What is the test for determining whether a section of legislation that discriminates against an applicant based on race, ethnicity, nationality, race, gender, ethnicity or nationality violates section 15 of the Charter?

British Columbia, Canada


The following excerpt is from Withler v. Canada (Attorney General), 2008 BCCA 539 (CanLII):

The trial judge took as her guide the analytical framework found 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, to determine whether the impugned legislation violated s. 15 of the Charter (at paras. 94-103). The three broad inquiries the court must make, as set out in Law at para. 88, are as follows: (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 a member of Canadian society, equally deserving of concern, respect, and consideration?

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