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Charter - s.15 Discrimination - 'Incrementalism'. Canada (Attorney General) v. Dominique
In Canada (Attorney General) v. Dominique (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here from a Federal Court ruling that "dismissed the Attorney General’s application for judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal)", that regarding "the funding of the operating costs for the self‑administered police service that the First Nation chose to establish in 1996 in connection with the First Nations Policing Policy (the Policy) implemented by the federal government ...".
Here the court considers the Charter s.15 discrimination remedial doctrine of 'incrementalism', and discusses the financial limitations of government:[61] At the heart of the Attorney General’s position on the analytical approach taken by the Tribunal in this case is the role of the case law developed under section 15 of the Charter with respect to the examination of a complaint made under a human rights statute (Memorandum of the Attorney General at para. 66). It sets out the interrelated principles that the Attorney General says the Tribunal was bound to in this case, namely incrementalism, the absence of a positive obligation on governments to remedy social inequalities or enact remedial legislation, and the deference that courts must show to legislative choices "“as to just how quickly it should proceed in moving forward towards the ideal of equality”" (Sharma at paras. 62-65).
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[72] As for the role of the budget envelopes in the implementation of the Policy, which the Attorney General associates with the complex role conferred on Parliament in the allocation of resources, I will simply reiterate the limitations of such an argument by referring to the words of the Supreme Court in Moore. In that case, the elimination of a range of services for students with special needs for budgetary reasons in the context of a financial crisis was found to be discriminatory. There had been no assessment of the impact of these budget cuts on those students, leading the Supreme Court to say that it "“will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier”" (Moore at paras. 46-50).
[73] I take this to mean that the leeway afforded Parliament and the government in the allocation of resources is not limitless. In this case, according to the Tribunal, all parties were aware that the costs related to the First Nation’s minimum needs for police services were higher than the amounts that were provided for in the agreements and, thus, in the budget envelopes. In the Tribunal’s view, these envelopes provided no leeway to further support the First Nation’s police service (Tribunal Decision at para. 342). . R. v. Sharma [s.15 discrimination remedies]
In R. v. Sharma (SCC, 2022) the Supreme Court of Canada allowed a Crown appeal, this from an Ontario Court of Appeal ruling that allowed an appeal, that from a Superior Court sentencing ruling "that a conditional sentence was unavailable, and dismissed Ms. Sharma’s challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms".
Here the court constrains remedies available for Charter s.15 breaches - drawing a distinction between a duty to satisfy positive obligations and to preventing negative infringements, and embraces 'incrementalism' wrt the former:(iii) The Scope of the State’s Obligations to Remedy Social Inequalities
[62] Given the questions raised in this appeal, it is important to confirm two principles related to the government’s obligations under s. 15(1).
[63] First, s. 15(1) does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation (Thibaudeau v. Canada, 1995 CanLII 99 (SCC), [1995] 2 S.C.R. 627, at para. 37; Eldridge, at para. 73; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at para. 41; Alliance, at para. 42). Were it otherwise, courts would be impermissibly pulled into the complex legislative domain of policy and resource allocation, contrary to the separation of powers. In Alliance, this Court struck down amendments to Quebec’s pay equity legislation that “interfere[d] with access to anti‑discrimination law” by undermining existing legislative pay equity protections (para. 39). But in so doing, Abella J. expressly declined to impose a “freestanding positive obligation on the state to enact benefit schemes to redress social inequalities” (para. 42). The Court further affirmed that s. 15(1) does not bind the legislature to its current policies:I do not share the unions’ view that once Quebec adopted ss. 40 to 43, it was constitutionally required to keep them on the books, so that any modification in the type or extent of protection afforded by those provisions would amount to a constitutional violation. To accept that submission in these circumstances would constitutionalize the policy choice embodied in the first version of the Act, improperly shifting the focus of the analysis to the form of the law, rather than its effects. Instead, there is a discriminatory impact because, assessed on their own and regardless of the prior legislative scheme, the impugned provisions perpetuate the pre‑existing disadvantage of women. [Emphasis added; emphasis in original deleted; para. 33.] [64] Secondly, this Court in Alliance confirmed that, when the state does legislate to address inequality, it can do so incrementally:The result of finding that Quebec’s amendments breach s. 15 in this case is not, as Quebec suggests, to impose a freestanding positive obligation on the state to enact benefit schemes to redress social inequalities. Nor does it undermine the state’s ability to act incrementally in addressing systemic inequality. [Emphasis added; para. 42.] [65] Incrementalism is deeply grounded in Charter jurisprudence. In R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, the Court accepted that the state may implement reforms “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind” (p. 772 (emphasis added)). Expanding on the passage in Edwards Books, La Forest J. confirmed in McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, that a legislature “must be given reasonable leeway to deal with problems one step at a time, to balance possible inequalities under the law against other inequalities resulting from the adoption of a course of action, and to take account of the difficulties, whether social, economic or budgetary, that would arise if it attempted to deal with social and economic problems in their entirety” (p. 317). He also emphasized that, generally, courts “should not lightly use the Charter to second‑guess legislative judgment as to just how quickly it should proceed in moving forward towards the ideal of equality” (p. 318). See also Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; and Auton, at paras. 61‑62.
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