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Charter - s.15 Discrimination - Causation. Fair Voting BC v. Canada (Attorney General)
In Fair Voting BC v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismisses (IMHO harshly) a Charter s.3 ['democratic rights'] and s.15 ['discrimination'] challenge to the federal electoral system.
Here the court sets out basics of Charter s.15 Sharma discrimination law, focussing on the requirement of causation in an adverse impact context:DISCUSSION
[66] Section 15(1) of the Charter provides as follows: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. [67] It would be an understatement to say that s. 15(1) has given rise to interpretive difficulty. Equality is an essentially contested concept: an aspirational goal shared by all, despite widespread disagreement about the nature of the concept – what it requires and what it precludes. Good faith disagreement about interpretation is inevitable.
[68] The history of s. 15(1) and its interpretation are outlined clearly by Miller J.A. in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, at paras. 195-225, and need not be repeated here. It is enough to emphasize the peculiar difficulties associated with claims of indirect, or adverse impact, discrimination.
[69] Adverse impact discrimination arises incidentally as a side effect of legislation designed to promote the public good. Legislation designed to secure benefits inevitably produces side-effects – unintended consequences that may not be foreseen by legislators. Laws of general application are, in this sense, invariably imperfect. The question is, when do unintended side-effects rise to the level of constitutionally prohibited discrimination?
Causation is required
[70] In Sharma, the Supreme Court’s most recent decision on adverse impact discrimination, the Court held that s. 15(1) includes a causation requirement. The majority’s decision is in some ways difficult to reconcile with the prior decision of the Court in Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113. However, that decision is itself at odds with the Court’s prior decisions interpreting s. 15(1): see Hoi L. Kong, “Section 15(1): Precedent and Principles” (2023) 112 S.C.L.R. (2d) 149, at p. 161.
[71] In my view, the first stage in the analysis under s. 15(1) – whether the legislation creates a distinction based on enumerated or analogous grounds, on its face or in its impact – depends on causation. If it were otherwise – if mere statistical disparity in the application of a law were sufficient at the first stage of the analysis – the scope of adverse impact discrimination would be so broad as to trivialize the concept. Given that all laws of general application apply imperfectly, findings of adverse impact discrimination would become routine. Discrimination would be all but impossible for legislators to avoid.
[72] To say that causation is required is to say little, however, for everything depends on how causation is understood, and in particular what is required in order to establish it. The majority in Sharma described the claimant’s burden as establishing that the impact of the impugned law “creates or contributes to a disproportionate impact” on the basis of a protected ground: at para. 42. “Creation” suggests that adverse impact discrimination occurs where the law is the sole or, at the very least, the predominant reason for the disproportionate treatment – essentially, a sort of but-for test. In contrast, “contribution” is a lower threshold that invites consideration of degree. This is a difficult concept, for the contribution of a law to a disproportionate impact on a protected group may be small or large, one of few contributions or many. The requirement that the impact be disproportionate adds an additional layer of complexity to the analysis. Sharma provided little guidance in this regard; the majority noted simply that “the impugned law need not be the only or even the dominant cause of the disproportional impact”: at para. 45.
[73] Identifying causation in the electoral system is especially difficult because electoral outcomes are multi-factorial: they flow not simply from the way in which ballots are translated into representation, but from myriad decisions made by political actors and parties, not only locally but also at the regional and national levels – decisions made long before millions of citizens decide how to cast their ballots. All of these decisions are made in the context of the SMP electoral system and the political incentives and disincentives it establishes. Correlation is obvious, but correlation is not causation.
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