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The Principles of Equality and Non Discrimination, a Comparative Law Perspective

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The Principles of Equality and Non Discrimination, a Comparative Law Perspective The principles of equality and non-discrimination, a comparative law perspective Canada STUDY EPRS | European Parliamentary Research Service Comparative Law Library Unit PE 659.362– November 2020 EN THE PRINCIPLES OF EQUALITY AND NON-DISCRIMINATION, A COMPARATIVE-LAW PERSPECTIVE Canada STUDY November 2020 Abstract This document is part of a series of studies, which, in a comparative law perspective, seek to present the principles of equality and non-discrimination in different States. This study examines sources of equality law and judicial interpretation of the principles of equality and non-discrimination in Canada. Contemporary equality law was a response to histories of both public and private discrimination in Canada. Statutory protections for equality and non-discrimination emerged in the post World War II era and were expanded and consolidated in the 1960s and 1970s. Constitutional reforms in the 1980s enshrined equality in the Canadian Charter of Rights and Freedoms. Since then, equality jurisprudence has expanded the interpretation of discrimination to include direct, indirect and systemic discrimination. Courts have rejected formal equality to embrace expansive notions of substantive equality in interpreting constitutional protections. Even with such strides over the last decades towards robust equality and non-discrimination principles and protections, just and effective implementation of their promise remains a pressing challenge for Canada. EPRS | European Parliamentary Research Service Study AUTHOR This study has been written by Professor Colleen SHEPPARD, Professor of Law, Faculty of Law, McGill University, at the request of the Comparative Law Library Unit, Directorate-General for Parliamentary Research Services (DG EPRS), General Secretariat of the European Parliament. The author wishes to thank Dominique Grégoire, a student at the Faculty of Law, McGill University, for her invaluable research assistance and Derek J. Jones for his insights, comments and editorial review. EDITOR Prof Dr Ignacio DÍEZ PARRA, Head of the Comparative Law Library Unit. To contact the Unit, please send an email to: [email protected] LINGUISTIC VERSIONS Original: EN Translations: DE, ES, FR, IT This document is available on the internet at: http://www.europarl.europa.eu/thinktank DISCLAIMER Any opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. This document may be reproduced and translated for non-commercial purposes, provided that the source is acknowledged and the unit responsible is given prior notice and sent a copy ([email protected]. Manuscript completed in November 2020. Brussels © European Union, 2020. Photo credits: © promesaartstudio / Adobe Stock. PE 659.362 Print ISBN 978-92-846-7509-8 DOI:10.2861/50840 QA-03-20-813-EN-C PDF ISBN 978-92-846-7501-2 DOI:10.2861/995650 QA-03-20-813-EN-N II The principles of equality and non-discrimination Canada Table of contents List of Abbreviations ............................................................................................................ VI Executive Summary ............................................................................................................ VII I. Introduction: The Historical Emergence of Equality and Non-Discrimination Principles ......................................................................................................................... 1 I.1. Historical Denials of Equality ............................................................................................................1 I.2. Early Judicial Rulings ...........................................................................................................................3 I.2.1. Federalism and Race-based Discrimination ...............................................................3 I.2.2. The Rule of Law and Administrative Fairness ............................................................4 I.3. Post World War II Legislative and Constitutional Reforms ....................................................5 II. Current Constitutional and Legislative Provisions for Equality and Non- Discrimination................................................................................................................. 7 II.1. Constitutional Sources of Protection ............................................................................................7 II.1.1. Canadian Bill of Rights ........................................................................................................7 II.1.2. Canadian Charter of Rights and Freedoms .................................................................7 II.1.3. Aboriginal Rights ..................................................................................................................9 II.1.4. Fundamental Constitutional Principles .......................................................................9 II.2. Legislation ............................................................................................................................................ 10 II.2.1. Canada's Human Rights Codes as Anti-Discrimination Laws ............................ 10 II.2.2. Proactive Legislation to Advance Equality............................................................... 11 II.2.2.1 Employment Equity: An Example of Canadian Affirmative Action . 12 II.2.2.2 Pay Equity ............................................................................................................ 13 II.2.2.3 Disability ............................................................................................................... 13 II.2.2.4 Sexual Harassment and Violence ................................................................ 14 II.2.2.5 Anti-Racism ......................................................................................................... 15 II.2.3. Other Legislative Sources of Protection ................................................................... 16 III. Most Significant Case-Law on Equality and Non-Discrimination .............................. 18 III.1. Interpreting Discrimination in Human Rights Legislation .................................................. 18 III.1.1. Expanding the Definition of Discrimination: Direct, Indirect & Systemic ..... 18 III.1.2. Expanding the Grounds of Discrimination .............................................................. 19 III.1.3. Proving Prima Facie Discrimination ............................................................................ 21 III.2. Constitutional Interpretation: The Challenge of Substantive Equality .......................... 23 III.2.1. Recognition of the Concept of Substantive Equality: Section 15(1) ............... 23 III.2.2. Enumerated and Analogous Grounds ....................................................................... 28 III.2.3. Ameliorative Programs – Section 15(2) ..................................................................... 29 IV. The Concepts of Equality and Non-Discrimination: Limits, Complexities and Grey Areas .............................................................................................................................. 31 IV.1. Selective Insights from the Author’s Scholarship .................................................................. 31 IV.1.1. Towards Inclusive Equality ............................................................................................ 31 IV.1.2. Systemic Discrimination as Multi-Layered Concept ............................................. 32 IV.1.3. Informal Law, Legal Pluralism and Institutional Change .................................... 33 IV.1.4. Equality Law: Shifting Regulatory Approaches ...................................................... 34 IV.2. Equality versus Fundamental Freedoms .................................................................................. 35 IV.2.1. Balancing based on Reasonable Limits Clauses ..................................................... 35 IV.2.2. Accommodating Rights to Avoid Conflicts ............................................................. 37 IV.2.3. Administrative Decision-Making & the Balancing Rights ................................... 38 IV.3. Affirmative Action and Equity Programs .................................................................................. 39 III Study IV.4. Exceptions and Grounds Justifying the Non-Application of the Principles ................. 40 IV.4.1. The Canadian Charter and Reasonable Limits on Equality Rights ................... 40 IV.4.2. Statutory Defences & the Duty to Accomodate ..................................................... 41 IV.5. Grey Areas ............................................................................................................................................ 43 IV.5.1. Identifying Violations of Substantive Equality ....................................................... 43 IV.5.2. Complexity and the Group-based Categories of Anti-discrimination Law .. 44 IV.5.3. Evidentiary Challenges .................................................................................................... 45 IV.5.4. Poverty and Socio-Economic Inequalities ................................................................ 46 IV.6. Have Equality Principles Been Deliberately Wrongly Applied? ........................................ 46 V. Conclusions ..................................................................................................................
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