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Cannot be reduced to historical disadvantage
- Brown and Rowe emphasized that to establish substantive discrimination, there always must be an element of arbitrariness or unfairness in the s. 15 (1) analysis. Discriminatory purpose is not required to establish substantive discrimination. However, they stated that substantive discrimination cannot be reduced to historical disadvantage.
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Substantive discrimination cannot be reduced to historical disadvantage. In some circumstances, laws can maintain significant disadvantage while treating individuals equally and without discrimination.
- 2004 SCC 65
Claims of discrimination under s. 15(1) of the Canadian...
- 1997 Canlii 366
Before a violation of s. 15 can be found, the claimant must...
- 2004 SCC 65
Oct 19, 2020 · Discriminatory purpose is not required to establish substantive discrimination. However, they stated that substantive discrimination cannot be reduced to historical disadvantage. The dissenting judges found that the evidence did not suggest that the lines drawn were inappropriate, in context.
Mar 4, 2011 · The Attorney General of Canada submits that there is no evidence that the age-based distinction set out in the Reduction Provisions perpetuates historical disadvantage, prejudice or stereotyping. The supplementary death benefit is, in its view, merely one component of a suite of benefits.
Sep 11, 2013 · Section 15 of the Canadian Charter of Rights and Freedoms sets out the right to equal protection and equal benefit of the law without discrimination. The Supreme Court of Canada (the Court) has consistently interpreted this right as protecting substantive equality.
Nov 9, 2020 · Justice Abella also made it clear that the focus of the discrimination analysis at step 2 should be on groups that have faced historical disadvantage and whether the impugned law reinforces, perpetuates, or exacerbates that disadvantage (at paras 77, 81).
- Jennifer Koshan
Mar 30, 2021 · The dissenting justices maintained that arbitrariness or unfairness must be proven to establish substantive discrimination and found that historical disadvantage alone is insufficient to satisfy the second stage (Fraser at paras 190-95).
Thus, deciding whether a group is protected by section 15 involves “a search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political or social prejudice.”
