At issue in Boulter was the constitutional validity of legislation requiring the Utility and Review Board to set the same power rates for all consumers. The appellants argued poverty was an analogous ground under s. 15(1) of the Canadian Charter of Rights and Freedoms, and the legislation discriminated against the poor. In dismissing the appeal, the Court of Appeal held that poverty was neither an immutable characteristic of the individual nor constructively immutable, and thus did not meet the criteria to be considered an analogous ground.

While an argument can be made that poverty can be seen as constructively immutable, (see Daniel Del Gobbo, (Mis)Construing Kapp to Preclude the Impoverished,) the entire immutable characteristics doctrine is somewhat puzzling. The purported policy rationale of s. 15 is to promote equality by preventing legislation being passed that exacerbates existing inequalities. In Law v. Canada, [1999] 1 S.C.R. 497, the Supreme Court of Canada set out the tests for determining a discrimination claim. Under the first branch of the Law test, one must inquire as to whether the impugned law draws a formal distinction between the claimant and others on the basis of one or more personal characteristics. In Corbiere v. Canada, [1999] 2 S.C.R. 203, the Court established the criteria to identify an analogous ground. The Court held that the common thread running through all enumerated grounds in s. 15 is that they serve as the basis for stereotypical decisions made on the basis of a personal characteristic that is immutable, or changeable only at great cost to personal identity.

The decision to limit the scope of s. 15 to discrimination based on personal characteristics has a valid objective. As McIntyre J. wrote in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143:

Distinctions based upon personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

The purpose of such enumerated and analogous grounds, then, is to serve as an indicator for suspect decision making. The adoption of “personal characteristics” serves as a bright line, clearly demarcating between decisions based on stereotypical decisions and those based upon merit. However, as Professor Alan Dale Gibson points out in “Analogous Grounds of Discrimination Under the Canadian Charter: Too Much Ado About Next to Nothing”, (1991) 29 Alta. L. Rev. 772, the “personal characteristic” standard is inherently incompatible with the notion of discrimination. Discrimination is based upon broad stereotypes of a group, rather than one’s personal characteristics. The Court recognized such difficulties in Corbiere when it introduced the concept of a “constructively immutable” characteristic; thus, grounds such as marriage and religion which would not be easily encompassed by the umbrella of immutable “personal characteristics” can nonetheless fit under the Court’s expanding definition of what may constitute discrimination. Yet the Court relegates other factors such as personal care and social assistance to the side, despite their potential to serve as bases for discriminatory decision making.

In adopting the “personal characteristics” standard as an indicator for discrimination, the Court runs the risk of ignoring discrimination on other grounds. The real danger lies in relying on preconceived notions of what may constitute discrimination, and dismissing actual discrimination where it doesn’t fit tidily in our prior definitions. One is well served to remember Wilson J.’s caution in R. v. Turpin, [1989] 1 S.C.R. 1296:

If the larger context is not examined, the s. 15(1) analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation.

Returned to Boulter, one is struck by the Court’s repeated refusal to recognize poverty as an analogous ground of discrimination. In Sparks v. Dartmouth/Halifax County Regional Housing Authority, 1993 CanLII 3176 (NS C.A.), the court largely avoided the poverty argument in favour of finding the ground of distinction was “public housing tenant”. While the end result may have been the same, the Court’s refusal to extend its analysis beyond the confines of the narrow boundaries it itself has created is troubling. What would be the difference if an individual is denied tenancy on the basis of their race or ethnicity instead of on the basis of their impoverished state? In both situations the individual would be experiencing discrimination on the basis of a stereotype about a particular group. Are we prepared only to recognize discrimination when it occurs to members of a sub-group on a recognized analogous ground, denying s. 15 protection to other segments of the population?

Whether or not poverty should be considered an analogous ground, and whether the legislation in Boulter is indeed discriminatory is not at issue here. The refusal to consider poverty as an analogous ground since it fails to meet the “personal characteristics” standard, however, is a matter of some concern. The “personal characteristics” standard has the effect of drastically reducing the scope of s. 15 protection. Though useful as an indicator of discrimination, its use as a gatekeeper function for s. 15 defeats its very purpose.

In reconceptualising the criteria to establish analogous grounds, perhaps the “personal characteristics” standard could be replaced with a more flexible approach that has the potential to encompass all grounds of discrimination, regardless of whether they conform to our preconceived norms. For example, the “distinct community” standard in Commission For Racial Equality v. Dutton, [1989] QB 783, could theoretically include poverty as an analogous ground. Perhaps we can also rephrase McIntyre J.’s explanation of discrimination in light of our expanding conceptions of what constitutes discrimination.

Distinctions based upon stereotypes of an individual on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

While this would expand the scope of s. 15 protection, this is by no means a bad thing. The focus on stereotypes stemming from one’s association with a group acts both to encompass other discriminations and specify a specific and identifiable disadvantaged group. It is indeed the collective characteristics of the group –be it gender, sexual orientation, or religion– that is the target of the stereotypical assumptions. In removing the “personal characteristics” standard, it is our hope that an analysis for analogous grounds can take place free from our own myths and stereotypes of what may constitute discrimination.

Last June’s ruling in R. v. Kapp , 2008 SCC 41, provided much needed clarification of the convoluted equality jurisprudence ensuing from the imposition of the Law ([1999] S.C.R. 497) test nine years ago. Hailing the original Andrews ([1989] 1 S.C.R. 143) formulation as supreme, with Law‘s “human dignity” and four contextual factors now playing a supporting role, Kapp does much to free s. 15(1) from that which had seriously obfuscated its application. The case also refigures s. 15(2), decreasing the burden on governments seeking to defend ameliorative programs from reverse-discrimination claims by only requiring that the programs intend to remediate the conditions of a disadvantaged group identified by the enumerated or analogous grounds. While these developments are rightly lauded, Kapp‘s characterization of s. 15(2) is problematic for its implied exclusion of “poverty” as a ground protected from discrimination under the Charter.

Defining the Protected Grounds: Splicing Kapp to Preclude Poverty

Consider the following passages from McLachlin C.J.C. and Abella J.’s decision in Kapp:

[41] We would therefore formulate the test under s. 15(2) as follows. A program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.

[...]

[55] [...] Section 15(2)’s purpose is to protect government programs targeting the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs.

[emphasis added]

Here, the Supreme Court seems to dissociate the conditions of a “disadvantaged group identified by the enumerated or analogous grounds” with the conditions ameliorated by “broad societal legislation, such as social assistance programs.” Though the point was in obiter, it has since been assumed by the Nova Scotia Court of Appeal in Boulter v. Nova Scotia Power Inc., 2009 NSCA 17, as persuasive authority in finding that “poverty” – a condition targeted by social assistance programs – does not sufficiently define a disadvantaged group under s. 15, despite the overlapping condition “receipt of social assistance” being already recognized by the Ontario Court of Appeal in Falkiner v. Ontario (Minister of Community and Social Services), (2002) 59 O.R. (3d) 481.

The appellants in Boulter are low income consumers of electrical service in Nova Scotia, the provision of which is almost entirely monopolized by the defendant public utility. They claimed that s. 67(1) of the Public Utilities Act, by virtue of it excluding the option of an electricity rate reduction for low income consumers like themselves, discriminates based on poverty because they are disproportionately burdened by being treated in an identical manner to higher income consumers receiving the same service. Their petition was ultimately denied, with the Court of Appeal citing the mutability of poverty as a characteristic precluding it from being an analogous ground. “Poverty is a clinging web,” the judgment reads, “but financial circumstances may change, and individuals may enter and leave poverty or gain and lose resources.”

Boulter appropriately draws from Corbiere v. Canada (Minister of Indian and Northern Affairs) , [1999] S.C.R. 203, in identifying the defining characteristics of the enumerated and analogous grounds to be actual or constructive immutability. To quote from Corbiere, the grounds are those “that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law.” Where Boulter (and, by implication, Kapp) go awry is in their failure to to recognize that poverty is a condition that is very difficult to change, at least for a significant period of time. People cannot “enter and leave poverty”, as if through an ever-swinging door, with ease and regularity.

Immutability and the “Culture of Poverty”

Indeed, poverty may be practically immutable for some, a reality well-documented by a number of sociologists. Perhaps most notably, Professor Oscar Lewis attributes this immutability to the “culture of poverty”, which denotes a systemic phenomenon in which people unwittingly perpetuate their disadvantage by developing and upholding certain norms, values, beliefs, and self-concepts. These include early sexual activity, unmarried parenthood, early marriage, single-parent households, and an emphasis on gratification in the present rather than future. Combined, these circumstances may facilitate strong feelings of marginality, helplessness, and dependency in the poor, all of which remain over time as the culture of poverty is transmitted from one generation to the next.

The culture may be at its most pervasive among people multiply displaced by being both impoverished and disabled, a visible minority, a recent immigrant, a single parent, or any combination or these or other characteristics. In 2001, for example, while the poverty rate for the entire population of Nova Scotia was 17%, that rate was 23% among the disabled, 35% among visible minorities, 46% among recent immigrants, and 52% among single parent families with children under eighteen years of age.

Essentially, the culture of poverty, particularly among the doubly and triply displaced, perpetuates widespread unemployment and social immobility, preventing people from overcoming their economic disadvantage. Thus, many members of the underclass, by virtue of the immutability of their condition, are not materially distinct from other marginalized groups afforded protection from discrimination under s. 15. For the Boulter and Kapp courts to have taken judicial notice of well-substantiated sociological theories like those espoused by Oscar Lewis would have led to a more apt classification of poverty as an analogous ground for Charter protection.

(As an aside, to do so would also have followed the Supreme Court’s own practice of challenging traditional standards of judicial notice by accepting social science theory as legislative fact. Notably, in Moge v. Moge, [1992] 3 S.C.R. 813, L’Heureux-Dube J for the SCC cites extensive social science data in making her assessment of the various disadvantages incurred and advantages conferred to men and women post-divorce. She finds that “judicial notice should be taken of such [social science] studies, subject to other expert evidence which may bear on them, as background information at the very least.”)

Summary

In sum, the Kapp ruling, despite its otherwise commendable additions to the s. 15 jurisprudence, would seem to preclude many from seeking constitutional redress for discrimination based on their economic status. This may not yet be the final word, however, as the appellants in Boulter are currently seeking leave to appeal to the Supreme Court of Canada.  Let us hope that if the SCC grants leave, it will pay deference to the unfortunate fact that the American (or Canadian) Dream may be no more than a pipe-dream for those in poverty.