Last updated on March 14th, 2021
Last Updated on March 14, 2021 by Steven Meurrens
Section 15 of Canada’s Charter of Rights and Freedoms provides that every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination. Aidan Campbell joins to discuss the application of s. 15 of the Charter to Canadian immigration law and the implications recent Supreme Court of Canada decision in Fraser v. Canada.
Aidan Campbell is an Associate at Mahon & Company, a progressive firm which practices in Criminal Law, Immigration and Refugee Law, Public Interest & Constitutional Litigation, Sex Worker Rights, Prisoners’ Rights, Professional Discipline. Extradition Law and Tenants’ Rights
- (1) 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 based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability;
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Kahkewistahaw First Nation v. Taypotat,  2 S.C.R. 548, at paras. 19‑20) provides that to prove a prima facie violation of s. 15(1) , a claimant must demonstrate that the impugned law or state action:
- on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
- imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.
Adverse impact discrimination occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground. Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage.
Increased awareness of adverse impact discrimination has been a “central trend in the development of discrimination law”, marking a shift away from a fault based conception of discrimination towards an effects based model which critically examines systems, structures, and their impact on disadvantaged groups.
Accompanying this shift was the recognition that discrimination is “frequently a product of continuing to do things ‘the way they have always been done’”, and that governments must be “particularly vigilant about the effects of their own policies” on members of disadvantaged groups.
Some of the leading cases on s. 15 and Canadian immigration are:
Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 CanLII 87 (SCC),  1 SCR 711
- s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard.
- While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.
Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC)
- Justice McIntyre made it clear that the concept of human dignity that underlies the equality guarantee calls not only for formal equality (“things that are alike should be treated alike”), but, more importantly, for substantive equality.
- “…a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”
Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497
- Substantive equality would be infringed only where adverse differential treatment by the government has a negative effect on a person’s human dignity.
- First, the court must decide whether the impugned law draws a formal distinction between the claimant and others on the basis of one or more personal characteristics, or fails to take into account the claimant’s already disadvantaged position within Canadian society, thereby treating differently, in a substantive way, the claimant and others on the basis of one or more personal characteristics. Second, the court must deal with whether the basis for the differential treatment is an enumerated or analogous ground. Third, the court must determine, by answering the following question, whether the law has a purpose or effect that is discriminatory.
- “Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?”
Austria v. Canada (Citizenship and Immigration), 2014 FCA 191 (CanLII),  3 FCR 346
- Discrimination on national origin because of visa post backlogs
- Sidestepped the issue and said lack of evidence.
- Appellants argued that this was unfair because the government had the evidence and did not provide it, but court unmoved.
Y.Z. v. Canada (Citizenship and Immigration), 2015 FC 892
- The first aspect of the test is satisfied by the very provisions of paragraph 110(2)(d.1) itself inasmuch as it creates two classes of refugee claimants based on national origin: those foreign nationals from a DCO and those who are not from a DCO.
- This is akin to saying that all refugee claimants in Canada are equal, but some – i.e. those from non-DCO countries – are more equal than others. As proficient as the RPD may be, there is no question that access to the RAD is a substantial benefit which is being denied to claimants from DCOs.
Canadian Doctors for Refugee Care v. Canada (Attorney general), 2014 FC 651
- For these reasons, I have concluded that the 2012 IFHP violates section 15 of the Charter inasmuch as it provides a lesser level of health insurance coverage to refugee claimants from DCO countries in comparison to that provided to refugee claimants from non-DCO countries. This distinction is based upon the national origin of the refugee claimants and does not form part of an ameliorative program. It is, moreover, based upon stereotyping, and serves to perpetuate the disadvantage suffered by members of an admittedly vulnerable, poor and disadvantaged group.
Guzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 1134 (CanLII),  3 FCR 411
- Social assistance not an enumerated ground.
Begum v. Canada (Citizenship and Immigration), 2018 FCA 181
- It is the adverse effects that are caused or contributed to by an impugned provision that must be the focus of the analysis, not the social and economic circumstances that exist independently of such a provision. Otherwise, any fee increase for public services provided by the state, for example, would be inherently suspect and presumptively run afoul of section 15 equality rights when applied to economically disadvantaged groups; yet, economic status or poverty is not a characteristic considered to be immutable or changeable only at unacceptable cost to personal identity.
- The evidence does not support the notion that women and recent immigrants are disproportionaly impacted by the minimum necessary income requirement to sponsor a member of the Family Class.