Midterm: Andrews

Question 1

What is the importance of McLachlin’s judgement in the Court of Appeal?

Answer 1

Unanimous judgement from the court, “ the real meaning of equal protection and benefit before and under the law is that people who are similiarly situated be treated similarly, and people who are differently situated by treated differently.”

The Supreme Court rejected this idea, ruling that not every distinction in treatment will transgress the equality guarantee of s15(1)

Question 2

Why is McLachlin’s Court of Appeal judgement problematic?

Answer 2

This idea is deficient because it excludes the consideration of the nature of the law. If applied literally , it could be used to justify the Nuremberg laws of Hitler.

Question 3

What is discrimination according to Andrews?

Answer 3

• practices or attitudes that have, whether by purpose or effect, the impact of limiting an individual’s/group
  s right to the opportunities generally available because of attributes other than actual characteristics.
• it does not matter if the discrimination is intentional or unintentional
• a barrier affecting a group in a disproportionately negative way.

Question 4

What are the three main approaches to s15(1)?

Answer 4

1. Peter Hogg
   - any distinction is discrimination
   - when discrimination is found, the Courts should turn to s1 of the Charter to determine its constitutional validity
2. McLachlin
   - a consideration of the reasonableness or fairness of the impugned legislation
   - Discrimination must be pejorative in nature, meaning that it must result from an unreasonable classification or unjustifiable differentiation
   - rejected the proposition that any differentiation would result in a resort to s1 of the Charter, arguing that it could not have been intended to give a guarantee in S15(1) against every legislative classification
3. Enumerated or Analogous Grounds
   - Discrimination is usually expressed by analogous grounds, S15 is designed to prevent discrimination on these analogous grounds
   - the issue, for each case, is establishing which grounds are permissible in determining similarity of situation and which are not. A breach in equality rights is found when the categories themselves are not permissible.

Question 5

What is the importance of McIntyre J’s dissenting opinion in Andrews?

Answer 5

• stated that all differential treatment under the law does not necessarily result in inequality.
• a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.
• the test must have scope for considering the reason for the distinction.

Question 6

R v Big M Drug Mart Ltd

Answer 6

The equality necessary to support religious freedom does not require identical treatment of all religions. True equality may require differentiation in treatment.