Understanding Section 15 of Canadian Charter of Rights and Freedom

Running head: CRIMINAL LAW
CRIMINAL LAW
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Introduction
The purpose and the aim of this paper is the understanding of the two decisions on the
basis of section 15(1) of Canadian Charter of Rights and Freedom and also to compare,
contrast and analyse two of the particular Canadian Supreme Court case laws in relation to this
section. Section 15 of Canadian Charter of Rights and Freedom precisely states about the
equality rights, it specifically states that each and every individual needs to be treated equally by
the law along with that each and every individual has the right of equal protection of law and
equal benefits provided by law without any discrimination to race, nationality or ethnicity, origin
colour, sex, age, religion, or physical and mental disability. Sub-section(1) of Section 15 of the
Canadian Charter of Rights and Freedom precisely talks about the law, programme or activity
which has the object of condition amelioration of the individuals with disadvantages or groups of
individuals with disadvantages which includes disadvantages due to race, nationality or ethnicity,
origin colour, sex, age, religion, or physical and mental disability. Therefore this section has a
supreme importance in the Canadian law. The case laws which relates to this section are R v
Kapp 2008 SSC 41 and Andrew v Law society of British Columbia 1989. Both the case laws
relates to the Section 15 Canadian Charter of Rights and Freedom. In the R v Kapp case the
subject matter relates to the license of communal fishing and in the Andrews v Law society of
British case the dispute matter was related to the violation of right to liberty and equality.
Case laws
The case of R v Kapp, 2008 SCC 41 is a Canadian Supreme Court case dealing with an
appeal of the British Columbia Appellate Court where it has been held that the license of

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communal fishing which was granted to the aboriginals do not constitute the violation of Section
15 of the Canadian Charter of Rights and Freedoms. The appeal was dismissed by the
Canadian Supreme Court based on the fact that an analogous or enumerated ground in a program
of the Government would not constitute any kind of discrimination as accordance to Section 15
of the Canadian Charter of Rights and Freedom, unless, the purpose of the program was
remedial or ameliorative and it targets the disadvantaged groups as identified by the grounds of
analogous or enumerated. It has been found by the court that the prima facie discrimination has
been allowed as because it aimed for the improvement of the disadvantaged group’s situation in
accordance to Section 15(2) of the Charter. This decision has the similarity with the difficulty
found in Law v Canada 1 SCR 497 case which tried to employ the human dignity as the test of
law. There cannot arise a doubt regarding the essential value of the human dignity underlying in
Section 15 of the Charter, but it is considered as an abstract and a subjective notion which even
with the four factor guidelines drawn in the Law is confusing in application and it has been
proved to be the additional burden to the claimants of equality. The law has been interpreted
again to avoid the imposition of the new and distinctive tests for discrimination; rather it affirms
the substantive equality approach that was set out in Andrew V Law Society of British
Columbia [1989] 1 SCR 143 which is considered to be the first case of the Canadian Supreme
Court dealing with Section 15 of the Charter.
In the Andrews v Law society of British Colombia [1989] 1 SCR 143 case the court
outlined a test, which is known as the Andrews test to which determines the violation of the
rights of equality. Application of section 15 of the Charter has been expanded in this case with
addition of similar grounds of discrimination as to the extended enumerated ground.