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Charter - s.15 Discrimination - Test
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. Canada (Public Service Alliance) v. Canada
In Canada (Public Service Alliance) v. Canada (Fed CA, 2026) the Federal Court of Appeal dismissed appeals, these brought against dismissals of actions in the Federal Court challenging the constitutionality of the 'Caps', which are "limits on the amount that may be awarded to a maximum of $20,000 for pain and suffering and $20,000 for reckless and wilful conduct" under the CHRA, these grounded in Charter s.15.
Here the court reviews the Charter s.15 test, particularly focussing on 'comparator groups':III. The Section 15 Test
[24] Before considering the appellants’ arguments, it may be useful to review the analytical framework for evaluating whether a legislative provision violates the equality provision at section 15 of the Charter.
[25] Subsection 15(1) of the Charter states that "“[e]very 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”".
[26] The protections afforded by section 15 of the Charter are not limited to the grounds expressly referred to in the provision itself (otherwise known as the "“enumerated grounds”"). They also extend to certain grounds that are not specifically mentioned in the section but have been recognized by the Courts as "“analogous grounds”. Like enumerated grounds, analogous grounds will reflect “grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law”": Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, 173 D.L.R. (4th) 1 at para. 13.
[27] The Supreme Court has determined that a two-step test must be satisfied in order to establish a prima facie violation of section 15 of the Charter: Quebec (Attorney General) v. Kanyinda, 2026 SCC 7 at para. 48; R. v. Sharma, 2022 SCC 39 at para. 28; Fraser v. Canada (Attorney General), 2020 SCC 28 at para. 27. That is, a plaintiff must demonstrate that the impugned law or state action:. creates a distinction based on enumerated or analogous grounds, on its face or in its impact, and
. imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. [28] The Supreme Court has long held that equality is an inherently comparative concept, with the result that determining whether discrimination exists in a given case will often involve making some form of comparison: Law Society British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 at 164 (reasons of McIntyre and Lamer JJ., dissenting in part, but not on this point).
[29] However, as the Supreme Court subsequently held in Withler v. Canada (Attorney General), 2011 SCC 12, it is not necessary "“to pinpoint a particular group that precisely corresponds to the claimant group except for the personal characteristic or characteristics alleged to ground the discrimination”": at para. 63. Thus, while it is no longer required that a rights claimant be able to identify a "“mirror comparator group”", comparison between groups still plays a role at both stages of the section 15 analysis: Withler, at paras 55-64; Sharma, at para. 41; Fraser, at para. 94.
[30] It is important to keep in mind that a comparator group is not part of the definition of discrimination. It is rather an evidentiary tool that may assist in identifying whether there has been discrimination in a given case: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2012 FC 445 at para. 290, aff’d 2013 FCA 75. See also Moore v. British Columbia (Education), 2012 SCC 61 at paras. 30-31.
[31] The choice of comparator group is nevertheless important. If the rights claimant selects the wrong comparator group, "“the rest of the analysis collapses under the weight of the erroneous premise”": Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 at para. 64.
[32] The disproportionate impact requirement necessarily involves comparison at the first step of the section 15 test for, as the Supreme Court observed in Sharma, the word "“distinction”" at this step "“implies that the claimant is treated differently than others, whether directly or indirectly”": at para. 41, citing Withler, at para. 62, and Fraser, at para. 48. This distinction must, moreover, be proven relative to "“the condition of others in the social and political setting in which the question arises”": Sharma, at para. 41, citing Andrews, at 164.
[33] Comparison is also useful at the second stage of the section 15 analysis as it can provide a contextual understanding of a claimant group’s situation, as well as the disadvantage or stereotyping to which they have allegedly been subjected: Withler, at para. 65; Begum v. Canada (Citizenship and Immigration), 2018 FCA 181 at para. 54.
[34] Direct discrimination is established where a law draws a distinction on its face based on an enumerated or analogous ground: Withler, at para. 64. Where, however, the impugned law is facially neutral, the claimant must prove that the law disproportionately impacts a protected group, as compared to non-group members: Sharma, at paras. 40, 45.
[35] It will not be enough to establish that a law affects groups differently. As the Supreme Court observed in Sharma, "“[a]ll laws are expected to impact individuals; merely showing that a law impacts a protected group is therefore insufficient”". To satisfy step one of the section 15 test, claimants have to show that the impugned law has "“a ""disproportionate impact on a protected group, as compared to non‑group members”": Sharma, at para. 40.
....
1. Did the Federal Court Err in its Step One Analysis?
[79] The Supreme Court of Canada has described substantive equality as the "“animating norm”" of section 15 of the Charter: Sharma, at para. 37, citing Fraser, at para. 42, Withler, at para. 2; R. v. Kapp, 2008 SCC 41 at paras. 15‑16; Alliance, at para. 25.
[80] The Supreme Court has further affirmed that the means by which substantive equality is protected is through the application of the two-step test that has been established by the jurisprudence: Sharma, at para. 38, citing Fraser, at para. 27; Withler, at para. 30; Kapp, at para. 17; Alliance, at para. 25.
[81] Step one of the section 15 test is intended to bar claims that are unrelated to substantive equality because they are not based on an enumerated or analogous ground: Alliance, at para. 26. A claimant’s evidentiary burden at this stage of the analysis test is not onerous, but it must be fulfilled in order to weed out claims that have "“nothing to do with substantive equality”": Kanyinda, at paras. 59-60; Sharma, at paras. 49-50. The Federal Court recognized this low threshold, mentioning it at paragraph 114 and again at paragraph 160 of its reasons.
[82] The Federal Court nevertheless found that the appellants’ claim failed at the first stage of the section 15 test because they did not establish that the Caps create a distinction based on an enumerated or analogous ground. In coming to this conclusion, the Federal Court found that the comparator groups advanced by the appellants did not "“legitimately invite comparison”": Federal Court Decision at para. 124, citing Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 at para. 1.
[83] The Federal Court further found that "“[t]he real distinction between the complainant group and the comparator groups is that those in the complainant group made out a discrimination claim under the ""CHRA"" and are thus entitled to compensation under that scheme. This is not an enumerated or analogous ground”". Rather, the distinction at issue arises out of the relief to which the complainant group is entitled under the Act, and not from the underlying discrimination faced by the successful claimants: Federal Court Decision at para. 152.
[84] The appellants submit that the Federal Court erred in coming to this conclusion. They say that the Caps are discriminatory on their face, and that they have a disproportionate impact on a protected group, namely successful human rights complainants, when compared to members of their two comparator groups. It will be recalled that these groups are:. others in the general population who do not share the complainant’s protected characteristic, who do not need to be "“made whole”" under remedial human rights legislation; and
. other individuals who are entitled to similar remedies for wrongful acts in the workplace (apart from discrimination) through the common law tort regime. .... ....
[97] Turning now to the appellants’ comparator arguments, comparison is engaged at the first step of the section 15 analysis because the rights claimant asserts that they were denied a benefit that others are granted or that they carry a burden that others do not, because of a personal characteristic that falls within the enumerated or analogous grounds of section 15. That is, the claimant must establish a "“distinction”" in that they were treated differently than others.
[98] As the Supreme Court observed in Withler, it is more difficult to establish a distinction where the discrimination alleged is of an indirect nature, as opposed to on the face of the law, and in such cases, the rights claimant will have "“more work to do”" at the first step: Withler, at para. 64; see also Sharma, at para. 42.
[99] The onus is on the appellants to show then that the Caps contribute to or create a distinction through their disproportionate impact on individuals with a protected characteristic such as sex, race, age, etc. This requires establishing a causal connection between the law and the discriminatory impact. At paras 85-173 the court walks through it's assessment of the appellant's chosen comparator groups, and then continues:[199] In addressing the appellants’ arguments, it is also necessary to keep in mind what the Supreme Court has had to say about the difference between impact and disproportionate impact for the purposes of the step one test.
[200] As the Court observed in Sharma, at para. 40, all laws are expected to impact individuals, and it is not enough to simply show that a law impacts a protected group. Claimants must, rather, demonstrate that the law in question has a disproportionate impact on a protected group in a manner as compared to non‑group members. In other words, leaving a gap between a protected group and non‑group members unaffected will not infringe section 15 of the Charter.
[201] Although the situation of the claimant group is relevant at step one (citing Fraser, at paras. 56‑57), the Supreme Court further held in Sharma that it is not enough on its own to establish disproportionate impact. It is also not enough to show that the impugned law restricts an ameliorative program: Sharma, at para. 71, citing Fraser, at paras. 56-57.
[202] The Supreme Court further emphasized in Sharma that the focus at the first step of the section 15 test is on disproportionate impact, and not on historic or systemic disadvantage, and that courts must be careful not to collapse the two steps of the analysis.
[203] This Court further observed in Begum that it is the adverse effects that are caused or contributed to by the impugned provision that must be the focus of the analysis, and not the social and economic circumstances that exist independently of such a provision: Begum, at para. 81. . Quebec (Attorney General) v. Kanyinda
In Quebec (Attorney General) v. Kanyinda (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Charter s.15 Quebec CA order "that refugee claimants with a work permit and residing in Quebec be “read in” to s. 3 subpara. 3 of the RCR" ['Educational Childcare Act - Reduced Contribution Regulation'], meaning that the appellant was eligible for childcare subsidy despite her ungranted refugee status.
Here the court sets out (in 2026) the Charter s.15 ['discrimination'] test:(2) The Section 15(1) Test
[47] The test for establishing a s. 15(1) infringement is well established and protects substantive equality by targeting both direct and indirect discrimination.
[48] To prove an infringement of s. 15(1), a claimant must show the challenged law or state action: (1) on its face or in its impact, creates a distinction based on listed or analogous grounds; and (2) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage (see Sharma, at para. 28; Fraser, at para. 27; Alliance, at para. 25; Centrale, at para. 22).
[49] Importantly, in cases of adverse effects discrimination, evidence that establishes a disproportionate impact on a protected group at the first stage of the s. 15(1) test will often also be relevant at the second stage, when determining whether a challenged law or state action perpetuates a group’s disadvantage. This Court has recognized that the two steps are not “watertight compartments” or “impermeable silos” (Sharma, at para. 30; Fraser, at para. 82).
(a) Step One
[50] At the first step of the test, the claimant must show that the challenged law creates a distinction based on listed or analogous grounds, either on its face or through its impact. Where a measure does not explicitly distinguish based on a protected ground, the claimant can still show that the law creates a distinction in effect because of the law’s disproportionate impact on the protected group (Sharma, at para. 40; Fraser, at para. 52).
[51] No rigid template governs how a disproportionate impact at step one is established (Fraser, at para. 55). While the claim must be clearly anchored in a recognized ground of discrimination, the claimant may also point to additional characteristics that contribute to establishing a disproportionate effect on the claimant group. In Fraser, for example, Abella J. highlighted the significance of a claimant group’s broader situation for determining a disproportionate impact at step one: “Courts will benefit from evidence about the physical, social, cultural or other barriers which provide the ‘full context of the claimant group’s situation’” (para. 57 (emphasis added), quoting Withler, at para. 43, and citing para. 64). In other words, consideration of the intersecting identities and circumstances of the claimant group can play a role in the analysis at step one of the s. 15(1) test. The analysis must be attentive to the situation and complexity of the claimant group, acknowledging that a challenged provision may operate within a context of intersecting realities, even though the disproportionate impact must be established for a particular enumerated or analogous ground. Where discrimination affects only a subgroup, as in this case, the failure to account for intersecting identities in step one of the s. 15(1) inquiry could effectively obscure the specific adverse effects experienced by that subgroup.
[52] Two types of evidence can help a claimant establish these impacts on them and the group to which they belong: (a) evidence about the claimant group’s situation, including physical, social, cultural, or other barriers faced by the claimant group; and (b) evidence about the results produced by the challenged law in practice (Sharma, at para. 49; Fraser, at para. 56). Ideally, a claimant will lead evidence from both categories. Still, no specific form of evidence is required and the evidence’s significance will differ depending on the unique facts of each case (Fraser, at paras. 61 and 67; Sharma, at para. 49).
[53] Evidence in the first category may include a claimant’s own testimony, an expert witness, or judicial notice (Fraser, at paras. 55-57). This evidence can help illustrate the unique circumstances of the group to which the claimant belongs, including their intersecting realities and identities, and how the challenged law creates a distinction based on those circumstances. For example, in Fraser, evidence was provided on the disadvantages faced by women in the workforce due to the historical and current unequal distribution of childcare responsibilities between women and men. This helped explain why and how the challenged law disproportionately impacted women (para. 98).
[54] Evidence in the second category can take different forms, including statistics, expert testimony, case studies, or qualitative evidence (Sharma, at para. 49). Evidence of this nature can help quantify the alleged disproportionate impact and make it concrete (Fraser, at para. 58). However, because of the diverse circumstances which can ground a s. 15(1) claim, and the evidentiary hurdles and asymmetry of knowledge often possessed by claimants when compared to the state, statistical evidence is not a requirement (Sharma, at paras. 36 and 49; see also Fraser, at para. 59).
[55] Furthermore, in some cases, a court may reasonably infer an adverse effect on a claimant group. The disproportionate impact on a claimant group may be “apparent and immediate” and evidence of a specific kind may not be necessary (Taypotat, at para. 33; see also Fraser, at para. 61; Sharma, at para. 49). For example, a rule or requirement may create an obvious adverse effect for most or all members of a claimant group (see, e.g., in a human rights complaint, Simpsons-Sears). Judicial notice can also be taken about a claimant group’s situation when appropriate (Fraser, at para. 57; see also Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 69).
[56] Finally, the following are not required to satisfy the first step of the s. 15(1) test:. A claimant need not explain why the law creates a disproportionate impact (Sharma, at para. 46; Fraser, at paras. 63 and 70).
. The claimant need not show that the law is the “dominant cause of the disproportionate impact” (Sharma, at paras. 45 and 49).
. There is no need to show that the legislature intended to cause the distinction (Fraser, at para. 69; Andrews, at pp. 173-74; Eldridge, at para. 62; Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493, at para. 63; Alliance, at para. 28; Centrale, at para. 35).
. It has long been unnecessary for a claimant to identify a specific comparator group (Withler, at paras. 60 and 63; Sharma, at para. 41).
. There is no need to show that all members of a claimant group will be affected by the challenged measure in the same way; there may be a disproportionate impact on only some of the claimant group (Brooks, at pp. 1247-48; Quebec v. A, at para. 354; Fraser, at para. 72). [57] Some of the interveners to this appeal contend this Court’s recent decision in Sharma has altered aspects of the s. 15(1) test by revising the causation requirement under the first step (see, e.g., I.F. (British Columbia Civil Liberties Association); I.F. (Attorney General of Ontario); I.F. (Attorney General of Alberta)). This idea has been echoed by some academic commentators (see, e.g., J. Watson Hamilton and J. Koshan, “Sharma: The Erasure of Both Group-Based Disadvantage and Individual Impact” (2024), 115 S.C.L.R. (2d) 113, at pp. 119-21; C. Salvino, “R v Sharma’s ‘Clarification’ of the Section 15 Framework and its Creation of Unique Barriers for Disability-Based Equality Claims” (2024), 32:4 Const. Forum 1). The majority in Sharma stated that it wished to clarify an uncertainty regarding “causation and its relationship with the evidentiary burden to establish disproportionate impact” (para. 35). To this end, they held that “[s]ection 15(1) claimants must demonstrate that the impugned law or state action created or contributed to the disproportionate impact on the claimant group at step one” (para. 45 (emphasis in original)).
[58] What divided the majority and the dissent in Sharma was whether the claimant had met the evidentiary burden at step one: i.e., whether the legislated removal of the availability of conditional sentences for certain serious offences had a disproportionate impact on Indigenous offenders because the removal prevented recourse to the remedial Gladue sentencing framework (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688). The dissent found that, given the connection between the statutory provisions removing access to conditional sentences and the requirement to consider all available sanctions other than imprisonment, with particular attention to the circumstances of Indigenous offenders, the disproportionate impact on Indigenous offenders could be reasonably inferred (Sharma, at para. 227). The majority, by contrast, did not consider such a link sufficient, on its own, to infer a disproportionate impact and establish that the law created a distinction. They concluded that in finding a s. 15(1) breach, the Court of Appeal for Ontario “failed to identify any evidence” that the law “created or contributed to a disproportionate impact on Indigenous offenders” (para. 74 (emphasis in original)).
[59] Despite these differences in application, the majority in Sharma explicitly stated that they were not altering the applicable test (paras. 33 and 46). The language of causation used in Sharma simply focused on the burden that must be met at the first step of the s. 15(1) test. Causation is inherent in this first step, which asks whether the challenged law or state action creates a distinction (Fraser, at para. 27). While the majority emphasized the importance of causation, they did not change the test. They recognized that a causal link can be drawn through “a reasonable inference” and that it “may be obvious and require no evidence” — a recognition consistent with decades of this Court’s jurisprudence holding that the burden at this stage must not be unduly onerous (Sharma, at para. 49). A s. 15(1) claimant need not show that the challenged law is the sole or dominant cause of the disproportionate impact; it is sufficient for it to be a cause (paras. 44-46; see also Fraser, at para. 71). Moreover, Sharma confirmed the principle that those alleging a breach of their s. 15(1) rights need not show that the protected characteristic “caused” the disproportionate impact (paras. 46-48; Fraser, at para. 70).
[60] In conclusion, this Court has repeatedly emphasized that the first step of the s. 15(1) test is not meant to be “an onerous hurdle designed to weed out claims on technical bases” but rather “to exclude claims that have ‘nothing to do with substantive equality’” (Alliance, at para. 26, quoting Taypotat, at para. 19). To achieve the promise of substantive equality, in line with the purposive interpretation of s. 15(1), this Court has eschewed rigid evidentiary requirements in favour of a more flexible approach, regarding how adverse effects may be shown. That said, while the evidentiary burden at the first step should not be undue, it must be fulfilled (Sharma, at para. 50). A provision must be shown to create or contribute to a distinction through its disproportionate or differential impact on a protected ground.
(b) Step Two
[61] At the second step of the test, an applicant must establish that a law imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage (see Sharma, at para. 28; Fraser, at para. 27; Alliance, at para. 25; Centrale, at para. 22). Not all distinctions created by law will be found discriminatory (Andrews, at p. 182; Sharma, at para. 51). This second step focuses the s. 15(1) inquiry on the “protection of groups that have experienced exclusionary disadvantage based on group characteristics” (Fraser, at para. 77). Therefore, even if a law treats people differently based on a protected ground, it does not necessarily follow that the law increases or reinforces a disadvantage.
[62] This Court’s decision in Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872, illustrates how a law that causes a differential impact may still fail to meet the requirements of step two. There, a male inmate argued that it was discriminatory for male prisoners to be subject to frisk searches and surveillance by female guards, while female inmates were not subject to the same treatment by male guards. This Court disagreed, emphasizing that equality does not always mean identical treatment — rather, in certain cases, different treatment may be necessary to promote substantive equality. This Court found that although this was a sex-based distinction, it was not discriminatory when understood in context. As La Forest J. observed, “[t]he reality of the relationship between the sexes is such that the historical trend of violence perpetrated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors” (p. 877). Because of these historical and social realities — including the fact that women have generally occupied a disadvantaged position in society — cross-gender searches affect female inmates differently, and often more severely, than their male counterparts.
[63] At step two of the s. 15(1) test, it is also necessary to recognize that discrimination cannot be neatly packaged into a single ground and a person will often live with other circumstances, realities, or identities that may enhance or exacerbate their disadvantage. An intersectional approach may play a key role at this stage by allowing a more nuanced understanding of the nature and intensity of the disadvantage experienced. In the words of two interveners: “People experience discrimination as whole persons, not as an aggregate of separate characteristics” (I.F., National Association of Women and the Law and David Asper Centre for Constitutional Rights, at para. 5). Intersectionality enriches the analysis of discriminatory effect by highlighting these additional dimensions of disadvantage. This approach also grounds the analysis in the concrete lived realities of marginalized individuals. To appreciate the effects of the distinction established at step one on the claimant or their group, it may be necessary to consider how these experiences speak to intersecting realities that make an experience of discrimination based on the identified ground particularly acute. For example, race, sexual orientation, disability, age, socioeconomic status, poverty, marginalization, or an inability to integrate into society, may increase their disadvantage.
[64] Although this Court in Sharma found the s. 15(1) claim failed at step one, the majority reaffirmed this Court’s commitment to contextual analysis in step two of the s. 15(1) test, which includes considering not only the challenged legislation but also the broader social, political, and legal context (paras. 56-61; see also Eldridge, at para. 55, citing R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, at p. 1331; Vriend, at para. 106).
[65] The broader legislative context may also be relevant to the analysis at step two (Sharma, at para. 56). The relevance and weight of the legislative context will depend on the nature of the case. For example, Wagner C.J., in R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, found it necessary to put more weight on legislative context given that the provision at issue in the Youth Criminal Justice Act, S.C. 2002, c. 1, formed part of a comprehensive, “multifaceted legislative scheme” that sought to balance the competing needs of the claimant group (para. 144). However, while it may be relevant to examine how a scheme seeks to balance competing legislative objectives, benefit a protected group, or allocate limited resources, these considerations are only one aspect of a broader analysis on whether a provision has a discriminatory character. In other words, the emphasis on context must not conflate an analysis of the discriminatory impact of a measure on a disadvantaged group with a consideration of whether the distinction is justified based on legislative objectives (Fraser, at paras. 79-80). As Wagner C.J. emphasized in C.P., justifying a provision based on whether it “is relevant to a legitimate state objective or on the basis of the ameliorative effect” of the scheme at issue is “properly left to the inquiry under s. 1 of the Charter, and then only to the extent that they can specifically justify the impugned limitation” (para. 153, citing Fraser, at para. 69). To emphasize legislative context in a way that blurs this line risks improperly shifting the analysis under s. 15(1) towards an implicit balancing of government interests, an inquiry better left to s. 1. The analytical distinction between finding a Charter right infringement and justifying this infringement under s. 1 has long been part of this Court’s jurisprudence (Andrews, at p. 178; see also Oakes, at p. 134; Centrale, at para. 35; Fraser, at para. 79).
[66] Although the state can act incrementally to address inequality (Sharma, at para. 64), ameliorative legislation protected by s. 15(2) is not categorically immune from s. 15(1) scrutiny (Fraser, at para. 69; Centrale, at paras. 8 and 35; Alliance, at paras. 32-33). Courts should not ignore infringements of s. 15(1) merely because the law is ameliorative and only perpetuates the disadvantage of “some” members of the protected group. As this Court held in Eldridge, “once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner” (para. 73).
[67] Finally, at the second step of the s. 15(1) test, there is no need to show that the challenged measure stereotypes or causes prejudice towards the protected group (Fraser, at para. 78). In Quebec v. A, Abella J., writing for a majority on this issue, clarified these were not additional requirements at step two because such an approach incorrectly focuses the inquiry on whether a discriminatory attitude exists as opposed to a discriminatory impact (para. 327). The key question under step two is whether the law worsens or reinforces the disadvantage experienced by the protected group.
[68] Nor is it necessary to prove that the distinction is arbitrary (Fraser, at para. 80). In other words, an infringement is still made out in circumstances where there is a rational connection between a disadvantage and legitimate state objective (para. 79). An inquiry under s. 15(1) centres on the effects, rather than the purpose, of the challenged measure on a protected group (para. 41; Andrews, at p. 174).
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