Defending the Human Rights Codes from the Charter
![handle is hein.journals/jleq9 and id is 69 raw text is: Defending the Human Rights Codes from the Charter
Denise Raume*
I. INTRODUCTION
Since the Supreme Court of Canada handed down its decision in Law v
Canada, momentum has been growing in the direction of importing the
test for the violation of section 15 of the Canadian Charter of Rights and
Freedoms into the human rights codes, which prohibit discrimination on
various grounds and in a variety of spheres of interaction.' This trend has
unsettled what had seemed a fairly broad consensus about the structure of
a human rights code complaint since the section 15 test is at odds with
what I will refer to as the conventional analysis of code complaints. The
issue of whether the structure of a human rights complaint should be the
same as that of a Charter challenge came before the Ontario Court of
Appeal in Ontario (Director, Disability Support Program) v
Tranchemontagne.2 Although the court concluded that imposing more
severe constraints on addicts seeking social assistance than on those with
additional or other disabilities was discriminatory, the structure of the
test proposed by the government, based closely on the Charter test, was
largely adopted. Justice Janet Simmons proclaimed that she could see
no principled reason for adopting a different meaning for the term
discrimination as it appears in s. 1 of the Code than has been ascribed to
that term in the Charter context.3 This declaration pushes the
Professor of Law, University of Toronto; Visiting Professor, Oxford University. The
views expressed in this paper have been refined through discussion with members of a
class in Discrimination Law at the University of Toronto in the fall of 2010 as well as
through helpful conversations with Joanna Birenbaum, Gwen Brodsky, and Cynthia
Petersen. I am grateful to all for their time and attention.
Law v Canada (Minister of Employment and Immigration), [ 1999] 1 SCR 497 [Law];
Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 Ontario (Director, Disability Support Program) v Tranchemontagne, 2010 ONCA 593
[Tranchemontagne]. Benjamin Oliphant's contribution to this issue, Prima Facie
Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada's
Human Rights Code Jurisprudence? p 37 ff, outlines the decisions at the Divisional
Court and Court of Appeal levels. For an inside perspective on the litigation as it
developed, see Lesli Bisgould's contribution in this volume, Twists and Turns and
Seventeen Volumes of Evidence, or How Procedural Developments Might Have
Influenced Substantive Human Rights Law, p 5.
Tranchemontagne, supra note 2 at para 84.](ViewImageLocal?handle=hein.journals/jleq9&div=6&collection=&method=preview&ext=.png&size=3)
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Defending the Human Rights Codes from the Charter
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