What is the test for determining whether a claimant has a right to equality before the law?

Alberta, Canada


The following excerpt is from R. v. M.L.2, 1998 CanLII 18142 (AB QB):

In Egan v. Canada (1995), 1995 CanLII 98 (SCC), 29 C.R.R. (2d) 79 at p. 132, [1995] 2 S.C.R. 513 at p. 584, Cory J. essentially adopted the same approach: The first step is to determine whether, due to a distinction created by the questioned law, a claimant's right to equality before the law, equality under the law, equal protection of the law or equal benefit of the law is denied. During this first stage, the inquiry should focus upon whether the challenged law had drawn a distinction between the claimant and others, based on personal characteristics. Not every distinction created by legislation gives rise to discrimination. Therefore, the second step must be to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others.

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