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Charter - Evidence (2). R. v. Sharma [s.15 evidence burdens]
In R. v. Sharma (SCC, 2025) 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 provides extensive guidance for rights-claimant's on their evidentiary burdens, in both stages of the two-step s.15 doctrine:(1) Guidance on the Section 15(1) Framework
(a) Preliminary Point About Substantive Equality
[37] Several recent decisions of this Court refer to substantive equality as the “animating norm” of s. 15 (Fraser, at para. 42, citing Withler, at para. 2; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at paras. 15‑16; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 25). In these decisions, the Court stated that s. 15 of the Charter specifically protects substantive equality.
[38] The means by which substantive equality is protected is the application of the two-step test, as set out within each of these decisions (Fraser, at para. 27; Withler, at para. 30; Kapp, at para. 17; Alliance, at para. 25). This test has been affirmed repeatedly at this Court. While our colleague stresses the “touchstone” of substantive equality, a court’s focus must ultimately be directed to the test, as stated by the jurisprudence. And where, applying that test, the claimant’s burden at either step of s. 15(1) is not met, there is no infringement of s. 15 (and, therefore, no substantively unequal outcome).
(b) Step One: Proving the Law, on its Face or in its Impact, Creates or Contributes to a Distinction on the Basis of a Protected Ground
[39] Two questions arise. First, what is the standard by which courts should measure impact? And secondly, how may claimants prove impact?
[40] We start with the difference between impact and disproportionate impact. All laws are expected to impact individuals; merely showing that a law impacts a protected group is therefore insufficient. At step one of the s. 15(1) test, claimants must demonstrate a disproportionate impact on a protected group, as compared to non‑group members. Said differently, leaving a gap between a protected group and non‑group members unaffected does not infringe s. 15(1).
[41] The disproportionate impact requirement necessarily introduces comparison into the first step. As McIntyre J. explained in Andrews: “[Equality] is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises” (p. 164; see also Fraser, at para. 55). This Court no longer requires a “mirror comparator group” (Withler, at paras. 55‑64; Fraser, at para. 94). However, Withler confirms that comparison plays a role at both steps of the s. 15(1) analysis. At the first step, the word “distinction” itself implies that the claimant is treated differently than others, whether directly or indirectly (Withler, at para. 62, cited in Fraser, at para. 48).
[42] As we have explained, in adverse impact cases, the law appears facially neutral. At step one, the claimant must present sufficient evidence to prove the impugned law, in its impact, creates or contributes to a disproportionate impact on the basis of a protected ground (Fraser, at para. 60, citing Taypotat, at para. 34; Alliance, at para. 26; Symes v. Canada, 1993 CanLII 55 (SCC), [1993] 4 S.C.R. 695, at pp. 764-65). Causation is thus a central issue. In Withler, the Court observed:In other cases, establishing the distinction will be more difficult, because what is alleged is indirect discrimination: that although the law purports to treat everyone the same, it has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds. . . . In that kind of case, the claimant will have more work to do at the first step. [para. 64] [43] Since the Charter’s adoption, “claimants have been required to demonstrate, through evidence, some sort of nexus between a particular action of the state, such as legislation, and an infringement of a Charter right or freedom” (Weatherley v. Canada (Attorney General), 2021 FCA 158, at para. 42 (CanLII), citing RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at pp. 447 and 490; Symes, at pp. 764‑65; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 60; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 73‑78; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at paras. 126 and 131‑34; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at paras. 251‑53).
[44] This is confirmed by a long line of s. 15 jurisprudence: the claimant must establish a link or nexus between the impugned law and the discriminatory impact. In Symes, the Court stressed the importance of distinguishing between adverse impacts “caused” or “contributed to” by the impugned law and those which “exist independently of” the impugned provision or the state action (p. 765). As Abella J. explained in Taypotat:... intuition may well lead us to the conclusion that the provision has some disparate impact, but before we put the [government] to the burden of justifying a breach of s. 15 . . ., there must be enough evidence to show a prima facie breach. While the evidentiary burden need not be onerous, the evidence must amount to more than a web of instinct. [para. 34] [45] The causation requirement between the impugned law or state action and the disproportionate impact is recognized in the jurisprudence through the words “created” or “contributed to”. Section 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 (Symes, at p. 765). Both terms ⸺ “created” and “contributed to” ⸺ describe cause. “Contributed to” merely recognizes that the impugned law need not be the only or the dominant cause of the disproportionate impact.
[46] This is consonant with Fraser. In that case, Abella J. confirmed that once a claimant demonstrates that the impugned law or state action creates or contributes to the disproportionate impact on a group, they need not go further and show exactly why the law being challenged has that impact (Fraser, at paras. 63 and 70; Weatherley, at paras. 66‑75).
[47] Two examples illuminate Abella J.’s reasoning from Fraser and the associated burden of proof on a claimant at step one. In Fraser, the claimants had to demonstrate that the pension plan created or contributed to an adverse impact on the enumerated ground of sex. Said differently, the claimants had to prove that state action (the legislated restrictions to the pension plan) created or contributed to the impact (disproportionately reduced pensions) for individuals who were part of a protected group (women). The Court, however, imposed no further burden of demonstrating that being part of a protected group caused the impact: the claimants did not have to prove they were unable to acquire full‑time pension credit because they were women.
[48] For the Court, Abella J. relied on Griggs v. Duke Power Co., 401 U.S. 424 (1971), to illustrate her reasoning. In Griggs, the claimant did not have to show that he was denied employment opportunities because he was African American. However, the claimant did have to establish that the high school education requirement created or contributed to the adverse effect of disqualifying African Americans for those jobs as compared to other applicants. Demonstrating that a law created or contributed to a disproportionate impact on a protected group is sufficient for step one.
[49] In confirming the claimant’s causation burden at step one, we are mindful of the evidentiary hurdles and the asymmetry of knowledge (relative to the state) that many claimants face. In Fraser, Abella J. referred to two types of evidence that are helpful in proving that a law has a disproportionate impact: evidence about the “full context of the claimant group’s situation” (Withler, at para. 43, cited in Fraser, at para. 57) and evidence about “the outcomes that the impugned law or policy . . . has produced in practice” (Fraser, at para. 58.) Ideally, claims of adverse impact discrimination should be supported by both (para. 60). To give proper effect to the promise of s. 15(1), however, a claimant’s evidentiary burden cannot be unduly difficult to meet. In that regard, courts should bear in mind the following considerations:(a) No specific form of evidence is required.
(b) The claimant need not show the impugned law or state action was the only or the dominant cause of the disproportionate impact ⸺ they need only demonstrate that the law was a cause (that is, the law created or contributed to the disproportionate impact on a protected group).
(c) The causal connection may be satisfied by a reasonable inference. Depending on the impugned law or state action at issue, causation may be obvious and require no evidence. Where evidence is required, courts should remain mindful that statistics may not be available. Expert testimony, case studies, or other qualitative evidence may be sufficient. In all circumstances, courts should examine evidence that purports to demonstrate a causal connection to ensure that it conforms with standards associated to its discipline.
(d) Courts should carefully scrutinize scientific evidence (see National Judicial Institute, Science Manual for Canadian Judges (2018); see also National Research Council and Federal Judicial Center, Reference Manual on Scientific Evidence (3rd ed. 2011)).
(e) If the scientific evidence is novel, courts should admit it only if it has a “reliable foundation” (R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 33; see also R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 36). [50] In summary, the first step asks whether the impugned provisions create or contribute to a disproportionate impact on the claimant group based on a protected ground as compared to other groups. If a claimant establishes that the law or state action creates or contributes to a disproportionate impact, the court should proceed to the second step. But to be clear, while the evidentiary burden at the first step should not be undue, it must be fulfilled. The particular evidentiary burden on claimants will depend on the claim. What remains consistent is that there is a burden on claimants at step one.
(c) Step Two: Proving the Law Imposes Burdens or Denies Benefits in a Manner That Has the Effect of Reinforcing, Perpetuating, or Exacerbating Their Disadvantage
(i) Evidentiary Burden
[51] It has never been the view of this Court that every distinction is discriminatory (Andrews, at p. 182). Hence the importance of the second step of the s. 15(1) test, requiring the claimant to establish that the impugned law imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the group’s disadvantage. The question becomes, what does it mean to reinforce, perpetuate, or exacerbate disadvantage?
[52] Courts must examine the historical or systemic disadvantage of the claimant group. Leaving the situation of a claimant group unaffected is insufficient to meet the step two requirements. Two decisions of this Court demonstrate this point. In Fraser, Abella J. observed: “The goal is to examine the impact of the harm caused to the affected group”, which may include economic exclusion or disadvantage, social exclusion, psychological harms, physical harms or political exclusion (para. 76 (emphasis added), citing C. Sheppard, Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada (2010), at pp. 62‑63). In Withler, this Court explained that a negative impact or worsened situation was required:Whether the s. 15 analysis focusses on perpetuating disadvantage or stereotyping, the analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation. [para. 37] [53] This Court has outlined several factors that may assist a judge in determining whether claimants have met their burden at step two: arbitrariness, prejudice, and stereotyping. These factors are not necessary components; while “[t]hey may assist in showing that a law has negative effects on a particular group, . . . they ‘are neither separate elements of the Andrews test, nor categories into which a claim of discrimination must fit’” (Fraser, at para. 78, citing Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 329). Nonetheless, courts may usefully consider whether these factors are present:(a) Stereotyping or prejudice: These factors played a critical role at step two in Ontario (Attorney General) v. G, 2020 SCC 38. There, the Court held that the impugned law had a discriminatory impact because it furthered stereotypes and “prejudicial notions” about persons with disabilities (para. 62), reinforced “the stigmatizing idea that those with mental illness are inherently and permanently dangerous” and, in so doing, perpetuated the disadvantage they experienced (para. 65).
(b) Arbitrariness: A distinction that does not withhold access to benefits or impose burdens, or that is based on an individual’s actual capacities, will rarely be discriminatory (Andrews, at pp. 174‑75). Abella J. described the role that arbitrariness can play in the analysis in both Quebec v. A (at paras. 221 and 331) and Taypotat (at paras. 16, 18, 20, 28 and 34). Taypotat focused on “arbitrary — or discriminatory — disadvantage, that is, whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage” (para. 20 (emphasis added)). [54] Again, Fraser is illustrative. To recall, at step one, the claimants had to demonstrate that the pension plan created or contributed to a disproportionate impact on the enumerated ground of sex. Once that requirement was met, at step two they had to show that the disproportionate impact imposed burdens or denied benefits in a manner that had the effect of reinforcing, perpetuating or exacerbating the historic or systemic disadvantage against that group. Since pension plans have been historically designed “for middle and upper‑income full‑time employees with long service, typically male” (para. 108, citing Report of the Royal Commission on the Status of Pensions in Ontario (1980), at p. 116), the state action “perpetuate[d] a long‑standing source of economic disadvantage for women” (para. 113). Thereby, the second step was satisfied.
[55] In light of that test, it is helpful to underline three points regarding the evidentiary burden at step two:(a) The claimant need not prove that the legislature intended to discriminate (Fraser, at para. 69; Ontario v. G, at para. 46, citing Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 62; Andrews, at p. 173).
(b) Judicial notice can play a role at step two. As this Court recognized in Law, “a court may take judicial notice of notorious and undisputed facts, or of facts which are capable of immediate and accurate demonstration, by resorting to readily accessible sources of indisputable accuracy” (para. 77, citing J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at p. 976). Of note here, the Court has taken judicial notice of the history of colonialism and how it translates into higher levels of incarceration for Indigenous peoples (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 60).
(c) Courts may infer that a law has the effect of reinforcing, perpetuating, or exacerbating disadvantage, where such an inference is supported by the available evidence (Law, at para. 75). One must bear in mind, however, that inference is not mere assertion; nor is it a priori reasoning. (ii) Legislative Context
[56] To determine whether a distinction is discriminatory under the second step, courts should also consider the broader legislative context.
[57] Such an approach is well‑supported in our jurisprudence. In Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493, this Court held “[t]he comprehensive nature of the Act must be taken into account in considering the effect of excluding one ground from its protection” (para. 96). Similarly, in Withler, the analysis was said to entail consideration of “the full context of the claimant group’s situation and the actual impact of the law on that situation” (para. 43). Where the impugned provision is part of a larger legislative scheme (as is often so), the Court explained, that broader scheme must be accounted for (para. 3), and the “ameliorative effect of the law on others and the multiplicity of interests it attempts to balance will also colour the discrimination analysis” (para. 38 (emphasis added)). In Taypotat, Abella J. harboured “serious doubts” that the impugned law imposed arbitrary disadvantage, particularly after considering the context of the relevant legislation “as a whole” (para. 28).
[58] Most recently, in C.P., the constitutionality of s. 37(10) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”) was at issue. The impugned provision did not provide young persons an automatic right of appeal to this Court where an appellate judge below dissents on a question of law, as the Criminal Code provides to adult offenders. Chief Justice Wagner, writing for four members of this Court, explicitly and carefully considered the entire legislative scheme, observing that the YCJA is designed to balance multiple goals — not only enhanced procedural protections, but also timely intervention and prompt resolution (para. 146). He further explained that an “approach requiring line‑by‑line parity with the Criminal Code without reference to the distinct nature of the underlying scheme of the YCJA would indeed be contrary to the contextual approach” (para. 145). In choosing not to provide young persons with an automatic right to appeal, he concluded “Parliament did not discriminate against them, but responded to the reality of their lives” (para. 162). Therefore, step two was not satisfied. We would endorse this approach, as it is consistent with Withler, Taypotat, and Vriend.
[59] Relevant considerations include: the objects of the scheme, whether a policy is designed to benefit a number of different groups, the allocation of resources, particular policy goals sought to be achieved, and whether the lines are drawn mindful as to those factors (Withler, at para. 67; see also paras. 3, 38, 40 and 81).
[60] A contextual approach is particularly significant when analyzing the constitutionality of sentencing regimes. Here, the impugned provisions cannot properly be considered in a manner that is divorced from the broader context of sentencing law as provided for in Part XXIII of the Criminal Code. Part XXIII reflects a balance or interaction among the statutory principles set out in s. 718 of the Criminal Code, including rehabilitation, denunciation and deterrence, reparations to victims, separation from society, and the principle of restraint in s. 718.2(e). Also relevant to the legislative context is the internal limit contained in s. 718.2(e). The provision instructs courts to consider for all offenders “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community . . ., with particular attention to the circumstances of Aboriginal offenders” (see Proulx, at paras. 94‑101).
[61] Parliament has the exclusive authority to legislate in matters of sentencing policy. There is no constitutional right to any particular sentence, including a conditional sentence (R. v. Serov, 2016 BCSC 636, 353 C.R.R. (2d) 264, at para. 35; R. v. Chen, 2021 BCSC 697, at para. 212 (CanLII)). Parliament had no positive obligation to create the conditional sentence regime. This Court stated in Proulx that Parliament could “have easily excluded specific offences” from the conditional sentencing regime when it came into force in 1996 (para. 79). It chose to do so later, and may choose to do so in the future. That is inherent in the role of Parliament, informed by experience and by the wishes of the electorate. As we explain in greater detail below, Parliament is not bound by its past policy choices, and sentencing legislation must be assessed on its own to determine whether it is constitutionally compliant, without having regard to the prior legislative scheme (Alliance, at para. 33). In the context of equality claims regarding criminal sentencing policy, an area of law that involves multi-faceted and complex policy considerations, the s. 15(1) analysis must be conducted with sensitivity and due regard to the present legislative scheme.
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