What is the proper analytical framework to apply where a violation of s. 15 of the Charter is alleged?

British Columbia, Canada


The following excerpt is from Sowa v. Canada (National Parole Board), 2000 BCCA 558 (CanLII):

The proper analytical framework to apply where a violation of s. 15 of the Charter is alleged is set out in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, at para. 88. In evaluating a claim of discrimination under s. 15(1) a court should make three broad inquiries: (A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and (C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

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