativity and is entirely consistent with a changing society. This approach allows closer scrutiny of Section 15(1) and as result far more flexibility. Bibliography Allan v Chrysalis Restaurant Enterprises Inc. [1987] 9 CHRR D/4516. Andrews v Law Society of British Columbia [1989] 1 S.C.R. 143. Canada (Canadian Human Rights Commission) v Canadian National Railway [1987] 1 SCR 1114. Canadian Charter of Rights and Freedoms. Chapdelaine v Air Canada [1987] 9 CHRR D.4449. De Burrca, G. (1995) “The Role of Equality in European Community Law.” Cited in Dashwood, A. and O’Leary, S. The Principle of Equal Treatment in EC Law. London: Sweet and Maxwell, 13-34. Doherty and Meelan v Lodger’s International Ltd. [1982] 3 CHRR C/133. Egan v Canada [1995] 2 SCR 513. Elliot, Douglas. (2004) “The Canadian Earthquake: Same-Sex Marriage in Canada.” The New England Law Review. Vol. 38(3), 591-620. Gilbert, Douglas; burkett, B. and McCaskill, M. (2000) Canadian Labour and Employment Law for the US Practitioner. BNA Books. Grabham, Emily. (2002) “Law v Canada: New Directions for Equality Under the Canadian Charter?” Oxford Journal of Legal Studies, Vol 22, 641-661. Hogg, Peter. Constitutional Law of Canada. Scarborough, Ontario: Thornson Canada Limited, 2003. Hughes, Patricia. (1999) “Recognizing Substantive Equality as a Foundational Constitutional Principle.” Dalhousie Law Journal Vol. 22, 5-40. Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497. Manley-Casimir and Sussel, Terri. (1986) “The Equality Provisions of the Canadian Charter of Rights and Educational Policy: Preparations for Implementation.” Interchange, Vol. 17(3) 1-14. Manitoba Food and Commercial Workers Union v Canada Safeway Ltd. [1983] 4 CHRR D/1495. M v H [1999] 2 SCR 3. Poirer v British Columbia (Ministry of Municipal Affairs) [1997] 29 CHRR D/11. R v Oakes [1986] 1 SCR 103. Sussel, Terri. (1995) Canada’s Legal Revolution: Public Education, the Charter, and Human Rights. E. Montgomery Publications. Vriend v Alberta [1998] 1 SCR 493. Young, Margot. (2007) “Why Rights Now? Law and Desperation.” Cited in Young, Margot; Boyd, Susan; Brodsky, Gwen and Day, Shelagh. (eds) Poverty: Rights, Social Citizenship, and Legal Activism. Vancouver, UBC Press, 317-336. Sex Discrimination and the Spirit of Section 15 of the Canadian Charter of Rights and Freedoms Precis Introduction: The introduction will set out the objective of the essay and will provide an introduction to equality in general. The introduction will also set out the ambit of Section 15 of the Canadian Charter of Rights and Freedoms. It will contain introductory remarks relating to the role of the Canadian courts and how they are guided by formal and substantive justice in the context of sex discrimination. Section 15 of the Canadian Charter of Rights and Freedoms This part of the paper will explore the substantive equality protections contained in Section 15(1) of the Canadian Charter of Rights and Freedoms. Section 28 of the Charter will also be introduced in this part of the paper. The Oakes test will be explained as will the Andrews test which are both relevant. The Oakes test is relevant for explaining and evaluating the limitation clause contained in Section 1 of the Canadian Charter. The Andrews test is necessary for explaining the interpretive guidance to Section 15(1). Formal and Substantive Equality within the Context of Sex Discrimination Under this heading of the essay the concepts of formal and substantive equality will be evaluated. In order to accomplish this objective, a definition and explanation will be offered. The Judicial Approach to Sex Discrimination under Section 15(1) of the Canadian Charter This part of the paper will explore the manner in which the Canadian courts have applied the formal and substantive equality approaches to questions of sex discrimination. This will necessarily involve an evaluation of cases. Conclusion The conclusion will reflect overall impressions of the judicial approach to sex discrimination and how they have been guided by the formal and substantive approach. Read More