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Through the Looking Glass: the Vriend Decision and Beyond - The “Mirror” argument and underinclusive human rights legislation
1. Introduction
The 1998 Supreme Court of Canada judgment in Vriend v. Alberta1 (“Vriend”) represents one of the most important cases in the ongoing legal struggle for lesbian, gay and bisexual equality. In its decision, the Supreme Court unanimously found that it is unjustifiable discrimination contrary to the Canadian Charter of Rights and Freedoms2 (“Charter”) for a government to deny lesbians, gays and bisexuals the human rights protection that it accords to other disadvantaged groups. The Court ordered that “sexual orientation” be read into Alberta’s human rights legislation. As a result, governments could no longer deny protection to lesbians, gays and bisexuals through inaction – the Court explicitly stated that the Charter applies to legal actions and omissions alike.
Now, six years later, the promise of Vriend appears to have been realized. On November 4, 2003, Nunavut enacted human rights legislation3 which includes sexual orientation, with the result that sexual orientation discrimination is now prohibited in every jurisdiction in Canada.
However, for other equality-seeking groups, the Vriend decision also has significant implications, many of which have not yet been fully explored. The ground “gender
1 [1998] 1 S.C.R. 493. 2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 3 Human Rights Act, S.N. 2003, c. 12. 2 identity”, for example, was included in the human rights legislation of the Northwest Territories4 in 2002 to explicitly protect transgendered people from discrimination, but no other jurisdiction in Canada has yet included “gender identity” in its human rights legislation. Just as it was unconstitutional in Vriend for a province to fail to provide lesbians, gays and bisexuals with protection from discrimination, are jurisdictions across Canada constitutionally required to provide transgendered people with comprehensive protection from discrimination? What about other potentially analogous grounds of discrimination, such as province of residence, occupational status, economic disadvantage etc?
Because different human rights statutes across the country prohibit discrimination on different grounds, the scope of Canadians’ protection from discrimination currently depends upon their province of residence. Moreover, new analogous grounds of discrimination are being identified by the Courts and many of these grounds are not reflected in human rights legislation, leaving such legislation potentially vulnerable to Charter challenge by reason of underinclusion.
The Vriend decision was less than clear with respect to the relationship between analogous grounds generally and human rights legislation. This paper will analyze that relationship, and determine to what extent the federal, provincial and territorial governments are required to ensure that their human rights legislation is comprehensive. Specifically, once a ground is determined to be analogous to those enumerated in s. 15(1) of the Charter, does it also need to be included in human rights statutes? The first section of this paper analyses the Vriend decision in detail to explore the Court’s conclusions regarding analogous grounds and human rights legislation. Following this discussion, a brief examination of post-Vriend Charter litigation concerning new analogous grounds is undertaken in an attempt to synthesize the Court’s approach to equality cases since Vriend. Finally, consideration will be given to
4 Human Rights Act, S.N.W.T. 2002, c. 18.
3 the extent to which the Vriend case requires these new analogous grounds to be read into human rights legislation.
2. Vriend v. Alberta
2.1 Factual Background
The facts of Vriend are relatively straightforward. Delwin Vriend began his employment at King’s College in Edmonton, Alberta as a laboratory coordinator in December 1987. In 1988, he was given a permanent, full-time position. In February 1990, Vriend disclosed to his employer that he was gay, in response to an inquiry by the President of the College. The College’s Board of Directors adopted a position statement on homosexuality in January 1991. Not long afterwards, the President of the College requested Vriend’s resignation, but Vriend declined this request. Despite having received positive performance evaluation, salary raises and promotions throughout the course of his employment, Vriend’s employment at the College was terminated on January 28, 1991. The sole reason given for the termination was his non-compliance with the College’s policy on homosexual activity. Vriend’s appeal of the termination and application for reinstatement were refused.
In June 1991, Vriend attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer had discriminated against him because of sexual orientation. In July 1991, he was advised by the Commission that he could not make a complaint because the relevant legislation, the Individual’s Rights Protection Act5 (“IRPA”), did not include sexual orientation as a prohibited ground of discrimination.
2.2 The Legislation – The Individual’s Rights Protection Act
The IRPA was first enacted in 1972. The legislation prohibits discrimination in several aspects of public life and established the Human Rights Commission to deal with
5 R.S.A. 1980, c. I-2 [am. 1985, c. 33; am. 1990, c. 23]. 4 complaints of discrimination. According to the legislation’s preamble, “it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in dignity and rights without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry or place of origin.” In addition to other areas, the IRPA prohibited discrimination in public notices (s. 2), public accommodation, services or facilities (s. 3), tenancy (s. 4), employment practices (s. 6), employment advertising (s. 7) or trade union membership (s. 9).
The legislation had undergone several amendments prior to the time that Vriend filed his original application with the Human Rights Commission. Many of these changes were apparently made in response to the introduction of the Charter and its interpretation by the courts. The legislation was further amended in 1996, when its name changed to the Human Rights, Citizenship and Multiculturalism Act.6 In addition to the grounds listed above, by 1996 the IRPA (referred to as such for continuity) also prohibited discrimination due to source of income, family status, and marital status.
Sexual orientation had never been included as a prohibited ground of discrimination in the IRPA. The Alberta Human Rights Commission (hereafter “the Commission”) had made recommendations between 1984 and 1992 to include sexual orientation. Although the Opposition introduced Bills in the Alberta Legislature to so amend the IRPA, none of these Bills passed first reading. Correspondence between Ministers and members of the government indicate that the omission of sexual orientation was deliberate and not the result of legislative oversight. In its attempts to justify the omission, the government reasoned that sexual orientation was a “marginal” ground and that legislation was powerless to change public attitudes. In fact, by 1992 the Commission had decided to investigate complaints made on the basis of sexual orientation. The decision was vetoed by the Government and the Commission was directed not to investigate such complaints.
6 S.A. 1996, c. 25. 5
2.3 The Legal Issues
The Vriend case raised a number of key issues. The core issue, of course, was whether the Alberta government’s deliberate decision not to include sexual orientation in the provincial human rights legislation unjustifiably violated s. 15(1) of the Charter.
Although not listed as one of the enumerated grounds, the Supreme Court had unanimously decided in Egan v. Canada7 (“Egan”) that sexual orientation was a ground analogous to those listed in s. 15(1). Clearly, the omission of sexual orientation from the IRPA was problematic for lesbian, gay and bisexual residents of Alberta. As the IRPA was the province’s comprehensive human rights legislation, its underinclusiveness effectively denied lesbians, gays and bisexuals a remedy if they faced discrimination in a number of public areas of their lives, including employment and accommodation. For lesbian, gay and bisexual Albertans, the government’s decision not to include sexual orientation in the IRPA meant that they could be, in effect, subject to a variety of forms of discrimination without having any means of redress.
However, the case also raised broader issues about whether or not a failure to act constituted a legislative “matter” under s. 32 of the Charter to which s. 15(1) even applied. Similarly, if the Charter did apply, a further question was raised about whether a law which was neutral on its face, and equally excluded both heterosexuals and lesbians, gays and bisexuals, could be said to create a distinction that was discriminatory. This in turn leads to an issue of broad public importance: to what extent must human rights legislation reflect, or “mirror”, all the enumerated and analogous grounds of discrimination in the Charter?
Further, given the deliberate nature of the exclusion, the case also addressed the issue of judicial deference and the respective roles of the legislative and judicial branches of
7 [1995] 2 S.C.R. 513. 6 government. To what extent would the Court be willing to interfere with a very clear decision of the Alberta Government on a matter of social policy?
2.4 The Position of the Parties
2.4.1 The Position of the Appellants
The appellants challenged sections 2(1), 3, 4, 7(1) and 8(1) of the IRPA, arguing that they were inconsistent with the Charter and that the omission of sexual orientation as a prohibited ground of discrimination violated the individual rights of lesbians, gays and bisexuals in Alberta. The appellants sought an order declaring that the aforementioned sections were inconsistent with s. 15(1) of the Charter, that Vriend had a right to file a complaint with the Commission, and that lesbians, gays and bisexuals had a right to protection under the IRPA.
In addition to Vriend, the appellants included Gala (Gay and Lesbian Awareness Society of Edmonton), Gay and Lesbian Community Centre of Edmonton Society and Dignity Canada Dignité, for gay Catholics and supporters. In addition, a large number of groups, were granted intervener status in support of the appellants’ claim including: Equality for Gays and Lesbians Everywhere (EGALE), Women’s Legal Education and Action Fund (LEAF), the Foundation for Equal Families, the Canadian Human Rights Commission, the Canadian Labour Congress, the Canadian Bar Association (Alberta branch), the Canadian Civil Liberties Association, the Canadian Association of Statutory Human Rights Agencies, the Canadian AIDS Society, the Alberta and Northwest Conference of the United Church of Canada, and the Canadian Jewish Congress.
The appellants argued that positive government action was not required for a Charter violation, but rather that underinclusive legislation could also offend s. 15(1). In the alternative, there was evidence that the Alberta government had deliberately elected not to include the ground of sexual orientation in the provincial human rights legislation and that this also violated the equality provisions in the Charter. The appellants argued that 7 due to the omission of sexual orientation, lesbians, gays and bisexuals in Alberta were treated differentially under the legislative scheme. This differential treatment was discriminatory in so far as lesbians, gays and bisexuals were denied access to the Alberta Human Rights Commission to seek redress for human rights violations based on sexual orientation. This amounted to denial of equal access to the law based on an “immutable personal characteristic” in a way that undermined their human dignity, and therefore the underinclusive IRPA violated s. 15(1) of the Charter.
The appellants further contended that the omission could not be saved by s. 1. Since the IRPA was designed to protect human rights in Alberta, the omission of sexual orientation could not be considered a “pressing and substantive” government objective, nor rationally connected to the legislation. In addition, because the legislation contained no reference to sexual orientation, the omission was too pervasive to constitute minimal impairment. Finally, the deleterious effects of the omission were far-reaching and numerous and created the perception that lesbians, gays and bisexuals were less worthy of protection than those groups identified in the legislation. Therefore, the appellants maintained, the violation could not be justified under a s. 1 analysis. Further, the only appropriate remedy was to read sexual orientation into the impugned provisions.
2.4.2 The Position of the Respondents
The Government of Alberta argued that the omission of sexual orientation from the IRPA did not attract Charter scrutiny. It asserted that in order for s. 15(1) to apply, the government had to take positive action under s. 32. The deliberate decision not to legislate should not be considered government action because it was not an exercise of legislative authority that was subject to the Charter. To find otherwise would result in an unacceptable restriction of legislative policy choices.
The respondents further submitted that to apply the Charter to the IRPA would result in the de facto regulation of private activity. As the Court had previously held that the 8
Charter does not apply to private activity (see RWDSU v. Dolphin Delivery;8 McKinney v. University of Guelph9), the government argued that it would be inappropriate to apply the Charter in this case.
The respondents argued that provincial human rights legislation did not have to perfectly “mirror” the grounds covered by the Canadian Human Rights Act10 or s. 15(1) of the Charter, and that provincial governments have the authority to legislate which grounds will be included in their respective legislative schemes. In the alternative, because there was no reference to sexual orientation in the IRPA, its was the contention of the Alberta government that the legislation was “neutral” and the omission could not, therefore, be considered discriminatory.
The respondents were supported by intervenors the Christian Legal Fellowship, Alberta Federation of Women United for Families, Evangelical Fellowship of Canada and Focus on the Family (Canada) Association.
2.5 The Decisions Below
2.5.1 The Court of Queen’s Bench of Alberta
Russell J. found that the Supreme Court of Canada had already held in Egan that sexual orientation was an analogous ground under s. 15(1). Further, she indicated that discrimination against homosexuals was “so notorious that [she] could take notice of it without evidence.”11
In considering whether the omission of sexual orientation amounted to a violation of s. 15(1), Russell J. noted that a discriminatory distinction can arise from either a
8 [1986] 2 S.C.R. 573. 9 [1996] 3 S.C.R. 229. 10 R.S.C. 1985, c. H-6. 11 (1994), 152 A.R. 1, [1994] 6 W.W.R. 414. 9 commission or omission in law. She agreed with the conclusion in Haig v. Canada,12 where the Court found that the omission of sexual orientation in the Canadian Human Rights Act violated s. 15(1). Russell J. stated that discrimination did not require invidious intent, but rather that the effect of the legislation had a differential impact on the applicant.
Finding that the omission violated s. 15(1), Russell J. held that the Crown had failed to provide any justifiable rationale for the exclusion of sexual orientation and, therefore, had failed to meet the requirements under s. 1. However, even if the Crown had provided a justification, Russell J. would not have found that the violation was justified. The omission was contrary to the intention of the legislation as stated in the preamble, and so there was no pressing and substantial objective for the omission. In addition, the denial of protection from discrimination was not rationally connected to the objective of protecting individual rights and, because the omission was substantial and complete, it was not minimal impairment.
After considering possible remedies, Russell J. found that, as in Haig, reading in the term “sexual orientation” was more appropriate than striking down the legislation, as the objective of the legislation remained intact and the budgetary impact was less onerous. Russell J. ordered that the relevant sections of the IRPA be “interpreted, applied and administered as though they contained the words sexual orientation.”
2.5.2 Alberta Court of Appeal
The decision that came from the Court of Appeal revealed three distinct approaches to the issue in dispute. Although the majority of the court found that the omission of sexual orientation from the IRPA did not violate s. 15(1), the reasons revealed very different approaches to Charter interpretation and application.
12 (1992), 9 O.R. (3d) 495. 10
McClung J.A. held that the omission of sexual orientation from the IRPA did not amount to government action under s. 32(1) of the Charter. He stated that provinces should have latitude in implementing their constitutional powers under s. 92 of the Constitution Act, 1867. He was strongly of the view that provincial human rights legislation did not have to perfectly “mirror” the Charter, and that to require all such legislation to be consistent with the Charter would result in “a debacle of the autonomy of provincial law- making.” McClung J.A. further stated that even if the omission were subject to the Charter, the legislation was neutral and did not deny any benefits or protection to any Canadian. With respect to the remedy, he considered that “reading in” would represent too great an intrusion into the legislative intent. If required, he would have struck down the IRPA completely, suspending the decision for one year to allow the government to address any defects in the legislation.
O’Leary J.A. assumed that the Charter did apply to the IRPA, but he held that the omission did not violate s. 15(1). Because the IRPA was silent with respect to sexual orientation, it could not create a distinction (either expressly or by “adverse effect”) based on sexual orientation. In his view, the IRPA only distinguishes between the prohibited grounds listed and potential grounds which are not, and that this is not a distinction based on sexual orientation that would offend s. 15(1).
Hunt J.A. partially agreed with the lower court decision and held that sections 7(1), 8(1) and 10 of the IRPA violated s. 15(1) of the Charter. She found that the purpose of the IRPA was dedicated to achieving equal treatment for all Albertans. She characterized the omission as “a form of government action that is tantamount to approving ongoing discrimination against homosexuals.” Since homosexuals are denied access to the IRPA’s protection and enforcement process, Hunt J.A. stated that it was easy to conclude that the distinction resulted in a defined group being denied equal benefit and protection of the law. Following Egan, she further held that the distinction was discrimination because it perpetuated the stereotype that lesbians, gays and bisexuals were less worthy of protection. As the government had not presented evidence justifying the omission, it was not saved by s. 1. As a remedy, Hunt J.A. held that 11
“reading in” should rarely be used. Instead, she would have declared the particular sections of the IRPA invalid, suspending the declaration for one year to allow the government time to ensure that the IRPA conformed to the Charter.
2.6 The Supreme Court of Canada Decision
Following the Court of Appeal ruling, Vriend appealed the decision to the Supreme Court of Canada. The Supreme Court unanimously agreed that the Charter applied to the legislative omission, that the exclusion of sexual orientation from Alberta’s human rights legislation constituted discrimination in violation of s. 15(1), and that this discrimination could not be justified under s. 1, although some members of the Court differed in their approach and Major J. reached a separate conclusion on the question of remedy.
The case was heard by Chief Justice Lamer and Justices L’Heureux-Dubé, Sopinka, Gonthier, Cory, MacLachlin, Iacobucci, Major and Bastarache, although Justice Sopinka did not take part in the judgment. The majority decision was delivered by Justices Cory and Iacobucci, on behalf of themselves, Chief Justice Lamer, and Justices Gonthier, MacLachlin and Bastarache. The majority found that the omission of sexual orientation from the IRPA did constitute government action under s. 32. Further, the omission violated s. 15(1) of the Charter and was not saved by s. 1. Although she generally agreed with the majority opinion, Justice L’Heureux-Dubé delivered separate reasons regarding the approach that she felt should be taken under s. 15(1). Justice Major generally agreed with the majority regarding the application and analysis of s. 15(1) and s. 1. However, he dissented in part on the appropriate remedy in this case.
2.6.1 Does the Charter apply to a legal omission?
The Court unanimously rejected the government’s argument that a legal omission did not attract Charter scrutiny by virtue of s. 32. The Court disagreed with the government’s characterization that an “exercise” of “s. 32 authority” was necessary to trigger the Charter. In the words of Justice Cory, “…there is nothing either in the text of 12 s. 32 or in the jurisprudence concerned with the application of the Charter which requires such a narrow view of the Charter's application.”13 Cory J. went on to state that:14
“The relevant subsection, s. 32(1)(b), states that the Charter applies to "the legislature and government of each province in respect of all matters within the authority of the legislature of each province". There is nothing in that wording to suggest that a positive act encroaching on rights is required; rather the subsection speaks only of matters within the authority of the legislature.”
The Court, in effect, held that the Charter is not limited to circumstances where the government actively encroaches on rights, but can also apply where the legislature refuses to exercise its authority. The majority found that underinclusive legislation did attract Charter scrutiny. If it did not, laws that were worded such that an identified group or class was simply omitted, rather than expressly excluded, would be immunized from Charter analysis. The Court found that it would be entirely unacceptable for the form, and not the substance, of the legislation to dictate whether or not the Charter would apply.
The Supreme Court distinguished this case from a situation in which the government had failed to act at all. The Court pointed out that some cases have suggested the possibility that the Charter may impose positive obligations on government to act (see Haig; Eldridge v. British Columbia (Attorney General)15 (“Eldridge”)), but held that it was not necessary to resolve that question in the case before the Court, because the IRPA was a piece of provincial legislation that had already been proclaimed. It attracted Charter scrutiny because it was an underinclusive legislation action.
Section 32 was held not to be the appropriate part of the analysis for a discussion of legislative choice and the respective roles of the legislative and judicial branches of government, since this section requires only an inquiry into whether or not there is a “matter” that falls within the authority of the legislature. Issues regarding the nature of
13 Supra, note 1, at para. 59. 14 Ibid., at para. 60. 13 the legislature’s decision, its effect and its “neutrality” should be considered during the s. 15(1) analysis, as to do so at a prior stage would result in the unacceptable removal of significant matters from Charter analysis. In addition, questions of judicial deference and the respective roles of the legislature and the courts were more properly dealt with during the s. 1 analysis. The discussion undertaken by McClung J.A. in the appeal was relevant to the amount of judicial deference to be accorded and the appropriate remedy, but not to the threshold issue of Charter applicability.
2.6.2 The “Private Activity” Argument
The Court explicitly rejected the government’s argument that the Charter should not apply because it would affect private activity. The argument ignored the difference between private activity and legislation that affected private activity. While it was true that the Supreme Court has expressly stated that the Charter did not apply to private activity, the present case concerned a piece of legislation. The challenge was not made with respect to the actions of King’s College or a private actor, but rather to the underinclusiveness of the IRPA. If the government’s argument had been accepted, it would have meant that any legislation that indirectly affected private authority would be immune from Charter analysis. As the question in this case concerned provincial human rights legislation, the Charter applied.
2.6.3 The Section 15(1) Analysis
In 1998, when the Vriend decision was released, the Court remained divided on the appropriate approach to s. 15 analysis. Cory J. acknowledged these differences, but simply stated that “any differences that may exist in the approach to s. 15(1) would not affect the result, and it is therefore not necessary to address those differences.”16 Many of these questions were resolved in the subsequent case of Law v. Canada,17 which will be considered in section 3.1 of this paper, infra.
15 [1997] 3 S.C.R. 624. 16 Vriend, supra, note 1, at para. 74. 17 Law v. Canada, [1999] 1 S.C.R. 497. 14
The Court in Vriend then proceeded to follow the two-stage analysis articulated in Egan, Andrews v. Law Society of British Columbia18 (“Andrews”) and R. v. Turpin19 (“Turpin”). The first question was: does the law in question deny a claimant’s right to equality before the law, equality under the law, equal protection of the law, or equal benefit of the law? The focus is on whether the impugned legislation creates a distinction between the claimant and others based on personal characteristics. The Court rejected the argument offered by the government that the silence in the IRPA regarding sexual orientation was neutral and did not create a distinction for the purposes of s. 15(1). The majority held that if this were the case, any legislature could avoid a finding of discrimination, simply by omitting references to specific groups. The majority reiterated the comments of Chief Justice Dickson (as he then was) in Brooks v. Canada Safeway20 that “underinclusion may simply be a backhanded way of permitting discrimination.”21
As the Court had further stated in Eldridge, this was a case where a legislative omission violated substantive equality principles; similarly, therefore, the IRPA was held to have created a distinction by reason of its underinclusiveness. Cory J., writing for the majority, noted:22
“The distinction is simultaneously drawn along two different lines. The first is the distinction between homosexuals, on one hand, and other disadvantaged groups which are protected under the Act, on the other. Gays and lesbians do not even have formal equality with reference to other protected groups, since those other groups are explicitly included and they are not. The second distinction, and, I think, the more fundamental one, is between homosexuals and heterosexuals. This distinction may be more difficult to see because there is, on the surface, a measure of formal equality: gay or lesbian individuals have the same access as heterosexual individuals to the protection of the IRPA in the sense that they could complain to the Commission about an incident of
18 [1989] 1 S.C.R. 143. 19 [1989] 1 S.C.R. 1296. 20 [1989] 1 S.C.R. 1219. 21 Ibid., at 1240. 22 Vriend, supra, note 1, at paras 81-82. 15
discrimination on the basis of any of the grounds currently included. However, the exclusion of the ground of sexual orientation, considered in the context of the social reality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed to heterosexuals. Therefore the IRPA in its underinclusive state denies substantive equality to the former group.”
At the second stage of the analysis, the Court went on to consider whether or not the distinction created by the IRPA amounts to discrimination based on a personal characteristic either enumerated or analogous to the grounds listed in s. 15(1) of the Charter. The effect of the distinction must either impose a burden, obligation or disadvantage on the claimant, or must withhold from the claimant a benefit or advantage that is available to others. Although not explicitly enumerated in the Charter, the Court in Egan had already held that sexual orientation was a ground analogous to those listed in s. 15(1). In reaffirming this conclusion, the Court in Vriend referred to “the historical social, political and economic disadvantage suffered by homosexuals”, the “emerging consensus among legislatures”, and “previous judicial decisions”, concluding that sexual orientation was "a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.”23
The Court noted that a denial of equality based on enumerated or analogous grounds could often be assumed to be discriminatory,24 requiring s. 1 justification, but nonetheless went on to explore the effects of the omission.
The Court did consider the argument of the appellants and several intervenors, including Egale, that the Alberta government was advancing a discriminatory purpose in deliberately excluding sexual orientation from the protections of the IRPA. Although acknowledging that “in any Charter case, either an unconstitutional purpose or an unconstitutional effect is sufficient to invalidate the challenged legislation”,25 the Court nonetheless found it unnecessary to decide whether the government had a
23 Ibid., at para. 90. 24 Ibid., at para. 91. 25 Ibid., at para. 93. 16 discriminatory purpose, since it was satisfied that the legislation had a discriminatory effect.
The legislation in this case was a broad law meant to ameliorate discrimination and provide comprehensive protection to citizens. It was different than legislation which targeted a specific problem or type of discrimination, or which was designed to assist a particular group. The effect of excluding a group in need of protection from legislation intended to be comprehensive was therefore severe.
The most obvious impact of the exclusion was that lesbians, gays and bisexuals were denied access to the remedial mechanisms under the IRPA, namely the ability to make a complaint to the Human Rights Commission. The Court went on to state, following Haig, that the denial of any recourse for lesbians, gays and bisexuals who experience discrimination helps to further perpetuate that discrimination. Cory J. stated “[t]he exclusion sends a clear message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals based on their sexual orientation.”26 The adverse impact on the self-worth and psyche of lesbians, gays and bisexuals was a “particularly cruel form of discrimination.”27
The Supreme Court therefore concluded that by omitting sexual orientation from the IRPA, the Alberta Government was effectively stating that every individual was worthy of protection, except lesbians, gays and bisexuals. This message offended s. 15(1) of the Charter. The adverse effects of this distinction were sufficient to conclude that the exclusion was discriminatory.
Although she agreed with the ultimate result, L’Heureux-Dubé J. disagreed with Cory J.’s focus on enumerated and analogous grounds in his s. 15 analysis. She favoured a more purposive approach, as per Andrews, and stated:28
26 Ibid., at para. 101. 27 Ibid., at para. 102. 28 Ibid., at para. 185. 17
“The s. 15(1) analysis should properly focus on uncovering and understanding the negative impacts of a legislative distinction on the affected individual or group, rather than on whether the distinction has been made on an enumerated or analogous ground. In my view, to instead make the presence of an enumerated or analogous ground a precondition to the search for discriminatory effects is inconsistent with a liberal and purposive approach to Charter interpretation generally, and specifically, to a Charter guarantee which is at the heart of our aspirations as a society that everyone be treated equally.”
She further disagreed with what she termed as Justice Cory’s “narrow definition of an analogous ground” as "a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.” Instead, Justice L’Heureux-Dubé favoured the more varied and comprehensive approach offered by the majority in Miron v. Trudel.29 In that case, Justice McLachlin (as she then was) stated that the Court could examine a number of factors in assessing whether a ground was analogous to those listed in the Charter. These included looking at historical disadvantage, examining whether the minority was “discrete and insular”, considering whether the distinction was made due to personal characteristics, and comparing the ground to those enumerated in s. 15.
The majority’s focus on whether a ground is “unchangeable” seems inconsistent with the reality that certain protected grounds are able to be changed, such as one’s marital status, citizenship or religion, even though these are clearly fundamental characteristics. While it is true that the Court also considers a ground to be analogous if it is changeable but “only at unacceptable personal costs”, the broader approach in Egan and Miron v. Trudel, which looked at a range of factors including the group’s history of disadvantage, vulnerability to stereotyping, lack of political power etc., seems more consistent with the overall focus of the s.15 inquiry, which is whether there is a denial of human dignity.
Despite this difference in opinion as to the appropriate approach to s. 15 cases, Justice L’Heureux-Dubé would have similarly found that the omission of sexual orientation from the IRPA violated s. 15(1) and was not justified under s. 1.
29 [1995] 2 S.C.R. 418. 18
2.6.4 The “Mirror” Argument
The argument put forth by the respondents was that if the position of the appellants were successful, it would mean that all provincial human rights legislation would have to “mirror” the Charter by including the same enumerated or analogous grounds. The position of the Alberta government was that this would unduly constrain legislative choice and allow the Charter to indirectly affect private activity, which should be left to the legislatures.
The Supreme Court stated that by virtue of s. 52 of the Constitution Act, 1982, the Charter is part of the supreme law of Canada, and all other legislation must conform to it. However, the Court also found that the “mirror” argument advanced by the respondents was “too simplistic”.30 Charter violations will be assessed on a case-by- case basis, “taking into account the nature of the exclusion, the type of legislation and the context in which it was enacted.”31 These very general considerations, however, offer little direction regarding the specific criteria that will be considered to determine whether the omission of a ground of discrimination violates the Charter.
Any potential violation of s. 15(1) must be examined through the required analytical framework, namely does the legislation create a distinction that is discriminatory and if so, is that discrimination justified under s. 1? The Court expressly stated that as long as the provincial government can justify an omission under s. 1, including rational connection, then it may enact legislation that does not include all of the enumerated or analogous grounds contained in s. 15(1) of the Charter.
Some similarities may be drawn with the Eldridge case, in which the respondents advanced a similar “slippery-slope” argument, summarized by the Court in that case as follows:32
30 Vriend, supra, note 1, at para. 106. 31 Ibid. 32 Supra, note 15, at para. 88. 19
“The respondents argue, however, that the situation of deaf persons cannot be meaningfully distinguished from that of other non-official language speakers. If they are compelled to provide interpreters for the former, they submit, they will also have to do so for the latter, thereby increasing the expense of the program dramatically and placing severe strain on the fiscal sustainability of the health care system.”
Although the Court in Eldridge dismissed this argument as “purely speculative”33, it nonetheless went on to outline several factors that might be taken into account in conducting such an analysis. By contrast, however, the Court in Vriend gave little guidance regarding the circumstances in which the omission of a ground of discrimination could withstand Charter scrutiny under s. 15 or be justified under s. 1.
2.6.5 The Section 1 Oakes Analysis
After Cory J. delivered reasons regarding the s. 15 violation, Iacobucci J. provided the opinion of the majority regarding the s. 1 analysis, which followed the approach enunciated in R. v. Oakes34 and Dagenais v. Canadian Broadcasting Corporation.35
At the first stage of the analysis, the Court must be satisfied that the Charter violation advances a pressing and substantive legislative objective. The Court emphasized that it is the impugned limitation (i.e. the exclusion of sexual orientation from the IRPA) that must be pressing and substantial, not just the legislative scheme as a whole.
The respondents offered either no pertinent rationale or insufficient evidence on this issue, leading the Court to attempt to discern from the record the reasons for the omission. However, the Court also made a point of distinguishing between an “explanation”, which helps shed light on the Legislature’s reasons for excluding sexual orientation, and an “objective”, which identifies a legitimate public policy goal advanced
33 Ibid., at para. 89. 34 [1986] 1 S.C.R. 103. 35 [1994] 3 S.C.R. 835. 20 by the exclusion. Only the latter will suffice to satisfy the first stage of the s. 1 analysis. On this point, the Court held that:36
“In my view, where, as here, a legislative omission is on its face the very antithesis of the principles embodied in the legislation as a whole, the Act itself cannot be said to indicate any discernible objective for the omission that might be described as pressing and substantial so as to justify overriding constitutionally protected rights. Thus, on either analysis, the respondents' case fails at the initial step of the Oakes test.”
Although the impugned exclusion failed to withstand scrutiny even at the initial stage of the Oakes test, the Court nonetheless went on to consider the rest of the analysis. The majority held that the omission of sexual orientation was not rationally connected to the objective of the IRPA, namely to offer comprehensive human rights protection. As Justice Iacobucci stated:37
“Far from being rationally connected to the objective of the impugned provisions, the exclusion of sexual orientation from the Act is antithetical to that goal. Indeed, it would be nonsensical to say that the goal of 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 (see Egan, supra).”
The Court also rejected the government’s argument that change could occur incrementally, as had been suggested in Egan. First, the Alberta government had repeatedly refused to add sexual orientation to the IRPA, suggesting that incrementalism was not possible in this case. Second, unlike Egan, no budgetary impact would result by adding sexual orientation as a prohibited ground. As such, the Court clarified the Egan decision and stated that an incremental approach was not appropriate for most Charter violations.
With respect to the government’s position that the omission minimally impaired the appellant’s s. 15 rights, the Court again rejected the arguments presented by the respondents. As the human rights legislation contained internal mechanisms designed
36 Supra, note 1, at para. 116. 37 Ibid., at para. 119. 21 to balance competing concerns, the Court did not accept that the government was a mediator in a social conflict between religious freedom and protection for lesbians, gays and bisexuals. Although the Court had recognized that some leeway should be accorded to legislatures in balancing social concerns, in this case deference was not appropriate as the exclusion of sexual orientation resulted in the total denial of any protections for lesbians, gays and bisexuals and could not be construed as minimal impairment.
The government had failed to address the third step in the Oakes analysis, but the Court concluded that the deleterious effects of the exclusion were “numerous and clear.” There was no proportionality between the legislative goal and the infringement of the appellant’s equality rights. As such, the IRPA did not meet the requirements of the Oakes test and therefore could not be saved under s.1.
2.7 The Remedy
In accordance with the decision in Schachter v. Canada,38 the Court identified the Charter inconsistency in this case as the exclusion of sexual orientation from the list of prohibited grounds in the IRPA. Turning to possible remedies, the majority held that reading down was not possible as the Charter violation had resulted from an omission. Given the number of sections involved, severance of the impugned sections would have the same result as striking down the entire Act. As this would result in a complete absence of human rights protection legislation in Alberta, the Court found that this too was an inappropriate remedy. Instead, the majority agreed with the position of the appellants and found that reading in the ground of sexual orientation would be the most appropriate remedy, as it would result in far less legislative interference than would striking down the IRPA, either in part or in its entirety.
The remedy of reading in sexual orientation to the sections at issue had the requisite precision to remedy the defect, would not result in significant budgetary impact on the
38 [1992] 2 S.C.R. 679. 22 human rights commission, and would not unduly effect the thrust of the legislation. Although the intent of the legislation as a whole would be preserved, the majority recognized that the remedy conflicted with the deliberate choice of the Alberta government not to include sexual orientation as a prohibited ground. However, the majority held that:39
“…a deliberate choice of means will not act as a bar to reading in save for those circumstances in which the means chosen can be shown to be of such centrality to the aims of the legislature and so integral to the scheme of the legislation, that the legislature would not have enacted the statute without them.”
As in Haig, the majority found no reason to presume that the Alberta government would rather have no human rights legislation at all than legislation that included sexual orientation.
In response to concerns raised by the Court of Appeal, the majority held that although reading in may result in some intrusion into the legislative process, “parliamentary safeguards” remained in place. The legislature could always amend the legislation to include exceptions and defences, provided these could be justified under s. 1. Similarly, the Alberta government also had the available option of invoking s. 33 of the Charter, also known as the “notwithstanding clause”.
Although he agreed that the omission of sexual orientation violated s. 15 and could not be saved by s. 1, Justice Major disagreed with the majority regarding the appropriate remedy. He stated, in separate reasons, that the reasoning in Schachter did not apply in this case because the government’s objection to including sexual orientation was so “abundantly on the record.” It was his opinion that courts should not dictate how legislation that violates the Charter ought to be amended, except in the clearest of cases. Justice Major was of the view that in this case, because of the Alberta government’s obvious and deliberate choice not to include sexual orientation as a prohibited ground, the provincial legislature may prefer to have no human rights
39 Supra, note 1, at para. 168. 23 legislation or choose to invoke s. 33 of the Charter. As the Alberta Government had to answer to its electorate, it should choose the method it employed to ensure that its legislation conformed to the Charter. Justice Major found that it was preferable to declare the offending sections of the IRPA invalid and allow the Alberta Legislature an opportunity to rectify them. In addition, he would have suspended the declaration of invalidity for one year to allow the provincial government time to “bring the impugned provisions in line with its constitutional obligations.”
3. Post-Vriend Analysis
Since the Vriend decision, a number of cases have clarified the approach under s. 15, and also identified various new and emerging grounds. This section will consider jurisprudence subsequent to Vriend, and the approach to underinclusive legislation generally, following which the general principles identified will be applied to underinclusive human rights legislation in particular.
3.1 Approach under s. 15
The leading case which synthesized the Court’s previously-divided approach to s. 15 was Law v. Canada.40 In that case, the appellant argued that provisions of the Canada Pension Plan were discriminatory, in so far as she was denied a survivor’s benefit on the basis of age (an enumerated ground). Although the court did not find that discrimination had been made out in this particular case, Justice Iacobucci summarized the s. 15 approach on behalf of a unanimous Court. The Court articulated three general inquiries which must be addressed:41
“First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is
40 Supra, note 17. 41 Ibid., at paras. 39, 88. 24
differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).”
Although it was recognized that there had been “differences of opinion among the members of th[e] Court as to the appropriate interpretation of s. 15(1)”, Justice Iacobucci stated that there was nevertheless “general consensus regarding the basic principles relating to the purpose of s. 15(1)” and the proper approach to equality analysis, and continued:42
“the purpose of s. 15(1) is 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.”
3.2 The Law approach and Underinclusion
Under the Law approach to s. 15 analysis, the first question involves not just an inquiry into whether the law draws a formal distinction, but also whether it “fail[s] to take into account the claimant's already disadvantaged position within Canadian society”.43 This formulation derives from jurisprudence that contemplated the kind of situation at issue here, i.e. legislative omissions or underinclusiveness.
“Underinclusiveness,” as it is used in s. 15 analysis, describes a law that offers protection or benefit to some groups but fails to extend it to others. Although Parliament or legislatures may be under no positive obligation to create benefit or protection schemes to disadvantaged groups, once they have decided to do so, they must do so in a manner that
42 Ibid., at para. 88(4). 43 See Law, supra, note 17, at paras. 39 and 88, for a full summary of the Court’s guidelines. [Emphasis in original.] 25 is non-discriminatory.44 An attempt to address substantive as well as formal inequalities, it was first articulated in Andrews,45 elaborated in Eaton as an issue of “adverse effects” discrimination,46 and then re-confirmed in Eldridge47 and, of course, in Vriend.48 In cases of underinclusiveness, as explained by Iacobucci J. in Law, “it is the legislation’s failure to take into account the true characteristics of a disadvantaged person or group within Canadian society (i.e., by treating all persons in a formally identical manner), and not the express drawing of a distinction, which triggers s. 15(1).”49
If the claimant is found to suffer from differential treatment on the basis of a prohibited ground, the final determination is whether it constitutes discrimination. The heart of the analysis typically takes place in the assessment of this third broad question:50
“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?”
Legislation is discriminatory if it undermines the purpose of s. 15(1), which was summarized by Iacobucci J. in Law:51
“In general terms, the purpose of s. 15(1) is 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.”
Iacobucci J. further outlined four contextual factors to assist in this inquiry, including 1) pre-
44 Granovsky v. Canada, [2000] 1 S.C.R. 703; Lovelace v. Ontario [2000] 1 S.C.R. 950; Eldridge, supra, note 15. 45 Andrews v. Law Society of British Columbia, supra, note 18. 46 Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241. 47 Supra, note 15. 48 Supra, note 1. 49 Law, supra, note 17, at para. 36. 50 Ibid., at para. 88. 51 Ibid. 26 existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the group; 2) correspondence between the grounds of distinction and actual needs, capacities, or circumstances of the respective groups so distinguished; 3) ameliorative legislative objectives targeted at a specific group suffering disadvantage, particularly where the claim is being brought by a member of a more advantaged group; and, 4) the nature and scope of the interest affected by the impugned law.
The list of potentially relevant factors is not closed,52 and contextual factors will never be determinative, but will be relevant in assessing whether the impugned provision violates the purpose of s. 15 by undermining human dignity. The assessment must be from the perspective of the “reasonable claimant”, which involves both objective and subjective considerations; i.e. the perspective is “that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.”53
Of particular relevance in cases of underinclusion is the third contextual factor suggested by Law, the ameliorative purpose of the legislation. The court in Lavoie described an ameliorative objective as one aiming “to ameliorate the predicament of a group more disadvantaged than” the claimant;54 this can be contrasted with the approach of the courts in Lovelace55 and Granovsky,56 which found it inappropriate to assess relative disadvantage and noted the inappropriateness of “pitting groups of disadvantaged people against each other to determine who is more disadvantaged.”57
When underinclusiveness is not sufficient grounds for a successful s. 15 claim, it is usually when the legislation or governmental program under scrutiny is non-comprehensive, e.g. when it is an ameliorative program with a specifically tailored operation. The decision in
52 Ibid., at para. 88. 53 Ibid., at para. 60. 54 Lavoie v. Canada, [2002] 1 S.C.R. 769, at para. 45. Emphasis added. 55 Supra, note 44. 56 Supra, note 44. 57 Granovsky, ibid., at para. 67. 27
Lovelace58 illustrates this sort of permissible underinclusiveness. Following the guidelines set out in Law, the court stressed the need to analyze s. 15 claims in a manner that gives effect to its remedial purpose, namely, to "protect against the violation of essential human dignity."59 Because the law at issue in Lovelace was not meant to be a comprehensive benefit scheme,60 but an ameliorative program tailored to a specific targeted group (First Nations bands registered under the Indian Act), the law, though underinclusive, was found not to be discriminatory (against First Nations communities not registered). Underinclusiveness, when it corresponds to the actual situation of a disadvantaged group, is less likely to violate s. 15. In fact, such programs may well advance the purpose of s. 15 which is “not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society."61
Another example is Granovsky, a case involving the Canadian Pension Plan62 contribution rules, which were directed to a narrow class of persons (those permanently disabled) seeking a narrowly restricted benefit. This is a situation contrasting sharply with that in Vriend,63 in which the very purpose of the human rights legislation was to protect vulnerable groups from discrimination, and which was intended to have a broad remedial purpose – a purpose wholly inconsistent with the exclusion of the ground of sexual orientation. Thus, the underinclusiveness in that case had the effect of reinforcing the rejection of lesbians, gays and bisexuals as individuals equally deserving of respect.
Indeed, in Vriend, the Supreme Court explicitly stated that:64
“The comprehensive nature of the Act must be taken into account in considering the effect of excluding one ground from its protection. It is not as if the Legislature had merely chosen to deal with one type of discrimination. In such a case it might be permissible to target only that specific type of discrimination and not another. This is,
58 Supra, note 44. 59 Ibid., at para. 54. 60 Ibid., at para. 60. 61 Eaton, supra, note 46, at para. 66. 62 Canada Pension Plan, R.S.C. 1985, c. C-8. 63 Supra, note 1. 64 Ibid., at para. 96. 28
I believe, the type of case to which L'Heureux-Dubé J. was referring in the comments she made in obiter in her dissenting reasons in McKinney (at p. 436): "in my view, if the provinces chose to enact human rights legislation which only prohibited discrimination on the basis of sex, and not age, this legislation could not be held to violate the Charter". McClung J.A. in the Alberta Court of Appeal was of the opinion that these comments were binding on the court and compelled the allowance of the appeal. With respect I believe he was mistaken. Those comments contemplated a type of legislation different from that at issue in this case, namely, legislation which seeks to address one specific problem or type of discrimination. The case at bar presents a very different situation. It is concerned with legislation that purports to provide comprehensive protection from discrimination for all individuals in Alberta. The selective exclusion of one group from that comprehensive protection therefore has a very different effect.”
The fact that underinclusiveness is only a qualified indicator of discrimination was acknowledged before such situations were brought before the courts in Lovelace and in Granovsky. However, these other courts appeared to have in their contemplation the situation where a traditionally advantaged group would try to bring a s. 15 claim against a program clearly designed to address the disadvantage suffered by another group (i.e., a plea of reverse discrimination). In Law, the court emphasized that the “ameliorative purpose” contextual factor “will likely only be relevant where the person or group that is excluded from the scope of ameliorative legislation or other state action is more advantaged in a relative sense.”65 Such was not the case in Lovelace, where, although the group who benefited from the ameliorative program was clearly one disadvantaged in Canadian society, the claimants suffered very similar, and arguably greater, disadvantage.
It must be clarified that specially tailored ameliorative programs are not immune from a s. 15(1) challenge from other disadvantaged groups. As Iacobucci in Law was careful to point out: “I would not wish to be taken as foreclosing the possibility that a member of society could be discriminated against by laws aimed at ameliorating the situation of others, requiring the court to consider justification under s. 1, or the operation of s. 15(2).”66 Lovelace also confirms that targeted ameliorative programs are just as subject as other government-authorized programs to s. 15(1) scrutiny.67
65 Law, supra, note 17, at para. 72. 66 Ibid., at para. 77. 67 Supra, note 44, at para. 61. 29
Although “[s]ection 15(1) requires the claimant to show that her human dignity and/or freedom is adversely affected,”68 adducing actual evidence of infringement is not necessarily required. Rather, a case can often be made simply through judicial notice.69 Also, it has been “emphatically rejected” that “underinclusive legislation did not discriminate because the inequality existed independently of the benefit provided by the state.”70
In summary, an underinclusive legislative definition may violate s. 15 where it fails to take into account a group’s disadvantaged position, thereby subjecting them to differential treatment on the basis of characteristics enumerated in or analogous to those listed in s. 15(1), with the effect of undermining the dignity of the group’s members and promoting the view that they are less deserving of concern, respect, and consideration. As the court in Lavoie explained, “The point of the Law methodology [is to require]… a contextualized look at how [the claimant] feels when confronted by a particular enactment”;71 as such, the perspective of the claimant is key. Ultimately, the goal of the assessment is to determine whether the impugned provision subjects individuals to differential treatment, based on a prohibited ground of discrimination, which undermines their feeling of dignity and demeans their status as human beings and members of Canadian society.
3.3 “New” Analogous Grounds Jurisprudence since Vriend
While the s. 15(1) analysis will ultimately determine whether or not the distinction amounts to discrimination in a particular case, the identification of an analogous ground will raise legitimate questions about whether the group in question has been unconstitutionally excluded from human rights protection, perhaps precisely because it is a group often marginalized and lacking in political power. This section will consider cases subsequent to Vriend, and examine the Court’s approach to new and emerging analogous grounds.
68 Lavoie v. Canada, supra, note 54. 69 Law, supra, note 17, at para. 77. 70 Eldridge, supra, note 15, at paras. 68-9. 71 Lavoie, supra, note 54, at para. 46. 30
3.3.1 Corbiere v. Canada (Minister of Indian and Northern Affairs)72
At issue in this case was whether or not the exclusion of “off-reserve” members of an Indian band from s. 77(1) of the Indian Act,73 thereby denying them the right to vote on band decisions, was inconsistent with s. 15(1) of the Charter. Following the analysis set out in Law, Justices McLachlin and Bastarache, for the 5-4 majority, found that the legislation created a distinction that denied an equal benefit or imposed an unequal burden. Stating that the purpose of s. 15 was to “prevent violation of human dignity through the imposition of disadvantage based on stereotyping and social prejudice, and to promote a society where all persons are considered worthy of respect and consideration”, the Court concluded that “off-reserve” membership was an analogous ground. Regarding its approach to analogous grounds, the Court stated:74
“What . . . are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 -- race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.”
The majority further stated:75
72 [1999] 2 S.C.R. 203. 73 R.S.C. 1985, c. I-5. 74 Supra, note 72, at para. 13. 75 Ibid., at para. 11. 31
“The analogous grounds serve as jurisprudential markers for suspect distinctions. They function conceptually to identify the sorts of claims that properly fall under s. 15. By screening out other cases, they avoid trivializing the s. 15 equality guarantee and promote the efficient use of judicial resources. And they permit the development over time of a conceptual jurisprudence of the sorts of distinctions that fall under the s. 15 guarantee, without foreclosing new cases of discrimination.”
Regarding “off-reserve” membership, the majority concluded it was a “constructively immutable” characteristic that was changeable at only great personal cost. As the distinction made by the legislation amounted to a complete denial of the right to vote, the majority found that it perpetuated a pre-existing disadvantage, affected an important interest and ultimately suggested that “off-reserve” Aboriginals were less worthy of protection. Turning to the Oakes test, the majority of the Court found that the exclusion was rationally connected to the legislation (limiting voting to parties that would have an interest in band decisions). Because “off-reserve” Aboriginals were completely denied the right to vote, however, the government failed at the minimal impairment stage. As such, the majority found that the words “and is ordinarily resident on the reserve” in s. 77(1) were inconsistent with s. 15(1), but suspended the decision for 18 months to allow the government time to ensure that the legislation complied with the Charter.
In separate reasons, Justice L’Heureux-Dubé delivered the opinion of the minority, on behalf of herself and Justices Gonthier, Iacobucci and Binnie. Although both decisions concurred in result, the minority opinion offered a different approach to Charter equality analysis. Following what she termed the purposive and contextual approach, the minority also went through the Law analysis. After finding that the legislation created a distinction between on- and off-reserve band members, L’Heureux-Dubé J. made the following comments regarding the second stage of the equality analysis:76
“The analysis at the analogous grounds stage involves considering whether differential treatment of those defined by that characteristic or combination of traits has the potential to violate human dignity in the sense underlying s.15(1).”
76 Ibid., at para. 59. 32
In the following paragraph, she went on to outline some of the contextual factors that may be considered:77
“An analogous ground may be shown by the fundamental nature of the characteristic: whether from the perspective of a reasonable person in the position of the claimant, it is important to their identity, personhood, or belonging. The fact that a characteristic is immutable, difficult to change, or changeable only at unacceptable personal cost may also lead to its recognition as an analogous ground: Miron v. Trudel, at para. 148; Vriend v. Alberta, at para. 90. It is also central to the analysis if those defined by the characteristic are lacking in political power, disadvantaged, or vulnerable to becoming disadvantaged or having their interests overlooked: Andrews, supra, at p. 152; Law, supra, at para. 29. Another indicator is whether the ground is included in federal and provincial human rights codes: Miron, supra, at para. 148. Other criteria, of course, may also be considered in subsequent cases, and none of the above indicators are necessary for the recognition of an analogous ground or combination of grounds: Miron, supra, at para. 149.”
The minority also stated that the approach must be flexible to adapt to the circumstances and needs of specific groups, recognize that personal characteristics might overlap, and reflect changing social phenomena or new forms of prejudice. It held that the status of being an off-reserve band member was a characteristic fundamental to an individual’s identity and belonging, that it was difficult to change or changeable only at great cost, and that off-reserve band members suffered disadvantage, such as lack of socio-economic and political power. As such, it was an analogous ground for the purposes of the s. 15(1) analysis.
Regarding the third stage of the Law analysis, the minority found that off-reserve band members were a “discrete and insular minority” that suffered from disadvantage, vulnerability, stereotyping and prejudice. They constituted a group whose needs and interests were often overlooked by decision-makers, and suffered general stereotyping in so far as many people considered that the only “real” Aboriginals are those who reside on reserve. Off-reserve band members were also particularly disadvantaged from their on-reserve counterparts in so far as they experienced separation from their cultural identity. In assessing the relationship between the differential treatment and the
77 Ibid., at para. 60. 33 claimant’s characteristics, the minority concluded that it was important in this case that council decisions affected the needs and interests of both on- and off-reserve band members. It may have reached a different conclusion if the case concerned “local” decision-making that only affected those on-reserve. Finally, the minority held that the nature of the affected interest was significant in that decisions could include financial and property interests of off-reserve band members, as well as the availability of services to them. The distinction amounted to discrimination for the purposes of s. 15.
For reasons similar to those of the majority, the minority also found that the distinction was not saved under s. 1 because the complete denial of voting rights could not be considered a minimal impairment of the affected rights. It held that the appropriate remedy was the same as that enunciated by the majority.
3.3.2 Lovelace v. Ontario78
This case concerned the exclusion of certain Ontario First Nations communities, which were not registered as “bands” under the Indian Act, from the First Nations Fund, a fund established to manage the proceeds of on-reserve gaming activities for the amelioration of the social and economic conditions of bands. As a result of the exclusion, these groups were prohibited from sharing in the profits generated by on-reserve casinos. The excluded groups argued that this amounted to discrimination and therefore violated s. 15(1).
The Court summarized the core issue as follows:79
“In basic terms, this appeal requires a determination of the constitutionality of the exclusion of non-band aboriginal communities from sharing in the proceeds, and from negotiating the distribution terms for the First Nations Fund. Specifically, the question is whether the First Nations Fund's underinclusiveness violates the appellants' equality rights as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms.”
78 Supra, note 44. 79 Ibid., at para. 3. 34
After deciding that the purpose of the legislation was to establish government-to- government relations between the province and First Nations bands in Ontario in order to facilitate economic development, a unanimous Court went on to apply the s. 15(1) analysis described in Law. The Court considered that “the s. 15(1) inquiry must proceed on the basis of comparing band and non-band aboriginal communities.”80
The Court considered that the legislation in issue did create differential treatment between “bands” registered under the Indian Act and non-registered communities. Since it concluded that there was no discrimination in this case, however, the Court felt that it did not need to address the second stage of the analysis concerning enumerated and analogous grounds, and went on to the third step in the Law analysis. Although finding that non-band communities suffered pre-existing disadvantage, stereotyping and vulnerability, the Court held that their exclusion did not amount to discrimination. The Court concluded that the First Nations Fund was designed to ameliorate poor social, cultural and economic conditions of First Nations bands in Ontario. Although recognizing that there was a common need between the two groups, the Fund was a targeted ameliorative program that had been developed through a partnership between the government and First Nations bands, and was therefore different than a universal or generally comprehensive benefits program. As such, this was a targeted program designed to have an ameliorative purpose as identified by L’Heureux-Dubé J. in Vriend. The purpose of the Fund was to support the self-government and reliance aspirations of First Nations bands, and address the social, economic and cultural disadvantage that they suffered. The Court held that it was too remote to conclude that the exclusion of non-band communities from this targeted arrangement undermined their dignity, as it did not prevent these communities from entering into similar arrangements with the province. The Court therefore concluded that there was no discrimination for the purposes of s. 15(1) and there was no need to consider the s. 1 analysis.
3.3.3 Delisle v. Canada (Deputy Attorney General)81
80 Ibid., at para. 64. 81 [1999] 2 S.C.R. 989. 35
It was argued in this case that the exclusion of RCMP members from the definition of “employee” in the Public Service Staff Relations Act,82 effectively denying them protection from unfair labour practices, was contrary to the Charter. As part of the argument, it was argued that the occupational status of RCMP members should be considered as an analogous ground for the purposes of the s. 15(1) analysis. Although the court unanimously refused to recognize that the occupational status in this case constituted an analogous ground, L’Heureux-Dubé J. did leave open the possibility that particular types of employment status may constitute an analogous ground in appropriate circumstances. In her concurring reasons, she found that members of the RCMP were not stereotyped in this case and that although the legislation in question did create a distinction, it did not result in the devaluation or marginalization of RCMP members. Therefore, the distinction did not amount to discrimination in this case. The reasons for the majority, delivered by Justice Bastarache, similarly found that the exclusion of RCMP members from this particular regime did not affect their dignity or excellent reputation. The majority stated that for a successful discrimination claim, it was essential to show the existence of a conflict between the impugned law and the purpose of s. 15(1). As that had not been done in this case, the exclusion was not discrimination within the meaning of s. 15(1).
3.3.4 Dunmore v. Ontario (Attorney General)83
At issue in this case was whether or not the exclusion of agricultural workers from the provincial collective bargaining regime was contrary to the Charter. The majority of the Court decided that the legislation violated s. 2(b) and was not saved by s. 1, and did not go on to consider the issue under s. 15. However, two of the justices did undertake the Law analysis, although each came to quite opposite conclusions.
In her s. 15(1) analysis, Justice L’Heureux-Dubé stated that:84
“A ground need not be immutable to be analogous; it can be based on characteristics that the government has no legitimate interest in expecting the
82 R.S.C. 1985, C. P-35. 83 [2001] 3 S.C.R. 1016. 84 Ibid., at para. 166. 36
claimant to change to receive equal treatment under the law, or in other words, characteristics that are difficult to change, or changeable only at great cost.”
Although she focused on the group adversely affected and the nature of the interest at stake, L’Heureux-Dubé J. concluded that even under the majority of the Court’s “grounds” approach, there was no reason why an occupational status could not, in the appropriate circumstances, identify a protected group. She found that the Court has continually recognized that employment is a fundamental aspect of an individual’s life and an essential component of identity, personal dignity, self-worth and emotional well- being (see McKinley v. BC Telephone,85 Reference re. Public Service Employee Relations Act (Alta.)86). Although the Court had rejected the argument where it pertained to RCMP officers in Delisle, the door had been left open to consider the argument in other employment contexts. In that case, L’Heureux-Dubé J. had concluded:87
“…occupation and working life are often important sources of personal identity and there are various types of people who are generally disadvantaged and vulnerable. Particular types of employment status, therefore, may lead to discrimination in other cases, and should be recognized as analogous grounds when it has been shown that to do so would promote the purposes of s. 15(1) of preventing discrimination and stereotyping and ameliorating the position of those who suffer social and political disadvantage and prejudice.”
L’Heureux-Dubé J. found that agricultural workers suffered from disadvantage in that they are economically exploited, politically neutralized, and face serious obstacles to effective political participation. She concluded, as per Wilson J. in Andrews, that they are “a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated.” They are among those “groups in society whose needs and wishes elected officials have no apparent interest in attending.” She found that, in light of relative status, low levels of education and skill, and limited employment mobility, agricultural workers could change their status “only at great cost, if at all.” Therefore, the occupational status of agricultural workers constituted an analogous ground for the purposes of s. 15(1). It should be noted,
85 [2001] 2 S.C.R. 161. 86 [1987] 1 S.C.R. 313. 87 Supra, note 83, at para. 8. 37 however, that Justice L’Heureux-Dubé expressly stated that her analysis did not mean that occupational status generally was an analogous ground.
Although he also examined the s. 15 issue, Justice Major reached the opposite conclusion in his dissenting opinion. He found that agricultural workers were a disparate and heterogeneous group. He stated that agricultural workers were not identifiable as a group other than that they happened to work in the agricultural sector, and therefore he declined to hold that their occupational status was a ground analogous to those listed in s. 15(1). Further, he did not find that the exclusion of agricultural workers from the collective bargaining regime constituted discrimination as the omission did not reflect stereotypical assumptions but rather represented the policy maker’s assessment of the particular characteristics and circumstances of the agricultural industry. In his reasoning, Justice Major also stated:88
“There are…many causes of economic disadvantage that do not attract the scrutiny of s. 15, and a showing of economic disadvantage does not, by itself, establish discrimination on an analogous ground within the meaning of s. 15.”
3.3.5 Falkiner et al v. Ontario (Attorney General)89
This case involved a challenge to the interpretation and constitutional validity of the definition of “spouse” in s. 1(1)(d) of the Ontario legislation concerning social assistance. The respondents were women who were unmarried, had children, and were in relationships with men. Under the previous regime, they had been classified as single mothers but when the definitions were changed in 1995, they were classified as “spouses” and were no longer eligible to receive family benefits as “sole support parents” under the Family Benefit Act.90 The respondents argued that although they cohabited with their parents, they were not in “spousal” relationships. The government argued that the changes to the definitions were intended to treat married and common law couples equally. However, the respondents’ position was that the definition
88 Ibid., at para. 215. 89 (2002), 59 O.R. (3d) 481. 90 R.S.O 1990, c. F.2. 38 captured non-spousal relationships and distinguished between social assistance recipients and all others, as well as between women and single mothers on social assistance. They argued that the definition was discriminatory on the enumerated ground of sex, as well as on two analogous grounds – social assistance recipients generally and single mothers on social assistance.
From the outset, the Court of Appeal had difficulty with the government’s argument. In classifying the women as “spouses”, the legislative scheme required a financial arrangement between the respondents and their partners. Although the government argued that it required “economic interdependence that is more than ‘trivial’ ”, the Court said that the definition was overly broad and that the economic threshold was so low that it captured relationships that were not spousal. It then examined the three comparative groups offered in the respondents’ argument.
The Court found that the law differentially treated single persons who were on social assistance and those who were not, concluding that the latter could be in “try-on” relationships without state imposed consequences. Although the law was neutral on its face, the Court stated that the facts revealed there was also differential treatment based on sex. Women accounted for only 60% of single persons on benefits, however the statistical evidence indicated that they were 90% of those who had had their benefits terminated due to the legislative amendment. On the third ground (which the Court refined to be marital status), they stated that because married couples were assessed on their actual economic situation and the respondents had not been, this also amounted to differential treatment. As per Miron, marital status was an analogous ground.
The Court of Appeal realized that it might be problematic to recognize “social assistance recipients” as an analogous ground. It could be “controversial” to single out the economically disadvantaged for Charter protection, especially because it had previously been rejected as analogous ground in Masse v. Ontario (Ministry of Commerce and 39
Social Services).91 However, the Court offered several reasons why it was appropriate to recognize social assistance recipients as an analogous ground.
First, as per Corbiere, it would offer some protection of the human dignity of the applicants. The Court found that there was significant evidence of historical disadvantage and continuing prejudice against social assistance recipients, particularly sole support mothers. Single mothers suffered economic disadvantage, limited education and employability which adversely impacted their ability to gain self- sufficiency. In addition, social assistance recipients suffered from the social stigma and stereotype that they are lazy, which resulted in their social exclusion and political powerlessness. Second, although economic disadvantage alone does not justify protection under s. 15, it “often co-exists with other forms of disadvantage.” Third, the Court held that an analogous ground need not be immutable “in the sense of a characteristic that cannot be changed.” Rather, “[t]he Supreme Court of Canada has taken a more expansive view of ‘immutability’.”92 Social assistance recipients fit within the expansive view taken by the Supreme Court in that it was:93
“[a] characteristic that is difficult to change, that government has no legitimate interest in expecting us to change, that can only be changed at great personal cost or that can be changed only after a significant period of time.”
Finally, the Court found that it was appropriate to recognize the ground because most provincial human rights statutes prohibit, for some purposes, discrimination related to receiving welfare. Therefore, the Court of Appeal held that it was preferable to recognize receipt of social assistance as a ground generally (and not single mothers or sole support parents) because it was more akin to the general grounds enumerated in s. 15(1).
Moving on through the Law analysis, the Court found that the differential treatment in this case amounted to discrimination. It reinforced existing prejudice, stereotypes and
91 (1996), 134 D.L.R. (4th) 20. 92 Supra, note 89, at para. 89. 93 Ibid. 40 disadvantages. The impugned definition created financial stress, reinforced the notion that men supported women, and devalued women’s desire for financial independence. The economic threshold was so low that it did not involve an assessment of meaningful support or financial interdependence, and therefore was not representative of the respondents’ actual needs, capacity and circumstances. Although the legislation was generally ameliorative, this particular component was not. The definition of “spouse” also went to the core of the respondents’ human dignity. It severely impacted their ability to meet their own and their children’s basic needs and created forced financial interdependence, which could have a chilling effect on the formation of relationships. Due to all of these factors, the legislation discriminated against social assistance recipients.
The Court also concluded that the spousal definition was not saved under s. 1. It accepted the government’s objectives of 1) treating married and common law couples alike and 2) allocating public funds to those most in need by ensuring individuals use private resources before resorting to social assistance, but concluded that the definition failed to address these objectives. Due to its overbreadth, the definition was not rationally connected to the legislative intent. Similarly, because non-spousal relationships were caught by the amendment, the spousal definition could not be considered to be minimal impairment. Finally, the only positive effect were the costs saved by the government. In comparison, the negative consequences included: reinforcement of dependence, deprivation of financial independence, and state interference with close personal relationships. As a result, the Court dismissed the government’s appeal.
4. Summary and Application of Principles Emerging from the Cases
The preceding discussion of analogous grounds and underinclusiveness reveals a number of guiding principles, which can be used to supplement the Court’s reasoning in Vriend. For example:
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It is clear that excluding a group in need of protection from a comprehensive benefit scheme, such as a human rights statute, is much more likely to undermine human dignity and constitute discrimination than excluding a group from a narrow statute designed to address a specific issue;
This is particularly so where the narrow statute has an ameliorative purpose or is designed to redress a particular form of disadvantage;
The nature of the ground will also be relevant. The exclusion of broad grounds which could cover a wide range of statuses is less likely to be seen as violating human dignity than the exclusion of narrow grounds which identify with precision a group that faces disadvantage and which is clearly in need of protection. Thus it will be easier to establish that a human rights statute is unconstitutionally underinclusive for failing to include a ground such as “sexual orientation” or “gender identity” than broad grounds such as “occupational status” or “province of residence”, which may encompass subgroups that experience disadvantage but do not necessarily single such groups out in a way that undermines their dignity;
Although a discriminatory purpose is not necessary to demonstrate that underinclusive legislation violates s. 15, demonstrating that an exclusion is deliberate may help establish its negative impact on the dignity of the group affected. In the Vriend case, the Court referred to the fact that the exclusion, “deliberately chosen in the face of clear findings that discrimination on the ground of sexual orientation does exist in society, sends a strong and sinister message.”94
If a ground is covered by the human rights legislation of other jurisdictions, this may also lend weight to a claim for inclusion.
94 Vriend, supra, note 1, at para. 100. 42
Once discrimination is established, the Court in Vriend, despite its rejection of the “mirror” argument, appears to have made it very difficult for any government to justify the omission of an identified analogous ground under s. 1, at least in those cases involving comprehensive human rights legislation. As previously indicated, the majority stated that where a legislative omission on its face is inconsistent with the principles embodied in the legislation, the omission of a group in need of protection could not be said to disclose any policy objective that could be considered pressing and substantial. As such, the omission of an enumerated or analogous ground from legislation that is meant to provide comprehensive human rights protection to citizens would likely not pass the first branch of the Oakes test, and would therefore not be justified in a free and democratic society.
While it is true that the Alberta government did not advance a particularly strong s. 1 argument and, in fact, did not address some of the requirements of the Oakes analysis, it seems unlikely that any government could justify the exclusion of an identified ground from human rights legislation since the Vriend decision. While the majority allowed for the possibility of a justifiable exclusion from legislation meant to address the particular circumstances of a specific minority group, it clearly stated that it was different when an Act purported to offer protection and ameliorate the position of a number of identified groups. While not referencing all Canadian human rights legislation in the decision, the analysis of the IRPA in the Vriend decision does strongly suggest that these legislative schemes will have to conform to the Charter.
Similarly, as in the Vriend case, it would be difficult for a government to establish that the omission of a recognized ground was rationally connected to the objectives of human rights legislation, which are both protective and ameliorative. In addition, the omission would constitute a complete denial of access to the legislative mechanisms created to redress human rights violations and would likely not meet the minimal impairment stage of the Oakes analysis. While the Court in Vriend was not willing to go so far as to state that human rights statutes must include all grounds recognized under 43 s. 15(1), the Court’s decision makes it very difficult for governments to justify such an exclusion under s. 1.
5. Gender identity inclusion
By way of example, the ground “gender identity” continues to be excluded from almost all human rights legislation in Canada.
“Gender identity” refers to a person’s deeply felt, internal sense of belonging to a gender, their sense of conformity or non-conformity between their biological and psychological gender. A person may have a male or female gender identity, with the physiological characteristics of the opposite sex.
Gender identity is a profoundly rooted, fundamental aspect of the human personality. It should not be a basis for discrimination or abuse. In Egale’s view, gender identity meets all of the criteria necessary to be considered an analogous ground of discrimination under s. 15 of the Charter. Gender identity is an essential personal trait, fundamental to an individual’s identity and belonging. Sufficient and persuasive evidence could be gathered to show that gender identity is a personal characteristic that is either immutable or changeable only at an unacceptable personal cost (as in Miron, Vriend and Corbiere).
In addition, transgendered people share the history of disadvantage, prejudice and stereotyping common to other groups protected by s. 15. Transgendered people face some of the worst abuses directed at those who do not conform to prevailing norms for appearance or expression. As one commentator notes:95
"The notion that there are two and only two genders is one of the most basic ideas in our binary Western way of thinking. Transgendered people challenge our
95 barbara findlay, cited in Canadian HIV/AIDS Legal Network/Canadian AIDS Society, Gay and Lesbian Legal Issues and HIV/AIDS: Final Report (1998), at 53.
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very understanding of the world. And we make them pay the cost of our confusion by their suffering."
Examples of discrimination include:
A hotel employee in Edmonton was fired after she identified as transgendered, despite having recently been promoted and being recognized as ‘employee of the month’;96
A women’s shelter in British Columbia denied a transgendered woman the ability to act as a counsellor;97
A police constable, responsible for teaching children traffic safety and the dangers of drugs, was described in an evaluation as “a trailblazer in community policing.” Within an hour of disclosing her transsexualism, she was transferred from her duties as a school liaison officer;98
A teen in California was beaten to death at a party when three of the party-goers discovered she was transgendered. One commentator described the case – “one of 300 cases I have chronicled” – as “shocking in its brutality”, and noted that at the trial “Gwen's gender identity [was] an issue that the defense sought to emphasize just as much as the DA attempted to downplay it.”99
In addition to violence, hate crimes and discrimination in housing and employment, transgendered people have often faced barriers in areas such as access to or custody of children. Many judges’ attitudes towards transgenderism appear to be reminiscent of the old attitude that homosexuality is not in itself a bar to custody, provided it is not
96 “Sex change costs hotel job”, Ottawa Citizen, May 31, 2002. 97 Nixon v. Vancouver Rape Relief Society, [2002] B.C.H.R.T. 1. 98 “Transsexual ex-cop claims shoddy treatment”, Toronto Star, July 29, 2004. 99 “Deadlock brings more pain”, Gwendolyn Ann Smith, Transmissions, 2004; “Trial for transgender teen slaying set to begin”, TriValley Herald, http://www.trivalleyherald.com/Stories/0,1413,86~10671~2003527,00.html. 45
“flaunted” by the parent. In one case,100 a parent’s cross-dressing was considered by the Court not to have an impact on the children, since it only took place in “private”. In another case, the judge was clearly alarmed by what he described as the father’s “gender disorder”,101 and expressed deep concern that the father had cross-dressed in public. Ultimately, despite his misgivings, the judge accepted the children’s wishes to remain with their father, and ordered joint custody.
A more recent case illustrates a more progressive attitude, although the judge did note that “[t]he entire focus of this trial has been upon the consequences of the applicant's transgendering.” Nonetheless, the judge emphasized how overstated such concerns can be:102
“Frankly, it is remarkable how little impact all this storm swirling about the parties has had upon this little girl. It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being.”
Internationally, the United Nations Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has noted cases in which:103
male-to-female transsexual women have been beaten intentionally, causing implants to burst and releasing toxic substances into their bodies;
ill-treatment against sexual minorities is believed to have been used in ‘social cleansing’ campaigns;
100 Chernoff v. Pyne, B.C.S.C., Vancouver Registry, File No. A850746, June 27, 1990. 101 Ghidoni v. Ghidoni (1995), 58 A.C.W.S. (3d) 259. 102 Forrester v. Saliba [2000] O.J. No. 3018, Brampton Registry, No. 1021/96, July 24, 2000 (Ont. Ct. J.) per Wolder J., at paras. 19 and 30, citing Ghidoni v. Ghidoni, supra, note 101; Smith v. Pichler (1999), 93 A.C.W.S. (3d) 297 and Steers v. Monk (1992), 37 A.C.W.S. (3d) 359, [1993] W.D.F.L. 087. 103 A/56/156 (3 July 2001); E/CN.4/2002/76 (27 December 2001). 46
members of sexual minorities have received inadequate medical treatment in public hospitals on grounds of their gender identity. Prisoners diagnosed as suffering from gender dysphoria are often said to be denied medical treatment for gender dysphoria, such as hormone therapy;
transsexual and transgendered persons, especially male-to-female transsexual inmates, are said to be at great risk of physical and sexual abuse by prison guards and fellow prisoners if placed within the general prison population in men’s prisons.
Many other cases of violence and abuse directed at transgendered people have been documented, including:104
In Argentina, an HIV-positive transgendered woman died in police custody, her body showing signs of torture;
In Colombia, transvestites and other “disposables” have been tortured and killed by death squads as part of an exercise in “social cleansing”;
In Vietnam, Nguyen Trong Tien was born biologically male with a female gender identity. She was consistently denied access to sex-reassignment surgery. Rejected by hospitals, she ultimately took matters into her own hands, and sought to slice off her penis with a razor blade. Over her protests, doctors reattached the penis, operating without anaesthetic and shouting derogatory comments all the while.105
Other considerations for recognition under the Charter, articulated in cases such as Andrews and Egan, include whether the group is “lacking in political power” and thus “vulnerable to having its interests overlooked”. Clearly, in the case of transgendered
104 Amnesty International, Crimes of hate, conspiracy of silence: Torture and ill-treatment based on sexual orientation (2001). 105 BBC News, “Vietnam man’s fight to become a woman” (27 September, 2003). 47 people, the community affected is not so large as to constitute a major electoral force or voting bloc, and the transgendered community’s lack of power and vulnerability to having its interests overlooked is apparent from the extent to which “gender identity” has been left out of protective legislation. For example, notwithstanding submissions by Egale that transgendered people are equally in need of protection from hate crimes and hate speech, “gender identity” was omitted from hate sentencing legislation in 1995, and from hate speech legislation in 2004.106
Similarly, following a year-long national consultation process, a Canadian Human Rights Act Review Panel unanimously recommended in 2000 that the Canadian Human Rights Act be amended to explicitly protect transgendered people from discrimination. Nonetheless, “gender identity” has still not been added to the federal legislation.
Other Human Rights Commissions have recommended similar changes, such as British Columbia in 1998,107 and again gender identity remains excluded as an explicit ground of discrimination.
In Vriend, the fact that a ground is protected under some human rights legislation but not others was one factor that helped the Court conclude that the omission of the ground had a discriminatory effect. Currently, only the Northwest Territories has explicitly added “gender identity” to its human rights legislation as a prohibited ground of discrimination.108 As noted above, however, other jurisdictions have acknowledged the need for such protection, and in the absence of legislative reform, the Ontario Human Rights Commission has developed formal guidelines for accepting complaints from transgendered people on the ground of “sex”. These guidelines protect “people whose gender identity is different from their birth-assigned genders and from social norms of
106 Criminal Code, R.S. 1985, c. C-46, ss. 718.2 and 318. 107 British Columbia Human Rights Commission report: Human Rights for the Next Millennium (January, 1998). 108 Supra, note 4. 48
‘male’ and ‘female’,” including “pre- and post-operative transsexuals, transgenderists, intersexed people, cross-dressers and others.”109
It is therefore safe to conclude that if “gender identity” is not explicitly included as a ground in jurisdictions other than the Northwest Territories, this is more a reflection of the extreme marginalization experienced by the transgendered communities than because of any lack of need. The fact that gender identity inclusion has been considered, but not adopted, by a number of jurisdictions is similar to the scenario in Vriend, in which sexual orientation inclusion was considered, but rejected, by the Alberta government.
It is therefore submitted that all the considerations that led the Supreme Court to conclude in the Vriend case that it is unconstitutional to exclude sexual orientation from human rights legislation would apply equally to the exclusion of gender identity as a ground. The only countervailing factor that might be considered in concluding that the exclusion does not reasonably undermine human dignity is whether protection is adequately afforded by existing grounds. For example, in the Vriend case, Cory J. stated:110
“The denial of access to remedial procedures for discrimination on the ground of sexual orientation must have dire and demeaning consequences for those affected. This result is exacerbated both because the option of a civil remedy for discrimination is precluded and by the lack of success that lesbian women and gay men have had in attempting to obtain a remedy for discrimination on the ground of sexual orientation by complaining on other grounds such as sex or marital status. Persons who are discriminated against on the ground of sexual orientation, unlike others protected by the Act, are left without effective legal recourse for the discrimination they have suffered.”
This does suggest that perhaps the exclusion would be seen as less “dire and demeaning” if protection were available on other grounds, such as sex, sexual orientation or disability.
109 See: http://www.ohrc.on.ca/english/publications/gender-identity-policy.shtml. 49
It should be noted, however, that this is only one factor amongst many for consideration, and Cory J. only stated that the “dire and demeaning” consequences of exclusion were “exacerbated” by lack of protection on other grounds. Moreover, trying to “fit” gender identity into one of the established grounds will likely not address the concerns of the transgendered community appropriately.
Although the ground of “sex” or “gender” has been held to include transsexuals,111 the scope of coverage may be limited, and the ground may not be interpreted broadly enough to account for the vast array of identities represented by transgendered people, which includes pre-operative and post-operative transsexuals, those who are at various stages of the transitioning process, those who are non-operative and do not wish to biologically change their sex, intersex people, cross-dressers, those who present only part of the time as the sex that corresponds to their gender identity, those who challenge or are perceived to challenge gender norms etc.
The ground “disability”, while it may convey some benefits in enabling sex reassignment surgery or other treatments to be considered medically necessary and therefore publicly fundable (at least in some jurisdictions), may not correspond to an individual’s sense of identity, nor cover the diversity of experiences requiring protection, such as discrimination against those who neither desire nor seek medical intervention.
Despite similarities in the abuse experienced by lesbians, gays and bisexuals, and by transgendered people, the term “sexual orientation” is also insufficient to protect transgendered people. “Gender identity” is different from “sexual orientation”, which refers to a person’s capacity for same-sex or opposite-sex attraction. Some transgendered people may identify as lesbian, gay or bisexual; others are heterosexual.
110 Supra, note 1, at para. 97. 111 See Sheridan, supra, note 50; Mamela v. Vancouver Lesbian Connection, [1999] BCHRTD No. 51(B.C. Trib.); Ferris v. Office and Technical Employees Union, Local 15, [1999] BCHRTD No. 55; and Vancouver Rape Relief Society v. BC Human Rights (2000) B.C.S.C. 889, where at para. 56 it was held that the ground of sex included a prohibition against discrimination on the basis of transsexualism. 50
The issues of violence and violations of the entire spectrum of human rights on the basis of gender identity require specific consideration. The experiences of transgendered people are distinct and deserve distinct recognition. It is submitted that the considerations in Vriend would require full protection of transgendered people in human rights legislation. The fact that the Northwest Territories has already extended such protection demonstrates recognition of gender identity as a ground needing full and specific protection in its own right.
6. Conclusion
The Supreme Court in Vriend made clear that human rights legislation must conform to the Charter and cannot be unconstitutionally underinclusive.
Although the deliberate exclusion of “sexual orientation” as a ground was a clear case of discrimination, the Court was less clear regarding what criteria will apply in determining which grounds must be included in human rights legislation.
Subsequent cases on underinclusion have revealed that the prime consideration is whether the legislation is narrowly tailored to address a specific issue, or is intended to be broad and comprehensive, in which case it will be more difficult to justify the omission of groups equally in need of protection.
Similarly, the omission of grounds that are broad and general is less likely to be seen as undermining human dignity than the omission of a specific group that is clearly targeted for discrimination.
By way of example, transgendered people face discrimination and harassment at least as severe as that faced by the lesbian, gay and bisexual communities. Notwithstanding some scope for protection under other grounds, the implications of the Vriend case are likely to require explicit inclusion in human rights legislation of gender identity as a 51 prohibited ground of discrimination. Similar considerations would likely apply to other grounds, such as economic disadvantage.
In this way, although sexual orientation itself is now protected as a ground of discrimination in every jurisdiction in Canada, the Vriend decision continues to have far- reaching implications, and remains a powerful tool for equality-seeking communities across Canada.