Ch 10 Flashcards
1
Q
What does section 15 (1) provide?
A
- every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national ethnic origin, color, religion, sex, age or mental or physical disability
2
Q
What is the difference between enumerated and analogous grounds?
A
Enumerated: specifically listed in section 15 (1)
Analogous: other grounds that should be considered analogous and can be read into section 15, example Egan sexual orientation read into section 15 (1)
- based on immutable characteristics, a personal characteristic that is very difficult to change, cannot be changed, or one in which it would not be reasonable to ask a person to change in order to avoid discrimination
3
Q
What is formal equality?
A
- identical treatment, where every individual is given the same rights, the symmetrical application of section 15
4
Q
Consequences of formal equality
A
- can reinforce pre-existing inequalities between the advantaged and disadvantaged sides
- ex. First three years in effect, there were 591 equality rights decisions, of that 44 were sex discrimination cases, of those only nine were made or on behalf of women, and only about 17 of 591 or brought by members of historically disadvantaged groups
5
Q
Weatherall
A
- involved across gender first searches, male inmates were challenging who could search inmates and who could engage in surveillance
- female prison guards were allowed to frisk search male inmates, but male prison guards were not allowed to frisk search female inmates
- male inmates argued this amounted to sex discrimination
- this rule was based on the gendered nature of sexual assault and allowing male guards to search female inmates would be emotionally traumatic, if female prison guards could not search males they would have less employment opportunities since males are more frequently incarcerated
- court struck down the regulation that prohibited male prison guards from searching female prisoners, now male guards could search female prisoners
- this was a win for formal equality, at the expense of women’s rights and personal and psychological safety
6
Q
Substantive equality
A
- a substantive equality approach to section 15 is required
- andrews v. Law society (first stated in this case): rejects the idea that equality always requires identical treatment, and excepts that sometimes you have to treat people differently in order to treat them equally
7
Q
What must a claimant prove in order to establish a section 15 (1) rights violation?
A
1) that there is a distinction under the law that is based on an enumerated or analogous ground
2) that the distinction constitutes discrimination for the purposes of section 15 (results in harm or prejudice)
8
Q
Distinction between direct discrimination and adverse effect discrimination
A
- direct discrimination is caught by the Andrews test
- adverse effect discrimination: claimant has to show that the law’s effect creates a distinction based on a prohibited ground
9
Q
What effect does the Supreme Court’s substantive equality approach have on the symmetrical application of section 15 (1) in sex equality cases?
A
- The substantive equality approach should work against the symmetrical approach of 15 (1)
Conway v. Canada (SCC Weatherall case): revisiting the issue of cross gendered frisk searches for prisoners - SCC reached a very different conclusion, Equality does not require identical treatment, court concluded that exempting female inmates from cross gendered searches did not result in discriminatory treatment of male inmates
- 65-75% of female inmates in Canada have been abused and around half of been sexually assaulted, given historical and biological differences between men and women, the effect of a cross gendered frisk search would be more harmful to women than men
10
Q
What problems arise with grounds-based approaches when it comes to protecting equality rights?
A
- requires claimants to fit their discrimination under a specific ground of discrimination, forced to speak about their groups as coherent
- criticize section 15 because it denies key differences among groups of women, other identity categories important, when different identity markers intersect, they result in different experiences by women (ex. Race and sex)
- law does not recognize intersectionality
- ex. DeGraffenreid
- ex. Law v. Canada
- ex. Withler v. Canada
11
Q
DeGraffenreid (1976)
A
- brought under civil rights act
- prohibits discrimination in employment based on certain prohibited grounds
- five black women bring a lawsuit against their employer, General Motors
- GM undertook a seniority-based layoff, all employees hired after 1970 lost their jobs, as a result, every single black woman was laid off
- civil rights act came into affect in 1964 prior to that GM had not hired any black women, by 1970 only one black female at GM
- Argued the effect was to discriminate against black women, brought their claim as black women, they did not win
- The court said that it was not sex discrimination because the court hired white women before 1964 and also hired black men before 1964
- refused to recognize it was the intersection of sex and race that created a unique form of oppression that only black women experienced
12
Q
Law v. Canada
A
- SCC recognizes intersectionality, claimants can bring claims involving more than one ground, new analogous ground or as a synthesis ground, Supreme Court has not been receptive to the latter
13
Q
Withler v. Canada
A
- A dispute over death benefits received by the surviving spouse of members of the arm forces (lump sum payment)
- The amount of money that the spouse received was reduced by 10% for every year past age of 65 that the plan member lived
- brought aged based discrimination claim, intersectional approach age and sex most of the claimants were elderly women
- SCC did not accept this intersectionality
14
Q
How have feminist interests fared under section 15 (1)?
A
- Bruce Ryder looked at all section 15 claims between 1989 to 2004, found success rate for section 15 was lower
- between 1989 to 2019, zero wins for female claimants before SCC arguing sex discrimination claims
- 2005 to 2018 success rate for all grounds was only 9%, 0% for women
- some legal scholars argue that section 15 has gone into a state of dormancy
15
Q
Newfoundland Treasury Board
A
- involved collective agreements between province of Newfoundland and public sectors (hospital workers)
- female hospital workers were being severely underpaid by the province, government acknowledged this and entered into a pay equity agreement in 1988
- agreed to raise salaries but needed time to decide how much they should be paid in 1991
- in 1991, the province argued it could not afford to abide by the pay equity agreement that they have entered into and also argued it’s credit rating would suffer if it tried to borrow more money
- Government passed a piece of legislation called the public sector restraint act (1991) which deferred the start date of the women’s increased salaries to 1991, essentially extinguished three years of back pay
- nurses challenged this act and argued it violated section 15, cost can never be used to justify a charter violation
- SCC established a cost plus principle instead, financial considerations combined with public policy considerations, therefore can raise cost to violate charter rights
-  seven justices found that the act was a reasonable limit on section 15 even after province found that it was discriminatory (off the hook for $24 million)
