University of Toronto Journal of Law & Equality VOLUME 16 EDITORIAL BOARD & STAFF
Editors-in-Chief Angela Hou Amitpal Singh
Senior Editors
Maria Alexiou Mashoka Maimona Ahmed Elahi Robert Nanni Olivia Eng Samantha Pajak Michelle Huang Sonia Patel Jenna Kara Madeline Stewart Richard Kennedy Juela Xhaferraj Daniel Korman Anju Xing Tessa Latowsky Lucas Youmans
Faculty Advisor Denise Réaume
Administrative Assistant Vanessa Zhang
Copy Editor Stacy Belden
Associate Editors Temitope Ajibode Kayly Machado Natalie Chan Nicole Nowoselski Leora Chapman Flint Patterson Vivien Cheng Haleigh Ryan Christopher Cook Alannah Safnuk Jaime Corbett Lien Shi Jenna D’Aurizio Seema Sidhu Maija Fiorante Aryaman Vaideeswaran Kirsten Hart Chandrasekar Ventakaraman Katie Lawless Natasha Williams
Advisory Board The Hon. Claire L’Heureux-Dubé Will Kymlicka The Hon. Robert J. Sharpe David Lepofsky The Hon. Lynn Smith Bruce Porter Joe Arvay Cynthia Petersen Bill Black Jim Phillips Gwen Brodsky Sophia Moreau Brenda Cossman Ayelet Shachar Shelagh Day Martha Shaffer Mary Eberts Colleen Sheppard Martha Jackman Jean Teillet
University of Toronto Journal of Law & Equality
The Journal of Law & Equality (JLE) is published annually. The JLE accepts submissions on a rolling basis, generally issuing one call for submissions in the Fall and another in the Winter.
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Citation: (2020) 16 JL & Equality
University of Toronto Journal of Law & Equality
VOLUME 16 – SUMMER 2020
Editors’ Note i Amitpal Singh and Angela Hou
ARTICLES
Attesting to Fundamental Human Rights: The Backlash 1 to the Active Promotion of Equality in Canada Daphne Gilbert
How (Not) to Interpret Moore and Meiorin: Using Two 37 Recent Arbitral Awards to Point the Way Maryam Shahid
Ethno-racial Legal Clinics and the Praxis of Critical Race 69 Theory in Canada Vincent Wong
Parental Undocumented Status as an Analogous Ground of 93 Discrimination Tiran Rahimian
Editors’ Note
The events of the last few months have reminded us of the law’s intimate and often Janus-faced relationship with equality. Public demonstrations across the world have made plain the urgent need for decisive change in our societies and our legal systems. Careful, incisive legal scholarship has an important role to play in our collective understanding of the evolving relationship between law and equality. In this issue of the Journal of Law & Equality, our authors marshal theoretical insights, legal analysis of public policy issues, and doctrinal arguments to further that understanding. We hope that our readers find this issue as timely and impactful as we do.
Daphne Gilbert’s paper, “Attesting to Fundamental Human Rights: The Backlash to the Active Promotion of Equality in Canada,” considers the federal government’s 2018 initiative requiring applicants to its popular Canada Student Jobs program to attest that the funded position would not perform work that actively undermined equality rights, including reproductive rights. Despite challenges that the initiative violated religious freedom, state neutrality, and free expression, Gilbert argues that the program should survive Charter scrutiny. Gilbert contends that the attestation only requires applicants to acknowledge the existing state of reproductive rights law in Canada; however, it does not require any endorsement of the existing law. She concludes that the attestation is a useful and instructive example of how the government can actively incorporate human rights protections in all of its policies.
In “How (Not) to Interpret Moore and Meiorin: Two Recent Arbitral Awards Point the Way,” Maryam Shahid considers two recent awards concerning nurses terminated from their employment because of drug addiction. She lauds these decisions for resisting two common, but problematic, lines of argument. First, respondents often point to theft or use of narcotics at work, rather than to addiction itself, as the reason for termination. Accepting such reasoning, Shahid argues, would be tantamount to requiring complainants to prove a discriminatory intention. Second, the respondents in both cases attempted to offer rigid, overstated workplace goals, at the bona fide occupational requirement (BFOR) stage of the analysis. Using the freedom to choose their own legitimate workplace goals, respondents may characterize these goals in such a way as to allow them to improperly bypass the later stages of the BFOR analysis, particularly the viability of individual accommodation. Shahid concludes by proposing a simpler, clearer two-part BFOR test that remedies the current test’s shortcomings. ii EDITORS’ NOTE VOL. 16
Vincent Wong’s article, “Ethno-racial Legal Clinics and the Praxis of Critical Race Theory in Canada” uses critical race theory (CRT) to examine the development and current practice of Ontario’s ethno-racial legal clinics. Wong builds on Amna A. Akbar’s “Toward a Radical Imagination of the Law” to interrogate how law, capitalism, and the state operate in tandem to produce structural inequality. Wong argues that CRT offers a robust theoretical framework to advance racial justice, as demonstrated by the ethno-racial clinics themselves. Second, Wong shows through the epistemology of “looking to the bottom” that ethno-racial clinics provide a useful vehicle to understand structural racism. The article highlights the potential of Ontario’s ethno-racial legal clinics to transform the traditional client-centric approach to law to one that builds community power and facilitates social change, despite the institutional and bureaucratic pressures pulling their practice of law back to the traditional paradigm.
In “Parental Undocumented Status as an Analogous Ground of Discrimination,” Tiran Rahimian looks into the tendency to make Canadian- born children’s eligibility for government social and health services dependent on their parents’ immigration status. Rahimian argues that parental undocumented status can and should be recognized as an analogous ground of discrimination under section 15 of the Canadian Charter of Rights and Freedoms. Distinctions between Canadian-born children based on parental “undocumentedness,” argues Rahimian, perpetuates arbitrary disadvantages with long-term developmental repercussions, inseparable from stereotypes of “anchor babies” as social “parasites” that drain public resources and unjustly benefit from their parents’ “illegal” presence. Rahimian takes stock of recent developments in the section 15 jurisprudence, noting a shift towards a purposive and relational disadvantage-focused inquiry rather than a rigid immutability standard, a trend that is well suited to recognizing distinctions based on parental undocumented status as discriminatory.
We wish to thank the many people who made this issue possible, including our excellent team of senior and associate editors, our anonymous peer reviewers, and the support staff at the University of Toronto. We give special thanks to Denise Réaume, our faculty advisor, for her invaluable guidance. Finally, we offer our gratitude to our authors for choosing the Journal of Law & Equality as the venue for their research.
Amitpal Singh and Angela Hou Editors-in-Chief Journal of Law & Equality, Volume 16
Attesting to Fundamental Human Rights: The Backlash to the Active Promotion of Equality in Canada
Daphne Gilbert∗
ABSTRACT
This article defends a 2018 federal government initiative requiring applicants to its popular Canada Student Jobs program to attest that the funded position would not perform work that actively undermined equality rights, including reproductive rights. Anti-choice groups, churches, and some small business owners protested that this attestation requirement violated Charter rights to freedom of religion and expression. Litigation to challenge the constitutionality of the attestation is underway. Opponents accused the government of requiring a “values test” in what should otherwise be a routine job grants program. The author argues that the attestation does not interfere with expression. It does not require applicants to affirm a belief in anything they reject; it merely requires confirmation of acknowledgement of the existing state of the law. Moreover, the attestation is a laudable example of the positive promotion of Charter rights and values. The author concludes that the government should be encouraged to actively incorporate human rights protections in all of its programs and policies.
I. INTRODUCTION In 2018, the federal government added a box that needed to be checked by applicants to its popular Canada Student Jobs program (the “attestation”). A national controversy ensued. Anti-choice groups, churches, and some small business owners protested that the attestation in support of human rights and equality—required by the government before an application for employment grants could be processed—violated the
∗ Daphne Gilbert, Associate Professor, Faculty of Law (Common Law Section), University of Ottawa; member of the Centre for Health Law Policy and Ethics, Ottawa. I am grateful to the National Association of Women and the Law, which sponsored a one-day consultation session on the attestation, from which this article was born. Martha Jackman, Anne Levesque, and Suki Beavers offered brilliant comments and suggestions on a brief that became this article. I am grateful to Kathryn Doyle and Arlene Campbell for invaluable research assistance and to the editors of the Journal of Law & Equality for excellent suggestions. All errors and omissions are of course my own. 2 ATTESTING TO FUNDAMENTAL HUMAN RIGHTS VOL. 16
Charter rights to freedom of religion and expression.1 Some organizations commenced litigation to challenge the attestation. Media reports represented this reaction as a significant backlash, drawing attention to the issue and questioning the constitutionality of the government’s move. Opponents accused the government of requiring a “values test” in what should otherwise have been a routine job grants program. I argue that the government’s application process, including the attestation, was entirely constitutional. Further, I argue that the government should be encouraged to protect and promote Charter rights in all of its policy and program developments. Part II of this article describes the Canada Student Jobs application process, the introduction of the attestation, and the political motivation underlying it. Part III briefly examines three court challenges to the attestation to illustrate the range of opposition and considers the Charter arguments in turn. Part IV advocates for the positive promotion of Charter rights and, in particular, equality rights by all levels of government. Part V concludes by summarizing the 2019 iteration of the attestation that responded to the criticism by tweaking its wording. The change acknowledged a period of consultation with interested groups but had little pragmatic effect on organizations’ eligibility for funding. Since, in my view, the newer language did not change the outcome of applications, it bears considering whether the original 2018 version is constitutional. Both versions of the attestation represent a political statement by the Liberal government that brought it in—a context that is likely to continue to generate conflict from those who oppose the position.
II. THE 2018 ATTESTATION The Canada Summer Jobs (CSJ) program is a federal program that allows not-for-profit organizations to receive funding to cover up to 100 percent of the cost of hiring young Canadians for temporary, full-time summer work.2 Public-sector and private-sector employers can get funding to cover up to 50 percent of those costs. The initial assessment of applications (usually due in February) is done by Service Canada officials. Tentative lists of approved employers are then sent to individual members of parliament (MPs). MPs then make recommendations on which jobs to fund. Any changes suggested
1 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 2 The 2019 version of the program included changes to the wording of the attestation and to the overall criteria for funding. The age limit for employees was dropped, for example. This article mainly focuses on the application of 2018. Aside from the attestation, the other criteria were substantially the same in previous years. The 2020 application process includes the same wording for the attestation as in 2019. VOL. 16 JOURNAL OF LAW & EQUALITY 3
by MPs are available through access to information laws, presumably to make transparent any political motivations for recommendations. MPs play a large role in determining local priorities for funding and confirming the lists of recommended projects drawn up and sent to them for validation by Service Canada. Those lists have historically been based on what was funded the year before.3 In 2018, the government added an attestation to the application. It was a mandatory part of the application and the attestation box had to be checked before applications were considered “complete.” Applicants were required to attest that
[b]oth the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability or sexual orientation, or gender identity or expression.4
Applicants who left the box unchecked did not have their applications processed or forwarded to MPs. On its website, “Funding: Canada Student Jobs Overview,” the government laid out the requirement for the attestation and explained the need for it:
The employer attestation for CSJ 2018 is consistent with individual human rights in Canada, Charter rights and case law, and the Government of Canada’s commitment to human rights, which include women’s rights and women’s reproductive rights, and the rights of gender- diverse and transgender Canadians.
The government recognizes that women’s rights are human rights. This includes sexual and reproductive rights as well as the right to access safe
3 Amanda Connolly, “Canada Summer Jobs Program Will No Longer Fund Anti-Abortion, Anti-Gay Groups,” Global News (15 December 2017), online:
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and legal abortions. These rights are at the core of the Government of Canada’s foreign and domestic policies. The government recognizes that everyone should have the right to live according to their gender identity and express their gender as they choose, free from discrimination. The government is committed to protecting the dignity, security, and rights of gender-diverse and transgender Canadians. The objective of the change is to prevent Government of Canada funding from flowing to organizations whose mandates or projects may not respect individual human rights, the values underlying the Canadian Charter of Rights and Freedoms, and associated case law. This helps prevent youth (as young as fifteen years of age) from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the Charter and associated case law.5 It is important to appreciate the political context of the CSJ program, as it is relevant to defending the attestation. Much of the opposition to the attestation was framed as “outrage” that the government would play politics with funding students. Opponents spoke of the grants as entitlements and suggested that previous funding should mean continued funding. The CSJ program was described as having been almost
5 Canada Summer Jobs, “Applicant Guide” (2018) at 3–4, online (pdf): Government of Canada
automatic in application, and the participation of MPs downplayed. If the attestation is a political move, as the opponents suggested, it exists within a larger program that is itself a political process. The controversy over the attestation serves as a proxy in some ways for the larger question of the government’s role in actively promoting Charter values through its political agenda. If one considers the government as being obligated to proactively defend and advance Charter rights and values in legislation and policy-making, the attestation serves as an example of how positive action can be enmeshed in broader funding priorities and decisions. Liberal Employment Minister Patty Hajdu’s explanation of the impetus for the attestation demonstrated its political motivations:
Last year we heard a whole bunch of complaints from citizens across Canada and organizations about some of the organizations receiving funds that said some of the organizations receiving funds were actually working actively to undermine Canadians’ rights. … For example, organizations that are anti-abortion distributing very graphic pictures of aborted fetuses or organizations that won’t hire LGBTQ members or young people. We know that these are a fundamental violation of the rights that Canadians expect, so we’re asking organizations this year to attest that the activities they conduct as an organization and the job description will respect the Canadian Charter of Rights and Freedoms. I don’t think that’s too much to ask.6
Minister Hajdu did not name specific organizations that received objectionable job grants funding, but an April 2017 news report found that an anti-abortion group in the Mississauga-Erin Mills riding of Liberal MP Iqra Khalid had received $56,000 in federal summer job grants in 2016.7 The Canadian Centre for Bio-Ethical Reform is known for using gory placards and pamphlets in its efforts to try and convince
6 Amanda Connolly, “Canada Summer Jobs Attestation Specifically Targets Activities, Not Beliefs: Hajdu,” Global News (23 January 2018), online:
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Canadians that abortion should be banned. 8 In August 2017, it was reported that anti-abortion groups in the riding of Rachael Harder—the Conservatives’ then newly appointed status of women critic and Lethbridge MP—had received close to $12,000 in the same grants in 2016. 9 Over the past five years, anti-abortion groups, including Campaign Life Coalition and the Canadian Centre for Bio-Ethical Reform, have used the Canada Summer Jobs program to secure roughly $3.5 million in public funds.10 Khalid ran in 2014 under the pro-choice banner of Prime Minister Justin Trudeau’s Liberals. Trudeau notably said that everyone who runs for the Liberal Party would be required to vote in support of reproductive choice in any votes that could come up in Parliament on the matter of abortion. In that context, pro-choice groups were rightly critical of the funding allocated to Khalid’s riding.11 Matt Pascuzzo, press secretary for Hajdu, acknowledged that it was a mistake to fund the anti-abortion groups in Khalid’s riding, stating: “Any funding provided to an organization that works to limit women’s reproductive rights last summer was an oversight, … That’s why this year we fixed the issue and no such organizations will receive funding from any constituencies represented by Liberal MPs.”12 In a town hall-style meeting, Prime Minister Trudeau responded to what he labelled the “kerfuffle” around the attestation. He stated that there is a difference between freedom of expression and acting on those expressions or beliefs and declared:
[A]n organization that has the explicit purpose of restricting women’s rights by removing rights to abortion and the right for women to control their own bodies is not in line with where we are as a government, and quite frankly where we are as a society. … [W]hen
8 Ibid. 9 Amanda Connolly, “New Tory Status of Women Critic Gave Grants to Anti-Abortion Centres,” iPolitics (31 August 2017), online:
those beliefs lead to actions determined to restrict a woman’s right to control her own body, that’s where I, and I think we, draw the line as a country.13
The decision to add the attestation in 2018 is clearly linked to the Liberal political agenda. The party—and, in particular, its leader Justin Trudeau—prides itself on its feminism and on the strong stance it has taken on protecting reproductive rights for women.14 While the federal government positioned the attestation only as an additional criterion, Minister Hajdu and Prime Minister Trudeau’s defence of it in the media reflect the importance of the political issue for the Liberal Party.
III. ASSESSING THE CONSTITUTIONAL CHALLENGES Across the country, organizations opposed to the attestation have filed legal challenges against it. 15 Three examples are illustrative of the opposition. I briefly canvas them before exploring in more detail the Charter objections raised. A. Court Challenges The Toronto Right to Life Association was the first to file a court challenge.16 It brought a claim in Federal Court seeking judicial review
13 Maura Forrest, “Trudeau: Abortion Clause in Summer Jobs Grant Application Shouldn’t Put Off Religious Groups,” National Post (10 January 2018), online:
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of the attestation on the grounds that it constituted an unconstitutional restriction of freedom of expression by compelling speech that violated their conscious and religious rights and by treating those with different beliefs than the government unequally under the law. On 30 January 2018, the court denied the organization’s application for an injunction that would have prevented the attestation from coming into effect for the 2018 granting year. The court held that the group did not effectively establish that the harm it expected to suffer without an injunction would outweigh the damage the public interest would suffer from a suspension of the attestation requirement. 17 In May 2019, a Federal Court judge ruled that all other challenges to the attestation would be held in abeyance pending the resolution of this one. Action Canada for Sexual Health is intervening on behalf of the government, while the British Columbia Civil Rights Association is intervening on behalf of the Toronto Right to Life Association.18 Prior to this abeyance, the Justice Centre for Constitutional Freedoms (JCCF) filed a lawsuit on 30 April 2018 on behalf of A-1 Irrigation and Technical Services, a small Alberta family-owned business. Rhea Lynne Anderson and William Anderson are the sole owners of A-1 Irrigation, which specializes in “ecologically responsible irrigation services” for local farmers.19 A-1 Irrigation applied for a Canada Summer Jobs grant to hire a student, but the Andersons refused to check the “I attest” box on the application. The JCCF’s application sought a declaration that the attestation requirement violated Charter section 2(a) and 2(b) on freedoms of conscience and expression.20 It argued:
The [2018] attestation requirement … breaches the duty of state neutrality, because it compels the Andersons to profess their agreement with, and ostensibly adopt, specific beliefs and values in order to qualify for a government benefit to which they would otherwise be entitled.21
17 Ibid at para 84. Nathan Denette, “Anti-Abortion Group Loses Initial Court Bid over Summer Jobs Program,” National Post (31 January 2018), online:
The lawsuit also sought declarations that the required attestation violates section 32 of the Charter “by compelling private entities to assume the legal obligations of the Charter that only the government is required to honour” and that it is “ultra vires the authority of federal government.” The Andersons also wanted a court order to “strike the new attestation requirement” and approve their CSJ application. “My husband and I, and our business, comply fully with human rights legislation, and with all federal, provincial and municipal laws,” said Rhea Lynne Anderson in an affidavit: “The … Attestation Requirement is not simply a commitment to comply with legislation, but instead asks us to agree with the government’s ‘values’ and to be bound by the Charter as though we are government actors.”22 Sarnia Concrete also challenged the attestation on section 2(a) and 2(b) grounds, arguing that it amounts to the government forcing the company to say words it would not otherwise say.23 Sarnia Concrete is a for-profit company that sells a variety of concrete products. 24 While the chief executive officer of Sarnia Concrete, Roy Botma, has sat on the boards of numerous Christian organizations, 25 the company was not arguing that there had been an interference with its freedom of religion. Rather, their court application maintains that the attestation forces it to take “a particular position on abortion, a controversial moral, ethical and social issue and perhaps the most politically divisive issue in Canada.”26 It argues that “[a]s a for-profit corporation, Sarnia Concrete does not have a position or opinion on abortion or other political, moral, ethical and social issues completely unrelated to its business.”27
22 Ibid. In 2019, Tilleman J of the Court of Queen’s Bench of Alberta declined to exercise his discretion to hear this matter citing the parallel challenges in the Federal Court. See Anderson, supra note 15 at para 17. 23 Sarnia Concrete Products Ltd v Canada (Minister of Employment, Workforce Development and Labour, Notice of Application 2018, online (pdf):
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B. The Charter Arguments Opponents to the attestation raised two main issues. First, they argued that the attestation imposes positive Charter obligations on applicants— who are private actors—and that the Charter only constrains government actors. The central claim was that the government was using the attestation to advance a political agenda by forcing funding applicants to say they agree with the government on specific issues in order to receive funding. Since, in this case, the political agenda is to promote Charter rights and values, opponents argue that the attestation turned them into government actors. The second set of issues for opponents was the alleged Charter violations they suffered under the attestation. They claimed that the attestation requirement violated their rights to freedom of religion and conscience under section 2(a) and their rights to freedom of expression under section 2(b). It is this last argument—the freedom of expression issue—that raised the most ire and generated the bulk of the objection. Opponents argued that the attestation forced them to utter the government’s words. Since the rights and values lauded in the attestation concern equality rights that opponents deem to be unsettled, they resented the suggestion that reproductive and other rights are off the table for legitimate debate in the public realm. 1. The Attestation Places Charter Obligations on Private Actors While this argument was made by objectors, it was not given much detail nor did it seem to be the preoccupying concern. Section 32 of the Charter makes clear that it only applies to government actors.28 To be subject to the requirements of the Charter, private activities must do more than overlap with government interests; the private actor must be acting as a delegate of the government carrying out a government program. 29 A-1 Irrigation and Technical Services argued that the attestation is ultra vires the federal government by imposing an obligation on private actors to further the government’s equality agenda. In an affidavit in support of her application, Rhea Anderson stated: “We object to being compelled to adopt the legal obligations that apply only to government, and not to us or to our business, namely the government’s
28 Charter, supra note 1, s 32 (1) applies: “(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” 29 R v Buhay, 2003 SCC 30 at para 28 [Buhay]. See also Eldridge v British Columbia, [1997] 2 SCR 624 at para 43, 151 DLR (4th) 577, as quoted in Buhay, ibid, at para 28 [Eldridge]. VOL. 16 JOURNAL OF LAW & EQUALITY 11
obligations under the Canadian Charter of Rights and Freedoms.” 30 While the affidavit did not explain further, it seems that she was arguing that the attestation mandates positive action by the attestant to further a government policy. Presumably, the policy she was objecting was advancing or enhancing equality rights for vulnerable groups in Canada. Her argument suggested that the attestation demands that CSJ applicants implement or otherwise take positive action in support of that policy. However, the details of the CSJ program make clear that funding is based on value-based choices by the government regarding the kinds of services it wants to fund in communities and is available to organizations that further a wide varity of policy objectives. The “Review Process” section on the website further indicates that applications are assessed according to whether the job supports the provision of services in a community—for example, to persons with disabilities, newcomers to Canada, Indigenous peoples, members of visible minorities, or the homeless or street involved as well as for environmental protection or public health and safety. This list requires a qualitative and not merely mechanical assessment of a grant application. Taken together, the entire application process made clear that the government would like to see students undertake jobs that will further the education and training of a workforce with skills in areas the government has deemed a priority. The application process does not speak to any sort of restriction in funding to only organizations that engage in the positive promotion of Charter rights. It is therefore difficult to see how A-1 Irrigation’s position is sustainable. The attestation imposes no positive obligations on the attestants at all. The CSJ grant would allow the organization to choose who it wanted to employ and what criteria it might use to award the funded position to a successful student. The only obligations on hiring flow from human rights legislation, to which private employers are certainly subject. The assessment criteria demonstrate that one of the purposes behind the CSJ program is to assist young people in obtaining relevant work experience for career development. As the website explains:
The objective of the change is to prevent Government of Canada funding from flowing to organization whose mandates or projects may not respect individual human rights, the values underlying the Charter of Rights and
30 Anderson, supra note 15 at para 10, Affidavit from Rhea Lynn Anderson, online (pdf): Justice Centre for Constitutional Freedoms
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Freedoms and associated case law. This helps prevent youth (as young as 15 years of age) from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the Charter of Rights and Freedoms and associated case law.31
While the language is not explicit, the explanation suggests that the government considers work that actively undermines Charter rights as irrelevant career-related work experience or, at the very least, that such work is insufficiently related to fundable career development. Given the many other criteria for successful applicants, this can hardly be said to impose Charter obligations on private actors. The government has targeted this package of funding to accomplish certain overall goals to assist small or not-for-profit businesses in hiring young Canadians in specific fields of work that the government considers to be a priority in its overall agenda. Part of this agenda includes making sure that public funds are not used in ways that undermine equality rights. This does not translate into a positive obligation on attestants to the CSJ program, nor does it equate to private actors implementing a government program as agents of the state. 2. Freedom of Religion and Conscience Opponents to the attestation also argue that it violates section 2(a) of the Charter, which protects freedom of religion and conscience. Charter jurisprudence makes clear that the Canadian Constitution protects a right to hold religious beliefs but does not protect the right to unlimited religiously based conduct. 32 The divide between belief and conduct protects the necessarily secular nature of government activity in a multi-faith democracy. The broad-based media accounts of religiously based protests to the attestation (by the Catholic Church, for example) have recognized that freedom to religion per se was not interfered with. Rather, the Catholic Church argued that its right to religious expression (its right as an organization to express religious views) was interfered with. The church argued that the attestation forced it to express the values of the government rather than its own beliefs. This is more accurately characterized as a freedom of expression issue and is addressed below. For the sake of completeness, I briefly address freedom of religion arguments here.
31 CSJ, “Applicant Guide,” supra note 5. 32 See e.g. Multani v Commission Scolaire Marguerite-Bourgeoys, 2006 SCC 6 [Multani]. VOL. 16 JOURNAL OF LAW & EQUALITY 13
There has not been a challenge to the constitutionality of the attestation by an individual, and it is unlikely that a sole proprietor would meet the criteria for a successful CSJ program application. It is equally unlikely that an individual as an employer could establish a breach of section 2(a). The test set out in Multani v Commission Scolaire Marguerite-Bourgeoys requires that a claimant demonstrate both sincere belief in a practice or belief that has a nexus with religion and interference in a manner that is non-trivial or not insubstantial with the ability to act in accordance with that practice or belief.33 The active opposition to human rights is not a religious practice or belief. While proselytizing may be encouraged in some religions, it does not extend to a constitutionally protected mandate for denouncing the values or beliefs of others. As argued above, the attestation does not compel action by any employer; it only demands respect for existing laws and rights. It does not forbid advocacy by an employer to change the law. It only requires that the organization receiving funding not solely exist to undermine human rights and that the job for which funding is sought not have as its sole purpose the dismantling of protected rights. Even if the CSJ program is open to individual employers, and even if the applicant individual is deeply religious, the attestation does not interfere with his or her ability to practice religion. A separate question to individual claims is whether section 2(a), which refers to “everyone,” protects an institutional claim. This question has yet to be resolved by the Supreme Court of Canada. In Loyola High School v Quebec (AG), the Court considered whether an institution can claim freedom of religion under section 2(a).34 The Court was split, but neither set of reasons is helpful to opponents of the attestation. A majority of the Court held that, in administrative decision-making, government officials are Charter bound to exercise discretion in a manner that “respects the values underlying the grant of [their] decision- making authority, including the Charter-protected religious freedom of the members of the Loyola community who seek to offer and wish to receive a Catholic education.”35 While the majority declined to decide whether there is an institutional right under section 2(a), Justice Rosalie Abella, writing for four judges, emphasized that religious freedom is influenced and perhaps even defined by its interplay with other Charter values. 36 Chief Justice Beverley McLachlin and Justice Michael
33 Ibid at para 34. The Multani court lays out the test first developed in Syndicat Northcrest v Amselem, 2004 SCC 47 at para 65. 34 2015 SCC 12 [Loyola]. 35 Ibid at para 34. 36 Ibid at para 47.
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Moldaver, on behalf of three judges, held that section 2(a) could extend to protecting institutional freedom of religion claims. The context of the claim will determine whether protection should be extended and if religious institutions are not entitled to the protection for all purposes. The minority held: “[W]e conclude that an organization meets the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.”37 The judges left open the scope of this protection as requiring further clarification in future cases. Neither set of reasons suggests that a religious institution is always entitled to section 2(a) protection. The minority opens the door under restricted circumstances. The majority leaves the question open but suggests that religious freedom must be assessed in the context of other Charter values. Under neither approach is it likely that the claims of A-1 Irrigation, Sarnia Concrete, or Toronto Right to Life would succeed. None of these organizations can claim to be constituted for religious purposes or operating in accordance with religious purposes. Abella J, writing for the majority, offers what amounts to the perfect argument justifying the attestation when she says: “Religious freedom must therefore be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity and diversity, promoting equality, and ensuring the vitality of a common belief in human rights.”38 3. Freedom of Expression The main source of Charter objection to the attestation was section 2(b) on freedom of expression. The British Columbia Civil Liberties Association (BCCLA) offered this analogy to support its intervention in the challenge filed by the Toronto Right to Life Association. Lawyer Paul Champ argued:
More generally, the BCCLA sees … attestations of belief as a condition to access a government benefit as a violation of the Charter. … If the government wanted people to swear an attestation that they see Prime Minister Justin Trudeau as the greatest prime minister we ever had in order to collect unemployment insurance,
37 Ibid at para 100. 38 Ibid at para 47. VOL. 16 JOURNAL OF LAW & EQUALITY 15
we would see that as the same thing. It’s a violation of an individual’s beliefs and conscience.39
As expressed by Sarnia Concrete’s lawyer Albertos Polizogopoulos, in making companies check the attestation box, the government was infringing on their freedom of expression, which included “the right to say nothing.” He continued:
These businesses intentionally avoid taking a position on these controversial political/moral issues, and here, the government is compelling them to do so in order to participate in a public program. … It forces them to make statements they otherwise wouldn’t say. That’s a violation of their freedom of expression, which includes the right to say nothing.40
The newly formed advocacy group “Free to do Business” supported the business owners challenging the attestation, arguing: “It [the Charter] was never intended to be a tool for the government to force business owners to think a certain way and violate a citizen’s freedom of thought, conscience and belief.”41 These arguments had two related prongs: first, that the attestation constituted an affirmative statement of beliefs by the attestant and, second, that the attestation puts the words of the government in the mouth of the attestant. In Irwin Toy Ltd v Quebec (Attorney General), the Supreme Court of Canada described expression as follows:
“Expression” has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so
39 Deborah Gyapong, “BC Civil Liberties Intervenes in Summer Jobs Lawsuit,” BC Catholic (25 May 2018), online:
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as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, “fundamental” because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.42
The specific wording of the attestation was: “Both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights.”43 This language demands respect for existing rights and nothing more. The attestation required an acknowledgement of the current state of the law in Canada. It did not suggest that the attestant (as an organization or the individual filling out the application) agreed with those rights, nor did it prohibit organizations from advocating to change the law. The limits suggested by the attestation only applied to the “core mandate” of the applicant organization, not to the beliefs or conduct of those who own or direct the organization.44 The illustrations offered by the government on the website as guidance to applicants make clear that organizations will receive funding even if they oppose reproductive or equality rights.45 For example, “[a]
42 Irwin Toy ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 968, 58 DLR (4th) 577. 43 ESDC, “Funding,” supra note 4. 44 It is worth noting that one might be concerned about the government assessing the core mandate of organizations. Clearly, organizations should be allowed to self-define and articulate their own version of purpose or mission. I think that the CSJ program and the attestation, however, rest on an organization’s own word as to its core mandate. The attestation is framed to allow an organization to decide on its own behalf whether its core mandate disqualifies it from funding. 45 ESDC, “Supplementary Information,” supra note 5. • Example 1: An organization whose primary activities are focused on removing, or actively undermining existing women’s reproductive rights, applies for funding. This organization would not be eligible to apply. • Example 2: A faith-based organization with anti-abortion beliefs applies for funding to hire students to serve meals to the homeless. The organization provides numerous programs in support of their community. The students would be responsible for meal planning, buying groceries, serving meals, etc. This organization would be eligible to apply. • Example 3: A faith-based organization that embraces a traditional definition of marriage but whose primary activities reduce social isolation among seniors applies for funding to hire students. The students would be responsible for developing and VOL. 16 JOURNAL OF LAW & EQUALITY 17
faith-based organization with anti-abortion beliefs applies for funding to hire students to serve meals to the homeless. The organization provides numerous programs in support of their community. The students would be responsible for meal planning, buying groceries, serving meals, etc. This organization would be eligible to apply.” 46 Or “[a] faith-based organization with anti-abortion beliefs that operates a summer camp for disadvantaged youth applies for funding to hire students as camp counselors. The students would be responsible for developing programs for the youth, including leadership and skills development. This organization would be eligible to apply.”47 The freedom of expression argument is best characterized, therefore, as not coercing applicants into saying that they believe in human rights but, instead, forcing them (if they want funding) to say that they respect existing human rights. This clarification helps to explain one smaller locus of controversy surrounding the attestation. It was widely reported as being hypocritical that an environmental organization, Dogwood Initiative, received funding for a student to work in opposition to building the Kinder Morgan pipeline. 48 Prime Minister Trudeau defended this outcome by relying on the freedom of expression. Opponents to the attestation protested that the prime minister was hypocritical, but there is consistency in his position. Protesting the pipeline is political speech, clearly protected by section 2(b) of the Charter. Dogwood Initiative does not have as its core mandate activities that undermine human rights. The Charter, as it is currently interpreted, does not protect property or economic rights, and so the pipeline proponents have no conflicting rights to argue.49
delivering programs to all seniors, regardless of sexual orientation, gender identity or expression. This organization would be eligible to apply. • Example 4: A summer camp submits an application to hire students as camp counselors. However, the camp does not welcome LGBTQ2 young people. The camp is not eligible to apply. • Example 5: A faith-based organization with anti-abortion beliefs that operates a summer camp for disadvantaged youth applies for funding to hire students as camp counselors. The students would be responsible for developing programs for the youth, including leadership and skills development. This organization would be eligible to apply. 46 Ibid. 47 Ibid. 48 Brian Platt, “Trudeau Defends Summer Jobs Grant to Anti-Pipeline Activists on Free Speech Grounds,” National Post (25 April 2018), online:
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Opponents to the attestation will likely argue in court that they do not believe that abortion, for example, is either a human right or a constitutionally protected right. Abortion is considered a medically necessary service and is regulated by provincial health care regimes. Abortion is legal in Canada and will remain so. The Charter protects equal access to government services, including medical services. It would be a violation of equality rights to restrict access to a legal service on the basis of a moral disapproval of the service. Moreover, the myth that there is no “right” to abortion overlooks developments in section 7 jurisprudence since the Charter was enacted. It is clear that sections 2(a), 7, and 15 constitutionalize a right to reproductive control and abortion. This legal reality is important for both sides of the attestation debate. The anti-abortion organizations that want CSJ funding want the freedom to fight access to abortion services. That mission would be more complicated if, in fact, the Charter mandates access. 50 Meanwhile, the Liberal government that introduced the attestation campaigned on its pro-choice credentials and would be buoyed by any affirmation that reproductive rights are Charter protected. It is therefore worthwhile to briefly consider where things stand in terms of Charter protections for abortion access. A good point of departure is Justice Bertha Wilson’s concurring opinion in R v Morgentaler.51 It is true that the Supreme Court of Canada only struck down the particular criminal law regime that regulated abortion in 1988. Chief Justice Brian Dickson’s majority judgment found that the Criminal Code’s provision restricting access violated a woman’s section 7 Charter rights to security of the person.52 Wilson J, the first
property or economic rights of industry. Individual rights are at the core of the Charter’s protection. The push to include socio-economic rights focuses on vulnerable populations who are economically marginalized by a liberal, capitalist emphasis on the market. 50 In an article criticizing the attestation and comparing it to totalitarian policies in China, Barry Bussey concedes that the government’s policy on promoting abortion rights is in keeping with the likelihood those rights are Charter protected: “In short, given that the current federal ‘feminist’ government desires everyone to believe that abortion is, in fact, a constitutional right, despite the SCC never saying so; and, the growing academic opinion that argues such a right exists (and if it doesn’t, it should); and, the growing militancy of pro-abortion advocacy that is willing to challenge any
government or civil society that does not see abortion as they do; and, that the SCC has shown itself willing to adapt the law toward the prevailing opinions of our societal elites in academia, the legal profession and the media; then these factors would suggest that if the SCC were asked today as to whether the Charter supports an absolute right to abortion, it is highly conceivable that it would do so.” See Barry W Bussey, “The Canadian Summer Jobs Debate and the Democratic Decline” (2019) 91 SCLR (2d) 245 at 282. 51 [1988] 1 SCR 30 at 161–2, 44 DLR (4th) 385. 52 Criminal Code, RSC 1985, c C-46. VOL. 16 JOURNAL OF LAW & EQUALITY 19
and, at that time, only woman on the Court, wrote alone. She concurred in striking down the provision, but not only because the process it created violated the Charter. In her view, any ban on abortion could not survive the Charter because it undermines important liberty concerns. At the heart of this appeal is the question whether a pregnant woman can, as a constitutional matter, be compelled by law to carry the foetus to term. … A consideration as to whether or not the procedural requirements for obtaining or performing an abortion comport with fundamental justice is purely academic if such requirements cannot as a constitutional matter be imposed at all. If a pregnant woman cannot, as a constitutional matter, be compelled by law to carry the foetus to term against her will, a review of the procedural requirements by which she may be compelled to do so seems pointless.53 She concludes that the Charter demands that a woman not be compelled by law to remain pregnant against her will. This seminal case underscored the Charter right for women to be able to control their own bodies and have access to legal abortion services. The Supreme Court of Canada has decided many sections 7 and 15 cases since Morgentaler.54 These cases suggest that Wilson J’s views on the centrality of reproductive control to a woman’s security of the person, freedom of conscience, and equality rights would now be understood to prohibit a ban on abortion. The jurisprudential development is clearly seen in Carter v Canada (Attorney General), which concerned the constitutionality of a ban on medical assistance in dying (MAiD).55 Presented with a comprehensive evidentiary record and the accumulated wisdom of other countries that allow MAiD, the Supreme Court of Canada upheld the trial judge’s decision that blanket criminal prohibitions on MAiD violate the section 7 rights of those with a grievous and irremediable medical condition.56 In particular, the Court
53 Ibid. 54 See e.g. B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, 122 DLR (4th) 1; New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 SCR 46, 177 DLR (4th) 124; Eldridge, supra note 29. 55 2015 SCC 5 [Carter]. 56 Specifically, the Court concluded in Carter, ibid, at para 127: “The appropriate remedy is therefore a declaration that s. 241 (b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. ‘Irremediable,’ it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.”
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held that the criminal law restrictions caused some people to take their lives prematurely, while still physically capable of doing it themselves, rather than risking becoming physically incapable, when assistance would be unlawful. This premature execution of the decision to die by choice constituted a state deprivation of life because the federal Criminal Code prohibitions caused the premature death of some individuals. The Court went on to conclude that this deprivation of life was not in accordance with the principles of fundamental justice because the provisions were overbroad. While the state’s interest may have been to protect vulnerable individuals against being coerced into assisted death, the blanket prohibition also captured autonomous individuals who were not vulnerable but simply physically incapable of executing their death. It also captured those who had the mental capacity to make the decision but did not want to commit suicide in secret and by potentially gruesome means.57 Some people should be able to freely make this choice and be facilitated by the state in executing it. The Court’s language in Carter is easily transferable to emphasize the constitutional right to abortion.58 To make the analogy explicit, one can equate an unwanted pregnancy with a “grievous and irremediable medical condition.” It would be grievous in its lifetime consequences and irremediable without abortion (or a spontaneous miscarriage). If abortion is banned, some women will resort to dangerous and illegal methods to end the pregnancy. A worldwide evidentiary record proves that women will continue to have abortions even when they are illegal. 59 Some women will have pregnancies that are dangerous to their health or result in dramatically altered futures. Moreover, autonomy under section 7 (as explained in Carter) requires that women be allowed to make a choice when it is so central to their physical and psychological health. The Supreme Court of Canada’s sections 7 and 15 jurisprudence offers a compelling argument that there is an existing right to non-discriminatory health care, including abortion.
57 Ibid at paras 57–8. 58 It bears emphasizing that the Supreme Court of Canada did not find that the Charter imposes positive obligations on government to facilitate either medical assistance in dying (MAiD) or abortion. It is not that Carter transforms section 7 into a “positive” right as we understand that term of art. In both Morgentaler and Carter, the Court held that section 7 prohibits criminal regulation that undermines the security of the person. It remains to be seen whether section 7 could be expanded to require that if MAiD and abortion, for example, are constitutionally protected entitlements, obligations to ensure equal access should follow. 59 See World Health Organization, “Preventing Unsafe Abortion” (26 June 2019), online:
Reproductive choice is a human right for women. The United Nations has declared that access to safe abortion is a human right.60 Its comment on the right to life offers strong support to the Canadian law on abortion. It affirms that “abortion is a human right, that preventable maternal deaths are a violation of the right to life, and that the right to life begins at birth.”61 The World Health Organization also understands abortion to be a human right for women. 62 Together, international and Canadian constitutional law combine, at the very least, to permit the government to act to protect the equality rights of women and other vulnerable groups. This précis of the place of reproductive freedom in our constitutional framework is pertinent to the freedom of expression challenge to the attestation. Recall that applicants were required to certify that “the job and the organization’s core mandate respect individual human rights in Canada.”63 Respecting human rights is not the same thing as believing those rights should exist. The word “respect” assumes this meaning: “[D]eference to a right, privilege, privileged position … proper acceptance or courtesy; acknowledgment.”64 It is not meant to go further and encompass the alternate meaning of “to hold in esteem or honor.”65 The Toronto Right to Life Association’s argument that the attestation would be unconstitutional no matter what it required an applicant to attest to, including that Justin Trudeau is the best prime minister ever, is thus without merit. An attestation that demanded organizations declare that Justin Trudeau is the best prime minister ever would in fact be putting words in the mouth of the attestant. It might well violate freedom of expression under the Charter to force a private actor to express the opinion of the government. A declaration as to the “best” prime minister can only be described as an opinion. The government’s opinion on a matter is not something that others (non-governmental actors) should be required to repeat. The proper analogy would be if the attestation required organizations to say that because the Trudeau government
60 “UN Human Rights Committee Asserts that Access to Abortion and Prevention of Maternal Mortality Are Human Rights” (31 October 2018), online: Centre for Reproductive Rights
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supports abortion rights the attestants also supported abortion rights— that they believe in a woman’s right to an abortion or, to put it simply, that they think abortion rights are a good thing. This would be putting words into the mouth of the attestant, which might trigger freedom of expression problems. Those words are quite different from what the attestation required. The attestation did not require stated support of an opinion. It required stated acknowledgement (by way of a check mark) as to an existing legal reality. It did not require approval, implementation, or celebration of the law. Many benefits and obligations in society require people to indicate agreement with a certain state of affairs. No one would suggest, for example, that the oath that a witness has to take in court that indicates they understand their obligation to tell the truth in that context is a violation of freedom of expression. Nor does it violate the Charter to require someone to accept the terms and conditions on a form or application. The attestation required a promise that neither the proposed student job for which funding was sought nor the work of the organization as a whole was actively engaged only in undermining the law and currently protected rights. If an organization can publicly state its opposition to current human rights protections; if it can publicly advocate for change in the law; if it can be widely understood as standing for a position contrary to law—if all of those expressive activities are consistent with the receipt of CSJ funding, there is no conflict with freedom of expression. Acknowledgement does not imply acceptance and, therefore, does not interfere with any of the underlying interests protected by the Charter’s guarantee of free expression. For this reason, the attestation can be distinguished from another controversial example of alleged “compelled speech”: the Ontario government’s Federal Carbon Tax Transparency Act (known as the Sticker Act). 66 The Canadian Civil Liberties Association (CCLA) has filed a challenge to this Ontario law and its requirement that all gas stations display stickers showing the cost of federal carbon pricing. The CCLA argues: “The sticker imposed by the Sticker Act constitutes compelled political speech. … Under threat of significant fines, it legislatively requires gas station owners to express the (government’s) position.”67 While objectors might argue that the attestation has financial consequences since applicants who do not check the box cannot receive
66 Federal Carbon Tax Transparency Act, SO 2019, c 7, Sched 23. 67 Colin Perkel, “Lawsuit Claims Ontario Law Forcing Gas Stations to Display Cost of Federal Carbon Pricing Is Illegal,” National Post (5 September 2019), online:
grants, this would be an indirect cost that cannot be described as a “penalty.”68 Further, the attestation only speaks to respecting the state of the law whereas critics of the Sticker Act “have complained the taxpayer- funded stickers are misleading because they fail, among other things, to reflect a federal rebate the Liberal government says will put more money into consumer pockets than they are paying at the pump for the carbon levy. It also fails to mention other taxes or gasoline costs.”69 The Ontario Conservative government has openly politicized the legislation. As Energy Minister Greg Rickford said, “[w]e’re going to stick it to the Liberals and remind the people of Ontario how much this job-killing, regressive carbon tax costs.” 70 The attestation carries none of the hallmarks of compelled political speech. Similarly, a Law Society of Ontario requirement that every one of its members “create and abide by a “statement of principles”—“that acknowledges their obligation to promote equality, diversity and inclusion generally and in their behaviour towards colleagues, employees, clients and the public”—is not compelled speech. 71 As Richard Moon argues, “[t]he focus on compelled expression distracts us from the real issues, which is whether the policy should be read as requiring lawyers to advance equality in all aspects of their private and public lives—and not just in their professional lives (and, if it does do that, whether this is beyond the scope of the law society’s authority to regulate the actions of its members).”72 In comparing the statement of
68 It bears emphasizing that a penalty, financial or otherwise, should not be required to trigger a violation of the Charter. Scholars have been rightly critical of any suggestion to the contrary. See e.g. Derek BM Ross & Deina Warren, “Religious Equality: Restoring Section 15’s Hollowed Ground” (2019) 91 SCLR (2d) 123 at 1388–9. The authors argued: “Consider, for example, public funding programs that require an applicant to make certain ‘attestations’ about values or morals which violate their religious beliefs… In such cases, it has been asserted that religious freedom is not seriously infringed, if at all, since the claimant is not prohibited from exercising their religion, and is only hampered in seeking a benefit to which they are not ‘entitled’. … This approach to section 2(a) in Hutterian Brethren was widely critiqued, and in our view the criticisms are well founded.” 69 Ibid. 70 Ibid. 71 Atrisha Lewis, “Repealing Ontario Lawyers’ Statement of Principles Is Not a Principled Stand,” Globe and Mail (13 June 2019), online:
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principles to the attestation, Moon notes that what the opponents really objected to were the underlying policies advanced. He concludes:
Compelled expression then is at best a marginal or secondary issue in these cases. I suspect that when the complainants in these cases raise concerns about compelled speech they are searching for a legally cognizable form in which to express their general objection to the state’s policy in these areas. Behind the complaint in job grants case is a deeper opposition to public policy concerning reproductive rights. Some conservative religious organizations are refusing to make the required attestation about their mandate, even when that mandate says nothing about abortion or other reproductive issues.73
I agree with Moon that the real source of the backlash against the attestation is not any alleged Charter violations but, rather, a fundamental opposition to the very thing the government hopes to accomplish. The federal government is using the attestation as a strong, public signal to the electorate that it champions equality rights and that it will be guided in its funding of programs by the active promotion of equality in Canada. 4. Section 1 In the unlikely event that opponents can demonstrate an infringement of the Charter, the violation can be justified under section 1 of the Charter through the Oakes analysis.74 For the infringement to be justified in a free and democratic society, its purpose must relate to a pressing and substantial concern in society.75 The party seeking to invoke section 1 must also demonstrate that the chosen measures are reasonable by demonstrating a rational connection with the objective, minimal impairment of the affected Charter right and proportionality between the effect of the chosen measures and the objective.76
73 Ibid. 74 R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 [cited to SCR]. 75 Ibid at para 69. 76 Ibid at para 70. See Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 at 839, 120 DLR (4th) 12, which the proportionality aspect of the Oakes test as follows: “This standard reflects the substance of the Oakes test, which itself should be rephrased to recognize in the third step of the proportionality branch that there must be a proportionality not only between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, but also between the deleterious and the salutary effects of the measures.” VOL. 16 JOURNAL OF LAW & EQUALITY 25
i. Purpose of the attestation To survive Charter scrutiny, the objective of an impugned policy must be sufficiently important to “warrant overriding a constitutionally protected right or freedom.” 77 The government is explicit in its application guide as to the purpose of the attestation:
The objective of the change [adding the attestation in 2018] is to prevent Government of Canada funding from flowing to organizations whose mandates or projects may not respect individual human rights, the values underlying the Charter of Rights and Freedoms and associated case law. This helps prevent youth (as young as 15 years of age) from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the Charter of Rights and Freedoms and associated case law.78
This is a compelling purpose, given the number of youths employed under the program. 79 I argue below that the government should be encouraged, and is certainly permitted, to promote Charter values in its policies and laws. Demanding that publicly funded employers respect the existing legal rights held by others, and prohibiting impressionable youth from working in environments that contradict this ethos, is a pressing and substantial purpose. Opponents may argue that the true purpose of the attestation is to suppress speech or activities that disagree with the Liberal political agenda. In my view, the attestation is not an oppressive or silencing tool. But, more importantly, the Supreme Court of Canada has held that “a court must look to the intention of Parliament when the section was enacted, and cannot assign objectives according to the perceived reality of the challenged section.”80 ii. Rational connection
77 Ibid at para 69, citing R v Big M Drug Mart, [1985] 1 SCR 295 at 352, 18 DLR (4th) 321. 78 CSJ, “Applicant Guide” supra note 5 at 3. 79 Note that the section 1 analysis focuses on the purpose of the impugned section, not the legislation as a whole. See Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at 1342, 64 DLR (4th) 577: “In order to constitute a reasonable limitation contemplated by s. 1 of the Charter, the impugned section must meet the criteria set forth in R. v. Oakes.” 80 R v Lucas, [1998] 1 SCR 439 at 461, 157 DLR (4th) 423.
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The rational connection analysis requires that “the measures must be carefully designed to achieve the objective of the legislation.”81 If the government’s purpose in adopting the attestation is to avoid funding positions that compromise the hard-fought equality gains of vulnerable groups, and avoid exposing youth to work in anti-Charter positions (at least not on the taxpayer’s dime), then the attestation is rationally connected to achieving that purpose. The attestation does not completely achieve this purpose because many youths will still be working for organizations that publicly take anti-Charter positions,82 but at least the job description cannot have dismantling rights as its primary duty. iii. Minimal impairment The minimal impairment analysis requires the government to demonstrate that “there is [no] alternative, less drastic means of achieving the objective in a real and substantial manner.” 83 The attestation would survive a minimal impairment challenge in large part because of the guidance offered in the “Supplementary Information” page on its website. 84 The government offers five examples of organizations and jobs that would, or would not, receive funding under the CSJ program. It makes clear that organizations that oppose certain Charter rights, like the Catholic Church, for example, would still be entitled to funding for many, if not most, of the summer jobs that it offers to youth. The examples illustrate that the beliefs and values of the organization are not policed but that the organization’s core activities must not oppose the listed Charter rights. As such, there are very few organizations that are entirely barred from applying. Nonetheless, one of the challengers does fall into that category. The Toronto Right to Life Association would likely be ineligible as an organization given that its only purpose is to oppose abortion rights. It is solely constituted for that purpose, and its core activities are in opposition to the Charter rights in the attestation. Otherwise, the CSJ program does not operate as a complete bar, and organizations can tailor their applications for grants to align with the attestation, as they must do for all of the other criteria in the application process. iv. Proportionality
81 R v Whyte, [1988] 2 SCR 3 at 20, 51 DLR (4th) 481. 82 As argued above, this is consistent with the attestation requirement. See the discussion earlier in this article. 83 Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 55. 84 ESDC, “Supplementary Information,” supra note 5. VOL. 16 JOURNAL OF LAW & EQUALITY 27
The salutary effects of the attestation are both practical and symbolic. First and foremost, the Attestation fosters respect for Charter rights and values. There are significant equality rights at stake in the groups expressly mentioned in the attestation. The government is insistent that public funds not be used to undermine hard-fought gains by equality- seeking groups. The equality interests it particularly wants to protect include “reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.”85 It would in fact be an egregious Charter violation if the government funded discriminatory activities that exacerbated prejudice and stereotype for vulnerable groups. The attestation protects impressionable youth from being exposed to workplaces whose sole focus is on such Charter-undermining projects. Symbolically, the attestation also allows the government to make plain its values through a significant job creation fund. Those values include respect for equality- seeking groups and a belief that the government can promote Charter values in its policy choices. By including the attestation in the Summer Jobs process, the government is seen to be acting in a manner that is consistent with the platform it ran on and with the values it publicly professes, thus increasing respect for the democratic process. The deleterious effects of the attestation are that some organizations whose purposes are bound up with undermining constitutional rights will be ineligible for funding. Furthermore, some organizations that have multiple purposes (like the Catholic Church, for example) will only be eligible for funded student positions that seek to accomplish purposes other than trying to defeat equality rights. This may prevent some students from being able to find paid work with an organization that they support in pursuit of a cause they believe in. Additionally, organizations or business owners who rely on student employees may feel that they have to stay quiet or “hide” their political views to receive funding. This is a deleterious effect in a democratic society that prizes a diversity of viewpoints and the freedom to express them. However, given that the attestation does not in fact prevent organizations from expressing their political views and does not prevent students from associating with ineligible organizations or working for them on a voluntary basis, the balance between salutary and deleterious effects clearly favours the government.
85 Employment and Social Development Canada, “Funding: Canada Summer Jobs— Eligibility” (last modified 27 December 2017), online: Government of Canada
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IV. CAN THE GOVERNMENT ACTIVELY PROMOTE CHARTER RIGHTS IN POLICY AND LAW? While opponents to the attestation made various legal arguments to challenge it, the crux of their opposition in many respects, seems grounded in a disagreement over the proper role of government policy in promoting Charter values. Opponents argued that the government has no business making public funding contingent on its own interpretation of the law. It seems that the opponents thought it illegitimate for the government to use its power in a pre-emptive way to protect and promote Charter rights. The Supreme Court of Canada’s Charter jurisprudence thus far prohibits governments from violating rights to equality or security of the person (for example) but does not yet require the affirmative promotion of those rights. Many scholars and activists disagree with this position, suggesting that it is not dictated by the Charter. The National Association of Women and the Law, the Women’s Legal and Education Action Fund, and feminist scholars, for example, all argue that the fulsome promotion of rights and freedoms may well compel positive government action.86 As Martha Jackman observes,
[i]n sharp contrast to the current judicial approach, in the period leading up to and following its enactment, disadvantaged groups advocated for an interpretation and application of the Charter that would reflect and reinforce Canada’s international socio-economic rights commitments, moving beyond the discredited and outmoded dichotomy between positive and negative rights that was abandoned under the UN Declaration and the two International Covenants.87
86 See e.g. Tanudjaja v Canada (Attorney General), 2014 ONCA 852 at paras 40–86, Feldman JA dissenting; Gosselin v Quebec (Attorney General), 2002 SCC 84 at paras 308–57 [Gosselin] (Arbour J, dissenting, found that “[c]learly, positive rights are not at odds with the purpose of the Charter. Indeed, the Charter compels the state to act positively to ensure the protection of a significant number of rights, including, as I mentioned earlier (at para. 320), the protection of the right to vote (s. 3), the right to an interpreter in penal proceedings (s. 14), and the right of minority English- or French- speaking Canadians to have their children educated in their first language (s. 23). Positive rights are not an exception to the usual application of the Charter, but an inherent part of its structure. The Charter as a whole can be said to have a positive purpose in that at least some of its constituent parts do,” at para 350). 87 Martha Jackman, “One Step Forward and Two Steps Back: Poverty, the Charter and the Legacy of Gosselin” (2019) 39:1 NJCL 85 at 119–20. VOL. 16 JOURNAL OF LAW & EQUALITY 29
While, under prevailing jurisprudence, the government may not be compelled to act, the Charter does not prohibit government from actively promoting rights and freedoms, and, in fact, it should be interpreted as encouraging positive action. This is especially true when the government is working to promote the rights of vulnerable or historically disadvantaged groups. There have been many court challenges to the distribution of government resources over the years. All have been resolved by considering how funds or benefits were distributed rather than considering whether the benefit is required at all. None of these cases have concluded that it is inappropriate for the government to distribute benefits in the first place or to have criteria in place to guide that distribution. Supreme Court of Canada decisions such as Gosselin,88 Law, 89 Schacter, 90 and Eldridge 91 clearly establish that, if the government enters the field and provides a benefit, it must do so on a non-discriminatory basis. Section 15 promotes substantive, not formal, equality, and justifications for differential treatment can be made in arguing that a benefit exclusion is not discriminatory. It is evident in the application process for the CSJ grants that, having “entered the field” of offering a job grants program, the government is drawing many lines in its funding choices. The attestation represents a categorical exclusion before any further assessment is done. Since the attestation is not confined to any group that can be described by an enumerated or analogous ground, section 15 does not apply (and the challengers are not arguing that it does). However, the challengers are treating the CSJ program as an “entitlement” akin to a benefit rather than as discretionary funding. They seem to be arguing that, having created the program, the government cannot now attach categorical exclusions to successful applications for funding. There is no doubt that all government benefits reflect significant policy choices by the government in power. Changes in government are often reflected in a change in benefit policy, either by expanding the program (adding weeks to paid maternity/parental leave, for example) or by shrinking the pool of eligible claimants (raising the age to claim Old Age Security from sixty- five to sixty-seven, for example). These choices are often a part of election campaigns and reflect a political party’s values around parenthood and families, retirement/subsidized childcare and the
88 Gosselin, supra note 86. 89 Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1. 90 Schachter v Canada, [1992] 2 SCR 679, 93 DLR (4th) 1. 91 Eldridge, supra note 29.
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workforce, university and/or college attendance and tuition, and many other value-laden programs that distribute finite resources. In this way, the CSJ program could resemble a “benefit” in that it distributes government funds to achieve policy goals. However, unlike traditional benefit programs, the applicants themselves are assessed in ways that force them to make many choices in tailoring their application. Some of those choices are driven by policy values laid out by the government, such as a policy that awards extra points for hiring a woman in a science, technology, engineering, or math job or that rewards the hiring of a “priority” student, which is defined as “students with disabilities, Indigenous students, students who are members of a visible minority and students who are new immigrants/refugees.”92 Applications also improve their prospects when they fit into local and/or national priorities determined each year by the government and local MPs. All of these criteria represent values and choices made by the government as a funder. But the application process lets the applicant decide how to adapt to the government’s preferences— how to be strategic in crafting an application that can work for the organization and attract enough points to succeed with the funder. Traditional benefit programs do not work this way, and the difference is significant when it comes to the attestation. The attestation can be understood as one of the myriad of policy or value choices by the government in terms of its priorities for funding. The government does not want to fund organizations that actively seek to undermine Charter rights. It does want to fund organizations that hire women or Indigenous youth or organizations that work for environmental protection or that support seniors. In its crafting of programs, policies, laws, and resource distribution, the government takes Charter rights into account. In making an effort to protect the rights of vulnerable groups (immigrants, the lesbian, gay, bisexual, transgender, and queer community, women, seniors, and so on), the government should be encouraged to make use of the Charter and the jurisprudence that allows the government to reflect policy choices in law. In short, while the Catholic Church, for example, openly opposes abortion, and this is a position it promotes amongst its followers, the church was not created nor is it maintained solely to oppose abortion. It is therefore not an organization whose operating mandate is only and solely to work to undermine the Charter’s right to abortion. The Catholic
92 ESDC, “Funding: Canada Summer Jobs: Review Process” (last modified 2 February 2018), online: Government of Canada
Church does many other things for which it can receive funding. In contrast, the Toronto Right to Life Association was created and exists only to oppose abortion rights. It could never receive CSJ funding because undermining Charter rights is its only function. The CSJ’s grant denial is not based on the beliefs of these two organizations (which are the same—they both oppose abortion) but, rather, on the Charter- undermining activities of the organizations. The government does not deny that the Toronto Right to Life Association has expression rights, nor does it seek to silence the expression of its values. It simply will not fund this expression. This position is entirely in keeping with the government taking advantage of an opportunity to promote Charter values and use its policies and programs to enhance the rights of vulnerable equality-seeking groups.93
V. THE 2019 CSJ PROGRAM There are strong voices on both sides of this issue, including scholars who conclude that the attestation is unconstitutional. 94 In December 2018, the government announced that it would change the wording of the attestation in the 2019 CSJ process. Minister Hajdu admitted:
Despite our effort to make that case, many faith-based groups still felt it was uncomfortable for them to sign and so we wanted to make sure that we worked with
93 Human Rights Committee, “General Comment No 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life,” United Nations Human Rights Office of the High Commissioner (30 October 2018) online (pdf):
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faith-based groups, with leaders, but that we also worked with rights organizations to get it right, to make sure the attestation gets at the core of ensuring that any funding doesn’t support activities or projects that in any way undermine or restrict the exercise of rights legally protected in Canada.95
The 2019 CSJ program included significant changes with respect to the attestation requirement. However, in my view, the changes in wording are of little consequence to how the attestation operates. In defining eligibility for funding, the application now specifically defines “ineligible projects and job activities”:
Ineligible Projects and Job Activities:
• Projects consisting of activities that take place outside of Canada; • Activities that contribute to the provision of a personal service to the employer; • Partisan political activities; • Fundraising activities to cover salary costs for the youth participant; or • Projects or job activities that: restrict access to programs, services, or employment, or otherwise discriminate, contrary to applicable laws, on the basis of prohibited grounds, including sex, genetic characteristics, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender identity or expression; advocate intolerance, discrimination and/or prejudice; or actively work to undermine or restrict a woman’s access to sexual and reproductive health services.
Please note the following definitions:
• As per section 2.1 of the Canada Summer Jobs Articles of Agreement, “project” means the hiring, administration of, job activities, and organization’s activities as described in the Application Agreement.
95 Amanda Connolly, “Liberals Changing Canada Summer Jobs Attestation after Reproductive Rights Controversy,” Global News (6 December 2018), online:
• To “advocate” means to promote, foster, or actively support intolerance, discrimination, and/or prejudice. • To “undermine or restrict” means to weaken or limit a woman’s ability to access sexual and reproductive health services. The Government of Canada defines sexual and reproductive health services as including comprehensive sexuality education, family planning, prevention and response to sexual and gender-based violence, safe and legal abortion, and post-abortion care.96 Notably, the assessment of whether a grant applicant is engaged in prohibited activities is now done by Service Canada. The 2019 attestation box required all applicants to confirm that “[a]ny funding under the Canada Summer Jobs program will not be used to undermine or restrict the exercise of rights legally protected in Canada. To ‘undermine or restrict’ means to weaken or limit the ability to exercise rights legally protected in Canada.” 97 Applications would not be processed if the attestation box was unchecked. Taken together, these two aspects of the application address the alleged frailties of the 2018 attestation. While I argue that they have little practical impact in that the same organizations and jobs that were ineligible in 2018 remain so following the changes, the new wording demonstrates the government’s response to the negative publicity. First, the 2019 attestation does not speak to values but, rather, refers only to “rights legally protected in Canada.” This change eliminates the argument that the government is forcing applicants to “speak the words of the government” or otherwise profess “beliefs” they do not share. There is no requirement that organizations agree with the current state of the law, only that the funding will not be used to undermine the current state of the law. Organizations can still use other funds (non-CSJ funds) to accomplish this end. Second, the definition of ineligible projects strengthens the government’s positive promotion of a rights-based culture by rendering discriminatory projects and activities outside the scope of public funding. The inclusion of reproductive rights furthers the legal reality that abortion services pertain to equality and security of the person rights for women and are therefore properly captured by non-discrimination policies. These changes address feedback received from opposition organizations, while also signaling the importance of promoting Charter rights.
96 Service Canada, “Canada Summer Jobs 2019: Providing Youth with Quality Work Experiences” (2012) at 10–11, online (pdf):
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The 2019 version of the attestation has received its own share of controversy and litigation. At least two court challenges have been launched, both by the Bible-Centred Ministries in Alberta. 98 In the media, opponents to the attestation continue to argue that it constitutes an unconstitutional imposition of government values on applicants. The president of the Catholic Civil Rights League stated: “It is effectively establishing a bubble zone to prevent funding to organizations who do not share the federal government’s unfettered pro-abortion position,” while the youth coordinator for the Campaign Life Coalition argued: “It’s remaining a method in which the government imposes its ideological agenda on Canadians.”99 Others suggest that the 2019 version of the attestation addresses the problems that followed the 2018 version. The communication’s director for the Catholic Archdiocese of Toronto admitted: “I think the changes for 2019 are certainly an improvement from where we were this time last year.”100 He predicted that most religious applicants would be able to sign the 2019 attestation.101 The public policy director for the Evangelical Fellowship of Canada noted that their primary objection to the 2018 attestation was what she described as its “values test.”102 While the 2019 version still prohibits funding for certain jobs and activities, she is satisfied that the values test is gone.103 The pragmatic consequence of the change in wording is, in my view, limited. Take, for example, the first two organizations and jobs offered as guidance or examples to illustrate the 2018 attestation:
98 See BCM International (Canada) Inc v Canada (Minister of Employment, Workforce Development, and Labour and the AG), Notice of Application, online (pdf):
Example 1: An organization whose primary activities are focused on removing, or actively undermining existing women’s reproductive rights, applies for funding. This organization would not be eligible to apply. Example 2: A faith-based organization with anti-abortion beliefs applies for funding to hire students to serve meals to the homeless. The organization provides numerous programs in support of their community. The students would be responsible for meal planning, buying groceries, serving meals, etc. This organization would be eligible to apply.104 Assume for a moment that either the director of an anti-abortion organization or a faith-based meals provider was willing to check the attestation box in both years. In practical terms, it seems unlikely that an organization that would have been ineligible for funding in 2018 would now be eligible under the new wording. The focus on the core mandate of the organization and the specific job activities of the student employed under the CSJ grant would still result in the same funding decision (positive or negative) under either iteration of the attestation. The anti- abortion group would not be eligible and the faith-based meal provider would be eligible. Symbolically however, some organizations seem to feel that the 2019 attestation represents a commitment they can make. The eligibility criteria for grants has not changed, but the consultation with faith communities and the fact that the government responded by tweaking the wording is sufficient to allay concerns. Because it remains substantially the same, the 2019 version of the attestation is no loss for those who supported its predecessor. The new wording includes a specific statement that includes abortion in the government’s agenda: “The Government of Canada defines sexual and reproductive health services as including comprehensive sexuality education, family planning, prevention and response to sexual and gender-based violence, safe and legal abortion, and post-abortion care.” 105 The government’s consultation with both supporters and detractors of the 2018 attestation indicates that it is willing to listen and improve its policies and initiatives. The change in wording does not lessen the impact of the Attestation but nor does it take away from the significance of the addition to the CSJ granting process. In the end, under either version of the attestation, taxpayer resources will not be distributed
104 ESDC, “Supplementary Information,” supra note 5. 105 CSJ, “Applicant Guide,” supra note 5 at 11.
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by this program in a way that undermines hard-fought equality gains by vulnerable groups.
VI. CONCLUSION The government’s inclusion of a rights-protecting attestation in this major job grants program is a laudable decision. It represents a public affirmation that the government will protect the Charter rights of vulnerable groups. It also manifests the government’s position that reproductive rights are equality and security of the person concerns for women and that abortion rights are constitutionally protected. The CSJ program is an example of how politics and policy can move hand in hand. The Liberal political agenda to appeal to feminists and those who are concerned about protecting the equality gains of vulnerable communities is served by the attestation. Yet it represents a careful balancing act. No organization is required to agree with the government’s position, nor does the attestation create new rights or rely on yet-to-be- determined rights. The human rights that must be acknowledged and respected are well established in law and protected by our Constitution. The government should be encouraged to align policy and law with protected rights. Our democracy allows for the active opposition to government action. Charter-protected freedom of expression and association allows organizations to advocate for a change in the law, a different interpretation under the Charter or the installation of a new government. The attestation does not prohibit any of that work. It simply means that government funding will not be used to support it. This is in keeping with what Canadians expect of their elected officials. To the extent that any government is an expression of voter ideals or values, one would expect that it operates within the Charter and actively promotes and protects hard-won gains by vulnerable groups. Rather than discourage the positive promotion of rights, we should hold the government accountable for doing just that.
How (Not) to Interpret Moore and Meiorin: Using Two Recent Arbitral Awards to Point the Way
Maryam Shahid
ABSTRACT
This article examines two recent arbitral awards, each involving the termination of nurses suffering from drug addiction. The arbitrators in Humber River and Sunnyside both concluded that the nurses in question had been discriminated against on the ground of disability and had not been accommodated to the point of undue hardship. The article argues that these cases exemplify how discrimination claims should be adjudicated, and, in particular, that they are noteworthy for rejecting two problematic arguments. First, they correctly reject an argument commonly made at the prima facie stage of addiction cases. The employers in Humber River and Sunnyside argued that the nurses were terminated not because of their addiction but, rather, because of their theft and use of narcotics at work. According to them, this refuted the third step of the prima facie stage, which requires complainants to prove that the protected characteristic (disability) was a factor in the adverse impact (termination). The arbitrators held that this argument improperly requires complainants to prove discriminatory intent. Second, Humber River and Sunnyside properly resisted a troubling argument made by the respondents at the bona fide occupational requirement (BFOR) stage. The BFOR defence requires respondents to show that the impugned standard was adopted for a goal rationally connected to the enterprise. Respondents are free to choose their own goals, provided those goals are legitimate. In some cases, respondents have characterized workplace goals in a way that bypasses the essential components of the BFOR defence. Humber River and Sunnyside resist the respondents’ attempts to overstate their workplace goals to avoid individual accommodation. This article suggests that, in light of these arguments, the BFOR test should be collapsed into a single two-part question: what is the claimant asking for and does that claim undermine the enterprise in a way that causes undue hardship?
Maryam Shahid is a University of Toronto Faculty of Law alumnus. She articled at a civil litigation boutique in Toronto and currently works in public service. I wish to thank Andy Yu, Meena Sundararaj, Amit Singh, and Angela Hou. This article is what it is today because of the tireless efforts of the Journal of Law & Equality’s editorial team. I am especially grateful to Denise Réaume for her guidance and invaluable comments on prior drafts of this article. All errors are my own. 38 HOW (NOT) TO INTERPRET MOORE AND MEIORIN VOL. 16
I. INTRODUCTION The two-stage structure for discrimination claims has been firmly established since the Supreme Court of Canada’s 1982 decision in Ontario Human Rights Commission v Etobicoke.1 In the employment context, a complainant typically must first establish a prima facie case of discrimination—the first stage. If successful, the respondent may have an opportunity to escape liability by proving that the impugned rule or policy is a bona fide occupational requirement (BFOR)—the second stage. While this two-stage structure has remained in place since Etobicoke, the Supreme Court has revisited the individual tests for establishing a prima facie case and BFOR defence on a few occasions. In 1999, it completely reworked the structure of the BFOR defence in British Columbia (Public Service Employee Relations Commission) v BCGSEU (Meiorin) and explained why a new approach was required.2 In 2012, it laid down the current test for proving a prima facie case of discrimination in Moore v British Columbia (Education).3 The Court’s aim in both decisions was ostensibly to continue developing a framework that would advance the substantive equality goals of human rights codes. Despite the promising vision of the Moore and Meiorin tests, their application in subsequent jurisprudence has been problematic. Respondents have sometimes succeeded with troubling arguments that circumvent a robust discrimination analysis. The addiction context has been particularly vulnerable, with the Supreme Court of Canada’s decision in Stewart v Elk Valley Coal Corp acting as a glaring example of how respondents can succeed with arguments that miss the ultimate issue.4 Yet two recent arbitral awards, each involving the termination of nurses suffering from drug addiction, have resisted the problematic arguments put forth by the respondents in those cases. Arbitrator Eli Gedalof in Humber River Hospital v Ontario Nurses’ Association and Arbitrator Larry Steinberg in Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association both concluded that the nurses in question had been discriminated against on the ground of disability and had not been accommodated to the point of undue hardship.5
1 [1982] 1 SCR 202. See also Ontario H.R.C. & Theresa O’Malley (Vincent) v Simpsons- Sears, [1985] 2 SCR 536. 2 [1999] 3 SCR 3 [Meiorin]. 3 2012 SCC 61 [Moore]. 4 Stewart v Elk Valley Coal Corp, 2017 SCC 30 [Elk Valley SCC]. 5 Humber River Hospital v Ontario Nurses’ Association, 2018 CanLII 115718 (ONLA) [Humber River]; Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019 CanLII 433 (ONLA) [Sunnyside]. See also “Theft Motivated by VOL. 16 JOURNAL OF LAW & EQUALITY 39
The decisions in Humber River and Sunnyside are noteworthy on two fronts. First, they correctly reject an argument commonly made at the prima facie stage of addiction cases. The employers in Humber River and Sunnyside argued that the nurses were terminated not because of their addiction but, rather, because of their theft and use of narcotics at work. According to them, this refuted the third step of the Moore test, which requires complainants to prove that the protected characteristic (disability) was a factor in the adverse impact (termination).6 The employer in Elk Valley made a similar argument—that the complainant was terminated not because of his addiction but, instead, because of his failure to disclose his addiction pursuant to a workplace policy. The employer’s argument in Elk Valley was accepted by the Alberta Human Rights Commission, and ultimately upheld by a majority of the Supreme Court.7 Justice Clément Gascon forcefully dissented in Elk Valley, concluding that the tribunal’s decision misunderstood discrimination law principles and was unsupported by its own factual findings.
Addiction not Necessarily a Firing Offence,” Cavalluzzo Blog (12 December 2018), online:
40 HOW (NOT) TO INTERPRET MOORE AND MEIORIN VOL. 16
Humber River and Sunnyside were decided in the wake of Elk Valley, and though they explicitly cited the majority’s opinion, Gedalof and Steinberg channelled Gascon J’s dissent. They were able to do so because the administrative law standard of review significantly limits the precedential value of appellate decisions on discrimination. In Elk Valley, for example, a majority of the Supreme Court upheld the tribunal’s decision on a deferential finding that it was “not unreasonable”, but did not endorse the tribunal’s reasons as correct.8 First-instance adjudicators like Gedalof and Steinberg, who are sympathetic to Gascon J’s approach, see an opportunity to conclude differently on similar facts. A finding that one decision is reasonable is not a finding that the opposite is unreasonable. Gedalof and Steinberg’s rejection of Elk Valley-type reasoning is the subject of the first part of this article. Humber River and Sunnyside are also noteworthy for resisting a troubling argument made by respondents at the BFOR stage. The first step in Meiorin requires respondents to show that the impugned standard was adopted for a goal rationally connected to the enterprise. In British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) (Grismer), the Supreme Court clarified that employers are free to choose their own goals provided those goals are legitimate or valid.9 Following Grismer, some respondents have not only chosen their workplace goals but have also characterized them in a way that precludes individual accommodation. I refer to this as “goal overstatement.” This strategy allows respondents to improperly bypass the essential components of the BFOR defence. In Sunnyside, for example, the employer conceived of “trust” as a workplace goal on such specific terms that accommodating the claimant was a nonstarter. Too lax an approach to the legitimacy standard from Grismer has allowed these problematic arguments to develop early in the Meiorin analysis. Sunnyside and Humber River, however, resist the respondents’ attempts to overstate their workplace goals to avoid individual accommodation. Arguments like the one the employer made in Sunnyside suggest that it is time to again reassess the structure of the Meiorin test. Overstating workplace goals at the first step of Meiorin has a tendency to sideline the crucial accommodation issue. As a solution, I would propose collapsing the Meiorin test into a single two-part question: what is the claimant asking for and does that claim undermine the enterprise in a way that causes undue hardship? Goal overstatement arguments, and my solution to their emergence, are the subject of the second part of this article.
8 Elk Valley SCC, supra note 4 at para 35. 9 [1999] 3 SCR 868 at para 21 [Grismer]. VOL. 16 JOURNAL OF LAW & EQUALITY 41
II. PRIMA FACIE DISCRIMINATION AND THE MOORE TEST A. Elk Valley Muddies the Water on “Contribution” The decisions in Humber River and Sunnyside are significant for their rejection of an argument commonly made at the prima facie stage of discrimination claims. To make out a prima facie case of discrimination, a claimant must demonstrate: (1) that they have a characteristic protected from discrimination under the Human Rights Code; 10 (2) that they experienced an adverse impact; and (3) that the protected characteristic was a factor in the adverse impact (the “Moore test”).11 Both employers attempted to refute the third factor in the Moore test. They argued that the protected characteristic—disability—was not a factor in the termination because the nurses were fired for theft and drug use, not addiction. The employers likely thought that they were on solid ground given that a similar argument was recently successful in Elk Valley and upheld on judicial review by a majority of the Supreme Court of Canada. Despite the result in Elk Valley, the argument was rejected in Humber River and Sunnyside. In this, Gedalof and Steinberg echoed Gascon J’s forceful dissent in the Supreme Court. Elk Valley Coal Corporation (Elk Valley) had a zero-tolerance alcohol and drug policy, which provided for automatic termination if an employee tested positive for drugs after a safety incident. The policy ostensibly accommodated employees with alcohol or drug-related addictions, but only if they disclosed these issues before an incident occurred. The complainant, Ian Stewart, operated a plant loader in Elk Valley’s open coal-mining operation. He was addicted to cocaine and had not disclosed his addiction before his loader was involved in an accident. In accordance with the policy, Stewart was immediately terminated after testing positive for drug use, despite coming forward with his addiction after the fact. There was no evidence that Stewart was under the influence of drugs or alcohol at the time of the accident. Stewart’s union filed a complaint against Elk Valley, alleging that he was terminated because of his physical disability (drug addiction), contrary to Alberta’s human rights legislation. Elk Valley disagreed,
10 Moore involved British Columbia’s Human Rights Code, RSBC 1996, c 210. In Ontario, the Human Rights Code, RSO 1990, c H19, lists the protected grounds in s 2(1): “Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.” 11 Moore, supra note 3 at para 33.
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taking the position that Stewart could have voluntarily disclosed his addiction to receive accommodation pursuant to the policy, but he chose not to. According to Elk Valley, its termination of Stewart had therefore been due to his breach of the policy and not due to his disability per se. The tribunal accepted Elk Valley’s argument12 and found that Stewart “was not fired because of his disability, but rather because of his failure to stop using drugs, failure to stop being impaired in the workplace and failing to disclose his drug use.” 13 In other words, Stewart had not established prima facie discrimination because his disability was not a factor in the adverse treatment that he experienced. Crucial to this conclusion was the tribunal’s finding that Stewart had the “capacity” to comply with the policy.14 That is to say, while Stewart may have been partially in denial of his disability, he ultimately made “rational choices” about his drug use.15 This meant that Stewart could have pre-emptively disclosed his addiction to receive accommodation and, in failing to do so, had deliberately refused to comply with the policy’s terms. Stewart sought judicial review of the tribunal’s decision and ultimately appealed the lower court decisions to the Supreme Court, which rendered a split decision. Based on a deferential standard of review, a majority of the Court dismissed Stewart’s appeal on the ground that the tribunal’s conclusion was “not unreasonable.” 16 Gascon J disagreed, arguing that the tribunal’s conclusion was unreasonable because its analysis misunderstood discrimination law principles and was unsupported by its own factual findings.17 It is Gascon J’s dissent that echoes through the decisions in Humber River and Sunnyside, so I begin there. According to Gascon J, the tribunal misunderstood the third part of the Moore test—whether the characteristic is a factor in the adverse impact—which he called the “contribution” element.18 For Gascon J, the tribunal’s analysis of contribution suffered from two major flaws: a focus on Elk Valley’s intention and an emphasis on Stewart’s supposedly independent choices. The tribunal’s preoccupation with Elk Valley’s intention or lack of intention to discriminate was clear from its approving reference to the Court of Appeal for British Columbia’s decision in British Columbia (Public Service Agency) v British Columbia Government and
12 Elk Valley Tribunal, supra note 7 at paras 121, 126–129. 13 Ibid at para 120. 14 Elk Valley SCC, supra note 4 at para 26. 15 Elk Valley Tribunal, supra note 7 at paras 121–122. 16 Elk Valley SCC, supra note 4 at para 35. 17 Justices Moldaver and Wagner (as he then was) agreed that prima facie discrimination had been established. 18 Elk Valley SCC, supra note 4 at para 69, Gascon J dissenting. VOL. 16 JOURNAL OF LAW & EQUALITY 43
Service Employees Union (Gooding),19 where the court suggested that a ground can only be a factor in harm if it plays a role in an employer’s decision to terminate an employee. Gooding involved the termination of a liquor store supervisor who was caught stealing substantial amounts of alcohol from his employer. Once confronted with the thefts, he disclosed his alcohol dependence, began rehabilitation, and stopped drinking. The British Columbia Court of Appeal, rather than focusing on the grievor’s disability, focused instead on the employer’s reasons for terminating him:
I can find no suggestion that Mr. Gooding’s alcohol dependency played any role in the employer’s decision to terminate him or in its refusal to accede to his subsequent request for the imposition of a lesser penalty. He was terminated, like any other employee would have been on the same facts, for theft. The fact that alcohol dependent persons may demonstrate “deterioration in ethical or moral behaviour”, and may have a greater temptation to steal alcohol from their workplace if exposed to it, does not permit an inference that the employer’s conduct in terminating the employee was based on or influenced by his alcohol dependency.20
The tribunal in Elk Valley essentially adopted this framework; focusing on the reasons offered for terminating Stewart, it found on the facts that he was terminated for breach of the policy and not for his disability.21 As strenuously emphasized by Gascon J, however, an employer’s discriminatory intent is not necessary to make out a modern discrimination law claim. 22 The Supreme Court of Canada’s jurisprudence has consistently held that, to rectify adverse effects discrimination, contribution must be concerned with the “relationship … between an employee’s ground and harm” and not between an employee’s ground and the employer’s intention to harm.23 Gascon J’s message is that requiring the complainant to prove that the ground played a role in the decision is functionally equivalent to asking the complainant
19 2008 BCCA 357 at para 11 [Gooding]; Elk Valley SCC, supra note 4 at para 113, Gascon J dissenting. 20 Gooding, supra note 19 at para 11. 21 Elk Valley Tribunal, supra note 7 at para 120. 22 Elk Valley SCC, supra note 4 at para 79, Gascon J dissenting. 23 Ibid at para 80, Gascon J dissenting.
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to prove intention. A focus on the employer’s reasons for termination is an erroneous focus on the employer’s discriminatory or non- discriminatory intent. To that end, the tribunal in Elk Valley should have concentrated on whether Stewart’s addiction was a factor in the termination itself, as opposed to whether it was a factor in Elk Valley’s decision to terminate him. Relatedly, Gascon J noted that the tribunal improperly elevated the contribution requirement by fixating on Stewart’s choices:
Claiming that Mr. Stewart’s drug addiction was not “a factor” in his termination because he was fired “due to” his drug use is simply an alternate phrasing for contribution requiring that a ground be a direct cause of harm (the Policy breach), rather than an indirect cause (the addiction contributing to that breach).24
Requiring the protected characteristic to be a “direct” or “immediate” factor of harm is the wrong legal test. The tribunal should have considered not only Stewart’s direct failure to comply with the policy but also the indirect cause of that failure. For Gascon J, if contribution was understood correctly, the tribunal’s own factual findings favoured Stewart’s prima facie claim. The tribunal found as a fact that Stewart had a drug addiction and understood drug addiction as “impaired control”. From this, it followed that Stewart had at least a diminished capacity to comply with the policy, which should have been enough to conclude that Stewart’s addiction was a “factor” in his termination, as his breach of the policy led to his termination in the first place. The tribunal’s various choice-related findings—that Stewart made “rational choices” about drug use and “had the capacity to make choices” about drug use—only indicated that his addiction did not completely debilitate him from making decisions, which was beside the point. Stewart’s addiction may not have been the sole factor in his termination, but there was no requirement that it needed to be. Writing for the majority, Chief Justice Beverley McLachlin explicitly endorsed the broad principles applied by Gascon J. However, she deferred to the tribunal’s reasoning as “not unreasonable”. In principle, she affirmed that discrimination claims ought to focus on discriminatory impact, as opposed to discriminatory intent, and that the contribution requirement should not be elevated by modifiers like “direct” or “causal.” She noted that contribution is established when “at least one of the
24 Ibid at para 98, Gascon J dissenting. VOL. 16 JOURNAL OF LAW & EQUALITY 45
reasons for the adverse treatment” is the employee’s disability. 25 However, McLachlin CJ noted that the tribunal identified the correct legal test (which was technically true)26 and that the question of whether Elk Valley terminated Stewart for breach of the policy, or for his disability, was essentially a question of fact. Accordingly, the only issue for a reviewing court was whether the tribunal’s conclusion was unreasonable. Based on the evidence, which consisted of Elk Valley’s termination letter and expert testimony on Stewart’s drug dependency, the majority held that it was “not unreasonable” to conclude that Stewart’s disability was not a factor in his termination.27 Gascon J’s judgment demonstrates the danger in the majority’s failure to condemn the Gooding approach. The employers in Humber River and Sunnyside relied on the majority’s opinion and explicitly invited the arbitrators to adopt Gooding-like reasoning. Gedalof rejected that invitation in Humber River. He was followed in this by Steinberg in Sunnyside. B. Humber River and Sunnyside: Gascon J Redux The facts of Humber River and Sunnyside were strikingly similar. In Humber River, the grievor (R.I.) had been employed as an emergency nurse for roughly four years. She was terminated from her employment two days after being discovered in possession of stolen narcotics. The Ontario Nurses’ Association alleged that, due to her addiction, the grievor’s termination was discriminatory and thus violated the Ontario Human Rights Code. R.I. testified about her addiction to morphine and other controlled substances. She had stolen narcotics from Humber River on a daily basis to sustain her addiction. Arbitrator Gedalof readily found that the “evidence of the link between the grievor’s addiction and the diversion of most of the drugs the grievor stole was unequivocal.”28 In Sunnyside, the grievor (D.S.) had worked as a registered nurse at a long-term care facility in Waterloo for fourteen years (called “Sunnyside”) and was eventually promoted to the role of team leader in 2012. She was terminated four years later after Sunnyside investigated a number of eye-witness accounts alleging that D.S. had stolen and used narcotics at work. Like R.I., D.S. admitted to the theft and extensive drug use. She testified that she was abusing several controlled medications,
25 Ibid at para 43. 26 See e.g. Elk Valley Tribunal, supra note 7 at paras 115, 117. 27 Elk Valley SCC, supra note 4 at paras 35–41. 28 Humber River, supra note 5 at para 129. Indeed, attributing the grievor’s theft of narcotics to her drug addiction was the “only explanation that [made] sense”: Humber River, supra note 5 at para 129.
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including morphine, and had been misappropriating injectable narcotics for her own use for approximately two years. The grievor also admitted, in addition to other problematic behaviour, that she had been falsifying medical records to conceal her theft.29 After she was terminated, D.S. entered into, and successfully completed, a rehabilitative inpatient program to the satisfaction of the College of Nurses of Ontario (CNO), the regulative authority for Ontario’s nurses. The CNO allowed her to resume work under certain conditions (discussed in more detail below).30 In Humber River, Gedalof concluded that Gooding was inconsistent with the decision in Elk Valley given the majority’s affirmation that discriminatory impact, and not discriminatory attitude, is at issue in discrimination claims:
The court in Gooding … effectively concludes that even though the employee’s addiction may have affected his ability to comply with the workplace rule (i.e. no theft), it is “irrelevant” because the employer’s decision was not based on its attitude toward the employee as an addict, but rather its attitude toward the employee as a thief. This distinction, which goes so far as to deem “irrelevant” the effect of the employee’s ability to comply with a rule by virtue of having a characteristic protected from discrimination, is precisely what the Supreme of Canada [sic] rejects in cases such as Meiorin, as reinforced in Elk Valley. To adopt the Gooding approach would be to read adverse effect discrimination out of our human rights analysis and to embrace a superficial understanding of discrimination that the Supreme Court of Canada has rejected.31
Gedalof sidestepped the majority’s application of the law to the facts in Elk Valley by treating the tribunal’s conclusion as being upheld only on the “narrow ground that it was a reasonable finding of fact, open to the tribunal on the record before it.”32 What was more important for Gedalof
29 Sunnyside, supra note 5 at para 32. 30 Despite the similarity in the cases, there were two crucial differences that ultimately affected the remedy. The first difference was that R.I.’s testimony, unlike D.S.’s, was sometimes inconsistent, false, or incomplete: Humber River, supra note 5 at para 138. The second difference was that, while the CNO specifically permitted D.S. to return to work, no evidence of the college’s conditions or oversight of R.I. was led in Humber River. 31 Humber River, supra note 5 at para 113. 32 Ibid at para 101. VOL. 16 JOURNAL OF LAW & EQUALITY 47
was that the majority left room for future cases to be decided differently. As the majority held in Elk Valley,
[i]n some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis.33
In reasoning that is squarely in line with Gascon J’s dissent, Gedalof asserted that “where it is established that an employee’s addiction disability is a factor in their inability to comply with a workplace rule (even where the employer’s decision-making process focused on the conduct in isolation, irrespective of the disability that contributed to the conduct), the employee will have established a prima facie case of discrimination.”34 Steinberg followed this test in Sunnyside. Both arbitrators scrutinized why the nurses acted the way they did and, given those reasons, determined whether their addiction was at least one factor in their termination. The answer to this question in both cases was a resounding “yes,” thus tempering the “employer-friendly” result in Elk Valley.35 Arbitrators Gedalof and Steinberg’s de facto adoption of Gascon J’s approach in Elk Valley is crucial for discrimination law given the majority’s contrasting affirmation of the tribunal’s choice-driven analysis. As Gascon J noted, a focus on whether a complainant could have chosen differently blames marginalized communities for their choices and requires them to actively avoid discrimination. On the facts of Elk Valley, it also allowed the tribunal to sidestep the argument that “any distinction between termination due to disability, and termination due to failure to follow the Policy, [was] superficial given that the misconduct relied upon can be … a symptom of the addiction or disability.” 36 The tribunal claimed to be alive to this argument but countered by arguing that it was
33 Elk Valley SCC, supra note 4 at para 39. 34 Humber River, supra note 5 at para 106. 35 See John C Batzel et al, “Supreme Court Upholds Termination for Breach of Drug and Alcohol Policy,” Bennett Jones Blog (28 June 2017), online:
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not relevant to Stewart because of his control over his decision making. This response, focusing on Stewart’s “control,” grossly misunderstands the nature of addiction and diminishes addiction-related discrimination claims. Gedalof and Steinberg, in sync with Gascon J, shut the door on this problematic line of thinking in their decisions. One can only hope that more first-instance decision makers will fall in line with their approach.
III. THE BFOR DEFENCE AND THE MEIORIN TEST A. The Structure of the Meiorin Test: A Fatal Flaw? Once a claimant has made out a prima facie case of discrimination, an employer must show that the impugned rule or policy is a bona fide occupational requirement (BFOR) to escape liability. The BFOR stage is thus a defensive stage, where the respondent justifies or defends its discriminatory policy. The respondent’s success at the BFOR stage has significant implications for discrimination law since it demonstrates how policies, otherwise discriminatory, are legitimized. One of the Supreme Court’s goals in Meiorin was to raise the hurdles that respondents must cross in order to succeed at the BFOR stage. To escape liability, a respondent must show:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job (“rational connection”); (2) that it was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose (“good faith”); and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose (“reasonable necessity”).37
At the first step, the court must scrutinize the purpose of a standard and determine whether that purpose is rationally connected to the job. The focus is on the goals that anchor an explanation or justification.38 The Court in Meiorin explained that, where the purpose behind an impugned standard is broad, as in cases where the purpose is to ensure safety and efficiency in the workplace, it will be unnecessary to focus on rational connection since safety and efficiency are essential components of all
37 Meiorin, supra note 2 at para 54; Denise Réaume, “Defending the Human Rights Codes from the Charter” (2012) 9 JL & Equality 67 at 73. 38 Meiorin, supra note 2 at paras 57–79. VOL. 16 JOURNAL OF LAW & EQUALITY 49
occupations. While the same cannot be said for “narrower” purposes, the Court did not provide an example of what a narrower purpose would be.39 In practice, the first and second steps of the Meiorin test have not played a significant role in post-Meiorin jurisprudence. They are not the “make or break” parts of the BFOR defence.40 Dianne Pothier calls them “speed bumps, ultimately conceded to the respondent.” 41 Importantly, however, the first step of Meiorin briefly came into the spotlight in Grismer when the Supreme Court clarified that respondents are entitled to choose their own goals provided those goals are legitimate or valid. Goals are legitimate when they connect to the nature of the sphere within which the complaint arises. Specifically, in the employment context, “goals must be rationally connected to performance, in the services context, the anchor is the nature of the service provided.”42 As an example, “safety is a legitimate workplace goal because it is rationally connected to performance, but presumably the employer’s merely aesthetic preference for or against certain headgear is not.”43 As I will show, the first step of Meiorin sometimes plays a far more critical—and problematic—role in the BFOR defence than the jurisprudence currently gives it credit for. The questions to keep in mind are whether Grismer’s legitimacy qualification is doing enough work or whether it is even being respected. The third step of the Meiorin test is its focal point—the “make or break” part.44 It requires the impugned rule or policy to be a reasonably necessary means to achieve the legitimate workplace goals identified at the first step. Crucially, the duty to accommodate is a part of the reasonable necessity requirement:
If there is a way to include the complainant’s group in the enterprise while still accomplishing the objective, her exclusion cannot be justified—it is unnecessary. Undue hardship, then, operates as the limiting case of accommodation—if the effort to include those excluded
39 Ibid at para 58. It is more helpful, I think, to speak of “specific” rather than “narrow” purposes. Specific purposes might be, but are not necessarily, narrow. As I will explain, employers sometimes characterize goals in specific or inflexible terms at the first step of Meiorin, which can be problematic for the third step of the Meiorin analysis. 40 Dianne Pothier, “How Did We Get Here? Setting the Standard for the Duty to Accommodate” (2009) 59 UNBLJ 95 at 98. 41 Ibid at 98. 42 Réaume, supra note 37 at 74. 43 Ibid. 44 Pothier, supra note 40 at 98.
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imposes too high a burden on the respondent, refusing to accommodate will be justified.45
The operative question is whether the respondent’s policy or practice is necessary in light of its exclusionary effects. Given the link between accommodation and undue hardship, undue hardship effectively becomes part of the test as well: “To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.” 46 The Meiorin test therefore increased the respondent’s defensive burden by putting the duty to accommodate question at its heart.47 Unfortunately, despite its importance, the reasonable necessity step does not always play this crucial role in practice. In some cases, it gets sidelined depending on what is conceded to the respondent on rational connection. I argue that too lax an approach to Grismer’s standard of legitimacy has allowed problematic arguments to develop early in the Meiorin analysis. Employers sometimes describe work-related purposes in a way that seems legitimate in the abstract (I say “abstract” because the complainant’s circumstance is not relevant until the third step of Meiorin) but that may also make it impossible to carve out individual exceptions to the impugned standard. Practically, employers can overstate inflexible or absolute goals at the first step of the Meiorin test, where they have more leeway, and render the third step inconsequential. Their overstatement of inflexible goals gainsays, in an a priori fashion, individual accommodation. If successful, this compromises Meiorin’s central insight that respondents cannot demonstrate the reasonable necessity requirement without explaining why individual accommodation on the facts would cause them undue hardship. The decisions in Humber River and Sunnyside properly resist this problematic tendency to overstate the respondent’s goal.
45 Réaume, supra note 37 at 75. 46 Meiorin, supra note 2 at para 54. There is a trend in the case law and literature to refer to the third step as the “duty to accommodate stage.” Dianne Pothier explains that this is a misnomer because individual accommodation need not practically arise on the facts if the requirement of reasonable necessity has not been met. Before considering the availability of individual accommodation, an employer must demonstrate the validity of the rule or policy in question. Accommodation analysis is built into the third step of Meiorin because contemplated exceptions to rules often undermine the logic of the rules themselves. Ad hoc exceptions to discriminatory rules are not necessary—and should be avoided—if the rules themselves are the problem. See Pothier, supra note 40 at 98–100. 47 Réaume, supra note 37 at 76. VOL. 16 JOURNAL OF LAW & EQUALITY 51
One response to the emergence of goal overstatement arguments is to adjust the structure of the Meiorin test. It is uncontroversial that the reasonable necessity requirement is the crux of the BFOR defence. A solution would be to collapse Meiorin into a single two-part question: what is the claimant asking for and does that claim undermine the enterprise in a way that causes undue hardship? This reformulation accomplishes three crucial objectives: it puts the claimant at the forefront of the analysis; it allows the respondent to define workplace goals; and it requires the court to push back on workplace goals by stressing the undue hardship issue. Put simply, this reformulation permits the analysis to flow in the right way; ideas about workplace goals and their legitimacy would not be artificially shoehorned at the beginning of the analysis where the complainant’s circumstance is out of mind. Respondents would maintain the freedom to define workplace goals, but in a way that properly engages the reasonable necessity component of the BFOR defence. B. How Goal Overstatement Undermines the Meiorin Test Before turning to Humber River and Sunnyside, it is worth pausing to consider a troubling goal overstatement argument that succeeded. In Bastide v Canada (Attorney General), the claimant challenged a manual dexterity test that determined eligibility to receive on-the-job training.48 The respondent, Canada Post, argued that the test assessed an individual’s ability to code, which was an essential requirement of the job because of Canada Post’s rotational system (each employee would have to code during the course of their employment). The basis of the discrimination claim was that success on the dexterity test was inversely correlated with age. At the first step of Meiorin, the Federal Court accepted that the dexterity test was adopted to determine coding ability, and coding was necessary for the mechanization of mail processing.49 Mechanization was a legitimate goal because of the increasing volume of letters and parcels that needed to be processed. It was also clear that Canada Post sincerely believed that the dexterity test and coding requirement were necessary for mechanization, passing the second step of Meiorin.50 At the third step, Canada Post argued that the dexterity test was a reasonably necessary means of identifying employees with coding ability. The Federal Court (and the Federal Court of Appeal) agreed, concluding that Canada Post had indeed established a “close correlation … between the
48 2005 FC 1410, affirmed 2006 FCA 318, leave to appeal ref’d 2007 CarswellNat 485 (SCC) [Bastide FC]. 49 Ibid at para 43. 50 Ibid at para 45.
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results obtained on the test and the rate of success achieved during the subsequent training.”51 The court also found that Canada Post would have suffered undue hardship without the dexterity test because the failure rate would have become too high during training.52 It concluded that the dexterity test was a BFOR because it was individualized, reliable, and relevant.53 At first blush, this analysis appears to satisfy each requirement of the Meiorin test: if the dexterity test had a strong correlation with coding ability, if coding ability was rationally connected to mechanization, and if mechanization was a legitimate goal, then the dexterity test was a BFOR. The syllogism worked. On a closer examination, however, the analysis essentially bypassed the reasonable necessity requirement of the Meiorin test by obscuring a key fact—that Canada Post’s rotational system required every employee to code on the job at some point during his or her tenure. Canada Post should have been made to demonstrate why this additional requirement, rotating through each job, was also necessary in light of Canada Post’s overarching goal (mechanization of the workforce). The question is how the court missed this proper inquiry demanded by the Meiorin test. I suggest that Canada Post, pursuant to the freedom granted to it by Grismer, was improperly permitted to conceptualize the goal of mechanization on its own terms without scrutiny from the court. Mechanization, for Canada Post, meant having a workforce where every employee had the ability to code; the two were synonymous with one another, and the court never pushed this point:
It seems to me there is no doubt that the Corporation was seeking above all to mechanize mail processing to respond to the ever‑growing volume of letters and parcels to be processed. Now the fact that the coding work requires dexterity and the capacity to quickly co‑ordinate a visual observation and the action of the keys on a coding keyboard was not called into question. The general purpose of the test is to assess the basic abilities of temporary employees to determine if they are capable of undergoing the training program aiming at teaching them to code postal codes and to do coding work.54
This permission to conceptualize the goal as it saw fit permeated the rest of the analysis, allowing Canada Post to assume either that a rotational
51 Ibid at para 48. 52 Ibid at para 50. 53 Ibid at paras 44, 48. 54 Ibid at para 43. VOL. 16 JOURNAL OF LAW & EQUALITY 53
system was reasonably necessary for mechanization or that changing its organizational structure was out of the question. The only issue was whether the dexterity test was a good measure of coding ability:
To the extent that manual dexterity truly is a prerequisite for the coding training, it is perfectly legitimate for the employer to want to assess this aptitude before investing in employee training. In fact, the arbitrator concluded that the dexterity test is valid, and evidence shows that it is a reliable indicator that candidates will eventually develop the aptitude to code. … It may well be that not all the PO4 employees will be called upon to do coding at a given time, but the evidence presented by the Corporation and accepted by the arbitrator is to the effect that a large majority of these employees will eventually be called upon to perform coding, considering the rapid mechanization in this area of activity and the necessary mobility of staff assigned to these tasks.55
With the court on this wavelength, Canada Post was never required to demonstrate why it could not accommodate the individual complainants by modifying its organizational structure so that not every single employee needed to code on the job. Arguably, Canada Post would have still accomplished its goal of mechanization in the workforce with an overwhelming majority of employees who could code. In other words, there is only an instrumental connection between requiring each employee to code and mechanizing the workforce generally. The court, however, failed to scrutinize Canada Post’s understanding of mechanization. Did mechanization really require a rotational system in the workplace? Put differently, is it possible that Canada Post conceptualized mechanization as “perfect” mechanization? And, if so, is “perfect” mechanization rather than “reasonable” mechanization a legitimate workplace goal? The difference between absolute standards and reasonable standards was central to the Supreme Court’s decision in Grismer. At issue was whether a blanket refusal of a licence to drive on the basis of a lack of peripheral vision was discriminatory under the British Columbia Human Rights Code.56 The complainant, Terry Grismer, suffered a stroke at the age of forty and developed homonymous hemianopia (HH) as a result.
55 Ibid at paras 43–44. 56 See note 10 above.
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HH eliminated his left-side peripheral vision in both eyes. Soon after, the British Columbia Motor Vehicle Branch cancelled Grismer’s licence on the basis that his vision no longer met the safety standards set by the British Columbia superintendent of motor vehicles. Specifically, there was a minimum requirement that drivers have a 120-degree field of vision, and people with HH always have less than a 120-degree field of vision. The issue was whether an “absolute prohibition on licensing people with [HH] and a less than 120 degree field of vision, without the possibility of individual assessment, constituted discrimination.”57 The Supreme Court ultimately concluded that the standard was discriminatory because it failed to allow for individual assessment. This conclusion depended on how the goal was defined at the first step of the Meiorin test. The Court explained:
Before we can answer these questions, we must define the Superintendent’s purpose or goal with more precision…
The Superintendent’s goal in this case was to maintain highway safety. But what kind of safety? What degree of risk would be tolerated? Where did the Superintendent draw the line between the need to maintain highway safety and the desirability of permitting a broad range of people to drive? The possibilities range from absolute safety, in which case few if any mortals would be allowed to drive, to a total lack of concern for safety, in which case everyone, regardless of their lack of ability, would be allowed to drive. Between these two extremes lies the more moderate view that reasonable safety suffices. The question is: where on this spectrum did the Superintendent set the bar?
The evidence suggests that the Superintendent set a goal of reasonable safety. It would have been unfeasible for the Superintendent to have set a goal of absolute road safety, as nobody is a perfect driver.58
After defining the goal and working through the Meiorin steps, the Court concluded that a blanket exclusion, without the possibility of individual
57 Grismer, supra note 9 at para 12. 58 Ibid at paras 24–26. VOL. 16 JOURNAL OF LAW & EQUALITY 55
assessment, was not reasonably necessary to the achievement of reasonable highway safety. While the decision in Grismer had a strong reasonable necessity analysis, the Court missed an opportunity to warn respondents to scale back absolute standards. It is likely that the superintendent conceived of road safety in absolute terms for some purposes. By asking where the superintendent “drew the line” and finding that it drew the line at “reasonable safety,” the Court failed to clarify that a goal of “absolute safety” would not only have been unfeasible (which, for the Court, was evidence that it was not the superintendent’s goal), but it likely would also have been discriminatory. Nevertheless, the above passages provide an example of how the first step of Meiorin should be scrutinized. A rotational system with no exceptions would allow for a higher level of mechanization. The Federal Court and the Federal Court of Appeal failed to scrutinize whether “perfect mechanization” was a legitimate goal. A thorough analysis of mechanization would have brought to focus Canada Post’s rotational system and the additional issue in the case, which was whether it was also discriminatory to require each employee to code on the job. My reformulation of the Meiorin test gets at the right inquiry more directly and in a way that courts should be comfortable with. Again, I suggest collapsing Meiorin into a single two-part question: what is the claimant asking for and does that claim undermine the enterprise in a way that causes undue hardship? A first step dedicated to identifying legitimate workplace goals, which chronologically comes before the crux of the BFOR defence, is neither the logical nor the most comfortable way to identify problematic goal overstatement arguments. Indeed, without an analysis of the crucial accommodation issue, these arguments are nearly impossible to identify; goal overstatement is generally brought to focus in light of the respondent’s position on individual accommodation. As there is no cross-check mechanism in the structure of the Meiorin test, goal overstatement arguments can seep through to the third step and bypass the essential reasonable necessity analysis. C. Signs of Resistance in Sunnyside and Humber River The employer in Sunnyside attempted a similar goal overstatement argument to that used by Canada Post in Bastide, but failed. It described a number of its workplace requirements as essential at the outset. These included: having access to controlled drugs; fostering positive relationships with patients and families; working independently; and ensuring a culture of trust that no drugs would be stolen and no records
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would be falsified.59 Sunnyside argued that due to D.S.’s misconduct and “risk of relapse,” she could not fulfil these requirements and that termination was the only reasonable option in the circumstances.60 There was no dispute that, as a general principle, the standards noted above were adopted to foster trust in the workplace, which was rationally connected to the provision of health care services. The CNO appreciated the need for trust when it imposed conditions on D.S.’s return to work, including the condition that she be monitored at all times and not be permitted to administer or have access to controlled substances. 61 Sunnyside, however, argued that D.S.’s breach of trust was irreparable since trust is “impossible to mend.”62 Terminating her employment was thus reasonably necessary for the accomplishment of fostering positive relationships with patients and ensuring a culture of trust in the workplace. Steinberg rejected this argument for several reasons. He disagreed with the assertion that D.S.’s breach of trust was irreparable, instead finding evidence in the record to suggest that it could be repaired. 63 Sunnyside’s evidence on this point did not account for the fact that D.S.’s conduct was related to a mental illness that was now in remission. Steinberg also gave significant weight to the fact that the grievor’s regulatory body had permitted her to return to work. The CNO was “acutely aware of the significance and risks associated with issues such as relapse rates, trust issues and the like in returning nurses in remission to nursing practice and ha[d] designed the [conditions] accordingly.”64 Implicit in this analysis was Steinberg’s acceptance of trust as a legitimate workplace goal and his resistance of Sunnyside’s inflexible understanding of trust. Any concerns about breach of trust could be “assuaged by the conditions of the grievor’s return to work.”65 Sunnyside had no reason to worry if it implemented the CNO’s restrictions, including the requirement that D.S. be monitored at all times. Steinberg thus saw trust in the workplace in less absolute, more malleable, terms than Sunnyside. Moreover, Steinberg rejected Sunnyside’s argument that it would cause undue hardship to accommodate the CNO’s restrictions. Sunnyside insisted that the ability to administer narcotics independently was a core duty for team leaders because it was extremely difficult to
59 Sunnyside, supra note 5 at para 106. 60 Ibid at para 108. 61 Ibid at para 47. 62 Ibid at paras 66, 192. 63 Ibid at paras 192–193. 64 Ibid at para 182. 65 Ibid at para 195. VOL. 16 JOURNAL OF LAW & EQUALITY 57
arrange for workplace monitors on each shift.66 This was simply not a strong enough point for Steinberg because no attention had been given to reorganization in the workforce:
[T]he evidence of the employer’s witnesses about whether the grievor could be accommodated is based on how the work is currently organized and implemented. Those opinions were formed and expressed without any analysis or thought about what changes in work organization or implementation might be required and might be possible to accommodate the grievor. Any assertion that it would be impossible to accommodate the grievor, or that doing so would cause undue hardship to the employer must be evaluated in that context.67
According to Steinberg, Sunnyside should have attempted to reorganize its workforce to accommodate the CNO’s restrictions. It could have then accomplished its legitimate work-related goals while complying with human rights legislation. I suggest that he drew this conclusion by resisting Sunnyside’s specific understanding of trust as a goal in the workplace. Once “trust” became a more malleable concept, capable of give and take, the undue hardship analysis appeared flimsy because “changes in work organization” were on the table. Based on the logic of Sunnyside, the employer’s argument in Bastide would have been subject to more scrutiny. Like trust in the provision of health care services, mechanization was a legitimate goal in the provision of postal services. However, unlike Sunnyside, Canada Post was permitted to conceive of mechanization in any way that it liked, which for Canada Post meant requiring every employee to code on the job. In Sunnyside, reorganization of the workforce so that not every employee had to administer narcotics independently was an option. As noted above, it was not clear from Canada Post’s position why it could not have a generally mechanized workforce while, at the same time, employing some individuals who did not code on the job. To be clear, both Canada Post and Sunnyside could have made meritorious undue hardship arguments on this point. Canada Post, for example, could have led evidence that each employee would have to code on the job eventually given the future of its enterprise and that it
66 Ibid at paras 110–112. 67 Ibid at para 190 [emphasis added].
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needed to build long-term rapport with its staff. Sunnyside could have demonstrated that reorganizing its workforce to accommodate D.S. was not possible, even in light of her success at the prima facie stage. Instead, all of Sunnyside’s arguments on undue hardship were “lacking because of its failure to turn its mind to how it might accommodate [D.S.’s] restrictions.” 68 As in Bastide, Sunnyside’s failure to turn its mind to reasonable necessity was part of a larger tendency of employers to shift the focus to the first step, where, on a simplistic reading of Grismer, they have more control. Rational connection is about identifying legitimate work-related goals. Reasonable necessity is about identifying how those goals may be accomplished in light of discrimination claims. The conceptualization of the goal is crucial to both steps. The holding in Grismer may unfortunately have the practical effect of allowing employers to not only identify legitimate workplace goals but also to conceptualize those goals in a way that assumes away the requirement of reasonable necessity. In Bastide, conceptualizing mechanization in a particular way meant that all employees had to code on the job. In Sunnyside, conceptualizing trust in absolute terms meant terminating any employee that had committed a theft. Differing approaches to the treatment of workplace goals also partially explains the disagreement between the concurring and dissenting opinions in Elk Valley. As noted above, a majority of the Supreme Court in Elk Valley held that the prima facie stage of discrimination had not been met, rendering a discussion of the BFOR defence unnecessary. In a concurring opinion, Justices Michael Moldaver and Richard Wagner (as he then was) disagreed with the majority with respect to the prima facie stage but accepted Elk Valley’s argument on reasonable accommodation:
In our view, it was reasonable for the Tribunal to conclude that Mr. Stewart’s immediate termination was reasonably necessary, so that the deterrent effect of the Policy was not significantly reduced. Elk Valley’s coal mining operation was a “safety-sensitive environment” [citation omitted]. In such a workplace, it was crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences.69
68 Ibid at para 205; see the discussion at paras 199–218. 69 Elk Valley SCC, supra note 4 at para 55, Moldaver and Wagner JJ concurring. VOL. 16 JOURNAL OF LAW & EQUALITY 59
Elk Valley’s position was simple and absolute: it was necessary to terminate the complainant as a matter of general deterrence; any other form of discipline would be inadequate. The rule in question was automatic termination for employees who tested positive for drugs after a workplace incident. The rationale for the rule was general deterrence. The first step of Meiorin had clearly been met—the rule was adopted for workplace safety, which was certainly a legitimate goal. However, as highlighted by Gascon J, Elk Valley had failed to lead any evidence that no other response would accomplish its goal of general deterrence and workplace safety. It had simply conceived of general deterrence in a way that precluded Stewart’s accommodation. One way to understand Elk Valley’s position is as overstating its goal as “absolute general deterrence” rather than “reasonable general deterrence.” The same way that mechanization for Canada Post meant that every employee had to have the ability to code, general deterrence for Elk Valley meant that there were no free accidents. While Moldaver and Wagner JJ’s analysis of this issue was brief, the above passage indicates that they accepted Elk Valley’s argument. Gascon J, on the other hand, noted several options available to Elk Valley that arguably also would have accomplished its goal of general deterrence, including sanctioning the claimant with a lengthy unpaid suspension and reinstating him only upon the successful completion of a rehabilitation program. 70 The only purpose that termination served beyond this, according to Gascon J, was to punish the employee for misconduct that was symptomatic of his disability.71 Gascon J therefore
70 O’Ferrall JA also highlighted other options available to Elk Valley in his dissenting reasons at the Court of Appeal of Alberta: “To begin with, the Tribunal erred by finding there was no other penalty, outside of dismissal, that could both accommodate the complainant’s disability and satisfy the employer’s goal of general deterrence. The employer had any number of options, short of termination, to accomplish its goal. For example, it could have suspended the complainant for a significant period and made his return to work contingent upon successfully completing a program of rehabilitation, either at his, or the employer’s, expense. Suspension without pay is a significant penalty with considerable deterrent effect. Any safety concerns would be dealt with using this approach because the complainant would be out of the workplace until he was treated properly for his disability” (Elk Valley ABCA, supra note 7 at para 136, O’Ferrall JA dissenting). 71 Elk Valley SCC, supra note 4 at paras 134–135, 144, Gascon J dissenting. See also Elk Valley SCC, supra note 4 at para 138, Gascon J dissenting (“[r]easonable accommodation is an individual exercise, sensitive to the individual characteristics of the employee involved”); at para 141, Gascon J dissenting (“the Tribunal paid no regard to the fact that the Policy actually requires individual assessment of employees who test positive for drugs. … In fact, the Policy reflects the individual analysis demanded by this Court’s jurisprudence”); at para
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accepted that general deterrence and safety were legitimate workplace goals, but resisted Elk Valley’s understanding of how to accomplish these goals. One facet of this resistance, echoed in Sunnyside and Humber River, was pushing back on Elk Valley’s understanding of general deterrence. On Gascon J’s view, Elk Valley could not conceive of general deterrence in a way that made individual accommodation a non-starter. That would take undue advantage of the freedom provided to employers by Grismer. Justice Brian O’Ferrall made the point most succinctly in his dissenting reasons at the Court of Appeal of Alberta:
In my view, in putting the employer’s need for deterrence in the forefront of its considerations, the Tribunal effectively asked itself the wrong question. It considered the employer’s disciplinary response in the context of what was good for the employer. Thus, the Tribunal could conclude that anything short of the “harsher and immediate consequence of termination would undermine the deterrent effect of the policy” [citations omitted]. While an employer’s needs form part of the considerations under Meiorin, the ultimate focus is on the employee, and whether he or she can be accommodated.72
Steinberg’s decision in Sunnyside further demonstrates the issue with goal overstatement arguments. While it is trite that “trust,” understood broadly, is rationally connected to the provision of health care services, the same cannot be said for the specific understanding of trust invoked by Sunnyside. Since the first and second steps of Meiorin are often treated as “speed bumps” in the BFOR defence,73 the appropriate level of scrutiny of workplace goals is almost always missing in the cases. And, most problematically, this lack of rigour inevitably seeps through to the third step since reasonable necessity is measured against legitimate work- related goals. Adjudicators must therefore be aware not only of the identification of the goal at the first step, but also of how employers characterize these goals throughout the Meiorin analysis. What Steinberg did, without explicitly saying so, is to identify that Sunnyside’s conception of trust as a legitimate work-related goal was indefensible. Conceptualized properly, it was clear that D.S. could repair the trust that she had lost and that Sunnyside had not demonstrated that it would cause
142, Gascon J dissenting (“Elk Valley in no way accommodated factors relating to anything unique about Mr. Stewart”). 72 Elk Valley ABCA, supra note 7 at para 137, O’Ferrall JA dissenting [emphasis added]. 73 Pothier, supra note 40 at 98. VOL. 16 JOURNAL OF LAW & EQUALITY 61
undue hardship to put her in a position to do so. Sunnyside tried to make out a BFOR defence by conceiving of its workplace goal in a specific way. Steinberg did not let it do so and reinstated D.S. to her position. In Humber River, Gedalof came to a different—albeit equally well reasoned—conclusion on what the substantive duty to accommodate required on the facts of the case. He stated at the onset that Humber River breached its procedural duty to accommodate by failing to turn its mind to accommodation at all. Humber River had consistently taken the position that “theft is theft” and that its termination of R.I. was therefore justified.74 This was a complete failure to engage with the BFOR defence.75
IV. CONCLUSION The decisions in Humber River and Sunnyside are noteworthy for their rejection of two arguments in discrimination cases that, left unchecked, undermine the promise of substantive equality. On the prima facie side, they reject a common argument that respondents make at the third step of the Moore test with respect to contribution. Gedalof and Steinberg do this despite the majority’s decision in Elk Valley. Future first-instance adjudicators should follow their example. On the BFOR defence side, the decisions resist a problematic current in the case law that can arguably be traced back to the Grismer principle. If courts and tribunals allow employers too much leeway with the understanding of their workplace goals, employers can easily draw links between those workplace goals and the impugned standards in a way that forecloses real engagement with the issue of reasonable necessity and individual accommodation. I have referred to this as “goal overstatement.” The employers in Elk Valley, Bastide, and Sunnyside might have been able to substantiate proper BFOR defences with the right evidence. Instead, they put forward arguments that obscured the issue of justification because of the way their workplace goals were
74 Humber River, supra note 5 at para 134. 75 Gedalof remitted the issue of remedy arising from this breach of human rights legislation to the parties. Humber River was successful in arguing that R.I. should not be reinstated to her employment. Unlike in Sunnyside, there was evidence that R.I. had failed to follow recommended treatment programs and had also relapsed and submitted positive drug tests. Moreover, her sworn testimony had been extremely inconsistent and, at times, inaccurate. The combined effect was that the employer’s “ongoing lack of trust [was] warranted”: Humber River, supra note 5 at para 142. Gedalof concluded: “The duty to accommodate to the point of undue hardship places a substantial responsibility on employers, but it does not require them to employ individuals where the necessary trust relationship between employer and employee has not been rehabilitated” (Humber River, supra note 5 at para 144).
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conceptualized. Adjudicators must be alive to these arguments and ensure that employers are not characterizing workplace goals at the third step of Meiorin in a way that may call into question their legitimacy at the first step. As Pothier notes, “[t]he concepts of reasonable necessity, duty to accommodate, and the defence of undue hardship are all inextricably linked.”76 I would add that all of these concepts are also inextricably linked to the workplace goal and the conception of the enterprise that legitimizes that workplace goal. This suggests that the first step of Meiorin is more critical than the jurisprudence currently gives it credit for. At the very least, adjudicators should clearly set out the employer’s position on rational connection and scrutinize whether the employer’s understanding of its workplace goal artificially skews the analysis in its favour on reasonable necessity. The recent decisions in Humber River and Sunnyside do exactly that, and they set an example that others should follow. There would be less of a risk of pernicious goal overstatement arguments if Meiorin were collapsed into a single two-part question: what is the claimant asking for and does that claim undermine the enterprise in a way that causes undue hardship? This inquiry gets at the crucial accommodation issue first, which is the crux of the BFOR defence. As O’Ferrall JA observed, “[w]hile an employer’s needs form part of the considerations under Meiorin, the ultimate focus is on the employee, and whether he or she can be accommodated.”77 In answering the reformulated question, a respondent would certainly have to draw attention to its workplace goals. There is no risk that crucial elements of the Meiorin test would be dropped out of the analysis. However, the reformulation ensures that adjudicators do not have to analyze workplace goals in the abstract and at the beginning of the inquiry, where there is a risk that workplace goals rather than reasonable necessity will determine the result, contrary to Meiorin’s central insight.
76 Pothier, supra note 40 at 103. 77 Elk Valley ABCA, supra note 7 at para 137, O’Ferrall JA dissenting.
Ethno-racial Legal Clinics and the Praxis of Critical Race Theory in Canada
Vincent Wong
ABSTRACT
Critical race theory (CRT) is a helpful theoretical lens to understand the origins and practices of five ethno-racial legal clinics in the province of Ontario. Both the development of a distinctly Canadian CRT scholarship and the day-to-day work of ethno-racial legal clinics would be mutually enriched by a much closer and robust union between scholarship and praxis. In particular, the praxis of Ontarian ethno-racial legal clinics is put into conversation with Amna A. Akbar’s vision in “Toward a Radical Imagination of the Law,” which outlines a profoundly transformative standard of CRT that broadens the analysis of racial power to look at how the law, capitalism, and the state may operate in tandem to produce intersectional inequality. Based on the theoretical tenets of CRT, this article traces the development of ethno-racial legal clinics and their unique praxis and, using the insight of “looking to the bottom” as an epistemological approach to law, demonstrates that ethno-racial community legal clinics provide a useful vehicle to understand structural racism. CRT can therefore offer a robust theoretical framework to support the cause of advancing racial justice through legal practice. Ethno-racial legal clinics embrace a democratic approach to the law that has the potential to transform traditional forms of legal representation by engaging in systemic advocacy and community outreach and aligning advocacy efforts with social movements to help build community power and facilitate broader social change. However, they also face institutional pressures that pull their practice of the law back towards traditional models—pressures that they must delicately navigate in their day-to-day work.
BCom (Toronto), JD (Toronto), LLM (Columbia). Vincent Wong is a William C Graham Research Associate in the International Human Rights Program at the University of Toronto Faculty of Law and a PhD candidate at Osgoode Hall Law School. The author wishes to thank Angela Hou, Amit Singh, Denise Réaume, and Ngozi Okidegbe for their invaluable editorial comments. He would also like to thank Kendall Thomas and fellow classmates in the Critical Race Theory Workshop at Columbia Law School, where this article was first presented. Finally, the author would like to thank his former colleagues, clients, and community partners at the Chinese and Southeast Asian Legal Clinic for the privilege of working with them, learning from them, and struggling together in the fight for racial justice. 64 CRITICAL RACE THEORY IN CANADA VOL. 16
To be able to have a combination of individual client representation, along with community organizing, advocacy for law reform, political change, networking with other groups—this is so much more powerful than just having a system where you represent one client after another. And to have access to clients, as opposed to just being an advocacy organization where you just try to get into the media or get to meetings with politicians—that also is not strong enough. So it is this magical combination that makes the legal clinic system effective in terms of broadening change—more permanent and systemic change.1
— Gary Yee, former executive director, Chinese and Southeast Asian Legal Clinic
I. INTRODUCTION During the first few months of my time in the Faculty of Law at the University of Toronto, I was seriously considering dropping out. As someone who had emigrated from Hong Kong as a child and grew up in the working-class, racially diverse milieu of Scarborough, the law school seemed worlds away from any reality with which I was familiar. Growing up, I lived in a neighbourhood where race and racial identity were openly negotiated, disputed, and formed a continuing and important part of our lives. Walking through the law school’s halls, I was bombarded with images and busts of almost exclusively white, male lawyers and judges, who were honoured and revered as paragons of virtue, justice, and knowledge. While I made friends easily at my undergraduate program housed just five minutes away, at law school I felt out of place, isolated, and alone. Although there were other law students of colour, I sensed that sharing too much of your identity or raising concerns about race and power was frowned upon. The faculty was completely devoid of Black law professors. Similarly, the curriculum and course offerings seemed to entirely avoid the discussion of race or merely mentioned it in passing, even though they partially touched on Indigenous issues and topics that overlapped heavily with race and racialization, such as immigration law, criminal law, and
1 Chinese and Southeast Asian Legal Clinic (CSALC), “30th Anniversary Snapshot: Tiananmen Square” (12 October 2017) at 00h:00min:06s, online (video): YouTube
poverty law. There was no critical race theory (CRT) course and scarcely a mention of the scholarship’s existence. There was also little mention of the fact that intersectionality—a crucially important concept in understanding substantive inequality—constituted one of CRT’s key tenets.2 The message I received from my law school education was that race was an irrelevant factor in the daily life of the law in Canada. However, this was at odds with the reality I lived and observed in Scarborough and with the reality of institutional whiteness I was navigating at the law school. In CRT, personal narratives speak to systems of power. In that vein, I recall this personal story to lament—both then and now—the underdeveloped state of CRT in Canadian legal scholarship, its invisibility to Canadian law students and lawyers, 3 its limited application and engagement with racial justice movements in Canada, and the understudied work of ethno-racial legal clinics that are at the front lines of the praxis of using the law to advance the goals of racial, gender, and socio-economic justice. 4 This situation persists, despite the admirable contributions and work of the limited number of Canadian critical race legal scholars. As expressed by Shanthi Senthe and Sujith Xavier, “[i]n Canada, critical race theory has evolved slowly and incorporates different perspectives.”5 I also recall this personal story to share with other past, current, and prospective law students of colour how close I was to abandoning a legal education altogether as well as what ultimately motivated me to stay.6 My
2 Kimberlé Williams Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics” (1989) 1:8 U Chicago Legal F 139 [Crenshaw, “Demarginalizing”]. 3 Ibid at 140. 4 As a matter of definition, I use the term “ethno-racial” to describe the categorization of communities serviced by these legal clinics to reflect the unique way in which ethnicity (as defined by a social group distinguished by common ancestry or cultural tradition) overlaps and interacts with race (as defined by a social group distinguished by common observable phenotypes and behaviours that are socially significant). Additionally, I posit that ethno-racial is more appropriate than merely racial in explaining the primacy of ethnicity in contouring the specific communities served by both the South Asian Legal Clinic of Ontario (SALC) and the CSALC. For more on the origins of Canadian scholarship on ethno-racial subordination and socioeconomic stratification, see “Ethnicity and Social Class” in John Porter, The Vertical Mosaic: An Analysis of Social Class and Power in Canada (Toronto: University of Toronto Press, 1965) at 60. 5 See Shanthi Senthe & Sujith Xavier, “Introduction: Re-Igniting Critical Race In Canadian Legal Spaces: Introduction to the Special Symposium Issue of Contemporary Accounts of Racialization in Canada” (2013) 31:2 Windsor YB Access Just 1 at 2. 6 Every individual’s approach to, and experience with, the law is informed by experience and personal location. I stayed in the practice of law to spend several years working as a lawyer for the CSALC. However, that experience would have never materialized had it not been
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experience in navigating the erasure of race at law school mirrors the predominant ideology in Canada that race is no longer (or has never been) an organizing structure for dominance and subordination. This idea obfuscates the material ways in which the exercise of racial power has historically and presently structured economic, social, political, and legal outcomes.7 This ideology of colour-blindness helps explain the erasure of racial analysis in the law and legal institutions.8 To combat this tendency, I use CRT in this article as a theoretical lens by which to understand the origins and practices of five ethno-racial legal clinics in the province of Ontario. The five legal clinics are: the Chinese and South Asian Legal Clinic (CSALC); the African Canadian Legal Clinic (ACLC), which is now the Black Legal Action Centre (BLAC);9 the South Asian Legal Clinic of Ontario (SALCO); the Centre for Spanish Speaking Peoples (CSSP); and Aboriginal Legal Services (ALS). I start by laying the theoretical foundations of CRT as a vehicle for critical analysis. Against this backdrop, I trace the development of ethno-racial legal clinics and their praxis of a unique combination of critical race analysis, community lawyering, and political activism. Both the development of a distinctly Canadian CRT scholarship and the day-to-day work of ethno- racial legal clinics would be mutually enriched by a much closer and robust union between scholarship and praxis. The CRT tenet of “looking to the bottom” as an epistemological approach to law supports studying the work of ethno-racial legal clinics to better understand the experience of intersectionally marginalized groups and their relationship with the law. In that vein, I analyze the extent to which the praxis of ethno-racial legal clinics is conducive to realizing Amna A. Akbar’s vision of the “radical imagination of the law” in
for the work of our group of students at Asia Law Society inviting the executive director of the CSALC, Avvy Go. Go spoke about the legal history of Chinese Canadians in Canada, from the Chinese head tax and Chinese Exclusion Acts to the long road to reparations, including the landmark case of Mack v Canada, [2002] OJ No 3488, 60 OR (3d). 7 For a brief historical treatment of anti-Black racism and slavery in Canada, see Carol Aylward, Canadian Critical Race Theory: Racism and the Law (Halifax: Fernwood Publishing, 1999) at 14-18. 7 See “Fact Sheets” (2019), online: Colour of Poverty
struggling with marginalized communities to achieve social change and assessing new possibilities through this radical re-imagination. Akbar’s profoundly transformative standard of CRT broadens the analysis of racial power to look at how the law, capitalism, and the state may operate in tandem to produce intersectional inequality.10 This article posits that a systemic analysis of the work of ethno-racial community legal clinics can enrich the development of CRT in Canada. Such an analysis can improve our understanding of structural racism and the intersection of race, class, and gender. Moreover, an enrichment of CRT can offer a robust theoretical framework to advance racial justice through legal practice. Ethno-racial legal clinics embrace a democratic approach to the law that transforms traditional forms of legal representation. By engaging in systemic advocacy and aligning legal advocacy with social movements, these clinics help build community power and facilitate broader social change. But while the work of these clinics provides examples of how lawyers can work with communities to address structural intersectional inequality, they also face institutional forces that push back against the emergence of a truly democratic, emancipatory, and community-based model of lawyering.11 Clinic staff, boards, and constituencies must navigate these complex forces on a day-to-day basis.
II. THEORETICAL FOUNDATIONS CRT, broadly speaking, represents a movement of scholars whose work challenges the ways in which race and racial power are constructed and represented in legal culture and, more generally, in society as a whole.12 As Khiara Bridges explains, the scholarship first emerged in the United
10 Amna Akbar, “Toward a Radical Imagination of Law” (2018) 93:3 NYU L Rev 405. 11 A demonstration of the institutional forces that restrict these clinics from living up to their potential is the effort underway at the time of writing to drastically revise the structure of legal aid clinics in Ontario. See Bill 161, Smarter and Stronger Justice Act, 1st Sess, 42nd Leg, Ontario, 2020. Bill 161 would significantly limit the scope of clinical work, reduce community accountability, and diminish opportunities for community-based legal pedagogy. The critical race theory (CRT) analysis in this article of the colour-bold ambitions that clinics need is an indictment of the political agenda behind this legislation. For a more thorough analysis of the proposed legislation, see Amar Bhatia et al, “Neither Smarter nor Stronger: Bill 161 is a Step Backwards for Access to Justice and Community-Based Legal Services in Ontario” (2020), online (pdf): Osgoode Hall Law School
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States in the 1970s and 1980s when the prevailing sense was that the law was not at all involved in creating and sustaining racial hierarchies. Prior to the advent of CRT, most in the legal academy had embraced the idea that norms of fairness, equality, and justice guided the law. Accordingly, they found it difficult to contemplate that the law could be involved in creating a society that, racially speaking, is unfair.13 CRT rejects notions of post-racial or race-less assumptions of the law and instead attempts to analyze, in an interdisciplinary fashion, whether and to what extent the law plays a role in constructing, naturalizing, and justifying racial inequalities in society. While CRT scholarship originated in the American legal academy, it has diffused into many other jurisdictions, including a body of CRT scholarship that has been adapted for the Canadian context. Despite increasing interest in CRT in Canada in recent years, commentators have long lamented the “reluctance on the part of Canadian legal scholars to take advantage of the information available from the body of scholarship known as critical race theory.”14 It is important to learn the history of the CRT movement and its specificity in the Canadian context.15 While there are a variety of differences between CRT in the US and Canadian contexts, two in particular stand out. The first is the prevalence of multiculturalism as an official state doctrine in Canada, the discursive power of which is used to invisibilize the power of racial hierarchy and subordination and convert the language of remedies into the more benign language of diversity and inclusion.16 The second is the unique nature of Indigeneity vis-à-vis Canadian CRT scholarship. Although both the United States and Canada are ongoing settler colonial projects that persist through the ongoing taking of Indigenous land and the marginalization of Indigenous societies across Turtle Island, decolonization and resistance to settler colonialism have a more important
13 Khiara M Bridges, “Introduction” in Khiara M Bridges, ed, Critical Race Theory: A Primer (St Paul, MN: Foundation Press, 2019) at 7. 14 Donna E Young, “Critical Race Theory: A Comparative Approach” (1997) 91 American Society Intl L Proceedings 423 at 423. 15 Adelle Blackett, “Following the Drinking Gourd: Our Road to Teaching Critical Race Theory and Slavery and the Law, Contemplatively, at McGill” (2017) 62:4 McGill LJ 1251 at 1264. Blackett’s course on CRT at McGill Law School proceeds from studying key historical cases of the interaction of race and the law in Canada from studies written or edited by Constance Backhouse and Barrington Walker, which assist in “disrupting commonly-held myths about Canadian racial innocence.” 16 For a treatment of the epistemological consequences of uncritically constructing Canadians as committed to multiculturalism and ethnic and racial diversity, see Trevor Gulliver & Kristy Thurrell, “Denials of Racism in Canadian English Language Textbooks” (2017) 33 TESL Canada Journal 42. VOL. 16 JOURNAL OF LAW & EQUALITY 69
role in Canadian critical race scholarship as compared to its American counterpart. Most importantly, however, any account of Indigenous peoples ostensibly within CRT must grapple with the unique position of Indigenous peoples’ fundamental rights to political and legal self- determination that “challenges the very fabric of Canadian legal and political liberal ideology.”17 While a detailed treatment of this tension is outside the scope of this article, I emphasize that the positionality of Indigenous peoples in Canada cannot be conflated with those of other racialized communities. A. Key Tenets of CRT An overview of CRT scholarship shows that there is no canonical set of doctrines or methodologies to which scholars subscribe. However, there are several tenets of CRT endorsed by the majority of CRT scholars. These six tenets are not an exhaustive list of the popular tenets of CRT scholarship but are relevant to articulating a common understanding of principles characterizing the literature. As we will see, many of these tenets are also reflected in the origins and development of ethno-racial legal clinics in Ontario. First, CRT asserts that race is not a biological entity but, rather, a social construction. In other words, race and the process of racialization18 have social consequences and lived implications that result in materially significant racial inequalities. CRT denies that race is a biological determinant. An understanding of race as a social construct rejects the assertion that biological or genetic testing can somehow reveal one’s true racial or ethnic background.19 Further, race as a social construct is ultimately about group dynamics and power. As Ian Haney López describes, racism is “an ideological system rooted in the pursuit of group advantage that produces and is in turn sustained by social practices and material consequences.”20 Second, CRT asserts that racism is a normal, rather than deviant, feature of society. In other words, it does not conceptualize racism as a matter of the views and behaviour of a few “bad apples” who deviate from an otherwise fair and just status quo. CRT asserts that the individualization
17 Larry N Chartrand, “Re-Conceptualizing Equality: A Place for Indigenous Political Identity” (2001) 19 Windsor YB Access Just 243 at 249. 18 Racialization is a term used to describe the process of ascribing racial identities to a relationship, social practice, individual, or group. 19 See e.g. Astead W Herndon, “Elizabeth Warren Apologizes to Cherokee Nation for DNA Test,” New York Times (1 February 2019), online:
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of racism helps uphold its systemic force. As a result, the bulk of the inquiry of CRT places emphasis on how systems and institutions perpetuate the subordination of people of colour. 21 It asserts that racialization, racism, and white privilege are constitutive elements of Canadian life, including the Canadian legal system.22 Third and relatedly, CRT rejects liberal, colour-blind understandings of racism and the solutions to racism that proceed from those understandings. On this view, racial justice is understood in terms that treat the exercise of racial power in society as individual, rare, and aberrant rather than as systemic and ingrained, therefore excluding the possibility and necessity of fundamental challenges to status quo institutional practices. 23 Racism understood in this manner also risks being abstracted from continuing histories of racial subjugation.24 Accordingly, this formalistic view of race in society is likely to find adequate remedies to racial prejudice in policies such as complaint-based anti-discrimination mechanisms, diversity initiatives, interpreters, and cultural sensitivity training. CRT posits that race and racialization must be acknowledged in order to be understood as well as for effective solutions for racial justice to materialize. Fourth, CRT posits that scholarship should not be disconnected from people’s lived realities on the ground. Mari Matsuda encapsulates this perspective in her seminal article “Looking to the Bottom: Critical Legal Studies and Reparations.”25 Matsuda suggests that “[t]he imagination of the academic philosopher cannot recreate the experience of life on the bottom” and that “[l]ooking to the bottom—adopting the perspective of those who have seen and felt the falsity of the liberal promise—can assist critical scholars in the task of fathoming the phenomenology of law and defining the elements of justice.”26 In making this intervention, Matsuda is pointing to a “new epistemological source for critical scholars: the actual experience, history, culture, and intellectual tradition of people of color.”27 CRT therefore deploys interdisciplinary insights and methods—such as counter-hegemonic narratives—to contextualize the law and make visible racialized dimensions often hidden by concepts of neutrality, objectivity, and meritocracy.28
21 Bridges, supra note 13 at 11–12. 22 Michelle Y Williams, “African Nova Scotian Restorative Justice: A Change Has Gotta Come” (2013) 36:2 Dal LJ 419 at 421. 23 Crenshaw et al, “Introduction,” supra note 12 at xiii. 24 Kimberlé Williams Crenshaw, “Color Blindness, History and the Law” in Wahneema Lubiano, ed, The House That Race Built (New York: Pantheon Books, 1997) 280 at 285. 25 Mari J Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations” (1987) 22 Harv CR-CLL Rev 323 at 346–47. 26 Ibid at 324, 325. 27 Ibid at 325. 28 Williams, supra note 22 at 422. VOL. 16 JOURNAL OF LAW & EQUALITY 71
Fifth, CRT embraces the concept of intersectionality to grapple with the conceptual limitations of single-issue analyses of discrimination, whether on the basis of race, sex, gender, class, or other axes of discrimination. 29 Crenshaw’s articulation of intersectionality, which traces its original ideas to the Black feminist tradition and, in particular, to the influential Combahee River Collective,30 has allowed CRT scholars to articulate differences in social location and theorize the intersections of both privilege and lack of privilege in a variety of social and historical contexts. Intersectionality also has allowed CRT scholars to avoid the trappings of a myopic analysis that involves only one axis of subordination while invisibilizing others. Finally, CRT is unabashedly explicit in its political purpose as a scholarship: to investigate the possibilities of transforming the relationship between law and racial power in the pursuit of racial emancipation and anti- subordination. The mere act of substantive engagement with critical race analysis is therefore part of a race-conscious act of liberation and change towards racial justice.31 It is with this final tenet in mind that I identify Amna Akbar’s work as a fulsome articulation of CRT’s project of anti- subordination, which exists at the fault lines of several critical approaches to the law—critical legal studies, critical race theory, feminist legal scholarship, and law and social movements.32 I turn to Akbar’s view next. B. Akbar’s Radical Imagination of the Law In “Toward a Radical Imagination of Law,” Akbar writes that radical social movements are law reform projects that understand and address structural inequality and the legacies of settler colonialism, slavery, and mass incarceration. In taking these social movements seriously as law reform projects, the edges of legal scholarship can be expanded. Such law reform projects also envisage policy agendas that “focus not on building the power of law and the police, but on building the power of marginalized communities and transforming the state.”33 Her theoretical contribution reformulates the very way that we look at legal systems.
29 Crenshaw, “Demarginalizing,” supra note 2. Crenshaw articulates the concept of intersectionality as a framework to understand how courts could not legally recognize discrimination against Black women at General Motors because the companied hired white women (therefore, were not discriminating on basis of sex) and Black men (therefore, were not discriminating on the basis of race), despite failing to hire any Black women. 30 See Akasha Gloria Hull, Patricia Bell-Scott & Barbara Smith, eds, All the Women Are White, All the Blacks Are Men, But Some of Us Are Brave (Old Westbury, NY: Feminist Press, 1982). 31 Williams, supra note 22 at 423. 32 Akbar, supra note 10 at 445. 33 Ibid at 405.
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The backdrop for Akbar’s analysis was a spate of police killings of Black people in the United States, which led to the formation of the human rights campaign, Black Lives Matter (BLM). 34 After popular uprisings following the killings of Michael Brown in Ferguson, Missouri, and Freddie Gray in Baltimore, Maryland, Akbar contrasted two reform projects that offered competing conceptualizations of the problems of policing in America and how to solve those problems. Specifically, her article compares the Movement for Black Lives’s (M4BL) policy platform35 with the US Department of Justice’s (DOJ) Ferguson 36 and Baltimore reports. 37 According to the DOJ report, the main problem was that police officers were not following the law or that the law had too many vagaries, resulting in improper exercise of discretion and inadequate guidance. As a result, the DOJ issued various reform-based recommendations: better training, body cameras, and investing more resources in the police department. 38 The report did not address the disenfranchisement of policed communities and their inability to hold police accountable. It did not account for the fact that, regardless of the law or internal guidelines, police are rarely indicted, prosecuted, or sentenced for killing civilians.39 In contrast, the M4BL’s report directly named the structures of inequality that disproportionately expose marginalized communities to police violence. It adopted an abolitionist ethic in its proposed solutions, which would shift resources from the large footprint of policing, surveillance, and incarceration and into social programs in Black communities: housing, health care, jobs, and schools. 40 In juxtaposing these two reports, Akbar critiques criminal law scholarship and ideas for reform that are ensnared within liberal conceptions of race, law, and the market economy. She does this by situating her understandings of the law in the communities most marginalized by carceral systems. The vision that Akbar proposes for legal academia and lawyers is a “radical reimagination of the state and of law.” Law should be imagined with social movements
34 Garrett Chase, “The Early History of the Black Lives Matter Movement, and the Implications Thereof” (2018) 18:3 Nev LJ 1091. 35 Movement for Black Lives (M4BL), “A Vision for Black Lives: Policy Demands for Black Power, Freedom and Justice” (1 January 2016), online: Internet Achieve
rather than from a detached or a top-down imposition perspective.41 This vision can be understood as an extension of the analysis and practice of CRT scholarship in the law reform and policy realm. It therefore provides a helpful standard by which to assess the development and practice of Ontario’s ethno-racial legal clinics.
III. UNDERSTANDING THE DEVELOPMENT OF ETHNO-RACIAL LEGAL CLINICS THROUGH CRT The key tenets of CRT provide a useful framework to review the origins and development of ethno-racial legal clinics within the broader network of community legal clinics in Ontario. A. Community Legal Clinics and Community Accountability Community legal clinics in Ontario originated from the idea of “judicare” made prominent in the 1960s.42 The predominant certificate-based model of judicare became limited, however, once it became clear that low-income communities required a different model of service to address their specific set of structural needs. Over time, areas of legal practice most relevant to low-income populations tended to be neglected or dismissed by the private bar. To begin with, many individuals were completely unaware that they had rights and how to exercise them. Further, their lives were often affected by multiple legal and administrative regimes rather than by discrete, relatively straightforward legal problems that the certificate program was better suited to address. Systemic political approaches were required to solve many of the problems they faced.43 As a response, community legal clinics were established as institutions distinguished by three fundamental characteristics: (1) local community governance;44 (2) practice in the areas of poverty law;45 and (3) legal
41 Ibid at 479. 42 According to Lenny Abramowicz, “[j]udicare is a form of service in which an individual, who is poor enough, is given a “certificate” by the legal aid administrators to bring to a private lawyer.” Lenny Abramowicz, “The Critical Characteristics of Community Legal Aid Clinics in Ontario” (2004) 19 JL & Soc Pol’y 70 at 71. 43 Ibid at 72. 44 Local community governance refers in part to the formal structure of community clinics, which are governed by community elected boards of directors compromised of members of the communities to be served by the clinic. This structure allows for a degree of independence from the state—despite the majority of funding coming from the provincial government through LAO—as well as a degree of responsiveness and accountability to the community that the clinic serves. 45 Practice in the area of poverty law refers to both the means-tested requirements for service (reserved only for clients that demonstrate a certain level of financial need) as
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response provided through a broad range of services.46 This institutional structure was intended to allow community legal clinics to serve and be accountable to marginalized communities in the same way that the tenets of CRT proposed that the law should be practised. An important question in the literature on community legal clinics is to what extent the clinics have been able to realize this aspiration of working for and alongside marginalized communities for social justice and equality.47 The central notion of studying community-based legal practices and law and social movements, as an epistemological intervention in traditional legal academia, is not new in Canadian legal scholarship. For instance, Byron Sheldrick has critiqued the existing legal scholarship’s analysis of law and political activism in its rigid and unrealistic distinction between legislative and judicial institutional structures.48 Sheldrick uses community legal clinics as an example through which he examines the “possibilities of developing alternative conceptions of [legal] representation that are mobilizing and politicizing.”49 Sheldrick introduces community legal clinics in Ontario as not only serving low-income communities through casework but also engaging in legal and political activism, sustaining this over a considerable period of time. They also work alongside more radical social movements while balancing “tremendous pressures to adopt a narrow ‘professional’ approach to advocacy and a ‘rational’, bureaucratic approach to service delivery.”50 In navigating these approaches, Sheldrick argues that the community legal clinic model succeeds in important ways in “going beyond traditional notions of legal practice” through developing a concept of representation that is “rooted in democratic rather than professional principles.”51 Hence, these clinics are an example of a concept of representation that is very different than that of the legal profession.
well as the distinct areas of law that disproportionately affect disadvantaged communities (for example, housing, social assistance, employment, and immigration). 46 Community legal clinics engage in a broad and holistic array of legal responses depending on community needs: direct legal representation, referrals, test case litigation, law reform engagement, public legal education, and community organizing. 47 See Byron Sheldrick, “Law, Representation, and Political Activism: Community-Based Practice and the Mobilization of Legal Resources” (1995) 10:2 CJLS 155. 48 Ibid at 156. Like Akbar, Sheldrick is unsatisfied with the academy’s undue focus on the “theoretical nature of rights and rights discourse in the abstract” as opposed to “the actual experience of social groups pursuing legal strategies and the methods by which they have attempted to overcome the problems and pitfalls involved in integrating legal strategies with a broader political agenda.” 49 Ibid at 156. 50 Ibid. 51 Ibid at 176. VOL. 16 JOURNAL OF LAW & EQUALITY 75
Clinical legal education has also developed in Canada as a field connecting critical legal theory and practice through pedagogy and partnerships with Canadian law schools.52 Important efforts have also been made to provide an urgent decolonial intervention in clinical legal education and the praxis of community legal clinics to respond to the ongoing harms of settler colonialism on Indigenous communities. Sarah Buhler and Patricia Barkaskas call for legal clinics to “link their work with larger decolonial struggles and issues” and to move away from mere “settler harm reduction” that is not sufficiently critical of the central role that law plays in the settler colonial project.53 In many respects, Buhler and Barkaskas’s decolonial intervention aligns closely with Akbar’s radical imagination of the law and other key tenets of CRT. This article builds on this literature to explicitly extend a CRT analysis to the development and praxis of Ontarian ethno-racial legal clinics. B. Ethno-racial Clinics: Development and Work Ethno-racial legal clinics were created specifically to serve racialized low- income populations. Tracing their historical origins and development is important since the very way they came into existence puts into praxis the tenets of CRT. When community legal clinics in Ontario were originally formalized in the 1960s and 1970s, the prevailing idea was that the clinics would generally only serve communities bounded by geography. However, a set of “specialty clinics” soon emerged that served communities not necessarily bounded by geography but, rather, of specific need. These included clinics providing services to youth,54 the elderly,55 persons living with disabilities, 56 injured workers, 57 as well as the aforementioned ethno-racial communities. Ethno-racial legal clinics in
52 For a summary of developments and contemporary questions facing clinical legal education, see Gemma Smyth, Samantha Hale & Neil Gold, “Clinical and Experiential Learning in Canadian Law Schools: Current Perspectives” (2017) 95 Can Bar Rev 151. 53 Sarah Buhler & Patricia Barkaskas, “Beyond Reconciliation: Decolonizing Clinical Legal Education” (2017) 26 J L & Soc Pol’y 1 at 14, 16. 54 See e.g. “About JFCY,” online: Justice for Children and Youth,
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Ontario emerged out of a recognition that low-income communities of colour and Indigenous communities faced unique experiences and challenges that were different from other low-income Ontarians.58 These challenges included increased poverty rates; overrepresentation in jails and prisons; increased rates of homelessness and precarious housing; reduced access to education, fair work conditions, health care, or police protection for people without status; disproportionate rates of over-policing; discrimination in school discipline, push-out rates, and tracking; a lack of interpretation services; barriers to fair and equitable labour market outcomes; and an overrepresentation in low-paying, precarious jobs.59 As a result, the legal needs of these communities correspondingly differed from other communities, which was reflected in the particular mix of work handled by ethno-racial clinics. In addition to offering direct legal services common to other clinics (in the form of individual case work and summary legal advice),60 ethno-racial clinics more frequently engage in areas of law specific to the legal needs of racialized populations, such as immigration and citizenship files, employment discrimination cases, and human rights claims. These clinics also work to promote law reform and address issues of institutional and systemic racism through test case litigation and advocacy in various fora, including national legislative bodies and United Nations (UN) human rights treaty bodies. The establishment of the five ethno-racial legal clinics was hard fought between racialized communities and the government, and some of these “battles” stretched on for many years. The first such legal clinic was set up as part of the CSSP, which was established in 1973 as a community
58 For example, the South Asian Legal Clinic of Ontario (SALCO) was originally founded in the late 1990s by a group of law students and community activists that both recognized the unique needs of access to justice for South Asians living in poverty and that the only way the need could be fulfilled was to provide “culturally sensitive and language specific services.” See “About Us,” online: SALCO
support centre for immigrants and workers from Spanish-speaking countries as a result of significant organizing from community activists. After several years piloting a high-demand, volunteer legal consultation program with law students, it became obvious that the legal needs of Spanish-speaking peoples could not be properly served by the broader community legal clinic structure. In 1978, the CSSP’s legal clinic received funding from the Ontario Legal Aid Plan, establishing an important precedent for the funding of ethno-racial clinics.61 Other ethno-racial legal clinics were slowly established in the subsequent years: the Metro Toronto Chinese and Southeast Asian Legal Clinic (now CSALC) in 1987,62 the Aboriginal Legal Services of Toronto (now ALS) in 1990,63 the ACLC in 1994,64 and the SALCO in 2007.65 Within the dominant colour-blind, multicultural ideology of Canada, the very existence of legal clinics that make visible structures of racial inequality and actively work to reform and/or dismantle those structures is radical. Unsurprisingly then, a common theme that runs through the origin stories of all of these ethno-racial legal clinics was scepticism (and, at times, outright vitriolic opposition) to their funding as permanent legal aid entities. These discourses closely parallel the disagreements between liberal conceptions of race and the law and that of critical race theorists. For instance, during the appeal hearings at the Law Society of Upper Canada (LSUC) on whether to provide funding for the CSALC, staff from Legal Aid Ontario (LAO) opposed the decision, expressing doubt about whether Chinese and Southeast Asian communities were actual “communities” that could be served by a legal aid clinic and whether granting such funding would result in the floodgates opening to other communities who would demand their own legal clinics. Advocates for the CSALC argued that, if a community was sufficiently large in number, had common cause with one another, and had specific and unique legal needs
61 “About,” online: Centre for Spanish Speaking Peoples
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and issues (whether linguistic, cultural, racial, or otherwise) that could not be served by the current system, then there should be no issue as to understanding this community as one that could justify its own legal clinic. Philip Epstein, one of the LSUC panel members, signalled his tacit agreement by asking LAO representatives what the difference was between funding an ethno-racial group and funding a geographic clinic such as South Ottawa Community Legal Services, as he saw no difference in principle.66 Olivia Chow, one of the founding board members of the CSALC, described the debates in this way:
We were told: why can’t you just find interpreters? Why can’t some legal clinic hire a Chinese speaking lawyer? Well we said, it’s not that simple. It’s the outreach, it’s the place; it’s not just Chinese, it’s also Vietnamese, Cambodian, Laotian. If everyone is equal in the face of laws in Canada, they need to have access to it. And the legal aid clinic [the CSALC] has been able to bring people together, organize, and speak out on behalf of those who, by-and-large, without the clinic will find themselves voiceless.67
Implicit in the responses of Chow, Epstein, and other proponents of the ethno-racial legal clinics was subscription to several key tenets of CRT. The first tenet is that the very nature of ethno-racial legal clinics does not accept colour-blind ideology but, rather, surfaces race and ethnicity as an important axis by which to understand political, socio-economic, as well as legal inequality. A liberal, colour-blind view towards the issue of racism finds sufficient remedy in policies such as complaint-based anti- discrimination mechanisms, interpreters, and cultural sensitivity training. In contrast, the establishment of ethno-racial legal clinics relies on a premise that colour blindness cannot address the issues of racism, racial subordination, and the intersectional way these forces interact with other social categorizations such as class, gender, and disability to confer disadvantage and discrimination—a second key tenet of CRT. Instead, the remedy would necessitate adopting a “colour-bold” approach to racial justice in which systemic racial disparities and inequalities, both in their historical and contemporary forms, are surfaced and solutions crafted from those understandings.68 Such an approach understands systemic racism as
66 Interview with a founding board member of the Metro Toronto Chinese and Southeast Asian Legal Clinic (June 2017). 67 CSALC, “30th Anniversary Snapshot,” supra note 1. 68 The term “colour-bold” is used by former ACLC lawyer Anthony Morgan in reference to section 27 of the Canadian Charter of Rights and Freedoms, which demands that the VOL. 16 JOURNAL OF LAW & EQUALITY 79
a standard part of formally colour-blind legal and administrative institutions, as part of the ordinary, not the extraordinary. Another key tenet of CRT, reflected deeply in Chow’s commentary, is the idea that people of colour bring unique voices precisely because of their unique racial position and that therefore the law itself should normatively take heed of these experiences.69 As CRT scholar Richard Delgado states, “persons who have grown up in the minority community may have information not easily accessible to others and a special stake in disseminating it.”70 For instance, ALS was an intervener in R v Gladue and a significant force behind the creation of Gladue reports.71 These are pre- sentencing or bail reports that contain recommendations to the court about what an appropriate sentence might be and include information about an Aboriginal individual’s background such as history regarding residential schools, child welfare removal, physical or sexual abuse, and underlying developmental or health issues.72 Similarly, the SALCO penned Who-If-When to Marry: The Incidence of Forced Marriage in Ontario, a seminal report on forced marriage in the South Asian community.73 And the CSALC drafted Sweet and Sour: The Struggle of Chinese Restaurant-Workers, a critical report on chronic and
Charter be interpreted in a manner consistent with the “preservation and enhancement of the multicultural heritage of Canadians.” Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. I am deploying this term to refer more broadly to an approach to law and policy that explicitly centres race as an important axis of analysis and supports the project of racial equality. See Anthony N Morgan, “An Africentric Principle Could Right Some Wrongs” (23 April 2019), online: Policy Options
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widespread employment standards violations and wage theft experienced by Chinese restaurant workers in the Greater Toronto Area.74 These and other important racial justice test case, law reform, and advocacy initiatives would not have been possible without ethno-racial legal clinics to reflect the voices of racialized communities and translate them into specific projects through their legal fluency and expertise. Thus, the original rationales that established ethno-racial legal clinics draw on many key ideas of CRT, and much of their work product continues to be directly informed by its tenets.
IV. LOOKING TO THE BOTTOM FOR IDEAS ABOUT LAW CRT also seeks to answer a key epistemological question: what are the normative sources that scholars should look at to understand and address structural inequality and law? On this question, Mari Matsuda suggests looking to communities at the bottom of the socio-economic hierarchy for a new source of legal epistemology. This approach of looking to the bottom, I argue, is particularly salient in developing the scholarship of CRT and race and law in Canada. In taking this epistemological approach seriously, there is perhaps no better place to start than looking at ethno- racial legal clinics, which, by their very mandate, serve the most poor and marginalized members of racialized communities. 75 This part reviews some of the insights of applying the CRT tenet of “looking to the bottom” as an epistemological approach to the law work of ethno-racial legal clinics in order to better understand the experience of intersectionally marginalized groups and their relationship with the law. A. Systemic Approaches to Addressing Racial Discrimination CRT criticizes the liberal paradigm insofar as it focuses on what individual perpetrators of racist conduct have done to victims rather than on the systemic racial discrimination that affects the overall life situation of the
74 See Metro Toronto Chinese and Southeast Asian Legal Clinic, “Sweet & Sour: The Struggle of Chinese Restaurant-Workers” (2016), online (pdf): Your Legal Rights
subjugated racial group. CRT posits that the exercise of racial power in society is commonplace and systemically ingrained, as opposed to the liberal treatment of racial power as aberrational or to be primarily understood in terms of individual “bad apples.”76 Ultimately, systemic work is necessary to unsettle and deconstruct systemic racial discrimination in society. Clinic lawyers have long since recognized that practising individual advocacy with low-income clients is distinctly limited in its emancipatory effect. 77 In the context of providing legal services to Indigenous communities reeling from long histories of colonial violence and dispossession, working within the dominant legal system has been characterized as mere “settler harm reduction.” 78 Racial discrimination and racial disparities cannot be solved until the conditions associated with their existence are addressed and eliminated. This broader lens opens up remedies for this type of racism and is directed at systemic and root cause issues, including positive and mandatory equity policies in critical socio-economic areas such as education, employment, health, and the justice system, rather than only taking on individual anti- discrimination cases. Ethno-racial legal clinics are undoubtedly structured to reflect the systemic perspective. Though they engage in a fair amount of individual casework, a large amount of their work is geared towards working with communities in identifying, understanding, and combatting structural racial inequalities. A prime example of this structural orientation is the key role of three of the clinics—the CSALC, the SALCO, and the ACLC (now BLAC)—in co-founding and working within the broader Colour of Poverty–Colour of Change (COP-COC) Network.79
76 Crenshaw et al, “Introduction,” supra note 12 at xiv. 77 Amanda Dodge & Gemma Smyth, “Learning, Teaching and Practising Systemic Advocacy in Legal Clinics: A Conversation” (2018) 29 JL & Soc Pol’y 47 at 51. 78 Buhler & Barkaskas, supra note 53 at 14, citing Eve Tuck & K Wayne Yang, “Decolonization Is Not a Metaphor” (2012) 1:1 Decolonization: Indigeneity, Education & Society 1 at 21. 79 Colour of Poverty–Colour of Change (COP-COC) is a network across Ontario working to build concrete strategies, tools, initiatives, and community-based capacity through which individuals, groups, and organizations (especially those reflective of the affected racialized communities—both Indigenous peoples and peoples of colour) can begin to develop coherent shared action plans, including creating effective coordinated strategies for collaborating with mainstream policy analysts and institutions, anti-poverty and social justice advocacy groups, governments, funders, and the media so as to best work together to address and redress this disturbing and growing structural or systemic ethno-racial inequality. Its members include ethno-racial legal clinics, community centres, health services organizations, and academics. See COP-COC, “About,” online: Colour of Poverty-Colour of Change
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In tandem with the broader COP-COC network, these ethno-racial legal clinics have been instrumental in legal and political advocacy to transform the way in which the state interacts with racialized communities. For instance, in the most recent periodic review of Canada by the UN Committee on the Elimination of Racial Discrimination (CERD) in 2017, ALS, the ACLC, the CSALC, the SALCO, and COP-COC (the latter three as joint parties), all provided written civil society briefs and attended non- governmental organization briefing sessions in anticipation of the CERD review in Geneva, Switzerland.80 While the three briefs had different areas of focus based on the most pressing needs of their respective communities, all of them addressed to various degrees: the importance of mandatory disaggregated ethno-racial data collection; the racialization and feminization of poverty; the marked increase of hate crimes; and racial discrimination and sustained disparities in policing, criminal justice, child welfare, health, education, and employment.81 The briefs of the ACLC, the CSALC, the SALCO, and COP-COC also detailed racial discrimination in immigration and immigration enforcement.82 In part due to the sustained advocacy of civil society groups at the CERD review, the 2018 federal budget included funds to conduct cross- country consultation on a new national anti-racism strategy,83 the creation of a new Centre for Gender, Diversity and Inclusion Statistics, and the creation of an Indigenous Statistical Capacity Development Initiative.84 In
80 “Reporting Status for Canada: CERD—International Convention on the Elimination of All Forms of Racial Discrimination,” online: Office of the Higher Commissioner for Human Rights
2019, funds were earmarked for the creation of an anti-racism strategy, the creation of a Federal Anti-Racism Secretariat, and funding for projects and capital assistance to share knowledge and build capacity in Black Canadian communities.85 The central role of ethno-racial legal clinics in advocating for broad, transformative change in addressing socio-economic racial disparities shows that these clinics had adopted a systemic-based victim perspective as opposed to an individual-based perpetrator perspective. B. Complementarity between Casework and Systemic Advocacy Despite CRT’s valid critique of the liberal individualistic framework of understanding racial discrimination, it would be a mistake to understand individual casework and systemic efforts as an either-or dichotomy for legal clinics. Rather, there is significant complementarity between these two forms of practice. Providing individual legal advocacy allows legal clinics to understand the nuances of the legal issues that individual clients face on a day-to-day basis. A familiarity with multiple individual legal cases allows clinic lawyers to spot trends from the aggregation of issues, which in turn informs better and more responsive systemic advocacy.86 Conversely, systemic advocacy, whether in the form of public legal education, advocacy campaigns, community organizing, media work, or test case litigation, helps bring increased public attention of specific community concerns, attracting more similar cases and allowing for the opportunity to change law and policy in a way that affects a broad group of people rather than only individual clients.87 C. Community Perspective in Cases Involving Racialization Ethno-racial legal clinics have taken an active role in litigation efforts to inject substantive critical race insights in the case law. These interventions have allowed the courts to take into account the views of the racialized
85 “Budget 2019: Chapter 4: Delivering Real Change” (19 March 2019), online: Government of Canada [perma.cc/3EWY-EMGK]. 86 For example, at the CSALC, clinic staff regularly held staff meetings that would facilitate identification of case trends and patterns. Increased frequency of calls on certain types of cases or legal provisions would indicate the potential need for systemic action. 87 See also CSALC, “30th Anniversary Snapshot,” supra note 1, Gary Yee at 00h:00min:06s (“to be able to have a combination of individual client representation, along with community organizing and advocacy for law reform and political change, networking with other groups … this is so much more powerful than just having a system where you represent one client after another. And to be able to have access to clients as opposed to just being an advocacy organization, where you just try and get into the media or get to meetings with politicians, that also is not strong enough. So it is that magical combination that makes the legal clinic system effective in terms of broad change, more permanent and systemic change”).
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communities in its legal analysis, interpretation, contextualization of legal issues, and sentencing discussions. In doing so, these clinics have helped to ensure that the development of jurisprudence that affects the rights and interests of racialized people in Canada do not occur in a colour-blind vacuum. A recent example of systemic advocacy in this regard is the case of R v Le.88 Le is an important criminal case on the constitutionality of police detention and exclusion of evidence. From a CRT perspective, the case was particularly noteworthy as the issue of racialization was key to informing the context of whether a reasonable person in the accused’s position would conclude that they were or were not free to go and, therefore, that they were under detention within the meaning of section 9 of the Canadian Charter of Rights and Freedoms.89 The case involved five young men––one Asian, four Black––who were approached in the backyard of a Toronto housing co-op home by three police officers. Without warrant, consent, or warning, the officers entered the backyard and began questioning the men on “what was going on, who they were, and whether any of them lived there,” while ordering one of the men to keep his hands where the officers could see them. 90 The officers then demanded proof of their identities without any reasonable grounds to suspect that they had been involved with an offence. When an officer questioned the appellant, Tom Le, on what he had in his satchel, he fled. He was caught, arrested, and subsequently charged with ten offences related to the possession of a firearm, the proceeds of crime, and cocaine.91 The case turned largely on the detention analysis: whether and when the circumstances were such that a psychological detention—where a reasonable person in the same position as the appellant would conclude that he or she was not free to go and had to comply with the police direction or demand—had occurred.92 Notably, the majority took judicial notice of the intersectional effects of race, class, and age, noting that Indigenous, Black, and other racialized youth in low-income areas were “disproportionately impacted by street checks.”93 The context of the detention was critical. The dissenting opinion, written by Justice Michael Moldaver, relied on the trial judge’s finding that the initial interactions with police were “cordial.”94 Moldaver J held that, while an arbitrary detention occurred, it was brief and was immediately followed
88 2019 SCC 34 [Le]. 89 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 90 Ibid at para 1. 91 Ibid at paras 9–15. 92 R v Grant, 2009 SCC 32 at para 31 [Grant]. 93 Le, supra note 88 at para 94. 94 Ibid at para 175. VOL. 16 JOURNAL OF LAW & EQUALITY 85
by a lawful detention based on reasonable suspicion that the appellant had a firearm, due to the way the appellant was angling himself away from the officer.95 Therefore, given that the Charter violation was minor, the dissent held that the evidence should not be excluded. By contrast, the opinion of the majority found that detention had occurred earlier, that the Charter violation was significant, and that the evidence should be excluded under section 24(2). In doing so, the majority of the Court was significantly aided by the contributions of ethno-racial legal clinics. First, the majority rejected the premise that frequent encounters with police would support an inference that the appellant would be comfortable and familiar with police interaction.96 The majority refused to apply a lower Charter standard to communities that experience a higher rate of crime. Instead, the Court agreed with the interveners, the CSALC and the Federation of Asian Canadian Lawyers (FACL), that this inference was a “legal fiction.”97 It was precisely because of racial profiling that racialized persons often have the most experience with street-level interactions with police and would therefore be more likely to be vulnerable to the inherent power imbalance of such encounters.98 Second, the majority pushed back strongly against the trial judge’s characterization of the factual matrix. They proceeded by attempting to understand how a reasonable person in the circumstances of the appellant and his friends, as racialized individuals, might have perceived their situation and whether they were under detention. They concluded that a reasonable racialized young man in a low-income neighbourhood would have perceived himself to be detained when the police trespassed with no warning and took control of the situation through “loud stern voices, curt commands, and clear orders about required conduct.”99 Third, both the majority and dissent silently adopted the argument advanced by the CSALC and the FACL in their factum to move away from the term “visible minority,” employed in R v Grant, and instead use the term “racialized person.” According to the CSALC and the FACL, the latter term is preferable as it recognizes that race is a social construct that demands consideration of whether the Charter claimant has experienced prejudice as a result of his or her race.100 That both the majority and dissent
95 Ibid at paras 293–95. 96 Ibid at paras 109–10. 97 Ibid at para 108. 98 Le, supra note 88 at para 27 (Factum of the Interveners: Federation of Asian Canadian Lawyers and the Chinese and Southeast Asian Legal Clinic) [FACL and CSALC Factum]. 99 Le, supra note 88 at para 45. 100 FACL and CSALC Factum, supra note 98 at para 4.
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adopted this terminology without the need for a protracted justification was a quiet, but powerful, sign of acceptance. Finally, both the majority and dissent agreed that the Court may take judicial notice of materials on how racialized persons may experience police interactions differently from non-racialized persons, building on the position of Justice Ian Binnie’s concurring opinion in Grant.101 The consideration of social science evidence on the historical and ongoing processes of racial profiling by police in Canada was also a key argument advanced by the CSALC and the FACL. Moreover, the social science evidence that established a long history of disproportionate levels of contact between racialized groups and policing was anchored by the long-standing work of the ACLC, which had “identified at least 15 reports issued since the 1970s dealing with police/minority relations in Canada.”102 Le represents but one in a long series of substantive critical race interventions in the courts made by ethno-racial legal clinics that are working to ensure that the perspectives of racialized communities, and the unique ways in which different racialized communities experience the law, are not invisibilized.103
V. REALIZING THE RADICAL IMAGINATION OF THE LAW? Thus far, I have focused on the ways in which the origins and work of ethno- racial legal clinics can be conceptualized and better understood viewed through the lens of CRT scholarship. However, some CRT scholars, like Akbar, go even further than this by envisioning a different kind of emancipatory law practice. Akbar aims to “push legal scholars toward a broader frame for understanding how law, the market, and the state co- produce intersectional structural inequality, and toward agendas that focus not on building the power of law and the police, but on building the power of marginalized communities and transforming the state.”104 As mentioned earlier, the mandate of ethno-racial legal clinics in serving and working with low-income members of racialized and Indigenous communities is particularly well suited to observing and understanding how laws and
101 Grant, supra note 92 at para 154. 102 Le, supra note 88 at para 90. 103 See e.g. R v Morris, 2019 ONCA 509 (role of systemic racism and background factors in sentencing of racialized, non-Indigenous offenders); R v Wong, 2018 SCC 25 (whether accused could withdraw criminal plea if not been made aware of immigration consequences); R v Begum, 2018 FCA 181 (constitutional challenge to minimum necessary income requirements for parent and grandparent sponsorship); R v Nur, 2015 SCC 15 (whether mandatory minimum imprisonment terms result in cruel and unusual punishment on accused); R v Ipeelee, 2012 SCC 13 (whether Gladue principles apply to breach of long-term supervision orders for Indigenous individuals); R v NS, 2012 SCC 72 (whether a judge could order witness to remove niqab for reasons of trial fairness). 104 Akbar, supra note 10 at 405. VOL. 16 JOURNAL OF LAW & EQUALITY 87
capitalist allocations of resources and power in Canadian society produce intersectional inequalities for their clients and constituent communities. But what of the second portion of Akbar’s vision? To what extent are ethno- racial legal clinics able to work with communities and social movements to move towards “agendas that focus not on building the power of law and the police, but on building the power of marginalized communities and transforming the state”? In order to answer this question, it is helpful to examine Sheldrick’s institutional analysis of the community legal aid clinic system to elucidate insights around democratic accountability, institutional pressures, and the professionalizing influence of lawyers and the legal profession. A. A Democratic Approach to the Practice of Law The underlying struggle identified in Sheldrick’s 1995 article between traditional conceptions of legal representation and more democratic and activist approaches within community legal clinics still exists very much today. 105 This struggle mirrors Akbar’s juxtaposition between the US DOJ’s Ferguson and Baltimore reports (which identify policing as a fundamental tool of law and order that services the collective interests of society and locates the problems of police in their failure to adhere to constitutional law) and the M4BL policy platform (which identifies policing as a historically violent force in Black communities underpinning a system of racial capitalism and limiting the possibilities of Black life).106 When faced with chronic and persistent racial inequities, how should ethno-racial legal clinics think about their approach to the practice of law? On the democratic/activist side of the ledger, community legal clinics adopt local community governance, practice in the areas of poverty law, and legal responses through a broad range of services as an attempt to reflect a conception of representation that is rooted in democratic, rather than professional, principles.107 Certain policies assist in upholding the integrity of these democratic principles in guiding the practice of law in legal clinics. For instance, policies that limit community board of directors to the ethno-racial communities that the particular legal clinic serves are critical to community accountability. So too are salary-based compensation structures, which are—at least in part—insulated from the forces of the billable hour-based market paradigm. Community legal workers (CLWs), who operate in tandem with staff lawyers at legal clinics, also provide crucial links to build close relationships with constituent
105 See Sheldrick, supra note 47 at 179. 106 Akbar, supra note 10 at 405–06. 107 Sheldrick, supra note 47 at 179.
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communities and “help break down the professional barriers to expertise.”108 While CLWs may also assist with summary legal advice, casework, and law reform, they also specifically engage in community development, outreach, and education. In addition, there are myriad examples of lawyers from ethno-racial legal clinics acting in concert with, and with direction from, community- based social movements. In those places and spaces, ethno-racial legal clinics imagine radical transformations both within and outside of the law along with communities of colour, reflecting some of the best practices of movement-based lawyering. For instance, the CSALC has played a major role in the long, arduous campaign to obtain redress and reparations from the Canadian federal government for the Chinese head tax.109 In concert with community organizing and political advocacy engaged by partners such as the Chinese Canadian National Council,110 the CSALC lawyers brought a lawsuit against the government on behalf of several head tax survivors in Mack v Canada (Attorney General).111 While the Court of Appeal for Ontario ultimately dismissed the case on the merits, giving deference to the legislature in situations of historic racial injustice,112 the litigation helped continue the movement’s momentum and articulated wrongs that would ultimately lead to an official apology from Prime Minister Stephen Harper on 22 June 2006, symbolic payments to head tax payers or their surviving spouses, as well as $5 million in funding for a redress fund under the Community Historical Recognition Program.113 Similarly, lawyers from the ACLC have worked closely with other racial justice movements such as the tent city occupation by Black Lives Matter Toronto (BLM TO) in front of the Toronto Police Services’ headquarters in downtown Toronto from March to April 2016.114 The two
108 Ibid at 178. 109 The Chinese head tax was first introduced on 20 July 1885 when the Parliament of Canada assented to An Act to Restrict and Regulate Chinese Immigration into Canada, 1885, c 71, imposing a $50 head tax on all Chinese immigrants to Canada, targeting the Chinese by placing on them an unequal financial burden to limit new arrivals. The head tax was increased to $500 in 1903. See “Taxing the Chinese,” online: Road to Justice
immediate catalysts of the occupation were the reduction of the musical festival Afrofest from two days to one day over “noise complaints” as well as the decision of the Special Investigations Unit to refuse to charge, or to share the identity of, the police officer who killed Andrew Loku, a forty- five-year-old African Canadian in July 2015.115 The ACLC’s demand for a coroner’s inquest into Loku’s death was taken up by BLM TO as a specific demand of the occupation as well as the “full elimination of carding”—the police practice of arbitrarily stopping individuals for questioning and collection of personal information.116 The CSALC’s engagement with the Chinese Head Tax Redress Campaign and the ACLC’s engagement with the work of BLM TO are merely two of many examples in which ethno-racial legal clinics engage with community organizations in campaigns that seek transformative social change. They are also emblematic of the ways in which these clinics both look within and outside of the law in order to propose solutions and achieve movement goals. B. Institutional Limits However, the institutional structure of community legal clinics runs into limits when attempting to realize a democratic/activist conception of community lawyering. There are massive pressures that pull legal clinics back towards traditional conceptions of legal representation and threaten to co-opt more emancipatory understandings of legal work. The observations offered in this part stem partly from my personal experience working within the LAO’s community legal clinic system and from conversations with a variety of stakeholders. One of the pressures relates to funding. The community legal clinic system is primarily funded by LAO, a quasi-Crown corporation. The funding criteria have generally prioritized quantitative indicia of work, such as numbers of case files opened and closed or the number of times summary legal advice is given.117 This empirical focus on
115 Jacques Gallant, “No Charges for Police Officer Who Shot Andrew Loku,” Toronto Star (18 March 2016), online:
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numbers and efficiency finds itself frequently at odds with community organizing, law reform, test case litigation, and advocacy work, which is often complex, multifaceted, and unamenable to easy quantification or measurement. In unfavourable political environments, such as when LAO faced a 30 percent budget cut in 2019, systemic advocacy is framed as a luxury rather than as part of core service.118 Such a funding model also prioritizes the hiring of staff lawyers who can handle high, easily measurable caseloads as opposed to CLWs engaged in broader, more intangible community outreach and organizing. Alternatively, the model may exert pressure on CLWs to focus more on providing direct legal services to meet funding quotas, resulting in scope creep, which may reify the model of a professionalized social service provider as opposed to a more community-based, democratic model.119 Additionally, by virtue of their unique capacity in providing linguistically and culturally sensitive services, ethno-racial legal clinics may face broader community demands than standard neighbourhood legal clinics to engage in summary legal advice and therefore face even greater pressures to ramp down on their advocacy and outreach work.120 While ethno-racial legal clinics make significant efforts, as with other community legal aid clinics, to include clients and people with lived experience of poverty on their boards, a corporate culture frequently permeates many of these boards. Such a corporate culture is characterized by an implicit focus on discrete agendas and deference to professional expertise. These pressures may lead to boards being comprised primarily of well-educated professionals and service providers, as opposed to boards that more accurately reflect the marginalized social location of client populations, to which these clinics aim to be accountable. Finally, clinic lawyers are not themselves immune to the temptation of bypassing community accountability and deploying their institutional and professional privilege to “speak on behalf” of communities—whether or
118 Fatima Syed, “Cuts by Doug Ford Slash Legal Aid Support for Climate Emergency,” National Observer (12 June 2019), online:
not these communities truly share the same view. This risk is exacerbated when the mechanisms, such as community board oversight, whose purpose is to ensure legal clinics and their staff are accountable to the communities they serve, do not function as effectively as they are supposed to. Another manifestation of this issue is when community organizations refer clients to legal clinics but are stonewalled later by invocations of solicitor-client privilege without lawyers properly informing clients of options beyond solely individualized legal solutions.121 A lack of systemic engagement by clinic lawyers along with strict adherence to traditional notions of individualized casework is in practical and philosophical tension with solutions based in community organizing, mutual aid, and community empowerment. Ethno-racial legal clinics attempt to strike a fine balance between (1) a democratic, community-based conception of lawyering that works with racialized communities to imagine possibilities for radical social change and (2) institutional and funding pressures that militate towards a more depoliticized and professionalized conception of direct legal aid service provision that is more strictly regulated by state interests.
VI. CONCLUSION The mandate and institutional location of ethno-racial legal clinics in Ontario provide an optimal ground to examine the praxis of CRT in Canada. The very establishment and existence of these community clinics in a political and legal space that is actively de-raced is in and of itself a radical act towards racial justice. Debates surrounding the establishment and funding of these clinics reflect many of the ideological conflicts surrounding race and the law in Canada that existed then and continue to exist to this day. The work of these ethno-racial legal clinics, as a practical matter, adopts many key tenets of CRT, including the rejection of a colour- blind ideology of race, the adoption of a systemic approach to racism as opposed to an individualized approach, the intersectionality of multiple oppressive structures, the substantive race-conscious intervention into jurisprudence, and looking to the bottom for ideas about the law. This praxis not only deserves to be studied closely by CRT scholars, but it can also serve as fertile ground for developing a closer, mutually beneficial nexus between academia, legal clinics, clinical legal education, and emancipatory social movements.
121 For a detailed critique of how existing attorney-client models are inadequate for empowering marginalized communities and individuals by reifying hierarchal and atomized relationships between lawyer and client, see Michael Grinthal, “Power With: Practice Models for Social Justice Lawyering” (2011) 15:1 U Pa JL & Soc Change 25.
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Yet it would be perhaps too far a stretch to say that ethno-racial legal clinics are currently in a position to realize Amna Akbar’s “radical imagination of the law,” which envisages practitioners of the law subsuming their privilege as lawyers to work as equal partners with marginalized communities in building power and transforming the state, even when it may conflict with building the power of the law and the power of legal professionals within society. While the clinics’ work helps us to understand in greater depth how law, politics, and market forces create structural inequality and gives us an example of how lawyers can work with communities to imagine transformative possibilities both in and outside of the law, significant institutional forces push back against the emergence of a truly democratic, emancipatory, community-based model of lawyering. Clinic staff, boards, and constituencies navigate these complex forces on a day-to-day basis. Nevertheless, through this brief overview of the development and praxis of ethno-racial legal clinics, I have shown that CRT in Canada can be enriched through a more systematic analysis of the work of ethno-racial community legal clinics. The praxis of these special clinics is a vehicle by which to better understand structural racism and the law; the intersection of race, class, and gender; and more radical endeavours to support the cause of racial justice through legal practice. While the focus here is primarily on these legal clinics as institutions, future CRT scholarship should delve deeper into specific cases, campaigns, and social movements, building a bridge between legal academia and those on the ground struggling to bring into reality a racially just and equitable future.
Parental Undocumented Status as an Analogous Ground of Discrimination
Tiran Rahimian*
ABSTRACT
Should Canadian-born children’s eligibility for government social and health services depend on their parents’ immigration status? Growing reports from across Canada suggest that children born and lawfully residing in Canada are consistently deprived of or have limited access to vital services due to their parents’ precarious status. This article contends that parental undocumented status can and should be recognized as an analogous ground of discrimination under section 15 of the Canadian Charter of Rights and Freedoms. The existence of mixed-status families and interdependencies within them suggest that curbs on non-citizens’ use of public benefits often impact, intentionally or not, citizen children’s enjoyment as well. The variety of ways in which this differential treatment manifests itself—administrative, legislative, and at both levels of government—and the range of services it withholds—health care, education, and child support—suggest that it is of a systemic nature and that the ground on which it is based is a recurring target of prejudicial distinctions. It also conveys the concerning message that certain Canadian children are less worthy of protection from poverty than others, perpetuating prejudice against, and imposing a burden on, families that are already disadvantaged by their lack of permanent or stable status. A recognition of this group as protected under the Charter’s equality clause, once identified by courts, could serve as a jurisprudential marker for all suspect differential treatment associated with such children. It would mark a first step in acknowledging that distinctions between Canadian children on such a basis alone can be discriminatory.
I. INTRODUCTION In May 2018, the Québec Ombudsman released a report urging the provincial health care administrator to cease its “restrictive” and “faulty” interpretation
* Tiran Rahimian, JD/BCL (McGill), is a former law clerk at the Constitutional Court of South Africa. This article was completed during the course of his studies in the Faculty of Law at McGill University. Nothing herein reflects the position or views of his current employer. The author thanks Dean Robert Leckey, Milton James Fernandes, the anonymous reviewers, and the editors of the Journal of Law & Equality for helpful comments on earlier drafts. All mistakes are his own. 94 PARENTAL UNDOCUMENTED STATUS VOL. 16
of Québec’s Health Insurance Act (QHIA), which withheld coverage from some Canadian children on the basis of their parents’ precarious immigration status in the country.1 The investigation found that the Régie de l’assurance maladie du Québec (RAMQ) tied the children’s eligibility to their parents’ legal residency in Québec, a practice that it justified with the aim of discouraging “an influx of clandestine migration” into the province. 2 The result, according to the Ombudsman, is systemic differential treatment with severe “physical and psychological” consequences that could “undermine [the children’s] integration into school and the community.”3 This finding reflects a wider trend in the landscape of federal and provincial benefits,4 where children born and lawfully residing in Canada are consistently deprived due to their parents’ precarious status. In Ontario and British Columbia, such children have de jure or de facto limited access to health care coverage, insofar as their eligibility is similarly contingent on their parents’ ambiguously defined “primary place of residency.”5 In Alberta, their access likewise requires that their parents be “lawfully admitted” and have “established residence” in the province.6 The problem
1 Québec, Donner accès au régime québécois d’assurance maladie aux enfants nés au Québec de parents au statut migratoire précaire, Rapport du Protecteur du citoyen (Québec: Protecteur du citoyen, 30 May 2018) at 4 [Québec, Donner accès au régime québécois] [translated by author]. Québec Health Insurance Act, RSQ, c A-29 [QHIA]. 2 Québec, Donner accès au régime québécois, supra note 1 at para 27 [translated by author]. 3 Ibid at 4 [translated by author]. 4 We use the term “benefit” to broadly denote all services granted by the government such as employment insurance, pensions, and benefits for housing, education, training, family, and people with disabilities. 5 See discussion later in this article for an overview of the Ontario Health Insurance Act, RSO 1990, c H.6. In British Columbia, sections 1 and 7 of the Medicare Protection Act, RSBC 1996, c 286, similarly tie children’s eligibility to the lawful residence of their parents. See also Sarah Berman, “The Precarious Lives of Undocumented Parents Whose Kids Are Born in Canada,” Vice News (27 July 2016), online:
with these regimes is not that they expressly exclude such dependents but, rather, that the way they define registration, eligibility, or residency is always explicitly or implicitly tied to the parent. Federally, various family benefit programs over the years have denied tax-delivered supports to Canadian children of non-status residents, notwithstanding their parents’ contribution to the tax system.7 There are also reports from across Canada of administrative practices tying children’s eligibility for public elementary and secondary education to their parent’s immigration status, contrary to Canada’s obligations under international law.8 Should Canadian-born children’s eligibility for government social and health services depend on their parents’ immigration status? The above reports suggest the existence of a real and growing subclass of citizens in Canada: native-born children of undocumented parents.9 Pejoratively referred to as “anchor babies”10 or “passport babies,”11 they have been described as
home or residence somewhere. The website of the Alberta Health Care Insurance Plan (AHCIP) clarifies that the children of non-residents “might” be eligible if their parents show “proof of Alberta residency.” Alberta Health, “Temporary Residents and AHCIP,” online: Alberta
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“special members of an underclass,”12 “something less than equal,”13 “born as second class citizens,”14 and a “particularly disadvantaged”15 group of an already needy population. They suffer from misguided attempts at immigration control and seem to indirectly inherit their parents’ precarious status in their enjoyment of government services. In an effort to dissuade irregular migrants from remaining or giving birth in the country, current administrative practices in effect punish Canadian children for their parent’s conduct. In other words, parental undocumented status has a “chilling effect” on citizen children’s access to benefits.16 This article contends that parental undocumented status can and should be recognized as an analogous ground of discrimination under section 15 of the Canadian Charter of Rights and Freedoms.17 I first provide a glimpse of the legislative and administrative framework underlying the prejudicial treatment of Canadian children with undocumented filiation, analyzing the health insurance plans of Québec and Ontario and the federal Canada Child Benefit (CCB) program as case studies. 18 The picture that emerges is a recurring pattern of administrative reasoning that ties children’s eligibility for vital benefits to their parents’ legal residency in the country, precluding or limiting the access of those individuals with undocumented filiation. Against this backdrop, I consider the constitutional analysis that should be used under section 15 when considering parental undocumented status as a ground of discrimination. I first set out the major decisions of the Supreme Court of Canada that recognize analogous grounds and explain how such cases have contributed to a contextual, multi-variable approach that accounts for both personal and societal variables beyond narrow immutability. Lack of control and chronicity, political powerlessness against the majoritarian process, economic and developmental vulnerability, and intersections with
12 Cindy Chang “Health Care for Undocumented Immigrant Children: Special Members of an Underclass” (2005) 83 Wash ULQ 1271. 13 Laura A Hernandez, “Anchor Babies: Something Less than Equal under the Equal Protection Clause” (2010) 19:3 Southern California Rev L & Soc Justice 331. 14 Bill Piatt, “Born as Second Class Citizens in the U.S.A.: Children of Undocumented Parents” (1988) 63:1 Notre Dame L Rev 35. 15 Judith K Bernhard et al, “Living with Precarious Legal Status in Canada: Implications for the Well-Being of Children and Families” (2007) 24:2 Refuge: Canada’s Journal on Refugees 101 at 110. 16 Michael Fix & Wendy Zimmermann, “All under One Roof: Mixed-Status: Mixed- Status Families in an Era of Reform (6 October 1999) at 1, online (pdf): Urban Institute
race and age emerge as distinct indicia of parental undocumented status as an analogous ground. The analysis draws in part on child development theories to emphasize the extraordinary circumstances of children in mixed-status families19 and the distinct influence of parental “undocumentedness” on their developmental needs. This article finally looks into international human rights standards for persuasive guidance, where the differential treatment of children on the basis of their parents’ immigration status is both expressly prohibited and recognized as a recurring target of discrimination. I hasten to emphasize, however, that a finding of analogousness is not necessarily a direct remedy to the varying ways in which such children are treated differently. But a recognition of this group as protected under the Charter’s equality clause, once identified by courts, could serve as a jurisprudential marker for all suspect differential treatment associated with such children. It would mark a first step in acknowledging that distinctions between Canadian children on such a basis alone can be discriminatory. The recognition would additionally be “permanent” in the sense that a finding of analogousness is a conclusion of law,20 which does not depend on the context of each case. 21 Once the ground is recognized, a more fruitful discussion may be had on whether each case of differential treatment is discriminatory as well as the possible policy justifications underlying them, such as minimizing the incentives for irregular migrants to remain in Canada.22
II. ACCESS TO GOVERNMENT BENEFITS FOR CANADIAN CHILDREN OF UNDOCUMENTED PARENTS There are no accurate census figures on the number or composition of undocumented migrants residing in Canada. Estimates of about half a million
19 Mixed-status families in this article consist of parent(s) who are undocumented and who have a child who is a Canadian citizen by birthright. 20 Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 at paras 6– 10, 173 DLR (4th) 1 [Corbiere]; Lavoie v Canada, 2002 SCC 23 at paras 39–41 [Lavoie]. 21 Hester Lessard is critical of this approach. Hester Lessard, “Mother, Fathers and Naming: Reflections on the Law Equality Framework and Trociuk v. British Columbia (Attorney General)” (2004) 16 CJWL 165 at 190–2. 22 It bears noting that a section 1 justification for a finding of discrimination would be very difficult because a finding of a perpetuation of prejudice or an impairment of human dignity would involve much of the same inquiry as that required by section 1. Indeed, there has only been one a successful section 1 argument since Law imported human dignity into section 15: Newfoundland v NAPE, 2004 SCC 66. In Lavoie, supra note 20, four judges upheld citizenship preferences for hiring into the federal public service under section 1. Two based their finding on an absence of a violation of human dignity and three others dissented (at paras 123–5).
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have been suggested nationwide,23 but the numbers can vary across sources that propose anywhere from between twenty thousand to six hundred thousand non-status residents.24 In 2003, Ontario’s Construction Secretariat confirmed that there were seventy-six thousand undocumented migrants in Ontario’s construction industry alone, while other sources purported that sixty-four thousand persons had overstayed their work, visitor, or students visas, and another thirty-six thousand rejected asylum seekers had never left the country.25 In contrast with the United States, where undocumented status is often linked to irregular border crossing, 26 the majority of precarious migrants in Canada entered the country through regularized channels as individuals with valid visitor, work, or student visas, refugee claimants, or sponsored immigrants. 27 If it is presumed that they are accompanied by family, these figures suggest that an unknown, but not insignificant, portion of the Canadian population have undocumented parents. Many of them are born in the country and are therefore citizens on the basis of jus soli.28 People living with undocumented or precarious status might acquire this status in a variety of ways. Some may have legally entered Canada and overstayed the duration of their visa or entered using fraudulent documents, while others may have irregularly entered the country by crossing the border or through other means.29 Examples include denied refugee claimants, approved refugees under the Convention Relating to the
23 Soave Strategy Group, The Impact of Undocumented Workers on the Residential Construction Industry in the GTA (Toronto: Laborers’ International Union of North America, 2006) at 2. 24 Peter Cheney & Colin Freeze, “200,000 May Be in Canada Illegally: Economic Underclass Faces Bleak Future, But Now Everyone Supports Amnesty,” Globe and Mail (26 May 2001); Marina Jimenez, “200,000 Illegal Immigrants Toiling in Canada’s Underground Economy,” Globe and Mail (15 November 2003); Nicholas Keung, “Hope Fades for Plan to Aid Illegal Workers: Illegal Workers Fear Effect of Election,” Toronto Star (16 May 2005); Maureen Murray, “Hopes, Dreams but No Status: Illegals Meet to Share Stories,” Toronto Star (15 November 2003); Grant Robertson, “Canada Has No Handle on Illegal Immigrant Workers,” Edmonton Journal (30 May 2005). 25 Jimenez, supra note 24 at 1. 26 Luin Goldring, Carolina Berinstein & Judith K Bernhard, “Institutionalizing Precarious Migratory Status in Canada” (2009) 13:3 Citizenship Studies 239 at 240. See also DeAnne K Hilfinger Messias, “Concept Development: Exploring Undocumentedness” (1996) 10:3 Scholarly Inquiry for Nursing Practice 235. 27 Jacqueline Oxman-Martinez et al, “Intersection of Canadian Policy Parameters Affecting Women with Precarious Immigration Status: A Baseline for Understanding Barriers to Health” (2005) 7:4 J Immigration Health 247 at 251. 28 While there are not accurate figures in Canada, evidence from the United States suggests that over 70 percent of children with an undocumented parent were are also birthright citizen. Jeffrey Passel & D’vera Cohn, “A Portrait of Unauthorized Immigrants in the United States” (14 April 2009), online: Pew Hispanic Center
Status of Refugees who did not apply for landing within the required 180- day limit, and persons with sponsorship or work permit breakdown.30 It also includes those who have applied for refugee status or a renewed permit or visa, awaiting (often for protracted periods of time)31 a decision to establish their legal status.32 The following case studies demonstrate some of the problems that native-born children of undocumented parents experience in securing access to social and health benefits. A. Impediments to Health Care Coverage A considerable body of literature has explored the legal and policy barriers that mixed-status families face in accessing health care in Canada.33 In addition to de jure eligibility impediments, which will be taken up below, several studies document parents’ reluctance to seek health care coverage out of fear of deportation, 34 and the administrative difficulties of obtaining the required paperwork for their children without a legal status of their own.35 Isolation and lack of information (or misinformation) play a role in their ability and willingness to access health services, where the lines between rights and entitlements are often blurred.36 Against this backdrop, ambiguously defined health insurance laws that either preclude or limit the access of such children in their application widen what is an already significant gap. The health care regimes of Ontario and Québec emerge as particularly instructive in this
30 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954). 31 Nicholas Keung, “Refugees’ Rights Not Breached Despite 4-Year Wait for Asylum Decision, Court Rules,” Toronto Star (6 May 2018) online:
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respect, where ambiguously defined criteria for “residence” seriously undermine accessibility for such unemancipated minors. 1. Québec Eligibility for health insurance in Québec37 is provided by the QHIA and the Regulation respecting Eligibility and Registration of Persons in Respect of the Régie de l’assurance maladie du Québec (Regulation).38 An insured person is defined as “a resident or temporary resident of Québec who is duly registered.”39 The criteria for residence can be summarized as follows: (1) to be “domiciled” in the province;40 (2) to possess one of the following legal statuses: Canadian citizen, permanent resident, registered Indian, or refugee; and (3) to meet the conditions prescribed by the Regulation. As a general rule, the domicile of an unemancipated minor is that of their parent.41 However, the second paragraph of Article 5 of the QHIA provides an exception whereby an unemancipated child “not already domiciled in Québec” is considered to be “domiciled” under the QHIA if he or she has “settled in Québec.”42 As such, the residence, and, hence, eligibility, of children with undocumented filiation hinges on whether they are deemed to have “settled” in the province. The term is not defined or specified anywhere in the QHIA or the Regulation, despite being at the heart of such children’s access to health care. The concept of “settlement” must also be distinguished from that of “domicile,” at least with respect to unemancipated minors, since they are incapable under law of demonstrating a permanent and continual intent to set up home required to establish domicile. Jurisprudential guidance on the question is also limited. The sole publicly available judgment of the Tribunal administratif du Québec that interprets the concept of “settlement” is N.K. c Québec (Régie de l’assurance maladie du Québec). 43 Without explicitly defining the term, the court concluded that, for a child to be “settled” in Québec, the parents must be so as well.44
37 Québec, “Eligibility for the Québec Health Insurance Plan” (2015), online: Régie de l’assurance maladie
However, the concept of settlement could be read in tandem with the definition of the “residence” of newly born children.45 The Regulation suggests that children born to undomiciled parents are automatically deemed “residents” of Québec by virtue of their birth and, by extension, are presumably insured, but it creates confusion by referring back to the QHIA, which has settlement as a criterion. The three-layered criteria for children born to undocumented parents—including “residence,” defined by parental “domicile,” which is in turn contingent on “settlement”— leaves considerable room for interpretation and uncertainty. But in the 1999 parliamentary debates on the latest amendment to the Act, partly in response to a series of rejections of such children,46 the minister of health categorically asserted that the legislator intended children born in Québec to be eligible regardless of their parents’ immigration status.47 Be that as it may, reports continue that the RAMQ continues to systematically tie Québec-born children’s eligibility to the regularized “domicile” of their parents.48 In response, and ostensibly contrary to the legislator’s intent, the RAMQ asserts that a child’s “settlement” must be interpreted in light of
45 The provision reads: “4.5. The following shall become residents of Québec from their date of birth: … (3) a child referred to in the second paragraph of section 5 of the Act who is born in Québec.” 46 Notably, in HJ c Régie de l’assurance maladie du Québec, SS-51170, 1998 CanLII 26733 (QC TAQ), the Tribunal administratif du Québec declared that a child born in Canada to an undocumented Syrian mother was ineligible before the Régie de l’assurance maladie du Québec. 47 Quebec, National Assembly, Commission des affaires sociales, “Bill 83: An Act to Amend the Health Insurance Act and Other Legislative Provisions,” Journal des débats, 36-1, No 22 (8 December 1999) at 16:40 (Pauline Marois): “Mme Marois: ‘Bon, alors nous modifions l’article 5. En fait, on le remplace. C’est la notion de « personne résidente au Québec ». … Lorsqu’un enfant est né au Québec, il est donc citoyen canadien, et qu’il est établi au Québec, il y a lieu de le rendre admissible au régime même si ses parents ne sont pas domiciliés au Québec, conformément, en ce sens, aux décisions récentes rendues par le Tribunal administratif du Québec. La disposition nouvelle permet donc de continuer de le faire malgré l’introduction de l’exigence du domicile au début du texte de ce nouvel article. …’ Mme Lamquin-Éthier : ‘Parfait. Et le paragraphe qui est en dessous : « Toutefois, un mineur non émancipé… » Vous nous parlez donc d’enfants finalement qui naissent au Canada, qui naissent au Québec de parents qui ne seraient pas admissibles. Vous nous confirmez que, malgré le fait que les parents seraient non admissibles, les enfants seraient admissibles et auraient droit aux services. C’est ça?’ Mme Marois : ‘Oui … Dès que la personne est née au Québec, c’est ça’ [emphasis added]. 48 Québec, Donner accès au régime québécois, supra note 1; Medecins du monde & Aministie Internationale, Press Release, “Enfants canadiens exclus du régime d’assurance maladie du Québec” (July 2018), online:
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the parents’ intention to remain in the province, as demonstrated by administrative acts. 49 The effect is that parents with precarious immigration status are automatically declined coverage for their children. In other words, the RAMQ concludes that a child born in Québec cannot be considered to reside in the province independently of the legal domicile, and, thus, immigration status, of his or her parents. 2. Ontario A surprisingly similar pattern of administrative reasoning also emerges with the Ontario Health Insurance Plan (OHIP). 50 Ontario’s Health Insurance Act (OHIA) provides that a person is eligible if she or he is a “resident” of Ontario and meets the requirement found in the accompanying regulations.51 To be considered a resident for the purposes of health insurance in Ontario, a person must possess “eligible status,” which includes citizenship and thus covers all children born in Canada,52 and must have their “primary place of residence” in Ontario.53 For children under the age of sixteen, their primary place of residence is that of the parent with lawful custody.54 A person’s “primary place of residence” is further defined as one that “has the greatest connection in terms of present and anticipated future living arrangements, the activities of daily living, family connections, financial connections and social connections.”55 The criteria of “anticipated future living arrangements” may be problematic for mixed-status families. A review of the case law from the Health Services Appeal and Review Board, the administrative tribunal in charge of reviewing decisions by OHIP,56 reveals a range of factors, including the existence of financial records,57 the testimony from neighbours58 and a landlord, 59 and the ownership of a home, 60 as indicative of residency. There appears to be no single touchstone, and, simply put, “the Appeal
49 Québec, Donner accès au régime québécois, supra note 1 at 15. 50 Several studies have documented legal and policy barriers faced by children of undocumented parents. See e.g. Bernhard et al, supra note 15; Caulford & Vali, supra note 33. 51 Health Insurance Act, RSO 1990, c H.6, s 11(1) [OHIA]. 52 Citizenship Act, supra note 9. 53 RRO 1990, Regulation 552: General, cited under OHIA, supra note 51, s 1.3(1). 54 Ibid, s 1.3(1). 55 Ibid, s 1(1) [emphasis added]. 56 OHIA, supra note 51, s 20(1). Decisions of the Health Services Appeal and Review Board (HSARB) may be appealed to the Ontario Divisional Court (s 24(1)). 57 MJ and TJ v Ontario (Health Insurance Plan), 2012 CanLII 20348 (ON HSARB) at para 23. 58 DMW v Ontario (Health Insurance Plan), 2011 CanLII 24826 (ON HSARB) at para 26. 59 SP v Ontario (Health Insurance Plan), 2010 CanLII 70800 (ON HSARB) at para 28 [SP]. 60 JJM v Ontario (Health Insurance Plan), 2011 CanLII 57766 (ON HSARB) at para 23. VOL. 16 JOURNAL OF LAW & EQUALITY 103
Board looks for evidence of a person’s ties to Ontario that demonstrate Ontario is the person’s primary home.”61 Notwithstanding the law’s potential for inclusivity, recurring reports of newborns being denied registration on the basis of their parents’ immigration status suggest that there is an implementation challenge.62 For instance, there have been reports of hospital staff mistakenly thinking that a mother’s lack of eligibility automatically entails that their newborn is similarly ineligible.63 Similarly, a publicly available factsheet prepared by the Ministry of Health and Long-Term Care, which is meant to guide service providers regarding OHIP eligibility, seems to contribute to the confusion by requiring hospital staff to confirm that a newborn “will be physically present in Ontario for at least 153 days in any twelve-month period to retain health insurance coverage.”64 Since the factsheet does not include the regulatory definition of “primary place of residence” or examples of documents that could serve as evidence thereof, it could be misinterpreted as grounds for denying OHIP coverage. Overall, it appears that both the OHIA and the QHIA have the potential to be inclusive but are open enough to be misinterpreted. These eligibility impediments are also compounded by practical barriers: many hospitals require parents to include documentation regarding their immigration status in the health insurance application, even if the status is not per se relevant.65 Additionally, the newborn’s OHIP card must be renewed annually. 66 Barriers associated with navigating these procedures, coupled with the fear of exposure to immigration authorities, make it increasingly difficult for non-status parents to obtain health insurance for their children.67
61 SP, supra note 59 at para 21. 62 See e.g. Rebecca Cheff & Lauren Bates, “Using the Law to Advance Health Equity: OHIP Eligibility of Ontario-born Babies of Uninsured Parents” (June 2018) at 16, online (pdf): Wellesley Institute
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B. Denial of Child Benefit Payments The same pattern of exclusion arises in the federal Canada Child Benefit (CCB) program. The program takes the form of a tax-free, monthly payment made to eligible families, calculated from the basic information from income tax.68 Introduced in 2016, the CCB was proclaimed to assist low- and middle- income families with the cost of raising children, while playing an important role in the reduction of child poverty69 and acting as a driver of economic growth.70 But while the CCB may benefit some Canadian children, it widens the gap for those with undocumented parents. Since it is administered by the Canada Revenue Agency, the CCB is only paid to an “eligible individual” under the Income Tax Act who lives with, and is primarily responsible for, the upbringing of the beneficiary child.71 This limits eligibility for the CCB to families where the parents or legal guardians are citizens, permanent residents, protected persons (for example, those who have received refugee status in Canada), temporary residents who meet certain conditions, or an Indian within the meaning of the Indian Act.72 These rules exclude Canadian children whose parents do not have regularized immigration status, such as those awaiting a determination of their asylum claim or those who cannot leave Canada because of a moratorium on removal in their country of origin. Many of these mixed-status families will be in Canada for protected periods of time and may ultimately be granted the right to remain. By way of contrast, the programs include some families with only a temporary link to Canada, such as those with a work permit of only eighteen months. Nonetheless, residency for tax purposes does not require “legal” residency in the sense of having a permanent residence. Rather, it can simply mean having “significant residential ties” to Canada, such as a spouse or home and dependants in the country.73 A resident is considered
68 Canada, “Canada Child Benefit: Overview,” online: a taxpayer if he or she is present on Canadian soil for a minimum of 183 days in any calendar year.74 In other words, many families with precarious immigration status in Canada (awaiting, for instance, the renewal of their work visa or asylum claim) are required under law to pay taxes just like permanent residents but are nonetheless excluded from tax-delivered supports for their children. By way of context, rough estimates from the Canadian Centre for Policy Alternatives suggest that there are three thousand mixed-status families in Canada that are denied the CCB on the basis of parental immigration status. 75 Expanding eligibility to these children would only cost approximately $30 million annually in a program that delivers over $20 billion per year to Canadian individuals.76 III. PARENTAL UNDOCUMENTED STATUS AS AN ANALOGOUS GROUND The previous discussion provides a glimpse of a social problem whose dimensions remain largely elusive. The existence of mixed-status families and the interdependencies within them suggest that curbs on non-citizens’ use of public benefits often impact, intentionally or not, citizen children’s enjoyment as well. The variety of ways in which this differential treatment manifests itself—administrative, legislative, and at both levels of government—and the range of services it withholds—health care, education, and child support— suggest that it is of a systemic nature and that the ground on which it is based is a recurring target of prejudicial distinctions. It also conveys the concerning message that certain Canadian children are less worthy of protection from poverty than others, perpetuating prejudice against, and imposing a burden on, families already disadvantaged by their lack of permanent or stable status. The following section assesses whether the group in question— Canadian children of undocumented parents—constitute an analogous ground under section 15 of the Charter. After laying out how the major decisions of the Supreme Court of Canada on the matter are characterized by a contextual and purposive inquiry that accounts for a range of societal and personal variables, I observe that these various variables can conceptually be subsumed under the umbrella understanding of immutability that is endorsed by the court. The section then groups the variables into two distinct, but related, bundles of indicia, divided by their determining-individual-s-residence-status.html> [perma.cc/2V5U-S8GL]. 74 Ibid at s 1.32. 75 See Income Security Advocacy Centre et al, “Every Child Counts: Making Sure the Canada Child Benefit Is a Benefit for All Children” (September 2018) at 10, online (pdf): 106 PARENTAL UNDOCUMENTED STATUS VOL. 16 unit of focus, before turning to international human rights law for further interpretative guidance. Taken together, I conclude, both societal and personal variables recognized by the court support a recognition of parental undocumented status as an analogous ground. A. Criteria for Analogousness It is now well established, at least since Andrews v Law Society of British Columbia, that the nine grounds listed in section 15 are not exhaustive and that equality claims can also be based on grounds that are analogous to them.77 To date, the Supreme Court of Canada has recognized citizenship,78 marital status, 79 sexual orientation, 80 and off-reserve membership for Aboriginal people81 as analogous grounds within section 15’s ambit. Other courts have similarly recognized receipt of public assistance,82 adopted status,83 parental status,84 and manner of conception (anonymous sperm donor).85 Conversely, 77 Andrews v Law Society of British Columbia, [1989] 1 SCR 143, 56 DLR (4th) 1 [Andrews]; Withler v Canada (Attorney General), 2011 SCC 12 at para 33 [Withler]. The grounds approach to identifying discrimination has received near universal acceptance from the Supreme Court of Canada. See e.g. Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1 at para 39 [Law]; R v Kapp, 2008 SCC 41 at para 37 [Kapp]; Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thompson Reuters, 2007) (“the restriction of s 15 to listed and analogous grounds is a permanent feature of the s 15 jurisprudence” at 55.8(a)). However, some judges and scholars have expressed alternative approaches to equality rights. See e.g. Egan v Canada, [1995] 2 SCR 513, 124 DLR (4th) 609 at paras 54–69, L’Heureux-Dube J, dissenting [Egan]; Daphne Gilbert, “Time to Regroup: Rethinking Section 15 of the Charter” (2003) 48 McGill LJ 627. 78 Andrews, supra note 77 at paras 49–53 [Andrews]; Lavoie, supra note 20 at paras 37–52. Given section 6 of the Charter, there is no discrimination when it comes to distinctions between citizens and non-citizens regarding the right to enter, remain in, and leave Canada. Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 SCR 711 at para 34, 90 DLR (4th) 289. 79 Miron v Trudel, [1995] 2 SCR 418 at paras 160–6, 124 DLR (4th) 693 [Miron]; Nova Scotia (Attorney General) v Walsh, [2002] 4 SCR 325, 221 DLR (4th) 1. 80 Egan, supra note 77 at para 13; Vriend v Alberta, [1998] 1 SCR 493 at paras 90–1, 156 DLR (4th) 385; M v H, [1999] 2 SCR 3 at paras 63–4, 171 DLR (4th) 577. 81 Corbiere, supra note 20; the Court has repeatedly rejected the argument that residence can be an analogous ground for non-Aboriginals: R v Turpin, [1989] 1 SCR 1296 at para 53, 96 NR 115 [Turpin]; Haig v Canada (Chief Electoral Officer), [1993] 2 SCR 995 at paras 95–8, 105 DLR (4th) 577; Siemens v Manitoba (Attorney General), 2003 SCC 3 at para 48 [Siemens]. 82 Falkiner v Ontario (Ministry of Community and Social Services), [2002] OJ No 1771, 59 OR (3d) 481 (CA) [Falkiner]. 83 Re Marshal Estate, 2009 NSCA 25 at paras 31–2. 84 Dartmouth-Halifax County Regional Housing Authority v Sparks, [1993] NSJ No 97, 101 DLR (4th) 224 (CA). See also Inglis v British Columbia (Minister of Public Safety), 2013 BCSC 2309 [Inglis], which recognized being the child of an incarcerated parent as an analogous ground of discrimination. 85 Pratten v British Columbia (Attorney General), 2011 BCSC 656, rev’d 2012 BCCA 480. The trial judge found that the manner of conception is an analogous ground (at para VOL. 16 JOURNAL OF LAW & EQUALITY 107 grounds that have been rejected by the Supreme Court include drug use,86 being covered by workers’ compensation schemes, 87 place of residence (where the Criminal Code provides for different trial rights depending on the province),88 being subjected to military courts,89 the timing of an incident,90 the sector of employment (Royal Canadian Mounted Police officers and health care workers treated differently for the purpose of labour relations),91 having committed a war crime or a crime against humanity abroad,92 and residence in a particular municipality.93 How is a court to assess whether a ground of differential treatment is similar enough to constitute an analogous ground? The Supreme Court of Canada’s case law on the question remains one of the most elusive areas of its Charter jurisprudence, suffering from a lack of conceptual clarity that has been subject to extensive commentary and criticism.94 The simplest and most recurring indicium that emerges from a review of the Court’s reasoning is that analogous grounds must constitute “personal” and “immutable” characteristics—that is, they must be “personal” in the sense of attributes that form an inherent part of an individual’s identity or personhood and denote “what a person is rather [than] what a person does.”95 Additionally, 234). The BC Court of Appeal said that it was unnecessary to consider that point because the legislation could be upheld under section 15(2). Thus, it denied the equality claim. 86 R v Malmo‑Levine; R v Caine, 2003 SCC 74 (“[a] taste for marihuana is not a ‘personal characteristic’ in the sense required to trigger s. 15 protection, but is a lifestyle choice that bears no analogy with the personal characteristics listed” at para 185). 87 See Reference Re Workers’ Compensation Act, 1983 (Newfoundland), [1989] 1 SCR 922 at para 2, 56 DLR (4th) 765 (being denied a right to sue for work-related accidents is not an analogous ground of discrimination). 88 Turpin, supra note 81 at para 53. Criminal Code, RSC 1985, c C-46. 89 R v Généreux, [1992] 1 SCR 259, [1992] SCJ No 10. 90 Canada (Attorney General) v Hislop, [2007] 1 SCR 429, 278 DLR (4th) 385 (in the process of rejecting the government’s argument that that was the relevant distinction). 91 Delisle v RCMP, [1999] 2 SCR 989, 176 DLR (4th) 513 (status of being an Royal Canadian Mounted Police officer was not an analogous ground of discrimination) [Delisle]; Health Services and Support-Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 [Health Services] (restrictions on bargaining by health care workers were found not to amount to discrimination because the “differential and adverse effects of the legislation on some groups of workers relate essentially to the type of work they do, and not to the persons they are. Nor does the evidence disclose that the Act reflects stereotypical application of group or personal characteristics” at para 165). 92 R v Finta, [1994] 1 SCR 701, 112 DLR (4th) 513. 93 Siemens, supra note 81. 94 See Joshua Sealy-Harrington, “Assessing Analogous Grounds: The Doctrinal and Normative Superiority of a Multi-Variable Approach” (2013) 10 JL & Equality 37 at 40–5, for an overview of the scholarship criticizing the ambiguity of the Court’s analogous grounds jurisprudence. 95 Hogg, supra note 77 at 55.8(b). 108 PARENTAL UNDOCUMENTED STATUS VOL. 16 they must be either “immutable”—in the same way that race or national origin are actually unchangeable—or at least “constructively immutable”— in the sense that they are “changeable only at unacceptable cost to personal identity,” as is the case with religion or marital status.96 But a Manichean dichotomy between status and conduct or the immutable and mutable, despite having a seemingly self-evident strength, overlooks the rich contextual approach adopted by the Court. In fact, the Court’s jurisprudence reveals a rather broad and generous multi-variable conception of immutability, accounting for both personal and societal variables that largely support the recognition of parental undocumented status as an analogous ground. A review of the jurisprudence reveals that societal variables, such as political powerlessness and economic vulnerability, often inform and overlap with the Court’s discussion of personal variables such as immutability. Immutability is thus best understood as a multi-variable umbrella term that accounts for various indicia of analogousness recognized by the Court. In Andrews, the very first equality case to reach the Supreme Court of Canada,97 the issue of immutability—in the dictionary sense—was only one of several factors weighed by Justice William McIntyre in assessing whether citizenship constituted an analogous ground under section 15. He acknowledged that “[n]oncitizens … are … a good example of a discrete and insular minority who come within the protection of s. 15.”98 Justice Bertha Wilson elaborated in her concurring reasons that “discrete and insular minorities” are “those groups in society to whose needs and wishes elected officials have no apparent interest in attending” and, consequently, “will continue to change with changing political and social circumstances.”99 This suggests a fluidity in the inquiry into analogousness, informed by social relations of power and the comparative capacity of the minority group to marshal the will of lawmakers to effect change. 96 Corbiere, supra note 20 at para 13, per McLachlin and Bastarache JJ for the majority. A frequently quoted passage from Peter Hogg, Constitutional Law of Canada, student ed (Toronto: Carswell, 2011) at 55, encapsulates the heart of the separation between attributes deemed to be “immutable” and inherent to individuals from what is otherwise performative and expressive “conduct”: “[Analogous grounds] are not voluntarily chosen by individuals, but are an involuntary inheritance. … What is objectionable about using such characteristics as legislative distinctions is that consequences should normally follow what people do rather than what they are. It is morally wrong to impose a disadvantage on a person by reason of a characteristic that is outside the person’s control.” 97 Andrews, supra note 77. 98 Ibid at 183, McIntyre J dissenting. 99 Ibid at 152, Wilson J concurring, citing JH Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980) at 151. VOL. 16 JOURNAL OF LAW & EQUALITY 109 The interplay of societal and personal variables was again present in Egan v Canada, where a dissenting Justice Claire L’Heureux-Dubé rejected the notion of analogousness altogether. She emphasized instead the social vulnerability of the affected group as the cornerstone of the inquiry, warning that “looking at the grounds for the distinction instead of at the impact of the distinction on particular groups, we risk undertaking an analysis that is distanced and desensitized from real people's real experiences.”100 Justices Peter Cory and Frank Iacobucci, similarly in dissent, raised the (still) flexible notion of “discrete and insular minorities” as one pertinent factor in the assessment of analogous grounds.101 Justice Gerard La Forest, for the majority, recognized sexual orientation as an analogous ground on the basis that it was a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.”102 A concern for societal variables beyond rigid immutability resurfaced again in Miron v Trudel. For the majority, Justice (as she then was) Beverley McLachlin undertook a purposive, contextual analysis, apparently making the assessment of marital status as an analogous ground hinge on whether it engaged the underlying objectives of section 15. Variables such as prior group disadvantage, identity as a “discrete and insular minority,” as well as immutability were all deemed to “signal an analogous ground,” but McLachlin J was clear that none was decisive. She ruled that immutability (“sometimes associated with analogous grounds”) existed merely as an “attenuated” form with regard to marital status and that equally relevant was the “reluctance of one’s partner to marry; financial, religious or social constraints.” 103 Far more central to her analysis was a concern for “human dignity” in general, and anti- 100 Egan, supra note 77 at para 53, L’Heureux-Dubé dissenting. See also Miron, supra note 79 at 14 (Justice L’Heureux-Dubé rejected the necessity of analogous grounds being based on “innate” characteristics and instead supported a multi-variable approach). 101 Ibid at para 180, Cory J dissenting (pertinently, the two judges took the chance to reject the status/conduct distinction in the determination of analogous grounds): “Homosexual couples as well as homosexual individuals have suffered greatly as a result of discrimination. Sexual orientation is more than simply a ‘status’ that an individual possesses. It is something that is demonstrated in an individual’s conduct by the choice of a partner. The Charter protects religious beliefs and religious practice as aspects of religious freedom. So, too, should it be recognized that sexual orientation encompasses aspects of ‘status’ and ‘conduct’ and that both should receive protection. Sexual orientation is demonstrated in a person’s choice of a life partner, whether heterosexual or homosexual. It follows that a lawful relationship which flows from sexual orientation should also be protected” at para 184). 102 Egan, supra note 77 at para 5. 103 Miron, supra note 79 at paras 160–6. 110 PARENTAL UNDOCUMENTED STATUS VOL. 16 stereotyping in particular, which she deemed to be the “unifying principle” behind the Court’s analogous grounds jurisprudence.104 It was only in the 1999 decision in Corbiere, which is now the leading precedent for analogous grounds, that the Supreme Court expressly adopted a broad umbrella-type understanding of the concept that subsumed the range of societal variables it previously recognized. Corbiere challenged section 77(1) of the Indian Act, which limited the right to vote in band elections of the Batchewana First Nation to band members who were “ordinarily resident on the reserve,” 105 arguing that “aboriginality-residence” was analogous to the grounds enumerated under section 15. While reiterating that the analogous grounds inquiry must consider the general objectives of section 15, the majority suggested that other factors to be considered in the analogous grounds analysis “may be seen to flow from the central concept of immutable or constructively immutable personal characteristics.”106 The majority judgment goes on to say: [T]he thrust of identification of analogous grounds ... 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.107 The majority in Corbiere thus appears to leave us with three progressively expansive conceptions of “immutability.” The first, and narrowest, aligns with a dictionary definition of immutability108 and denotes characteristics that are actually unchangeable. A second one, which the Court now calls “constructive” immutability, encompasses those characteristics that are changeable but only at an unacceptable cost to personal identity. The third, and broadest, conception extends the protection to attributes with which the legislator has no “legitimate interest” in interfering. The Supreme Court never fully defines any of these three conceptions of immutability. For instance, it remains unclear whether “actual immutability” denotes the impossibility of the characteristic changing or 104 Ibid at para 148, citing Andrews, supra note 77, Sopinka, Cory & Iacobucci JJ concurring. 105 RSC 1985, c 1-5, s 71(1). 106 Corbiere, supra note 20 at para 13. 107 Ibid. 108 The Concise Oxford English Dictionary defines immutable as “not changing or able to be changed.” Concise Oxford English Dictionary, 12th ed (Oxford: Oxford University Press), sub verbo “immutable.” VOL. 16 JOURNAL OF LAW & EQUALITY 111 the impossibility for an individual controlling its change at will. It could potentially encapsulate both. The question of “unacceptable cost to personal identity” also remains elusive. Is the assessment meant to be subjective or objective, and what are the criteria for unacceptability? The notion of legitimate government interests in interfering with characteristics similarly lacks precision, and it is unclear how the assessment differs from an analysis of “pressing and substantial” interests under section 1.109 All of these questions are at the heart of a robust understanding of immutability, but they remain ultimately unanswered in Corbiere. But it remains clear, conceptual ambiguities aside, that societal variables flow from, and are central to, the umbrella conception of immutability adopted in Corbiere. This is evident from the majority’s tacit confirmation in Corbiere of L’Heureux-Dubé J’s concurring reasons, which set out a broad, multi-variable approach to analogous grounds. L’Heureux-Dubé J elaborates on “various contextual factors ... that may demonstrate that the trait or combination of traits by which the claimants are defined has discriminatory potential.” 110 These include not only immutability and constructive immutability but also personal significance, difficulty to change, political powerlessness and disadvantage, and whether the ground is included in federal and provincial human rights codes.111 Additionally, L’Heureux-Dubé J does not consider the list to be exhaustive and finds that “none of the above indicators are necessary for the recognition of an analogous ground.” 112 Far from rejecting the pertinence of these variables, the majority finds instead that they “flow from the central concept of immutable or constructively immutable personal characteristics,”113 thus acknowledging the relevance of societal variables but providing no explanation for how or why this is the case. The new analytical framework thus appears to fuse the (formerly) socially contingent notion of “discrete and insular minority” with an umbrella understanding of immutability. Overall, it appears that a narrow focus on immutability or a status/conduct dichotomy would overlook the complex, multi-variable analysis that the Supreme Court often applies. 114 There is no single touchstone, and the Court consistently refers to societal attributes such as 109 R v Oakes, [1986] 1 SCR 103 at para 69, 26 DLR (4th) 200. 110 Corbiere, supra note 20 at para 60. 111 Ibid. 112 Ibid [underlined in the original]. 113 Ibid at para 13. 114 See Sealy-Harrington, supra note 94 (for a typology running from “narrow immutability” to “multivariable” approaches to analogous grounds). 112 PARENTAL UNDOCUMENTED STATUS VOL. 16 historical disadvantage,115 vulnerability,116 link to a discrete and insular minority, 117 and political powerlessness 118 in recognizing analogous grounds. The literature on analogous grounds similarly reflects the pertinence of factors beyond rigid immutability.119 The Supreme Court has consistently held that the inquiry must be undertaken in a purposive and contextual manner120 and consider the “nature and situation of the individual or group at issue, and the social, political, and legal history of Canadian society’s treatment of that group.”121 Ultimately, the thrust of identification of analogous grounds appears to be guided by the overarching purposes of section 15, and it seems to favour a more relational, disadvantage-focused inquiry over a rigid immutability standard. B. Children of Undocumented Parents as an Insular Group For the purposes of our inquiry into parental undocumented status, the various variables raised by the Supreme Court’s jurisprudence on analogous grounds can be grouped into two distinct, but related, bundles of indicia, divided by their unit of focus. In addition to conceptual clarity, such a categorization moves the analytical framework beyond a shallow engagement with rigid immutability and accounts for the interplay of personal and societal variables that shapes the Court’s jurisprudence. It also reflects the contextual and purposive analysis called for by the Court, acknowledging that meaningful control over a status cannot be divorced from, and is impacted by, societal factors. The first bundle, looking at the individual, explores both the possibility and consequences of changing the targeted characteristic. It therefore not only includes the first two of the three progressively expansive conceptions of immutability set out by the majority in Corbiere but also extends it to questions of personal significance and meaningful control over the choosing and relinquishing of the characteristic—all of which have been recognized as relevant to the analogousness inquiry or as 115 See Miron, supra note 79 at para 158, per McLachlin J; Egan, supra note 77 at para 59, per L’Heureux-Dubé J; Delisle, supra note 91 at para 44; Baier v Alberta, 2007 SCC 31 at para 65. 116 See Andrews, supra note 77 at 152; Egan, supra note 77 at para 59, per L’Heureux-Dube J. 117 See Andrews, supra note 77 at 152; Miron, supra note 79 at para 158, per McLachlin J; Egan, supra note 77 at para 59, per L’Heureux-Dube J, at 171, per Cory and lacobucci JJ. 118 See Colleen Sheppard, “Grounds of Discrimination: Towards an Inclusive and Contextual Approach” (2001) 80 Can Bar Rev 893 at 908. 119 See ibid at 913; Sealy-Harrington, supra note 94 at 42; Dale Gibson, “Analogous Grounds of Discrimination under the Canadian Charter: Too Much Ado about Next to Nothing” (1991) 29 Alta L Rev 772 at 787, implicitly recognizes the factor of difficulty of change while deconstructing the boundaries of constructive immutability. 120 Law, supra note 77 at para 6; Andrews, supra note 77 at para 46. 121 Law, supra note 77 at para 93. VOL. 16 JOURNAL OF LAW & EQUALITY 113 flowing from an umbrella understanding of immutability. Reference to the term “immutability” in this part reflects its dictionary definition and traditional understanding and not the umbrella term from which all relevant variables flow. The second bundle, looking externally, focuses on socially contingent relations of power and subordination. It thus encompasses the broader conception of immutability identified by the majority in Corbiere, but extends it to variables such as historical and contemporary vulnerability, disadvantage, and the ability to participate in the political process. Taken together, both societal and personal variables support a recognition of parental undocumented status as an analogous ground. 1. Personal Variables There are at least three bundles of arguments and rejoinders that arise in a consideration of personal factors relevant to children of undocumented parents. The first pertains, most obviously, to the complete absence of any meaningful control or choice by the affected children. That is, the status is an involuntary inheritance that exceeds the children’s sway and, indeed, their comprehension. They can neither remove themselves from the country, choose their place of birth, or alter their parents’ past conduct. Prejudicial treatment on the basis of a status that is so beyond the control of an individual generates a particular type of moral objection that goes to the core of the concept of immutability—one famously raised by H.L.A. Hart in the context of criminal punishment.122 The unfairness, Hart argues, resides in the individual’s inability to change, choose, or renounce the characteristic even if they wished,123 which ultimately represents a type of constitutive moral luck or determinism.124 This is the same moral objection that arises when considering the illegitimacy of punishing or criminalizing status.125 In line with this thought, the Supreme Court of the United States, in Plyler v Doe, struck down a Texas law excluding undocumented immigrant children from public education. 126 While acknowledging that “undocumented status” itself was not “an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action,” the court nonetheless found that the statute in question “imposes its discriminatory burden on the basis of a legal characteristic over which 122 HLA Hart, Punishment and Responsibility (Oxford: Oxford University Press, 2008) at 152–3. 123 Ibid. 124 Thomas Nagel, Mortal Questions (Cambridge, UK: Cambridge University Press, 1979) at 28. 125 Paul Roberts, “Criminal Law Theory and the Limits of Liberalism” in Antje du Bois-Pedain, ed, Liberal Criminal Theory: Essays for Andreas von Hirsch (London: Hart, 2004) at 341. 126 Plyler v Doe, 457 US 202 (1982) [Plyler]. 114 PARENTAL UNDOCUMENTED STATUS VOL. 16 children can have little control.”127 Central to the court’s reasoning was the fundamental powerlessness of children over their parent’s decisions, holding that “[e]ven if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.” 128 In coming to this conclusion, the court emphasized undocumented children’s unique voicelessness and dependency and the unfairness of punishing them for their parent’s actions.129 A second argument in favour of recognition pertains to the chronicity and constructive immutability of parental “undocumentedness.” That the children’s status is changeable upon the parents’ receiving of a legal status (through an asylum application or renewal of visa) or the temporariness of the disadvantage (once the children reach majority) does not per se preclude a finding of immutability. A denial of equality claims on this basis would represent a misapplication of the multivariable concept of immutability and the contextual and purposive analysis called for in Miron 130 and Corbiere. 131 In assessing whether off-reserve status constituted an analogous ground in Corbiere, it will be recalled, the Court did not consider the issue of immutability in the abstract, nor did it resort to data quantifying the frequency of movement between off-reserve and on-reserve residence. Instead, it hinged its immutability inquiry on the socially constructed characteristics and values associated with on-reserve and off-reserve status, how it tied with identity and communal relations, and whether it stood “as a constant marker of potential legislative discrimination” and of “suspect distinctions.”132 Similarly, the Supreme Court in Andrews made clear that “[t]he characteristic of citizenship [and, by analogy, other immigration statuses] is one typically not within the control of the individual and, in this sense, is immutable.”133 Indeed, the analysis of immutability must, and often does, look beyond the fact that it is theoretically subject to change. If “often [lying] beyond the individual’s effective control” can qualify as an “attenuated” form of immutability (as was the case with marital status), then the legal residency of one’s parents should very well meet that standard. 134 Requiring all personal characteristics to be permanent also 127 Ibid at 220. 128 Ibid. 129 Ibid at 219–23. 130 Miron, supra note 79 at para 100. 131 Corbiere, supra note 20 at para 59. 132 Ibid at paras 10–11 133 Andrews, supra note 77 at para 34. 134 Miron, supra note 79 at para 73. VOL. 16 JOURNAL OF LAW & EQUALITY 115 conflates the underlying rationales of immutability with those of constructive immutability. Arguably, whereas the former is concerned with the actual impossibility of changing the trait, the latter is concerned with those characteristics that the claimant should not have to change in order to avoid discrimination—that is, it denotes those characteristics that should remain in the realm of choice. In other words, the logic of constructive immutability is chiefly liberty based as opposed to capacity based and is said to be linked to values such as freedom, autonomy, and dignity.135 It bears interpolating here that whether the existence of an element of “choice” should dilute the degree of protection a ground receives under Canadian law has been subject to commentary.136 Peter Hogg suggests that “chosen” grounds such as marital status and citizenship should prompt courts to uphold legislation that distinguishes on such grounds.137 Lynn Smith and William Black conversely argue that the existence of “choice” is often illusory or constrained and should be of limited relevance. 138 Robert Leckey similarly contends that the focus should be on autonomy and zones of privacy—characteristics that the government has no legitimate interest in interfering with—rather than a dichotomy between the chosen and the unchosen.139 A distinction must also be drawn, I must emphasize, between the choice to attract a certain status and the choice to not relinquish it once its disadvantageous impact is apparent. Whereas the former could denote a potentially uninformed or illusory decision, the latter at least captures a degree of agency in that it involves a cost-benefit analysis in the face of concrete differential treatment. Hence, while the relevance of choice in attracting a status might be open to discussion, the 135 Sophia Moreau, “In Defense of a Liberty-based Account of Discrimination” in Deborah Hellman & Sophia Moreau, eds, Philosophical Foundations of Discrimination Law (Oxford: Oxford University Press, 2013) 71 at 81, 85. 136 See Jennifer Koshan, “Inequality and Identity at Work” (2015) 38:2 Dal LJ 473 at 486; Robert Leckey, “Chosen Discrimination” (2002) 18 SCLR (2d) 445. On the role of choice in Canadian equality jurisprudence more generally, see Sonia Lawrence, “Harsh, Perhaps Even Misguided: Developments in Law, 2002” (2003) 20 SCLR (2d) 93; Sonia Lawrence, “Choice, Equality and Tales of Racial Discrimination: Reading the Supreme Court on Section 15” in Sheila McIntyre & Sandra Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, ON: LexisNexis Butterworths, 2006) at 115; Margot Young, “Social Justice and the Charter Comparison and Choice” (2013) 50:3 Osgoode Hall LJ 669. 137 Hogg, supra note 77 at 55.23. 138 William Black & Lynn Smith, “Chapter 19: The Equality Rights” in Errol Mendes & Stephane Beaulac, eds, Canadian Charter of Rights and Freedoms, 5th ed (Markham, ON: Lexis Nexis Canada, 2013) at 123. 139 Leckey, supra note 136 at 447. 116 PARENTAL UNDOCUMENTED STATUS VOL. 16 absence of any choice in whether to relinquish it could raise distinct moral objections that are without doubt pertinent. I hasten to add, however, that there are personal characteristics, such as the one at stake, that claimants may wish to relinquish, but they lack the capacity to do so. Unfortunately, it seems that the Supreme Court’s traditional approach to constructive immutability, as laid out in Corbiere, generates confusion when applied to undesirable traits that one may wish to relinquish. To approach constructive immutability by asking whether the status is only changeable at “unacceptable cost to personal identity” assumes that the characteristic is desirable. However, many undesirable— and potentially immutable—traits struggle to satisfy this test, and characterizing their renouncement as a “cost” would be misleading. Maintaining such characteristics does not denote the sanctity of independent choice; rather, it anchors or invites differential treatment. If anything, keeping the trait is the “cost” and renouncing it is the benefit. Such traits are better addressed by asking whether the government has any “legitimate interest in expecting us to change” 140 and whether it “lies beyond the individual’s effective control.” 141 And, indeed, undesirable traits such as the receipt of social assistance have been ruled to fit within “the expansive and flexible concept of immutability.” 142 As such, recognizing undesirable traits, such as parental undocumented status, as constructively immutable is possible and has jurisprudential support. In a similar vein, the contention that a child’s parental immigration status is not sufficiently “personal” in the sense of relating to their personhood or identity is also unpersuasive. Describing parental undocumented status as an extraneous or non-personal characteristic ignores the normative implications of belonging to an undocumented family, which profoundly affects many aspects of daily life. Some scholars have argued that the consequences of unstable family immigration status, and, specifically, undocumented status, have a profound connection with the sense of belonging and the social identity of youth.143 Rejecting such characteristics as not sufficiently “personal” also fails to treat the claimants as individuals and risks perpetuating the very stereotypes that substantive 140 Corbiere, supra note 20 at para 13. 141 Miron, supra note 79 at para 73. 142 Falkiner, supra note 82 at para 90. 143 Bernhard & Young, supra note 29; Zulema Valdez & Tanya Golash-Boza, “Master Status or Intersectional Identity? Undocumented Students’ Sense of Belonging on a College Campus” (2018) Identities: Global Studies in Culture and Power 481; Kristian Hollins, “Comparative International Approaches to Establishing Identity in Undocumented Asylum Seekers” (2018) Migration and Border Policy Project Working Paper 8; Jean S Phinney et al, “Ethnic Identity, Immigration, and Well-Being: An Interactional Perspective” (2001) 57:3 J Soc Issues 493. VOL. 16 JOURNAL OF LAW & EQUALITY 117 equality aims to counter. 144 Again, courts have recognized extraneous traits such as “receipt of social assistance” as amounting to constructively immutable personal characteristics. 145 Hence, the “internality” of a characteristic is in no way a decisive element. A third and perhaps more difficult rejoinder pertains to the contingency of parental undocumented status on association. That is, it does not relate per se to a characteristic of the affected children themselves but, rather, to something about their parents. The Supreme Court of Canada has consistently ruled that a party cannot generally rely upon the violation of a third party’s Charter rights,146 and an objection could be made that such children lack standing as they are indirectly attempting to raise their undocumented parents’ interests. It bears emphasizing, in response, that the recognition of relational grounds of discrimination based on a parental association of some sort enjoys significant precedent. In Benner v Canada, for instance, the Supreme Court of Canada struck down a provision of the Citizenship Act that imposed more onerous requirements for the acquisition of citizenship on children of women who married non- Canadians compared to men who married non-Canadians. 147 Without creating a general doctrine of “discrimination by association,” Iacobucci J, writing for a unanimous Court, explained that the claims rooted in parental association were distinct from raising the Charter rights of a third party, wherein the claimant would have lacked standing. 148 Rather, he explained, “[t]he link between child and parent is of a particularly unique and intimate nature. A child has no choice who his or her parents are. Their nationality, skin colour, or race is as personal and immutable to a child as his or her own.” He went on to add: [Permitting section 15 scrutiny of the treatment of the appellant’s citizenship application] is simply allowing the protection against discrimination guaranteed to him by s. 15 to extend to the full range of the discrimination. This 144 See Benjamin Eidelson, “Treating People as Individuals” in Deborah Hellman & Sophia Moreau, eds, Philosophical Foundations of Discrimination Law (Oxford: Oxford University Press, 2013) 203 at 208. 145 Falkiner, supra note 82. 146 R v Edwards, [1996] 1 SCR 128 at 145, 132 DLR (4th) 31; Borowski v Canada (Attorney General), [1989] 1 SCR 342 at 367, 57 DLR (4th) 231. 147 Benner v Canada (Secretary of State), [1997] 1 SCR 358, 143 DLR (4th) 577 [Benner]; Citizenship Act, supra note 9. 148 Benner, supra note 147 at paras 78–9. 118 PARENTAL UNDOCUMENTED STATUS VOL. 16 is precisely the “purposive” interpretation of Charter rights mandated by this Court in many earlier decisions. Where access to benefits such as citizenship is restricted on the basis of something so intimately connected to and so completely beyond the control of an applicant, … that applicant may … invoke the protection of s. 15.149 Similarly, in Inglis v British Columbia, a BC court recognized parental incarcerated status as an analogous ground of discrimination on the basis that it constitutes an “immutable characteristic of historic disadvantage” for the affected children.150 This judgment mirrors the McIvor decisions, also from the courts of British Columbia,151 which recognize that a child could suffer discrimination breaching section 15 on the basis of their parent’s gender; in this case, with respect to entitlement to status under the Indian Act depending on whether a parent was an Indian male married to a non- Indian female or an Indian female married to a non-Indian male. In the immigration context, the Federal Court of Appeal ruled in Cheung v Canada 152 that the second child of a Chinese woman could qualify for refugee status in Canada due to the treatment she would receive as a second child in China. The court acknowledged that prejudicial treatment could occur based not on something the victim had done but, rather, on something to do with the parent—in this case, that the parent had had a previous child. In sum, the personal implications of parental undocumented status vis- à-vis the affected children is twofold. First, it relates to the fact that it is an involuntary inheritance—that the children lack any control over both their choosing and their relinquishing. Second, it denotes the significant difficulty, acknowledged in Andrews, of changing one’s immigration status in general. This understanding finds support in the contextual and purposive analysis called for in Miron153 and Corbiere154 and reflects the underlying moral concerns of immutability. Furthermore, the fact that the status is not of particular significance to personal identity or that it is contingent on parental association does not necessarily preclude a finding 149 Ibid at paras 80, 85. 150 Inglis, supra note 84. 151 McIvor v Canada (Registrar, Indian and Northern Affairs), 2007 BCSC 26 (the “Statutory Appeal”); McIvor v Canada (Registrar, Indian and Northern Affairs), 2007 BCSC 827 (the “Constitutional Case”); McIvor v Canada (Registrar, Indian and Northern Affairs), 2007 BCSC 1732 (the “Trial Order”); McIvor v Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153 (the “Appeal”). 152 [1993] 2 FC 314, 102 DLR (4th) 214. 153 Miron, supra note 79 at para 100. 154 Corbiere, supra note 20 at para 59. VOL. 16 JOURNAL OF LAW & EQUALITY 119 of analogousness since the jurisprudence has consistently recognized extraneous, undesirable, and relational grounds. 2. Societal Variables Our inquiry into parental undocumented status must also be informed by such children’s unique place within society and “the social, political and legal history of Canadian society’s treatment of the group.”155 There are similarly two bundles of arguments that emerge in a review of the relevant societal variables, relating to the children’s political powerlessness as well as their distinct developmental and economic vulnerability. Both of these variables support a recognition of parental undocumented status as an analogous ground. Though not every aspect of vulnerability would be directly relevant to every possible claim that might be brought on behalf of Canadian children of undocumented parents, a comprehensive picture of the forces affecting such children demonstrates their generally vulnerable status and supports the argument for treating this status as an analogous ground. The first, as mentioned, concerns the affected children’s political powerlessness against the majoritarian process. Minor Canadian children of undocumented parents cannot vote against discriminatory legislators or legislations, despite being prevented by law from accessing vital social and health services. The cumulative effect of their differential treatment can foster a shadowy underclass, which is this time comprised of actual citizens, not undocumented migrants. Surely, section 15 was meant to prevent this result. In Andrews, it will be recalled, all three opinions suggested that powerlessness was a characteristic of the groups protected by section 15. Both Wilson and McIntyre JJ referred to non-citizens as good examples of a “discrete and insular minority who come within the protection of s. 15.”156 Wilson J elaborated by explaining that non-citizens were “a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated.” 157 La Forest J, concurring, described them as “an example without parallel” of a group “who are relatively powerless politically, and whose interests are likely to be compromised by legislative decisions.”158 Likewise in Miron, eight judges ruled that membership in a powerless group was a helpful “indicator” 159 or “indicium” 160 of analogousness. 155 Law, supra note 77 at 554–5. 156 Andrews, supra note 77 at para 49. 157 Ibid at para 51. 158 Ibid at para 76. 159 Miron, supra note 79 at para 149. 160 Ibid at paras 15, 57. 120 PARENTAL UNDOCUMENTED STATUS VOL. 16 Everything that was said in Andrews and Miron regarding non-citizens can apply a fortiori to mixed-status families. The notion that the greatest benefit of equality rights should accrue to members of politically powerless groups similarly finds support in American jurisprudence and scholarship. In the now famous footnote 4 of United States v Carolene Products in 1938, Justice Harlan Stone of the Supreme Court of the United States noted that prejudice against minorities can effectively distort “those political processes ordinarily to be relied upon to protect minorities.”161 Likewise in Plyler v Doe, in striking down a statute that denied public education to American children of undocumented parents, the court warned against the creation of a permanent underclass of persons who lacked the resources and attributes to advance their rights in American society. 162 The same theory is advanced by John Hart Ely in his defence of equality review as a correction of political powerlessness. 163 In other words, judicial review on equal protection grounds judges as “servants of democracy even as they strike down the actions of supposedly democratic governments.”164 The political voicelessness of these children must also be considered in tandem with their economic vulnerability. Simply put, children of undocumented parents who are excluded from government benefits are among those most in need of them. It is well documented that recent immigrants face considerably higher rates of poverty than the average Canadian (20.3 percent in contrast with 8.8 percent).165 While there are no census or reliable published data providing accurate counts of poverty among those with undocumented status, statistics about regularized immigrants paint a sombre portrait that can apply a fortiori to those with precarious status. The 2016 census provides a glimpse. It reveals that the poverty rate of immigrants without permanent residence (including those with precarious or undocumented status) is an astounding 42.9 percent, in stark contrast with 12.5 percent and 17.9 percent for the general population and permanent residents respectively.166 Recent immigrants additionally experience higher unemployment (10 percent, versus 7 percent among 161 304 US 144, 58 S Ct 778, 82 L Ed 1234, at 304 (1938). 162 Ibid at 222 (majority opinion). 163 Ely, supra note 99. For a similar argument in the Canadian context, see HS Fairley, “Enforcing the Charter” (1982) 4 SCLR 217 at 243, 249–50. 164 Laurence Tribe, “The Puzzling Persistence of Process-based Constitutional Theories” (1980) 89 Yale LJ 1063 at 1063. 165 Canada, “A Backgrounder on Poverty in Canada” (Ottawa: Government of Canada, October 2016) at 9 [Canada, “Backgrounder on Poverty”]. 166 See Statistics Canada, 2016 Census Program, Data Table 98-400-X201673 (Ottawa: Statistics Canada, 30 May 2019) (low income is defined by Statistics Canada as a fixed percentage (50 percent) of median adjusted after-tax income). VOL. 16 JOURNAL OF LAW & EQUALITY 121 Canadian-born workers). 167 In the long term, they are deemed to be thirteen times more likely to live in chronic low income than families born in Canada.168 These figures suggest that children of undocumented parents are most in need of government social and health benefits and are nonetheless excluded. Underinvestment in these children reinforces existing deprivations and intergenerational poverty.169 The effects of these deprivations, while harmful to all, are particularly severe on the development of children. Early childhood marks the most rapid period of change and growth throughout the human lifespan. 170 Deprivations associated with child poverty can have dire consequences on physical and mental health, cognitive capabilities, rate of injury, and propensity for obesity, amongst other repercussions. 171 Low-income children fare poorer than average on most measures of well-being, ranging from life expectancy to infant mortality. 172 Deficiencies that begin in early life can translate into a greater likelihood of low income, poor health, and lower skills in adulthood. 173 Another analogy can be drawn to the American case of Plyer, where the court distinguished public education from other forms of government benefits through “the lasting impact of its deprivation on the life of the child.”174 As with education, health services 167 Canada, “Backgrounder on Poverty,” supra note 165 at 15. 168 Anita Khanna, “Report Card on Child and Family Poverty in Canada: A Poverty-Free Canada Requires Federal Leadership” (2017) at 10, online (pdf): Campaign 2000 122 PARENTAL UNDOCUMENTED STATUS VOL. 16 can be differentiated from other government benefits through their lasting impact. Adequate health care is crucial to the very being of a child and is inextricably linked to all other determinants of their ability to thrive.175 Recognition of the inherent vulnerability of children also has consistent and deep roots in Canada’s social and legal fabric.176 But a significant and growing body of literature suggests that children growing up with an undocumented parent face unique developmental challenges that render them particularly vulnerable. 177 These pertain chiefly to lower levels of cognitive and educational skills, poor socio-emotional development, and long-term psychological distress. Hirokazu Yoshikawa associates a proxy for parental undocumented status with lower levels of standardized cognitive skills in children as young as two and three years of age. 178 Controlling for traditional indicators of socio-economic status such as income and employment, Roberto Gonzales links the legal vulnerability of having an undocumented family member to lower academic expectations and various barriers to educational attainment.179 A longitudinal study of American-born Mexican children found that having an undocumented mother was associated with 1.5 fewer years of schooling.180 Related is work by Stephanie Potochnick and Krista Perreira, who, controlling for children’s own legal status, link having undocumented parents to higher levels of anxiety and depressive symptoms.181 status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause.” 175 See Ruby Takanishi, “Levelling the Playing Field: Supporting Immigrant Children from Birth to Eight” (2004) 14:2 Future of Children 61 (“family economic security, access to health care, and access to sound early education” is the “three-legged stool of child well- being by age eight” at 63). 176 AB (Litigation Guardian of) v Bragg Communications Inc, 2012 SCC 46 (“[r]ecognition of the inherent vulnerability of children has consistent and deep roots in Canadian law” at para 17). 177 A large part of this literature focuses on the United States, where the net population of undocumented households is more pronounced. But insights from developmental theory can apply, mutatis mutandis, to the Canadian context. 178 Hirokazu Yoshikawa, Immigrants Raising Citizens: Undocumented Parents and Their Young Children (New York: Russell Sage Foundation, 2011. See also Carola Suárez- Orozco et al, “Growing Up in the Shadows: The Developmental Implications of Unauthorized Status” (2011) 81:3 Harvard Educational Rev 438 at 451. 179 Roberto G Gonzales, “Learning to Be Illegal: Undocumented Youth and Shifting Legal Contexts in the Transition to Adulthood” (2011) 76:4 American Sociological Rev 602. 180 Frank D Bean, Mark A Leach & Susan K Brown, “The Educational Legacy of Undocumented Migration: Comparisons across U.S. Immigrant Groups in How Parents’ Status Affects Their Offspring” (2018) 45:2 Intl Migration Rev 348. 181 Stephanie R Potochnick & Krista M Perreira, “Depression and Anxiety among First- Generation Immigrant Latino Youth: Key Correlates and Implications for Future Research” (2010) 198:7 J Nervous & Mental Disease 470. VOL. 16 JOURNAL OF LAW & EQUALITY 123 Developmental theory has suggested a range of mechanisms to explain the influence of parental undocumented status on the well-being of children. Three of them bear unpacking. The first mechanism is the chronic prospect of removal proceedings against a parent, identified as one of the most damaging and pervasive events for a child. Qualitative studies suggest that fear of parental removal can affect and be transmitted to children through family stress, with repercussions for psychological well- being and learning.182 In one study of American-born children of Mexican immigrants, children expressed sentiments of marginalization and discomfort at revealing their parent’s status and a generalized fear of their family being split up.183 Ajay Chaudry has linked this generalized sense of fear with behavioural problems and anxiety symptoms.184 A second mechanism pertains to a reduced access to public benefits that affect children’s development. As discussed in the first part of this article, undocumented parents face barriers in accessing various services distinct from de jure eligibility requirements. Aside from linguistic barriers and lack of information, this could be explained by a restricted social network that itself consists of recent and undocumented immigrants.185 Additionally, the fear of revealing their status to authorities may dissuade them from accessing programs that require, inter alia, proof of income,186 such as the CCB. Yoshikawa’s study of poor undocumented households in New York suggests that children’s lack of access to government benefits has developmental repercussions on their cognitive and educational progress.187 Last is the generalized psychological distress and sense of alienation that living in a mixed-status family entails. Generally, parental hardship is consistently linked to heightened stress and emotional vulnerability among children.188 More specifically, Judith Bernhard and Julie Young’s study of 182 Kalina M Brabeck, M Brinton Lykes & Rachel Hershberg, “Framing Immigration to and Deportation from the United States: Guatemalan and Salvadoran Families Make Meaning of Their Experiences: Community” (2011) 14:3 Community, Work & Family 275. 183 Joanna Dreby, “The Burden of Deportation on Children in Mexican Immigrant Families” (2012) 74:4 J Marriage & Family 829. 184 Ajay Chaudry et al, “Facing Our Future: Children in the Aftermath of Immigration Enforcement” (2 February 2010), online (pdf): Urban Institute 124 PARENTAL UNDOCUMENTED STATUS VOL. 16 youth living with undocumented parents in Toronto found that they consistently felt “othered,” having to negotiate their parent’s status and justify why they did not have key documents such as health cards. 189 While, at times, able to be with friends and forget about their family status, they also expressed a constant sense of anxiety about their family’s future in the country.190 A similar study carried out by Carola Suarez-Orozco in the United States explored how children living in this situation viewed teachers, police officers, and various authority figures with distrust and fear, feeling “constantly hunted” or worried that, if detained, “they will never be reunited with their parent.” 191 While limited, the literature suggests that parental undocumented status is associated with distinct vulnerability and adversity in several key contexts for child development. These are all factors that advocate for the recognition of the status as an analogous ground of discrimination. 3. Intersections with Age, Race, and Civil Status A purposive and contextual assessment of parental undocumented status as an analogous ground must also be informed by the ways in which it intersects with other protected grounds. In both Law v Canada and Corbiere, the majority emphasized that categories of discrimination cannot be reduced to watertight compartments but, rather, will often overlap in significant measure. 192 Awareness of, and sensitivity to, the lived reality—material, political, economic, and social—of the members of the group whose equality rights are at issue is an important task that the court must undertake in assessing analogous grounds. The confluence and cumulative effect of disadvantageous treatment on the basis of multiple grounds, in turn, advocates for a recognition of parental undocumented status as an analogous ground.193 What grounds does parental undocumented status intersect with? Three stand out. First, and simplest, is the enumerated ground of age. Citizen children’s limited access to benefits is not solely based on their parents’ undocumented status but, rather, on the fact that they are minors with undocumented parents. Their legal residency/domicile and eligibility for government services as Canadian citizens becomes uncontested the day they reach majority. Similarly, their entitlement to the CCB, should they have children of their own, is without limitation once they are emancipated. In other words, the child is victim of their lack of legal capacity to determine their own “primary place of residence” or “settlement.” 189 Bernhard & Young, supra note 29 at 34. 190 Ibid at 43. 191 Suárez-Orozco et al, supra note 178 at 444. 192 Law, supra note 77 at 554–5; Corbiere, supra note 20 at 259. 193 Corbiere, supra note 20 at 253, 259. VOL. 16 JOURNAL OF LAW & EQUALITY 125 Second, differential treatment on the basis of parental undocumented status can hardly be separated from the reality that racialized children are disproportionately affected by the restrictive measures at stake. It is estimated that the vast majority of irregular border crossers into Canada since 2015 have been of African descent.194 More generally, over 80 percent of recent arrivals between 2006 and 2011 (permanent and non-permanent residents combined) were from Asia (56.9 percent), Africa (12.5 percent), and Central and South America (12.3 percent).195 European-born migrants only accounted for 13.7 percent of arrivals in the country.196 In Andrews, La Forest J noted that the historical and contemporary tendency to exclude non- citizens on irrelevant grounds is often “an inseparable companion of discrimination on the basis of race and national or ethnic origin.”197 Indeed, much of the rhetoric surrounding “birthright tourism” and stereotypes of “anchor babies” as social “parasites” that drain public resources can hardly be separated from racist sentiments. 198 Politically charged efforts to deny rights and benefits of citizenship to such children is believed to have emerged, concurrently in Canada and the United States, with the influx of Chinese immigrants in the early 1900s. 199 In recent years, the discourse on such children is believed to have become increasingly acerbic and focused on gender and race, denoting a “weaponization of the birth canal as the focus on immigrant women [which] reflects an attempt to blame supposedly the bearers of alien ... practices and cultures.”200 The origin of the term “anchor baby” itself can 194 See Teresa Wright, “Majority of Illegal Migrants to Canada in 2018 Are Nigerians with U.S. Travel Visas,” Global News (30 April 2018), online: 126 PARENTAL UNDOCUMENTED STATUS VOL. 16 be traced back to the arrival of Vietnamese immigrants who arrived in North America in the 1980s, in relation to what was originally coined “anchor child.”201 The term is deemed racist and dehumanizing by many, denoting the idea that children of unauthorized migrants are dropped (like an anchor) in the country to tie their family to it.202 The anchor metaphor further links to the term “chain migration,” in that children in this situation facilitate the arrival of other family members by reducing costs and legal barriers. Specifically, a 2011 study into the prevalence of this term in the twenty-first century found that it has been chiefly used on “extreme right‐ wing and anti‐immigrant sites.”203 A third, perhaps less obvious, ground that may be of relevance to our inquiry is that of civil or family status. Of course, whereas the narrower category of marital status has been recognized by the Supreme Court of Canada as an analogous ground under section 15, that of civil or family status per se has not. But grounds protected under provincial human rights codes are relevant to, and can orient, the Court’s analogousness inquiry.204 For example, civil status under the Quebec Charter of Human Rights and Freedoms enjoys a relatively broad ambit in that it prohibits discrimination based on any form of family ties or affinity with another person including “a range of facts … relating to the three classical elements of civil status – birth, marriage and death. … Other facts, such as interdiction or emancipation, which do not relate to birth, marriage or death but instead to legal capacity may also be included in civil status under s. 10.”205 In Brossard (Ville de) c Québec,206 the Supreme Court recognized “filiation” as “one of the cardinal elements of the notion of civil status,” with the act of birth constituting one of the central documents that establishes the civil status of a child and their parents.207 For our purposes, the denial of health and social services to children of undocumented parents can be construed as discrimination on the basis of their filiation 201 James Maples, “Ancor Baby” in Charles A Gallagher & Cameron D Lippard, eds, Race and Racism in the United States: An Encyclopedia of the American Mosaic, vol 1 (Westport, CT: Greenwood, 2014) at 51. 202 Ibid at 51. 203 Gabe Ignatow & Alexander T Williams, “New Media and the ‘Anchor Baby’ Boom” (2011) 17:1 J Computer-Mediated Communication 60 at 61. 204 Corbiere, supra note 20 at para 60. 205 Brossard (Ville de) c Québec (Commission des droits de la personne), [1988] 2 SCR 279 at para 15, 53 DLR (4th) 609 [Brossard]; Charter of Human Rights and Freedoms, RSQ, c C-12. 206 Ibid. 207 Quebec, Commission des droits de la personne et des droits de la jeunesse (CDPDJ), Lignes directrices relatives aux plaintes fondées sur l’état civil, by Daniel Carpentier (Montreal: CDPDJ, 6 April 1990) at 3, online: with their parents—that is, their civil status. With regard to health insurance, the children’s lawful domicile/residence (and, by extension, their eligibility) is tied to their parents’ legal status in the country. Similarly, their enjoyment of the child payment benefits is contingent on their parents’ immigration status. C. Relevance of the Convention on the Rights of the Child Any assessment of the merits of parental undocumented status as an analogous ground of discrimination must also be informed by Canada’s obligations under international law. Indeed, Canadian courts have consistently referred to international human rights standards to guide their analytical framework and interpretation of the Charter. In his 1987 dissent in Reference Re Public Service Employee Relations Act (Alberta), Chief Justice Brian Dickson declared that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”208 This interpretative presumption has since been endorsed and reaffirmed by the Court multiple times.209 In Health Services Bargaining Assn, for instance, McLachlin CJ and Justice Louis Lebel found that “Canada’s current international law commitments and the current state of international thought on human rights provide a persuasive source for interpreting the scope of the Charter.” 210 Similarly, in Slaight Communications v Davidson, 211 the majority referred to Canada’s ratification of the International Covenant on Economic, Social and Cultural Rights as evidence that the Charter guarantee of freedom of expression must be balanced against the fundamental human right to work.212 In doing so, the Court reiterated that [t]he various sources of international human rights law— declarations, covenants, conventions, judicial and quasi- judicial decisions of international tribunals, customary 208 [1987] 1 SCR 313 at para 59, 38 DLR (4th) 161 [Alberta Reference]. See generally Ruth Sullivan & Elmer A Driedger, Driedger on the Construction of Statutes, 3d ed (Markham, ON: Butterworths, 1994) at 330. 209 Slaight Communications Inc v Davidson, [1989] 1 SCR 1038, 59 DLR (4th) 416 [Slaight Communications]. See also Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 70, 174 DLR (4th) 193 [Baker]; R v Ewanchuk, [1999] 1 SCR 330 at para 73, 169 DLR (4th) 193 [Ewanchuk]; Health Services, supra note 91 at para 70. 210 Ibid at para 78 211 Slaight Communications, supra note 209 at para 23. 212 International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). 128 PARENTAL UNDOCUMENTED STATUS VOL. 16 norms—must, in my opinion, be relevant and persuasive sources for interpretation of the Charter’s provisions.213 Of prime relevance in any assessment of the rights of children of undocumented parents is the United Nations (UN) Convention on the Rights of the Child (CRC),214 which was ratified by Canada in 1991.215 There are two provisions of the CRC that emerge as particularly pertinent. The first provision is Article 2, which sets out the obligation of states to “respect and ensure” 216 all the rights in the convention—including the right to health care, social security, and primary education—to all children “within their jurisdiction”217 without discrimination of any kind. Grounds of discrimination include “the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” The CRC additionally asserts the need to protect children from “all forms of discrimination or punishment” based on “the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.”218 213 Alberta Reference, supra note 208 at para 57. See also Craig Scott, “Reaching beyond (Without Abandoning) the Category of ‘Economic, Social and Cultural Rights’” (1999) 21:3 Hum Rts Q 633 at 648; Martha Jackman & Bruce Porter, “Socio-Economic Rights under the Canadian Charter” in Malcolm Langford, ed, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York: Cambridge University Press, 2008) 209 at 214–15. 214 Convention on the Rights of Children, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) [CRC]. 215 Canada, “Rights of Children” (14 November 2017), online: The Committee on the Rights of the Child, the quasi-judicial treaty- monitoring body that reports on implementation of the CRC by governments, has to date recognized fifty-three additional grounds of discrimination219 to those enumerated in Article 2, including the following: children of migrant and seasonal workers,220 children of refugees/asylum seekers, 221 children of illegal immigrants, 222 children of minorities and indigenous peoples. 223 Interestingly, most of the cases recognizing 219 For a simple list of the grounds recognized by the UNCRC, see Rachel Hodgkin & Peter Newell, Implementation Handbook for the Convention on the Rights of the Child, 3rd rev ed (Geneva: UNICEF, 2008) at 24–5, online (pdf): 130 PARENTAL UNDOCUMENTED STATUS VOL. 16 discrimination on the basis of parental immigration status similarly pertained to children’s right to health services and education. For instance, in a case involving Thailand, the committee recommended that “the children of migrant workers [be] ensured access to health and social services and to education in accordance with the principle of non-discrimination.”224 The committee has also already reprimanded Canada for the fact that immigrant and asylum-seeking children often do not have the same access to education as others, which it deemed to be in violation of the principle of non- discrimination. 225 The fact that children’s access to social and health services should not depend on their parents’ immigration status is also a recurring theme across UN soft law. For instance, in an outcome document of the UN General Assembly’s session on children, member states (including Canada) signed on to the following recommendation: 11. Adopt and implement policies for the prevention, protection, rehabilitation and reintegration, as appropriate, of children living in disadvantaged social situations and who are at risk, including, … children of migrant workers, … and ensure their access to education, health, and social services as appropriate.226 A second relevant provision of the CRC is Article 3, which requires states to make the best interests of children the “primary consideration” in all legislation and administrative actions affecting them. 227 The term “primary consideration” implies that the child’s best interests may not be considered on the same level as all other considerations, such as the regulation of clandestine migration. According to the Committee on the Rights of the Child, this strong position is justified by the special attributes of children: “dependency, maturity, legal status and, often, voicelessness.”228 Because children have less capacity than adults to make a case for their rights, decision-makers must be explicitly aware of their 224 UNCRC, 41st Sess, 1120th Mtg, supra note 223 at para 69. 225 UNCRC, 34th Sess, 918th Mtg, UN Doc CRC/C/15/Add.215 (2003) (“[t]he Committee nevertheless reiterates the concern of the Committee on the Elimination of Racial Discrimination (A/57/18, para. 337) about allegations that children of migrants with no status are being excluded from school in some provinces” at para 44). 226 Report of the Ad Hoc Committee of the Whole of the Twenty-Seventh Special Session of the General Assembly, UNGAOR, 27th Sess, Supp No 3, UN Doc A/S-27/19/Rev.1 (2002) at 20, online: interests, as they may otherwise be overlooked. The committee underlines, inter alia, the following parameters in assessing children’s best interest: (a) The universal, indivisible, interdependent and interrelated nature of children’s rights; (b) Recognition of children as right holders; (c) The global nature and reach of the Convention; (d) The obligation of States parties to respect, protect and fulfill all the rights in the Convention; (e) Short-, medium- and long-term effects of actions related to the development of the child over time.229 The committee has additionally emphasized the vulnerability of migrant families and their access to health care as central determinants of the best interest of children: An important element to consider is the child’s situation of vulnerability, such as disability, belonging to a minority group, being a refugee [or migrant230] or asylum seeker, victim of abuse, living in a street situation, etc. … The child’s right to health (art. 24) and his or her health condition are central in assessing the child’s best interest. 231 Denying or effectively limiting access to vital social and health services on the basis of the immigration status of children’s parents would run against these human rights obligations. The recurring process of tying such children’s eligibility for vital services to their parents’ legal status would appear incompatible with the CRC’s emphasis on children as autonomous holders of rights. It additionally neglects the potent effects of denying social and health services on children’s developmental needs in early life, which can affect their foundational cognitive and social skills throughout 229 Ibid at para 16 [emphasis added]. 230 Interestingly, the French version of the UNCRC’s General Comments uses the words “migrant ou demandeur d’asile.” UNCRC, Observation générale no 14 (2013) sur le droit de l’enfant à ce que son intérêt supérieur soit une considération primordial (art 3, par 1), UN Doc CRC/C/GC/14 (May 2013) at para 75, online: 132 PARENTAL UNDOCUMENTED STATUS VOL. 16 their lifespan. Of course, Canada’s practices also disregard the inherent vulnerability of such children due to their parents’ precarious immigration status and often corollary poverty, an element expressly recognized by the committee as relevant to their best interest. IV. CONCLUSION Section 15 exists to protect the politically powerless from overeager legislation that cuts too broadly. Canadian-born children of undocumented parents are a perfect example of a discrete and insular minority who are being treated as expendable by various Canadian administrative practices that fail to appreciate or even consider the implications of immigration status for a person’s primary social units and networks. Distinctions between Canadian-born children on such bases perpetuate arbitrary disadvantage with long-term developmental repercussions, inseparable from stereotypes of “anchor babies” as social “parasites” that drain public resources and unjustly benefit from their parents’ “illegal” presence. Simply put, parental undocumented status emerges “as a constant marker of potential legislative discrimination” associated with analogous grounds.232 A recognition of the ground as protected under the Charter’s equality clause would mark a first step in remedying what is largely an elusive social ill and serve as a jurisprudential marker for all “suspect distinctions” associated with such children.233 It is also consistent with jurisprudence. The status is constructively immutable in that it represents an attribute—the parents’ legal residency—over whose choosing or relinquishing native-born children have no control whatsoever. It epitomizes the type of involuntary inheritance for which no Canadian should be discriminated. This conclusion is also buttressed by the group’s political voicelessness as well as the distinct economic and developmental vulnerability of children growing up in mixed- status families. Further interpretative guidance in that respect can come from international human rights law, where the differential treatment of children on the basis of their parents’ immigration status is both expressly prohibited and recognized as a recurring target of discrimination. Lastly, such a recognition would be consistent with the values and objectives underpinning section 15 of the Charter: to promote substantive equality and acknowledge that such children are worthy of equal concern, dignity, and protection from poverty and disease, regardless of their parents’ decisions. Children do not have a say in who their parents are, nor should they be disadvantaged on the basis of something their parents did. 232 Corbiere, supra note 20 at paras 10–11. 233 Ibid.