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Charter - s.15 Discrimination (5). R. v. T.M.
In R. v. T.M. (Ont CA, 2025) the Ontario Court of Appeal issued supplementary reasons for allowing a Crown appeal, explaining "in greater detail why ss. 42(5)(a) ['Considerations as to youth sentence - Deferred custody and supervision order'] and 42(2)(p) ['Considerations as to youth sentence - Youth sentence'] of the YCJA do not violate ss. 7 or 15(1) of the Charter".
The court considers whether the YCJA s.42(5)(a) and 42(2)(p) violate Charter s.15 ['discrimination'], here on 'age' grounds:D. Section 42(5)(a) Respects Equality Rights
[19] The Crown submits that the sentencing judge erred in finding that s. 42(5)(a) of the YCJA violates the equality rights of young persons under s. 15(1) of the Charter. According to the Crown, the ruling failed to account for the Act’s comprehensive sentencing framework, which is designed to serve the unique needs and interests of young people. I agree. When properly understood in its full statutory context, s. 42(5)(a) does not undermine the YCJA’s remedial sentencing principles, nor does it prevent judges from avoiding the inappropriate incarceration of young persons. Rather, although the provision removes one sentencing option from consideration, it still leaves youth justice judges with a broad array of tools to impose proportionate, community-based sentences that keep young people out of custody.
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[23] Turning to the provision at issue, there is no dispute that the first step of the test is satisfied. Section 42(5)(a) draws a distinction based on age: it removes the option of deferred custody from young persons who cause or attempt to cause serious bodily harm, even though adults who commit the same conduct may still qualify for a conditional sentence under the Criminal Code.
[24] The central question, therefore, is whether this age-based distinction is discriminatory. A distinction is discriminatory when it imposes a burden or withholds a benefit in a manner that reinforces, perpetuates, or exacerbates disadvantage. In short, it must worsen the claimant group’s situation or negatively affect it. For example, a law that places individuals found not criminally responsible in a worse position than those found guilty discriminates on the basis of mental disability. By contrast, distinctions that have a neutral effect, or that leave the claimant group’s circumstances unchanged, do not meet this threshold: Sharma, at paras. 28, 52; C.P., at para. 153, per Wagner C.J.; Ontario (Attorney General) v. G., 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 67.
[25] Assessing this second step requires an examination of the broader legislative context, which is an especially important consideration in sentencing. Sentencing provisions do not operate in isolation, and there is no constitutional right to any particular sentence, save one that does not infringe s. 12 of the Charter. Rather, the full sentencing framework, including all guiding principles and available options, shapes how the challenged provision functions and how it affects the claimant group: Sharma, at paras. 56-61.
[26] It is also inappropriate to cherry-pick isolated features from fundamentally different legislative schemes or to demand point-by-point equivalence across regimes. Section 15(1) guarantees equal, not identical, treatment, and Parliament may draw age-based distinctions so long as they are not discriminatory: Sharma, at para. 58; C.P., at paras. 144, 159, per Wagner C.J. This principle is directly relevant here because the YCJA establishes a distinct and purposely different sentencing regime than that which applies to adults under the Criminal Code: I.M., at paras. 110, 171.
(2) The Sentencing Judge’s Error: Viewing s. 42(5)(a) in Isolation
[27] The sentencing judge began from the correct premise: s. 42(5)(a) would discriminate against young persons if it required youth justice courts to incarcerate them for conduct for which adults may receive a community-based sentence under the Criminal Code. Such an outcome would be harmful to young people. Custody represents a greater loss of liberty and is generally less effective at promoting rehabilitation than community-based options: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 40, 109. It can also disturb and unsettle a young person’s education and social circumstances, often aggravating their pre-existing challenges: I.M., at para. 180. As the sentencing judge observed, differential treatment that increases young people’s exposure to incarceration is inconsistent with their heightened vulnerability and reduced moral blameworthiness – considerations that the YCJA is designed to address, not aggravate. See also R. v. T.R., [2005] O.J. No. 6179 (C.J.), at para. 43.
[28] This conclusion remains sound despite the Crown’s submission that open custody is not equivalent to traditional incarceration. Even open custody is typically more onerous for young people than deferred custody. Although it is less restrictive than adult penitentiary custody and permits some supervised community contact, open custody remains imprisonment. Young persons remain confined unless granted approved leave, which can strain their family and community relationships, expose them to negative peer influences, and hinder their rehabilitation. For these reasons, open custody is generally more detrimental to youth than deferred custody: R. v. H. (M.), 1990 CarswellBC 849 (C.A.), at para. 15; R. v. B.D. (1986), 1986 CanLII 4622 (ON CA), 24 C.C.C. (3d) 187 (Ont. C.A.), at pp. 190-91; R. v. C. (K.L.) (2004), 2004 SKPC 98 (CanLII), 252 Sask. R. 254 (Prov. Ct.), at para. 44; R. v. G. (H.W.), 2003 SKPC 122, 236 Sask. R. 209, at para. 53; Justice Brock Jones et al., Prosecuting and Defending Youth Criminal Justice Cases, 3rd ed. (Toronto: Emond, 2024), at p. 288.
[29] However, the sentencing judge erred by examining s. 42(5)(a) in isolation from the YCJA’s broader statutory framework. The Act is designed to ensure that custody is used only as a last resort and that accountability is achieved, whenever appropriate, through a wide range of non-custodial and community-based measures. By failing to consider this context, the sentencing judge incorrectly concluded that s. 42(5)(a) displaced key sentencing principles and forced youth court judges to impose custody where non-custodial options remained available.
[30] When the YCJA’s full remedial framework is properly taken into account, the opposite is true. As Justice Katherine McLeod has explained, the mere unavailability of deferred custody “does not mean that a youth must go to jail.” Instead, the YCJA provides judges with ample tools to craft community-based sentences where appropriate: “the tools are within the Act to structure a sentence that does not necessarily entail a loss of liberty … if a sentencing judge believes a youth can and should serve a sentence in the community, that option is available”: R. v. Z. (M.), 2005 CarswellOnt 8447 (C.J.), at paras. 48, 51.
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(7) No Discriminatory Impact Proven
[95] When the YCJA’s comprehensive sentencing framework is properly applied, it becomes clear that s. 42(5)(a) does not place young persons at a disadvantage relative to adults. The YCJA offers a wide range of dispositions and preserves substantial judicial discretion. Judges retain numerous non-custodial options capable of serving the same functional purposes as conditional sentences under the Criminal Code – including robust probation orders, which met this need long before deferred custody was ever introduced. Because s. 42(5)(a) does not render youth worse off than adults, s. 15(1) of the Charter does not demand a line-by-line correspondence between the YCJA and the Criminal Code, nor does it entitle the respondent to extract the most favourable elements from the adult regime while retaining the distinctive advantages of the youth sentencing system.
[96] The result in this case – namely, that a non-custodial sentence was appropriate – illustrates the point. At sentencing, the respondent, who had no prior record, demonstrated genuine progress toward rehabilitation and reintegration through community-based programs, volunteer work, and educational pursuits. A custodial sentence would have significantly disrupted that progress. Such a consequence would not have been constructive and would have undermined, rather than advanced, the respondent’s rehabilitation. This would have frustrated the overriding goal in first offence cases – to protect society and advance the young person’s best interests by making every effort to ensure that the first offence is also the last.
[97] Although accountability also requires proportionality, the YCJA did not require resort to deferred custody to craft a proportionate sanction in this case. In the adult system, judges often prefer conditional sentences to probation to achieve proportionality because the Criminal Code restricts the imposition of punitive probation conditions. Under the YCJA, by contrast, equally robust probation conditions are expressly authorized and could have been imposed here if necessary. Additional proportional consequences – such as a driving prohibition or community service – were also available. In any event, individual deterrence and public protection were not pressing concerns, given that the offence was out of character and the respondent demonstrated genuine remorse and rehabilitation.
[98] Even if s. 42(5)(a) had not been applicable, s. 39(2) would have precluded a custodial disposition in this case. By overlooking the breadth of the YCJA’s non-custodial tools and presuming that deferred custody was the only meaningful alternative to incarceration, both the parties and the sentencing judge expanded the reach of youth custody beyond Parliament’s intent. This approach exposed the respondent to an unnecessary risk of immediate incarceration – a consequence that would have been neither constructive nor conducive to rehabilitation, that risked exacerbating his vulnerabilities, and that would have frustrated the policy of avoiding imprisonment for first offences whenever possible: I.M., at paras. 179-80.
[99] While individual deterrence and short-term public protection may be more salient in other cases, incarceration is not the inevitable response. Youth justice courts can use non-custodial alternatives to achieve these objectives by imposing proportionate and constructive consequences, ensuring adequate supervision, and insulating young persons from negative influences – just as they did for decades before deferred custody emerged. As well, certain options – such as intensive support and supervision and non-residential programs – are available only to youth and may offer stronger deterrent effects than custody, which, as the late former Chief Justice McMurtry observed, frequently fails to deter young offenders and may instead exacerbate their vulnerabilities. These programs compensate for the unavailability of deferred custody under s. 42(5)(a), ensuring that youth are not treated more harshly than adults: J.S.M., at para. 38; Z. (M.), at paras. 44-46; D.B., at para. 64; I.M., at paras. 179-80; Tuck-Jackson, at pp. 327-328; McMurtry & Curling, at p. 277.
[100] Moreover, actual incarceration is not automatically required even where it may appear to offer greater individual deterrence or short-term public protection. As I.M. emphasized, the YCJA subordinates individual deterrence to proportionality and prioritizes rehabilitation and restraint over denunciation and deterrence: at para. 176. Denunciation and individual deterrence are discretionary objectives. While public safety is vital, the YCJA furthers long-term protection through individualized dispositions that address the causes of offending, promote rehabilitation and reintegration, and impose proportionate and constructive consequences: B.W.P., at para. 31. Judges therefore retain discretion to impose non-custodial sentences when their rehabilitative and long-term protective benefits outweigh the marginal additional deterrence offered by incarceration: Okemow, at paras. 43-44, 57; P.R., at paras. 62, 66, 74-76, 79, 99. This may often be the case for young people without a prior record, where the cardinal policy is to ensure that their first offence remains their last: M.F., at paras. 25-26; K.(E.P.), at paras. 3-4.
[101] For example, in this case, permitting T.M. to remain with his family and within his community best promotes long-term public safety. The record demonstrates that this environment is optimal for supervising his behaviour and fostering his rehabilitation and reintegration following his first offence, including within his Indigenous community. Incarceration would jeopardize that progress by separating him from positive supports and potentially exposing him to negative peers, thus frustrating the overriding policy to make every effort to ensure that his first offence is also his last: G. (H.W.), at para. 53; I.M., at paras. 179-80. Even deferred custody would “unnecessarily limit[]” his family’s supervisory role and increase the risk of harsher sanctions for minor future lapses: R. v. T.D.P., 2004 SKPC 57, 250 Sask. R. 3, at para. 54. Any additional deterrence these stricter options might offer is unnecessary, given T.M.’s low risk of reoffending.
[102] The sentencing judge erred in assuming that, if deferred custody would have been preferable to other non-custodial dispositions, then actual custody must be the next-best option. That is not how the YCJA operates. Non-custodial options are not evaluated in isolation. Rather, as explained earlier, s. 39(2) requires a contextual analysis comparing available custodial and non-custodial dispositions and assessing how each aligns with the statute’s sentencing principles. Thus, a judge may still properly conclude that non-custodial options are preferable to actual custody, even if deferred custody would have been ideal.
[103] Finally, s. 38(2)(a) reinforces the constitutionality of this approach by requiring that young persons not be punished more harshly than adults who committed the same offence in similar circumstances. This mandatory principle required the sentencing judge to impose a non-custodial disposition if a similarly situated adult would have received a conditional sentence. Together with the YCJA’s broader sentencing framework, this safeguard ensures that s. 42(5)(a) does not produce discriminatory outcomes: D.B., at para. 43; R. v. F. (E.), 2007 ONCJ 113, 157 C.R.R. (2d) 189, at paras. 116, 159; J.S.M., at para. 37; R. v. A.T., 2004 ABPC 91, 362 A.R. 157, at paras. 67, 72.
E. Section 42(2)(p) Respects Equality Rights
[104] The sentencing judge also held that s. 42(2)(p) of the YCJA – which limits deferred custody orders to six months – violates s. 15(1) of the Charter. She reasoned that the provision creates a discriminatory, age-based distinction because youth are restricted to six months of community custody, while adults may receive conditional sentences of up to two years less a day. In her view, this shorter limit prevents youth court judges from using longer periods of community custody to avoid imposing actual incarceration.
[105] This conclusion is incorrect. The six-month cap in s. 42(2)(p) does not create a discriminatory age-based distinction; rather, it is a contextual sentencing limit that reflects the YCJA’s distinct framework and its protective orientation. In the adult regime, maximum custodial sentences are often far higher than both the maximum conditional sentence and the YCJA’s custodial ceilings. Dangerous driving causing death – the respondent’s offence – carries a maximum adult sentence of life imprisonment, whereas the maximum youth custodial sentence would ordinarily be two or three years. The six-month limit on deferred custody mirrors this structural difference. Like the adult scheme, the YCJA ensures that community-based custody remains shorter than actual custody, consistent with the statute’s emphasis on restraint and proportionality: T.R., at paras. 49–51; J.S.M., at para. 36.
[106] Moreover, s. 42(2)(p) does not unduly constrain judicial discretion because deferred custody may be combined with longer non-custodial dispositions. If a judge concludes that six months of deferred custody alone is insufficient to fulfill the objectives of sentencing, they may follow it with probation or impose an intensive support and supervision order, neither of which is subject to a six-month cap: J.S.M., at para. 40; J.H.-D., at paras. 20-21, 26-37.
[107] The six-month limit also serves important protective purposes tailored to the needs and vulnerabilities of young persons. It prevents “net-widening” by ensuring that youth are not subjected to extended periods during which a breach can result in immediate incarceration. Prolonged exposure to such conditions can be particularly harmful for young people, who experience time differently and feel more acutely the pressures of the justice system: C.P., at paras. 149, 161, per Wagner C.J.; S.J.L., at para. 64. A longer deferred custody period, such as two years, could lead to disproportionately severe consequences, heighten vulnerability, and increase the risk of deeper entrenchment in the justice system: I.M., at paras. 179-80.
[108] By declining to apply s. 42(2)(p), the sentencing judge expanded the reach of custody beyond Parliament’s intention. Her approach would have required the respondent to live under the threat of immediate incarceration for nearly two years, an extraordinarily long period in the life of a young person, instead of the six months prescribed by the YCJA, followed by probation. This reasoning failed to account for the respondent’s developmental needs as a young person and his particular vulnerability to the criminal justice system involvement, especially, as a racialized and Indigenous young person: S.J.L., at para. 64; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 90. . Richard v. Canada (Attorney General)
In Richard v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown appeal, here brought against a motion judge's certification of a class proceeding where "the Canada Border Services Agency (“CBSA”) placed some immigration detainees ... in provincial prisons instead of Immigration Holding Centers (“IHCs”)".
Here the court considered immigration 'detention' under Charter 15 ['discrimination'], this in a class proceeding certification context:[32] Although Canada’s argument that there is no basis for a discrimination claim rooted in non-citizenship is more persuasive than others it has presented on appeal, it must still fail.
[33] The motion judge’s findings, set out at paras. 235-55 of his reasons, are entitled to deference. The motion judge held that the facts pleaded could support the claim that exposing non-citizens to the carceral system without criminal charge has the effect of reinforcing, perpetuating, and exacerbating the disadvantages and vulnerabilities associated with being a non-citizen. I see no error in the motion judge’s analysis. He accurately cited, and properly applied, the “plain and obvious” test and arrived at a conclusion that was available to him. As the motion judge noted, the s. 15 claim here is not about who may be deported from Canada – it is clear that, per s. 6 of the Charter, only Canadian citizens have the unfettered right to enter, remain in and leave Canada – it is about who may be detained in prison. The respondents argue that the CBSA’s practice exposes non-citizens to incarceration in prison for purely administrative reasons, whereas citizens can only be incarcerated under our criminal law.
[34] The appellant has not directed us to any case law that stands for the proposition that immigration and detention practices are immunized from equality claims. The appellant refers to Charkaoui to argue that it is not discriminatory to establish a detention and deportation scheme that applies to non-citizens. The Supreme Court said the following in Charkaoui at para. 129:The appellant Mr. Charkaoui argues that the IRPA certificate scheme discriminates against non‑citizens, contrary to s. 15(1) of the Charter. However, s. 6 of the Charter specifically allows for differential treatment of citizens and non‑citizens in deportation matters: only citizens are accorded the right to enter, remain in and leave Canada (s. 6(1)). A deportation scheme that applies to non‑citizens, but not to citizens, does not, for that reason alone, violate s. 15 of the Charter: Chiarelli. [Emphasis added.] [35] The emphasized passage above implies that non-citizens may challenge differential treatment under s. 15 if they can show that a harmful aspect of the detention and deportation scheme goes beyond simply defining who may enter or stay in Canada.
[36] In Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, the Supreme Court dismissed the appellant’s s. 15 claim because Canada was free to establish a deportation scheme that applied to non-citizens, finding at p. 22 that “deportation is not imposed as a punishment.” However, the court in Charkaoui, a decision released many years later, expressly contemplated, at para. 130, that a s. 15 claim on citizenship grounds may succeed where “detention is no longer related, in effect or purpose, to the goal of deportation.”
[37] It is open to the respondents in this case to argue that the punitive effects of detention in a provincial prison signal that the impugned practice has become detached from its administrative purpose such that a s. 15 claim is available. The Supreme Court recognized citizenship as an analogous ground in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, and explained at p. 3 that “non-citizens are a group lacking in political power and as such are vulnerable to having their interests overlooked and their rights to equal concern and respect violated.” The motion judge in this case acknowledged that the proposed class members were acutely vulnerable and faced “language barriers, cultural differences, lack of familiarity with Canadian culture, unfamiliarity with Canadian laws, lack of resources, a lack of official travel documentation, and mental health issues”.
[38] Canada does not argue that certification of a s. 15 claim in the immigration context would be to recognize a novel cause of action or amount to a “giant step” or even an “incremental change” in the law as this court grappled with in Owsianik v. Equifax Canada Co., 2022 ONCA 813, 164 O.R. (3d) 497, leave to appeal refused, [2023] S.C.C.A. No. 33, at paras. 62-63. . Canada (Attorney General) v. Dominique
In Canada (Attorney General) v. Dominique (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here from a Federal Court ruling that "dismissed the Attorney General’s application for judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal)", that regarding "the funding of the operating costs for the self‑administered police service that the First Nation chose to establish in 1996 in connection with the First Nations Policing Policy (the Policy) implemented by the federal government ...".
Here the court considers the two-step Charter s.15 doctrine set out in Sharma, in the context of the three-step HRC discrimination doctrine set out in Moore:[58] First, it should be noted that the Attorney General does not take issue with the general two-step analytical approach required to examine a discrimination complaint filed under the Act (Memorandum of the Attorney General at para. 62). The first step places the onus on the complainant to show — on a prima facie basis, or on the face of it—that he or she was the victim of a discriminatory practice. It is at this stage that the three-part Moore test comes into play (Memorandum of the Attorney General at para. 63), reiterated in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc., 2015 SCC 39 at paragraphs 34 to 37 (Bombardier) and more recently in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at paragraph 24—see, in the specific context of the Act, Canada (Attorney General) v. Johnstone, 2014 FCA 110 at paragraph 76 (Johnstone). As the Attorney General correctly points out, at this stage of the analysis, the Tribunal should consider all of the evidence submitted to it, including the evidence adduced by the party against whom the complaint is directed (Memorandum of the Attorney General at para. 64).
[59] Once this first step has been successfully completed, it is up to the party against whom the complaint is brought—in this case, the Government of Canada—to justify its conduct on the basis of exemptions provided for in the Act. If it fails, the complaint will have been successfully established (Memorandum of the Attorney General at para. 65). . Aracil-Morin v. Enoch Cree Nation
In Aracil-Morin v. Enoch Cree Nation (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, this from a JR dismissal, that from "two membership appeal decisions made by the Chief and Council of Enoch Cree Nation (ECN)".
Here the court considers a Charter s.15 ['discrimination'] issue:III. Alleged breach of subsection 15(1) of the Charter
[24] The Federal Court made no error in identifying and applying the two-part test applicable to a section 15 challenge established by the Supreme Court in Sharma at paragraph 28: A claimant must establish that the impugned law "“(a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage”" [Citations omitted].
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[29] Although the evidentiary burden at the second step of the Sharma test is not unduly demanding, the appellants are required to provide evidence that demonstrates the adverse impacts or effects on them of their exclusion from ECN membership (Sharma at para. 52). Such impacts or harm may include economic exclusion or disadvantage, social or political exclusion, and psychological or physical harms: Sharma at para. 52, citing Fraser v. Canada (Attorney General), 2020 SCC 28 at para. 76. . Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court considers the Charter s.15 ['discrimination'] challenge to this testing:[33] Finally, the Application Judge rejected the appellants’ section 15 claim on the basis that the first prong of the section 15 test was not met. In particular, he found that the appellants had failed to establish that the Impugned requirements create a distinction or have a disproportionate impact based on an enumerated or analogous ground of discrimination, which is the first prong of the test applicable to a section 15 analysis (Decision at para. 170, citing R. v. Sharma, 2022 SCC 39 at para. 28 (Sharma)). In this respect, the Application Judge noted that the Impugned requirements only applies to a category of workers at nuclear facilities and opined that these workers do not form a "“protected group”" for the purposes of section 15. He further noted that the appellants had adduced no evidence to show that the Impugned requirements may result in a situation where safety-critical workers affected by a drug or alcohol dependency are members of a disadvantaged group or may experience a disadvantage (Decision at para. 172).
[34] The Application Judge emphasized that an analogous ground of discrimination under section 15 cannot be found without compelling reasons based on personal characteristics that are either immutable or constructively immutable. He noted in this respect that the Supreme Court of Canada, in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74 (Malmo-Levine), had rejected attempts to recognize "“occupational status”" or "“substance orientation”" as analogous grounds of discrimination under section 15 (Decision at paras. 173–79).
[35] The Application Judge also indicated that had a full section 15 analysis been conducted, the second prong of the section 15 test, which requires a demonstration that the Impugned requirements have the effect of reinforcing, perpetuating or exacerbating a disadvantage would not have been satisfied (Decision at paras. 170, 180). In this respect, the Application Judge noted a "“few deficiencies”" in the appellants’ arguments, such as the lack of evidence, statistical or otherwise, supporting the claim that a disproportionate number of safety-critical workers have drug or alcohol dependencies and would be affected by the Impugned requirements. He also found that the appellants had failed to explain how the Impugned requirements would result in an arbitrary disadvantage for safety-critical workers with drug or alcohol dependencies (Decision at paras. 181–82).
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(3) Section 15
[159] Section 15 guarantees to every individual equality before and under the law as well as equal protection and benefit of the law without discrimination. A section 15 claim is made out if the claimant demonstrates that the impugned law or state action: (i) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (ii) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage (Sharma at para. 28). The impact at stage 1 of the analysis must be "“disproportionate”" as "“[a]ll laws are expected to impact individuals”" (Sharma at para. 40).
[160] The Application Judge concluded that the appellants’ claim failed at the first prong of the test. The appellants contend that the Application Judge erred in concluding as he did: (i) by focussing on the safety-critical workers’ job category at nuclear facilities, instead of drug dependency as a category of disability, one of section 15’s enumerated grounds of discrimination; (ii) by holding, without conducting a human rights analysis, that persons who have a drug dependency are not persons with a disability for the purposes of section 15; and (iii) by refusing to recognize the possibility of discrimination by conflating "“substance orientation”" with "“drug dependency”".
[161] These contentions are unpersuasive. The fact the Application Judge focussed on the safety-critical workers’ job category was certainly consistent with the first prong of the section 15 analysis which requires demonstration that the impugned state action creates a distinction based on enumerated or analogous grounds, on its face or in its impact. Here, on its face, the Impugned requirements creates a distinction based on job category. The record is clear in this respect: safety-critical workers are targeted because they hold safety-critical positions in a highly regulated, safety-first, work environment that presents unique risks of causing damages of catastrophic proportions to the public and the environment. As is well settled, a distinction between job categories is not a distinction based on an enumerated or analogous ground of discrimination for the purposes of section 15 (Baier v. Alberta, 2007 SCC 31 (CanLII), [2007] 2 S.C.R. 673 at paras. 65−66, quoting from Delisle v. Canada (Attorney General), 1999 CanLII 649 (SCC), [1999] 2 S.C.R. 989 at para. 44). There are no errors here.
[162] The question then becomes whether the impugned requirements create a distinction based on an enumerated or analogous ground due to their alleged impacts on workers suffering from drug dependency. The Application Judge did consider, but rejected, that "“drug dependency”" could possibly be a potential ground of discrimination thereby engaging the second prong of the section 15 analysis (Decision at para. 172).
[163] What is key, in my view, to the Application Judge’s finding in that regard is not so much his reluctance to apply a human rights analysis to this question, as he was urged to do by the appellants, but the fact that the appellants "“have not brought any evidence to support that there are drug dependencies amongst [s]afety-[c]ritical [w]orkers.”" (Decision at paras. 172, 175). In particular, there is no evidence on record "“statistical or otherwise […], about the demographic make-up of [s]afety-critical [w]orkers, to support [the appellants’] claim that a disproportionate number of these Workers have drug dependencies and would be affected by the impugned provisions of the [RD2.2.4].”" (Decision at para. 181).
[164] As I noted in the section 8 analysis of these Reasons, one important – if not, the most important – feature of the appellants’ claim that the Impugned requirements amount to an unreasonable seizure is the fact that there is no evidence on record of impairment problems at nuclear sites. Again, this fact is not disputed.
[165] As stated in Sharma, to succeed on that point, the appellants needed to present sufficient evidence to prove the Impugned requirements "“in [their] impact, create[] or contribute[] to a disproportionate impact on the basis of a protected ground.”" (Sharma at para. 42) (italicized in original). This burden required comparison between the appellants’ alleged protected group and other groups (Sharma at para. 50), notably, here, non-substance dependent workers at Canada’s nuclear facilities. As correctly noted by the Application Judge, there is no such evidence in this case whereas this evidentiary burden had to be fulfilled by the appellants (Sharma at para. 50).
[166] We are therefore left to speculate that there might be a protected group of safety-critical workers suffering from a drug or alcohol dependency and as to what would be the impact of the Impugned requirements on them compared to the impact on other groups, especially given that none of these workers have been impacted so far by these requirements as a result of the Stay Orders.
[167] Although for slightly different reasons, I agree with the Application Judge that the appellants’ section 15 claim must be rejected at the first step of the analysis. Therefore, there is no need to consider whether an analogy can be drawn between "“substance orientation”" on the one hand (which was rejected as an analogous protected ground in Malmo-Levine; and "“drug dependency”" on the other, as analogous grounds of discrimination for the purposes of section 15.
[168] But even accepting that "“drug dependency”" is an analogous ground of discrimination, I agree with the Application Judge that the appellants have failed to demonstrate that the Impugned requirements impose "“burdens or den[y] benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the group’s disadvantage.”" (Sharma at para. 51). Put differently, the appellants have failed to show that the Impugned requirements are discriminatory in a substantive sense, that is, that they are arbitrary, prejudicial or stereotyping. . Mitanidis v. Ontario (Transportation)
In Mitanidis v. Ontario (Transportation) (Div Court, 2024) the Divisional Court briefly resolves a Charter s.15 ['equality rights'] argument, here regarding a driver's license suspension:[20] .... To establish that equality rights under s. 15 of the Charter are infringed, Mr. Mitanidis must show that the decision creates a distinction based on an enumerated or analogous ground on its face or in its impact. And secondly, that this imposes a burden or denies a benefit in a manner that reinforces or perpetuates disadvantage. He has met neither step. The evidence in this case indicates that the Minister received information that Mr. Mitanidis’ driving privilege should be reviewed for medical reasons. The Minister’s decision to request a medical examination was made on the basis of the police officer’s observation after a traffic stop. In these circumstances, the Minister’s request for further information in the form of a medical examination was entirely consistent with the highway safety purposes of the Act and was not discrimination within the meaning of s. 15 of the Charter. . Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court considers the Charter s.15 'discrimination' protection:[10] As for ss. 2(b) and 15 of the Charter, we agree with the application judge that the TGEWA does not infringe the appellants’ free expression and equality rights. The Act does not suppress expression, directly or in its impact. Nor does the Act draw an adverse distinction cognizable under s. 15(1). The TGEWA attributes responsibility to the Sri Lankan state at the time of the civil war, not Sinhala-Buddhists, for what it deems a “Tamil genocide”. Anyone who cites the TGEWA to marginalize Sinhalese Ontarians, as perpetrators or supporters of the “Tamil Genocide” or otherwise, does so in error.
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(3) The Right to Equality
i. General Principles and the Reasons Below
[153] Section 15(1) of the Charter states:Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. [154] To establish a breach of s. 15(1), a claimant must demonstrate that the impugned law or state action:i. Creates a distinction based on enumerated or analogous grounds, either on its face or in its impact; and
ii. Imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.
R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 28. [155] The application judge held that the appellants’ s. 15(1) claims failed at both stages. She rejected the appellants’ submission that the TGEWA drew a racial distinction against Sinhala-Buddhists by accusing them of having collectively committed a genocide. At most, the Act lays blame on the Sri Lankan state by identifying it as the perpetrator of a genocide. A claim that a state is responsible for a genocide does not tar everyone who shares the same nationality, ethnicity or religious affiliation as those comprising the majority of the state.
[156] The application judge further found that the TGEWA had no discriminatory impact. The focus of the appellants’ challenge was on the assertions in the preamble of the Act. But the preamble creates no rights or liabilities that could amount to legal benefits or detriments that disfavour Sinhala-Buddhists. Moreover, the operative provisions of the TGEWA declaring a commemorative week are purely symbolic.
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iii. Analysis
[162] We dismiss this ground of appeal.
[163] We reject Mr. Hewage’s submission that the TGEWA draws an express racial distinction against Sinhala-Buddhists. The impugned portions of the TGEWA’s preamble state that the Sri Lankan government’s allegedly genocidal policies were “Sinhala-Buddhist centric”, not that Sinhala-Buddhists are, as a racial group, collectively responsible for them. Likewise, claiming that the Sri Lankan state “orchestrated” a genocide does not imply that Sinhala-Buddhists are collectively responsible for “executing” the alleged genocide.
[164] Additionally, we agree with the application judge that the TGEWA has no discriminatory impact. The focus of Mr. Hewage’s claim – the Act’s preamble – creates no rights or liabilities to the legal detriment of Sinhala-Buddhists. Further, the Act’s operative provisions are purely symbolic. They merely encourage public reflection on a conflict for which the Act holds the Sri Lankan state – not Sinhala-Buddhists as a racial group – responsible.
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