Intention Creep: The Supreme Court of Canada Rebukes Intent Analysis in Quebec (Attorney General) v A , Despite a Tradition of Dressing it up as “Context”
One clear and basic principle underlies Canadian equality law. Put simply, s 15(1) of the Canadian Charter of Rights and Freedoms guards against the effects of discrimination, regardless of intent. This important tenet of the equality doctrine was set out by the Supreme Court of Canada (SCC) in its very first equality decision, Andrews v Law Society of British Columbia,  1 SCR 143:
[D]iscrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society (at 174-175, McIntyre J).
The focus on an effects-driven analysis was recently, and very narrowly, affirmed by the SCC in Quebec (Attorney General) v A, 2013 SCC 5. In reality, however, what the SCC has done is incorporate a kind of benign intent analysis under the guise of context and rebuke, albeit very narrowly, consideration of invidious intent. The impact of this is that equality law is tainted, while the SCC pretends it remains pure.
Equality, Discrimination, and Intent
To better understand my contention concerning the current role of intent in Canadian equality jurisprudence, it is important to understand what is meant by intent with respect to discrimination and why the SCC initially rejected an intent-based approach in Andrews.
Perhaps the most useful way to conceive of intent is to define it broadly. In general, intent is not simply about desire to do harm. Rather, it is about taking action contemplating a particular aim or purpose, either good or bad. In his writing on changing conceptions of direct discrimination versus indirect discrimination, professor of law and philosophy Jeremy Waldron notes that intention with respect to grounds-based discrimination is perhaps much like the concept of motive, and “certainly it is much more than mens rea in the traditional sense” (“Indirect Discrimination”, in Stephen Guest & Alan Milne eds, Equality and Discrimination: Essays in Freedom and Justice).
Canada’s focus on impact rather than intent is one of the aspects that markedly distinguishes Canadian constitutional equality law from its American equivalent. According to the US Supreme Court’s decision in Washington v Davis, 426 US 229 (1976), the Fourteenth Amendment’s equal protection clause prohibits acts that result from a racially discriminatory purpose, and proof of disparate impact, while helpful, is not sufficient to make out a claim. Over the years, the American intent doctrine has expanded so that racial classifications of any kind are presumptively invidious, that is meant to harm rather than help an identifiable class.
By way of contrast, the wording of s 15(1), and the SCC’s subsequent interpretation of the guarantee in Andrews, was a specific repudiation of both the American intent doctrine made manifest in Washington v. Davis, as well as the formal approach to equality that had taken root under the Canadian Bill of Rights, SC 1960, c 44. As Colleen Sheppard explains, Canada’s constitutional guarantees are designed to be an endorsement of the goal of substantive equality; that is “a conception of constitutional equality based on the discriminatory effects and outcomes of laws and social policies” (Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada).
Just three months after its decision in Andrews, the SCC elaborated on the need for a contextualized analysis in R v Turpin,  1 SCR 1296:
[I]t is only by examining the larger [social, political and legal] context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will,… in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged (para 45).
An effects-based approach allows for a doctrine aimed at substantive equality. It also recognizes that both direct discrimination and adverse effect discrimination are social harms, eliminates the need to distinguish between intended effects and foreseeable side effects, and avoids the problem of having to make determinations concerning conscious and unconscious forms of discrimination.
Of course, this does not mean that a practice that is found to have a discriminatory effect cannot still be constitutional. Should a government action be found to violate s 15(1), it may still be determined to be justifiable under s 1 of the Charter. The problem, however, is that by importing aspects of intent into the equality analysis, the focus on impact is lost and a claim may not survive long enough to reach the next step.
What has happened since Andrews, however, is that the SCC has lost sight of the broad meaning of intent and begun to privilege considerations of government mindset under a misconstrued approach to context. Yes, a slim majority in Quebec was careful to say that there should be no intent-based test for discrimination. But, this is too little too late. The SCC has already endorsed an examination of intent through its s 15(1) jurisprudence and forgotten that the question to be answered is what effect the legislation has, and not why.
Quebec: Rejecting an Invidious Intent Analysis
In the most recent equality case to make it to the SCC, Quebec, the bench is sharply divided when it comes to s 15(1) and intent. Four of the nine justices look to government intent over legislative impact by focusing on the mindset of decision makers. This divide is particularly noteworthy considering the SCC’s current reputation for consensus when it comes to Charter challenges.
Quebec concerns a challenge to the province’s regulation of spousal support and division of assets upon the dissolution of conjugal relationships. Simply put, the Civil Code of Quebec, SQ 1991, c 64, legislates matters of property division for married and civil union spouses after separation or divorce, but does not extend the same protections to people who are in de facto relationships, i.e., relationships akin to common law partnerships. The claimant in the case, known simply as A, charged that the law violated her constitutional right to equality. In the end, she lost, but by a narrow margin. The result is that a slim majority held that while there is violation of s 15(1), it is justified under s 1.
The reasons of LeBel J, however, warrant further scrutiny. Supported by three other judges, LeBel J held that the Code promotes freedom of choice in contract and that it would be improper for the SCC to take judicial notice of unequal power dynamics that might exist in de facto relationships.
In concluding that the law does not violate s 15(1), LeBel J states that impact without intent is insufficient:
The central question is not whether one person receives less than another, but whether one person obtains less than another as a result of prejudice or stereotyping. This is the essence of the wrong or injustice that s. 15(1) is intended to prevent (para 179).
LeBel J prioritizes the question of why there is differential treatment over the question of what that precise impact is. This comes through in his findings concerning legislative attitudes. He writes, “there was a period of Quebec history during which de facto spouses were subjected to both legislative hostility and social ostracism” (para 248). He continues, “the legislature’s traditional hostility generally seems to have changed into acceptance of the de facto union” (para 250). In his analysis, LeBel J is seeking evidence of animus or invidious intent.
Abella J counters with a strongly worded decision that rebukes LeBel J’s examination of legislative intent. Referencing Andrews, she writes:
An emphasis at this stage on whether the claimant group’s exclusion was well motivated or reasonable is inconsistent with this substantive equality approach to s. 15(1) since it redirects the analysis from the impact of the distinction on the affected individual or group to the legislature’s intent or purpose (para 333, emphasis in original).
Abella J finds that the Code violates s 15(1). Four remaining justices concur with her on this point, but go on to determine that the violation is justified.
While Abella J is correct in her assertions about the equality doctrine’s original objectives, there is an irony here. She is quick to raise objections to the use of invidious intent in Quebec; but, it was her decision in Withler v. Canada (Attorney General), 2011 SCC 12 from two just two years prior, that made room for benign intent as justification.
Withler: Entrenching Considerations of Benign Intent
One of the things that makes Withler unique has less to do with the facts, and more to do with the timing of the decision. The SCC had been heavily criticized for its equality decisions and many commentators felt that the ruling in R v Kapp, 2008 SCC 41, just three years earlier, had reasserted the commitment to substantive equality found in Andrews. In actual fact, the Withler ruling entrenched consideration of intent into the s 15(1) test.
Withler was a class action Charter challenge. The representative claimants charged that the legislative scheme for supplementary death benefits under the Public Service Superannuation Act, RSC 1985, c P-36, and Canadian Forces Superannuation Act, RSC 1985, c C-17, unfairly discriminated against surviving spouses of plan-holders on the basis of age. According to both pieces of legislation, the payout to beneficiaries starts to shrink when a plan-holder reaches a certain age, until they are reduced to a minimal legislated amount. The unanimous Court held that the claimants failed to demonstrate discrimination under the s 15(1) stage and the impugned legislation was constitutional.
What is most interesting about the unanimous reasons, written by Abella J, is that while the value of an effects-based analysis is asserted, they end up relying on a form of intent. In reaffirming a commitment to substantive equality, the SCC calls for “an approach that looks at the full context, including the situation of the claimant group and whether the impact of the impugned law is to perpetuate disadvantage or negative stereotypes about that group” (para 40). Instead, the SCC relies on the contextual factors set out in Law v Canada (Minister of Employment and Immigration),  1 SCR 497, and replaces considerations of impact on the claimant with those of legislative intent. There is no pretense here. The decision explains:
[T]he contextual inquiry at the second step of the s. 15(1) analysis will typically focus on the purpose of the provision that is alleged to discriminate, viewed in the broader context of the scheme as a whole. Whom did the legislature intend to benefit and why? (para 67, emphasis added)
If the SCC were to stay true to the equality doctrine, as first set out in Andrews, it would focus on what effect the legislation has had, instead of why parliament intended such a distinction, no matter how benign, or ameliorative. As noted in both Andrews and Turpin, the proper place for that question is under a subsequent s 1 analysis of justification.
It is striking that the SCC in Withler, led by Abella J, directly references intention in a unanimous decision, a move that undermines the very foundation of Canadian anti-discrimination law. From here, it seems only logical that the SCC’s examination of intent starts to expand into ideas of animus, which is precisely what nearly half of the bench attempts to do in Quebec. And, with the current bench turnover, it remains to be seen what a differently constituted court may do to the equality doctrine.
In Withler, the SCC resurrects, and relies on, the “contextual” analysis found in Law that privileges legislative purpose. In Quebec, the justices split and nearly re-characterize the s 15(1) test as an examination of legislative attitudes regarding the claimant class without regard for systemic disadvantage. To give any consideration to intent, invidious or benign, is to undermine the origins of s 15(1), and the ability of claimants to enforce those rights. In every case, the focus must be on what the law does to those who are disadvantaged, not why.