Section 15(1) of the Charter states that:

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.^[1]

Social rights claims are invariably linked to equality claims. An emphasis on equality rights ensures appropriate attention is paid to the situation of disadvantaged and marginalized groups – one of the key requirements of “reasonable” policies and programs in international human rights law. An equality framework is also critical to addressing the structural and systemic patterns of discrimination and exclusion that underlie the problems of homelessness and poverty.  As noted by the HUMA Committee’s Federal Poverty Reduction Plan, a human rights approach “limits the stigmatization of people living in poverty.”^[2]  By making more transparent the ways in which people living in poverty or homelessness are stigmatized and marginalized, an equality framework assists in understanding poverty and homelessness as more than simply a matter of unmet needs but also, fundamentally, as a denial of dignity and rights.   As the Senate Sub-Committee on Cities notes in its report, In from the Margins:

The Charter, while not explicitly recognizing social condition, poverty or homelessness, does guarantee equality rights, with special recognition of the remedial efforts that might be required to ensure the equality of women, visible minorities (people who are not Caucasian), persons with disabilities, and Aboriginal peoples.  As the Committee has heard, these groups are all overrepresented among the poor – in terms of both social and economic marginalization.^[3]

Substantive Equality

Substantive equality takes as its starting point equal citizenship and inclusion, rather than the notion of ‘impairment’ requiring assistance or charity.  Disability rights organizations have emphasized the importance of understanding the ‘social construction’ of disability and of rejecting the ‘medical’ model.  As Justice Binnie explained in Granovsky v Canada (Minister of Employment and Immigration):

The true focus of the s. 15(1) disability analysis is not on the impairment as such, nor even any associated functional limitations, but is on the problematic response of the state to either or both of these circumstances.  It is the state action that stigmatizes the impairment, or which attributes false or exaggerated importance to the functional limitations (if any), or which fails to take into account the “large remedial component” … that creates the legally relevant human rights dimension to what might otherwise be a straightforward biomedical condition.^[4]

To address the structural and systemic issues underlying the inequality of disadvantaged groups, it is important to consider whether unmet needs are linked to discriminatory exclusions and devaluing of the group.  This is how the Supreme Court of Canada dealt with an aerobics requirement that disproportionately disqualified women from positions as firefighters in British Columbia (Public Service Employee Relations Commission) v BCGSEU.^[5]  In Granovsky, Justice Binnie notes that the Court concluded in BCGSEU that: “[t]he ‘problem’ did not lie with the female applicant but with the state’s substitution of a male norm in place of what the appellant was entitled to, namely a fair-minded gender-neutral job analysis.”^[6]

In R v Kapp,^[7] the Court eschewed the formalism of the analytical framework laid out its earlier Law v Canada (Minister of Employment and Immigration) decision.^[8]   The Court acknowledged the criticism of the Law decision as having narrowed equality analysis to “an artificial comparator analysis focused on treating likes alike.”^[9] The Court reiterated the ideal of substantive equality as it was affirmed in the Court’s landmark judgment in Andrews v Law Society of British Columbia, which often involves treating groups differently in order to address unique needs.^[10]

In Withler v Canada (Attorney General),^[11] the Court further clarified that the equality analysis does not depend on identifying a particular comparator group, which mirrors the claimant’s characteristics.^[12] The Court explained the faults of mirror comparator group analysis, noting that it may “fail to capture substantive inequality and …. may fail to identify — and, indeed, thwart the identification of — the discrimination at which s. 15 is aimed.”^[13]

More recently, in the case of Moore[14] the Supreme Court reaffirmed its rejection of the comparator group approach, rejecting the finding of the BC Court of Appeal in that case that a refusal to provide special education to a student with particular learning disabilities can only be found to constitute discrimination by comparing the effect of the policy on other students with learning disabilities.[15]  Abella J. noted that comparing the claimant in that case only with other special needs students “would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination.” [16]  “If Jeffrey is compared only to other special needs students, full consideration cannot be given to whether he had genuine access to the education that all students in British Columbia are entitled to.”[17]

Analogous Grounds: The “Social Conditions” of Poverty and Homelessness

In Corbiere v Canada (Minister of Indian and Northern Affairs), the Supreme Court of Canada introduced the notion of “constructive immutability” linked to identity and prevailing social attitudes.^[18]  While reiterating that the analogous ground inquiry must consider the general purpose of section 15, the majority of the Court went on to suggest that analogous grounds must either be “actually immutable, like race, or constructively immutable, like religion” and that other factors to be considered in the analogous grounds analysis “may be seen to flow from the central concept of immutable or constructively immutable personal characteristics …”^[19]  The Court explained that the basis for recognizing constructively immutable characteristics as analogous grounds is that these characteristics either cannot be changed or “the government has no legitimate interest in expecting us to change to receive equal treatment under the law.”^[20] The Court concluded that the distinction between on-reserve and off-reserve residential status, at issue in Corbiere, “goes to a personal characteristic essential to a band member’s personal identity, which is no less constructively immutable than religion or citizenship.”^[21]

There are compelling reasons for recognizing that the socially constructed dimension of homelessness and poverty make these characteristics constructively immutable in the same way as off-reserve residential status was found to be constructively immutable in Corbiere.  In considering whether homelessness or poverty are analogous grounds of discrimination under section 15, a purposive approach must distinguish the economic deprivation linked to homelessness or poverty from the “social condition” or the socially constructed identities and characteristics of those who are poor or homeless which are embedded in broader historical and societal structures.  Quantifiable measures of income level, like measures of biomedical impairment connected with disability, may accurately identify needs that must be addressed.  However, as with disability, it is the social dimension of poverty or homelessness, including social relationships characterized by exclusion and stigmatization, which is linked to the patterns of discriminatory treatment and failures to recognize the groups’ unique capacities and needs.

This social dimension of poverty and homelessness has been recognized under the prohibited ground of “social condition” in Canadian human rights legislation.  All provincial and territorial human rights statutes in Canada provide protection from discrimination because of “social condition” (New Brunswick, Northwest Territories, Quebec) or a related ground such as “social origin” (Newfoundland); “source of income” (Alberta, British Columbia, Manitoba, Nova Scotia, Nunavut, and Prince Edward Island), or “receipt of public assistance” (Ontario and Saskatchewan).^[22]  These different grounds have been interpreted broadly to provide protection against discrimination on the basis of poverty, low level of income, reliance on public housing, and homelessness.^[23]

The Canadian Human Rights Act Review Panel, chaired by former Supreme Court of Canada Justice Gérard LaForest, was asked by the  federal Minister of Justice to consider this exclusion, among other issues, and found that there was “ample evidence of widespread discrimination based on characteristics related to social conditions, such as poverty, low education, homelessness and illiteracy.”^[24]  The Panel recommended “the inclusion of social condition as a prohibited ground of discrimination in all areas covered by the Act in order to provide protection from discrimination because of disadvantaged socio-economic status, including homelessness.”^[25]  The LaForest Panel’s recommendations have not been implemented.  Although strongly supported by civil society organizations and UN human rights bodies, the LaForest Panel’s recommendations have not been implemented.^[26]

The Supreme Court of Canada has yet to consider the question of whether the social conditions of homelessness and of poverty are analogous grounds under section 15.  Lower court jurisprudence on the issue is mixed.   Where courts have considered evidence of the socially constructed exclusion and devaluing of poor people and homeless people, including evidence of stereotyping and stigma, these have been recognized as analogous grounds of discrimination. ^[27]  However, in cases where the courts have focused solely on the characteristic of economic need or income level, analogous grounds claims have been rejected.  In this latter category of cases, courts have found that income level or economic circumstances can change and on that basis, that poverty does not satisfy the “immutability” requirement for analogous grounds identified by the Supreme Court in Corbiere.^[28]In some of these cases the courts have focused on income level, in relation to a generalized poverty line, and found that income level may change.  In others, the courts have considered economic activities linked to poverty and homelessness, such as “begging” or “panhandling”, and concluded that economic activity is not an immutable personal characteristic that can be protected under section15.^[29]

The denial of analogous grounds claims on the basis that people may move in and out of poverty or homelessness represents a misapplication of the concept of immutability as set out in Corbiere.  In Corbiere, the Supreme Court considered whether the status of living off-reserve constituted an analogous ground.  It concluded that this ground was immutable and qualified as analogous.^[30]  The Court did not, however, consider the question of immutability in relation to mere residency status as such, or rely on any data quantifying the frequency of movement between on-reserve and off-reserve residence.  Rather, the immutability analysis was focused on the socially constructed characteristics associated with on-reserve and off-reserve status.  The Court considered how residency status was tied to social identity and social relations, such that it may “stand as a constant marker of potential legislative discrimination” and serve as a marker for “suspect distinctions.”^[31]  The majority in Corbiere was also anxious to preserve the principle first enunciated in the Andrews decision, that the analogous grounds analysis should not be restricted to the facts of a particular case, but rather must be conducted “in the context of the place of the group in the entire social, political and legal fabric of our society.”^[32] The majority of the Court insisted that a ground found to be analogous must be considered analogous in all cases, pointing out that distinctions made on the basis of an enumerated or analogous ground will not always constitute discrimination within the meaning of section 15.^[33] The contextual analysis of the effects of a particular provision, action, or failure to act must be carried out under the second part of the section 15 analysis, in considering whether a distinction on the basis of an enumerated or analogous ground is discriminatory.^[34]

Judicial decisions predating Corbiere, which recognize poverty as an analogous ground, are not inconsistent with the focus on socially constructed identity which the majority in Corbiere relied on in developing the concept of ‘constructive immutability’.  In its decision in Dartmouth/Halifax County Regional Housing Authority v Sparks, involving a challenge to provincial residential tenancies legislation that excluded public housing tenants from “security of tenure” protections afforded to private sector tenants, the Nova Scotia Court of Appeal found that poverty and reliance on public housing constituted analogous grounds under section 15.^[35]  While acknowledging that people may move in and out of public housing, the Court recognized that social attitudes towards residency in public housing attach to personal identity in a way that attracts stigma and discriminatory treatment.  Writing for the Court, Justice Hallett noted that attitudes toward public housing tenants were linked to the over-representation of racialized households and single mothers among those living in poverty and relying on public housing.^[36]  He concluded that: “the impugned provisions amount to discrimination on the basis of race, sex and income.”^[37]  The Court of Appeal’s reasoning in the Sparks case was later applied by the Nova Scotia Supreme Court in R v Rehberg, in which the Court upheld a section 15 challenge to a “spouse in the house” rule that disentitled sole support parents, largely women, from receiving social assistance benefits if they were co-habiting with a man.  The Court found that the differential treatment of co-habitants when they rely on social assistance constituted discrimination on the ground of poverty.^[38] 

The Sparks and Rehberg decisions were cited by the Ontario Court of Appeal in Falkiner v Ontario (Ministry of Community and Social Services), which involved a similar challenge to “spouse in the house” rules in Ontario.^[39]  Justice Laskin likewise found that there was significant evidence of historical disadvantage and continuing prejudice against social assistance recipients, concluding that “recognizing receipt of social assistance as an analogous ground of discrimination under s. 15(1) would further the protection of human dignity.”^[40] Also in Ontario, in R v Clarke,^[41] Justice Ferrier considered whether, in the context of jury selection, discriminatory attitudes toward those living in poverty or who are homeless ought to be recognized as a basis for challenges to prospective jurors.  Noting the findings of the Ontario Court of Appeal in Falkiner, Justice Ferrier concluded that “there is widespread prejudice against the poor and the homeless in the widely applied characterization that the poor and homeless are dishonest and irresponsible and that they are responsible for their own plight.”^[42]  He further found that “the prejudice against the poor and homeless is similar to racial prejudice.”^[43]