Articles of Interest - Some equality arguments equal than others

by Josh Brull, Legal Counsel
July 2011

The RCMP External Review Committee (ERC) periodically reviews grievances in which RCMP members assert, in whole or in part, that the Force violated their Equality Rights under the Canadian Charter of Rights and Freedoms. Perhaps because this area of the law has become so complex and unwieldy, those assertions are not often well formed or supported. As a result, they can create confusion, and add little to a case.

This may lead to quandaries for all of the parties involved in the grievance process. Specifically, grievors who allegedly suffer discrimination under the Charter will be disappointed. Respondents who are compelled to reply to such allegations of discrimination will be confounded. In turn, the ERC will frequently be restricted in its ability to carry out fully informed analyses of Charter claims.

This article aims to very briefly address the basic issues surrounding the presentation and consideration of Charter-related equality arguments, at the ERC. To begin, it reviews subsection 15(1) of the Charter. It then explains what a grievor must do to enable the ERC to properly assess arguments based on that provision. Lastly, it sets out the test which has to be met in order to establish, or respond to, a claim under that provision. The following discussion will hopefully be of assistance to members who advance positions concerning discrimination under the Charter.

Section 15 of the Charter is entitled "Equality Rights". Subsection 15(1) declares that every individual is equal before and under the law. It also provides that every individual has the right to the equal protection and benefit of the law without discrimination, and in particular, without discrimination based on nine "enumerated" grounds. Those grounds include one's race, national origin, ethnic origin, colour, religion, sex, age, physical disability, and mental disability.

It is important to observe that the above-noted grounds of discrimination are not exhaustive. The Supreme Court of Canada has made it clear that subsection 15(1) also protects what are referred to as "analogous" grounds (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143).

An analogous ground may be described as a ground based on a personal characteristic which is unchangeable, or changeable only at an unacceptable cost to one's personal identity (Corbiere v. Canada, [1999] 2 S.C.R. 203). A number of analogous grounds have been identified, including:

• sexual orientation (Egan v. Canada, [1995] 2 S.C.R. 513);
• marital status (Miron v. Trudel, [1995] 2 S.C.R. 418);
• off-reserve band-member status (Corbiere); and,
• citizenship (Lavoie v. Canada, [2002] 1 S.C.R. 769).

As societal norms continue to evolve, new analogous grounds will likely evolve with them.

Grievances involving an interpretation and application of the Charter are referable to the ERC. However, the ERC cannot review a subsection 15(1) claim that is without foundation, or "bald".

The ERC faced this situation in G-414. The grievor in that case urged that the way in which the Force handled his grievance constituted a breach of his Equality Rights under subsection 15(1) of the Charter. Yet he did not specify the ground upon which he allegedly suffered discrimination.

The ERC considered its ability to evaluate his position. It did that, in part, by reviewing the Supreme Court of Canada's decision in Mackay v. Manitoba, [1989] 2. S.C.R. 357. In Mackay, the Court held that the presentation of facts is essential to a proper consideration of Charter issues. The Chair of the ERC found that she could not address the Grievor's Charter claim, on that basis:

The RCMP Commissioner agreed that the Grievor failed to support his position that the purported mishandling of his grievance was caused by inequitable treatment.

In short, the ERC will be able to assess a subsection 15(1) claim only where a ground of discrimination is both identified, and supported with at least some evidence and argumentation.

Even when a person is absolutely convinced that his or her Equality Rights under the Charter were breached, it can be quite difficult to put into words how and why this was so. It is therefore vitally important, as a first step in this process, to think about what really needs to be proven or refuted.

Recently, in Withler v. Canada (Attorney General), 2011 SCC 12, the Supreme Court of Canada affirmed the two-prong test for evaluating a claim under subsection 15(1). The test is instructive, as it offers a road map for establishing, or responding to, a claim regarding an alleged breach of that provision. It may be stated as follows:

1. does an authority, or the application of an authority, create a distinction based on an enumerated or analogous ground of discrimination under subsection 15(1); and
2. does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

The word "authority" denotes government statutes, regulations, policies, directives, and actions.

To satisfy the first part of the test, a grievor must demonstrate that he or she has been denied a benefit that others are granted, or carries a burden that others do not, by reason of a personal characteristic that falls within an enumerated or analogous ground of subsection 15(1).

To satisfy the second part of the test, a grievor must show that the authority in question (or the application of that authority) creates a genuine inequality by causing a disadvantage or prejudice, or by stereotyping in a way that does not correspond to actual characteristics or circumstances.

If the parties to a grievance involving subsection 15(1) thoughtfully address this test in their submissions, then the ERC will be better able to carry out a complete review of the matter.

Navigating one's way through Charter jurisprudence can be an onerous and perplexing exercise for legal experts and grievors alike. Members on either side of a grievance involving a purported violation of subsection 15(1) of the Charter should therefore consider speaking with a Staff Relations Representative and/or a lawyer before finalizing arguments related to that provision.

If they cannot do so, then it would be beneficial for them to:

• closely review the provision in order to identify the relevant ground of discrimination;
• provide evidence and arguments in support of their positions; and,
• use the above-noted test as a road map for establishing, or replying to, the claim.

Taking these steps will not guarantee success. However, it will create a more comprehensive record to equip the ERC to make findings and recommendations which are fair and well informed.