15. (1) Equality before and under law and equal protection and benefit of law - Every 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.

    (2) Affirmative action programs - Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Dempsey v The Queen - Unreported 17, 1986, No. T-1133 (FCTD)

- The regime for mandatory supervision is not unconstitutional and does not run afoul of ss7 and 15 of the Charter. The test for determining whether or not there has been a violation of s15 of the Charter which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, resides in "the similar treatment of people who are similarly situated". Simply because federal prisoners are subject to mandatory supervision whereas provincial prisoners are not does not result in a violation of s15 of the Charter. The plaintiff failed to demonstrate that federal inmates are at all similarly situated with provincial inmates who have been adjudged to serve terms of imprisonment of less than two years.

     The mandatory supervision regime does not offend s7 of the Charter either. A prisoner can choose to go out on mandatory supervision or elect to remain in prison. The principles of fundamental justice in s7 do not require an adjudication or a hearing on the question of whether or not the prisoner is to go out on mandatory supervision.

Dempsey v The Queen and AG Ontario - Unreported, May 8, 1987, No. A-758-86 (FCA)

- The decision of the Trial Division (supra) was upheld on appeal. The Court of Appeal concluded that there was ample evidence before the trial judge upon which to conclude that persons sentenced to federal penitentiaries are not similarly situated to provincial convicts who, have been adjudged to deserve sentences of imprisonment of less than two years. The countless considerations which lead to the imposition of more or less severe sentences provide an ongoing and acceptable basis for differentiation. Because such prisoners are not similarly situated, the mandatory supervision regime set out in the Parole Act does not offend s15 of the Charter by discriminating against federal convicts notwithstanding that provincial convicts may be released from incarceration free of comparable restraints on their liberty.

Renaud v The Queen - Unreported, February 18,1987, No. T-1289-86 (FCTD)

- A prisoner who was currently under sentence and whose sentence included a term of parole supervision prior to October 15th, 1977 alleged that s20(2)(a) of the Parole Act was discriminatory and in contravention of s15 because it deprived him of credit for time spent on parole from January to July, 1971 whereas others paroled after October 15th, 1977 received such credit. The court dismissed the application for a declaration holding that first, when Parliament amended the Parole Act, it limited the benefit to persons whose parole had been revoked as opposed to forfeited and this clearly showed an intention that the section was not retroactive. Second, Parliament specifically referred to time spent on parole "after the coming into force of the subsection" which clearly manifested an intention on the part of Parliament that the subjection not be retroactive. Following Re Andrews and the Law Society of BC (1986) 27 DLR (4th) 600, the court held that the law was quite clear that legislation that classifies or differentiates between groups or individuals does not per se violate the requirement of equal protection or equal benefit of the law under s15 of the Charter. Though, in the circumstances, it was clear that the plaintiff prisoner was in a different category and treated differently from prisoners who have their parole revoked after October 15th, 1977, this did not amount to discrimination within the meaning of s15. The inequality suffered by the plaintiff flowed solely from his status at the time of coming into force of the 1977 amendments to the Parole Act. All persons with his status are treated similarly. Those on parole after 1977 are treated differently because of their different status or a condition. The plaintiff prisoner was not "similarly situated" to those on parole after October 15th, 1977.

Logan v Director of William Head Institution and National Parole Board - May 30, 1986, No. 86/1307, Victoria (BCSC)

- Simply because there are five classes of individuals to which mandatory supervision does not apply, namely, provincial prisoners who earn one third remission of their sentence; federal prisoners sentenced prior to August 1st, 1970; federal prisoners who have less than 61 days remission of sentence to their credit; foreign nationals serving in Canadian federal prisons; and members of the Armed Forces, does not mean that a prisoner subject to mandatory supervision has been treated unequally and discriminated against. The fact that Parliament has not applied, the mandatory supervision provisions which bestow a benefit to the class specified, means only that a benefit has gone unbestowed. The court referred to and followed Belliveau v The Queen (1984) 13 CCC (3d) 138 (see annotations under s11(h) of the Charter).

R v Wallace - (1987) 2 WCB (2d) 73 (Ont Dist Ct)

- A female accused pled guilty to a charge of impaired driving causing bodily harm and was fined $300 with probation for two years, including community service. The accused was a youthful first offender and was remorseful but the offence was a serious one. In considering a fit sentence, the court noted that a short, sharp term of imprisonment would be appropriate with a recommendation for immediate temporary absence in order that she could continue her summer employment and not lose her earnings. However, because the only correctional facility for women was in a different location which would not permit the accused to maintain her summer employment, the court had regard to s15 of the Charter and held that the accused would be denied her right to the equal benefit of the temporary absence program if a custodial sentence were imposed. Consequently, the court imposed a fine.

Horii v Commissioner of Corrections - (1988) 62 CR (3d) 240 (FCTD)

- The applicant had been transferred to a men's prison in BC from the Prison For Women in Kingston on a temporary basis so that she could be near her critically ill husband. When the institution sought to transfer her back to Ontario she commenced an action seeking a declaration that the lack of facilities for female federal prisoners in BC was contrary to s15 of the Charter. The applicant further sought an interlocutory injunction to restrain the Commissioner from returning her to Ontario.

    Madame Justice Reed dismissed the injunction application on the ground that to issue the injunction would change the status quo, rather than preserve it. The court did not address the issue of whether the lack of facilities for female prisoners constitutes a breach of s15 of the Charter. The action seeking a declaration was not pursued.

R v Daniels - Unreported, July 15, 1990 (Sask QB); under appeal to Sask CA

- After her conviction for murder Daniels applied to the trial judge for an order that she serve her sentence in Saskatchewan. Reasoning that where a Charter right is breached a remedy should be available, the court held that it had jurisdiction to fashion an appropriate remedy under s24(1) of the Charter. The lack of pro- grams, the fortress like structure of the Prison for Women, and the isolation and despair felt by Native women at P4W, led the court to agree that women of Native ancestry from the prairie region are discriminated against by having to serve their sentences at P4W away from their families and culture. The court found that incarcerating Native women from the prairie region at P4W violated ss7, 12, 15(1) and 28 of the Charter. The Crown did not attempt to justify the violations under s1 of the Charter.

    The broader issue of whether any woman from the prairie region should be incarcerated at P4W was not addressed.

Attorney General of Canada v Daniels - Unreported, June 6, 1991, No.5038 (Sask CA)

- On appeal, the Court was of the view that, since at the time the order was sought, no committal of the prisoner had been made under s15 of the Penitentiary Act or the regulations, the application was premature and that in itself would be sufficient ground to set the order aside. Furthermore, the trial judge erred in finding that the impugned statutory provisions and regulations were the cause of the matter complained of. The trial judge's assumption that the Commissioner of Corrections had no choice but to send the applicant to Kingston because there were no other penitentiaries for women was in error. In fact the Commissioner had no choice under s15 of the Penitentiary Act but to commit the respondent to Kingston, the lack of choice was not imposed on him by s731 of the Criminal Code and or s15 of the Penitentiary Act, but by his failure to provide other facilities. Therefore, if there were a Charter violation it resulted from an anticipated act or an actual default by the Commissioner of Corrections and not from either s731 of the Criminal Code and s15 of the Penitentiary Act.

    The Court of Appeal was of the view that the trial judge's function ended with the imposition of a sentence in a penitentiary under the Criminal Code and the sentencing judge had no right to designate which penitentiary in which the sentence was to be served. That is a matter confided to the Commissioner of Corrections under the Penitentiary Act involving the administration as opposed to the imposition of the sentence. In order to prohibit the Commissioner or to compel him by mandamus to do something involves a remedy directed to a federal tribunal that is within the exclusive jurisdiction of the Federal Court of Canada under s18 of the Federal Court Act.

    Editorial Note - This decision is being appealed to the Supreme Court of Canada. If the Court of Appeal's view is correct, then that would mean that a trial judge is powerless to prevent an anticipated breach of a person's Charter rights generally and, in particular, under s12 (cruel and unusual treatment or punishment) and s15 (non-discrimination and equality rights) at the time of sentencing. The sentencing judge will have to simply allow the Charter violations to occur and the party affected will be required to bring an application in a different court to try and restrain or prohibit or compel compliance with the Charter. This would only apply with respect to prisoners coming under the jurisdiction of the federal government receiving sentences in excess of two years less a day. Presumably, in all other cases, the trial judge could make the orders requested.

Weatherall v AG Canada et al; Conway v The Queen; Spearman v Disciplinary Tribunal, Collins Bay Penitentiary et al - (1989) 59 CR (3d) 247 (FCTD)

- The interference with privacy arising from frisk searches is trivial and will not sustain a complaint under s15(1) of the Charter. With respect to strip searching and examination of cells, the interference with privacy is not trivial and such activities constitute a perjoritive form of discrimination and treatment of the sexes which would be impermissible, save for the provisions of s15(2). The affirmative action pro- gram adopted by the government to enable women to have adequate opportunities for employment in federal penal institutions is properly within s15(2) and consequently, any rights under s15(1) must be read subject to any such affirmative action program and consequently to the extent that the form of discrimination and cross-gender touching or viewing is essential to an affirmative action program it does not contravene the Charter. The court noted that there was a certain inequality following from an administrative fact that there are no comparable affirmative action programs for males in female prisons, nevertheless, it concluded that this inequality was protected by s15(2) and precluded a complaint under s15(1). The court limited its opinion only to the extent that such discriminatory infringements on male privacy are reasonably necessary to the operation of the affirmative action program. The court reiterated its view that the use of female guards in non-emergency skin searches or in unscheduled, unannounced surveillance of cells was not necessary to their employment in male prisons. However, the court concluded that s41(3) of the Penitentiary Service Regulations could not be justified when there is no comparable legal protection for males. In the court's view, this provision had no logical connection to any affirmative action program and appeared to be a denial of equality under the law and the right to equal protection of the law.

R v S(S) - (1990) 57 CCC (3d) 115 (SCC)

- There is no mandatory duty on the provinces to create alternative measures programs. Section 4(1) provides that alternative measures "may" be used to deal with young persons, this does not impose a duty on the provinces to establish alternative measures and the non-exercise of the discretion cannot contravene the equality rights of an accused. The rights protected by s15(1) of the Charter are framed in terms of "the law" and for the purposes of a constitutional challenge "the law" is s4, which grants the discretion. There was no legal obligation on the Attorney General of Ontario to implement alternative measures and there could be no breach of s15(1).

    Youths in Ontario are at a legal disadvantage due to the absence of alternative measures in their province, however, this is not discrimination within the meaning of s15(1) as the inquiry under s15(1) is whether the distinction is based upon a personal characteristic. Differential application of federal law can be a legitimate means of forwarding the values of a federal system. It is legitimate for Parliament to allow for province-based distinctions in the punishment of young offenders as a reflection of distinct, and rationally-based political values and sensitivities.

Verser v Canada (Commissioner of Corrections) - (1990) 39 Admin LR 161 (FCTD)

- The applicant sought certiorari and mandamus following the respondent's refusal to permit the applicant to participate in private family visits with his homosexual partner. The court said that though sexual orientation is not a prohibited ground listed under s15 of the Charter but (p9):

...it is an analogous ground recognized by the above provincial and territorial human rights acts, as well as the House of Commons Parliamentary Committee of Equality Rights. In my view, the applicant's rights have been violated.

    Having made that determination the court then turned to a s1 analysis to decide if the denial of the right is a reasonable limit prescribed by law. Dube J held that the purpose of private family visits is to assist in preparing inmates for their return to the community, and denying the applicant the opportunity to maintain his most supportive relationship would not assist in that goal. Mr. Justice Dube also rejected the respondent's argument that participating in the program would place the applicant in danger and threaten the good order of the institution. The court was satisfied that the applicant knew the risk he was taking and relied on affidavit evidence of other inmates that the safety of inmates was not compromised because of their sexual orientation.

Belczowski v The Queen - Unreported, February 28, 1991, No. T-1182-88 (FCTD)

- The Plaintiff sought a declaration that para 14(4)(e) of the Canada Elections Act (now 551(e)), which prohibits any prisoner in a penal institution from voting, is in violation of the right to vote in elections as guaranteed in s3 of the Charter and in violation of s15 of the Charter (equality under the law). The court held that it was unable to conclude that a law applied to the Plaintiff to his disadvantage by reason of the circumstance that he has committed a crime and is imprisoned under lawful sentence amounts to discrimination on "some ground analogous" to those specified in subs 15(1) of the Charter. The court referred to R v Turpin [1989] 1 SCR 1296 at 1332-33 and Reference Re Workers Compensation Act [1989] 1 SCR 922 at 924. However, the law was struck down as unconstitutional due to its violation of the s3 right to vote (see annotation under s3 of the Constitution Act at p5117).

    Editorial Note - While the s15 issue was raised by pleadings and the Amended Agreed Statement of Facts, counsel for the Plaintiff did not press this argument and counsel for the Defendant was content to respond to the issue through the written Memorandum of Fact and Law. The court addressed the issue in its reasons very briefly without a full discussion as to the "discrete and insular minority concept" referred to in Turpin and other s15 cases. Nevertheless, the court appears to at least implicitly be saying that prisoners, per se, are not a "discrete and insular minority".

Protective Custody Inmates (Kent Institution) v Warden of Kent Institution - Unreported, March 5, 1991, No. T-3051-90 (FCTD)

- The plaintiffs sought an interlocutory injunction as a result of double-bunking in the Protective Custody sections of the institution, alleging that their treatment was contrary to ss12 and 15 of the Charter. In Piche v Canada (Solicitor General) (1989) 47 CCC (3d) 495 (FCA) aft'g 17 CCC (3d) 1 (FCTD) prisoners challenged double-bunking at Stoney Mountain Institution alleging it violated their s7 and s12 Charter rights. In that case, the court found that double-bunking was an administrative decision and did not constitute a denial of the principles of fundamental justice (s7), nor did it amount to cruel and unusual punishment (s12).

    With respect to the s15 issue, it was held that even if there was discrimination in bunking between the protective custody population and the general population at Kent Institution, this arose from an administrative policy decision which does not come within the application of s15 of the Charter, which guarantees equal protection "under the law". (See Andrews v Law Society of British Columbia [1989] 1 SCR 1 and 43 and Douglas/Kwantlen Faculty Association v Douglas College (1988) 21 BCLR (2d) 175 at 181-184).

    Piche (supra) was followed in striking out a Statement of Claim and dismissing an application for an interlocutory injunction in circumstances where Protective Custody inmates were alleging that double-bunking violated ss12 and 15 of the Charter. See annotation under s12 of the Charter (infra) at p5144.5 and under s15 of the Charter at p5146.3.

R v Johnson - Unreported, April 30, 1991, No. 20327C, Matsqui (BC Prov Ct)

- Section 761 of the Criminal Code provides for a parole review for dangerous offenders. Subsection (1) mandates that the review will take place forthwith after the expiration of three years from the day when the person was taken into custody and not later than every two years thereafter. Subsection (2) provides that persons under a sentence of detention that was imposed prior to October 15th, 1977 shall be reviewed at least once a year. The Provincial Court judge found that this was discrimination under s15 of the Charter. He granted a remedy under s24(1) of the Charter stating that s761 (1) of the Criminal Code is of no force and effect and that the words "that was imposed before October 15th, 1977", in s761 (2) have no force or effect. In other words, everybody who is detained for an indeterminate period should receive a yearly review by the Parole Board.

    The court held that it was patent that the applicant would not receive equal benefit of the law contrary to s15 of the Charter. It also held that persons sentenced to indeterminate detention were indeed members of a "discrete and insular minority" of the kind referred to by Wilson, J on behalf of the majority of the Supreme Court of Canada in Andrews (Andrews v Law Society of British Columbia, per Mcintyre, J (1989) 56 DLR 1 at p15) as well as in her judgment on behalf of the unanimous court in R v Turpin (1989) 48 CCC (3d) 8 at pp34-36. The court also referred to Lyons v The Queen (1987) 37 CCC (3d) especially at pp29-31 for a complete review of the dangerous offender legislation and the Charter in relation to it except a consideration of s 15.

Horii v The Queen et al - Unreported, September 5, 1991, No. A-841-91 (FCA) (Butterworths No. 36191)

- Horii is a female prisoner serving a life term for second degree murder with a minimum parole ineligibility period of ten years. For approximately two and a half years, she had been serving her sentence at Matsqui Institution in British Columbia which is normally a men's prison. Her situation at that location was exceptional but not unique because other women prisoners had been accommodated at that institution and the institution staff is made up of members of both sexes. She was participating in and was very successful in the university program offered at the institution which involved personal interaction between professors from Simon Fraser University and the students. She was the highest achiever in the program and was more than half-way towards an Honours Degree.

    After two and a half years at Matsqui Institution, she was notified that she would be subject to an involuntary transfer to the Burnaby Correctional Centre for Women, a provincial prison operated by the Corrections Branch of the province of British Columbia. She objected to the transfer on the grounds that the programs available to her at Matsqui Institution, and especially the university program, would not be available to her at the provincial facility and her privileges and access to programs would be impaired because of her sex. Her grievances were dismissed. She commenced an action in the Trial Division seeking declaratory relief, mandamus and a permanent injunction asserting a violation of her s15 Charter rights, namely, the right to be equal before and under the law and the right to the equal protection and equal benefit of the law without discrimination on the basis of sex. She moved for an interlocutory injunction to restrain the transfer pending the trial. The Associate Chief Justice dismissed her application for an interlocutory injunction and she appealed to the Court of Appeal.

   The Court of Appeal allowed the appeal and granted the injunction pending the trial. The Court of Appeal held that the classic tripartite test for the granting of interlocutory injunctions was authoritatively enunciated by the Supreme Court of Canada in Manitoba (AG v Metropolitan Stores Ltd[1987] 1 SCR 110 (SCC). That test has been commented on and applied on a number of occasions by the Federal Court of Appeal, for example, in Yri-York Limited et al v Canada (Attorney General) et al (1988) 83 NR 195 and Turbo Resources Ltd v PetroCanada Inc (1989) 91 NR 341. The three branches of the test are briefly stated as follows:

(1)   Has the applicant demonstrated that there is serious issue to be tried?

(2)   Will the applicant suffer irreparable harm if an injunction is not granted?

(3)   Will the harm to the respondent or to the public interest in the event that an injunction is granted outweigh the harm to the applicant (the "balance of convenience")?

Applying this test to the undisputed facts, the court held

(1)   If the appellant was not a woman, she would not, as a matter of longstanding Correctional Service policy, be transferred into a provincial institution without her consent. She is now threatened with such a transfer against her will solely because she is a woman. That raises a serious issue to be tried.

(2)   At Matsqui, the appellant has been following, with outstanding success, university courses organized and given by the Simon Fraser University in classrooms in the institution. She is presently more than half-way to an Honours Degree. If transferred to Burnaby, she would only be able to follow university courses by correspondence. The loss to her is immeasurable and will not be compensable by damages. That is irreparable harm.

(3)   The appellant has presently been at Matsqui for more than two and a half years. While her presence has not doubt caused the authorities some administrative inconvenience, they have, to their credit, overcome it. In those circumstances, the balance of convenience clearly favours the maintenance of the status quo by leaving her where she is. History has demonstrated that whatever damage may be caused to the public interest by leaving her in an institution primarily designed for men is relatively insignificant and has been adequately coped with to date.

Malette v Commissioner of Corrections - Unreported, September 18, 1991, No. T-844-91 (FCTD)

- A prisoner sought certiorari to quash a decision of the Commissioner denying her application for transfer to minimum security and also sought mandamus compelling a transfer to minimum security.

    The applicant is a female prisoner serving a life sentence for first-degree murder with a parole ineligibility date of 25 years. She started her sentence in 1980 and since 1988, has been classified as minimum security. She is serving her sentence at the Kingston Prison for Women which purportedly is a multi-level federal penal institution with maximum, medium and minimum-security levels for female prisoners. The minimum-security facility is a separate building across the road from the prison. As of April 1991, there were 108 prisoners at the Kingston Prison for Women and 20 of them were classified as minimum security (including the applicant) and 11 of them were housed at the facility across the street. The selection criteria for transfer to the minimum facility was set down in policy as follows:

(i)   normally be within one year of mandatory supervision or parole eligibility, with good opportunity for conditional release;

(ii)   amenable to programming; and

(iii)   not present an undue risk to the community.

    The Warden stated that inmates serving life sentences are considered for transfer to the minimum facility about two years prior to eligibility and that because of the limited number of beds, allowing the transfer of those more than two years away from parole eligibility would tie up beds, reducing the availability of space for inmates serving shorter sentences. The applicant was some ten years away from parole eligibility and the Warden was concerned that if her eligibility for judicial review at 15 years was used as a guideline and she was then not successful in her application for judicial review, that then she would occupy a bed at the minimum facility for many years, preventing short-term inmates from being transferred. The applicant was advised of the Warden's decision not to grant the transfer, in the circumstances, and said that her case would be reconsidered the following year. The applicant did not appeal. An application was submitted the following year but has not been decided upon as yet.

    The court denied the application. The court held that it could not find that there had been an excess of jurisdiction in denying the applicant's transfer to another facility within the same minimum security level or that her rights under the Charter or common law had been violated. She had been subjected to the same criteria as other inmates which were reasonable, in the circumstances. The court expressed the view that justice would not be served by ordering that the applicant be moved ahead of others to a facility with limited space. The court felt that the obvious solution was for the government to provide, with all due diligence, adequate facilities for women prisoners in Canada. The court expressed the view that the underlying problem was clearly the shortage of beds at the minimum facility and that until better, larger and more modern facilities were provided for women inmates, the Warden had to cope with the present situation and establish criteria so as to determine who could be transferred there. The Commissioner's Directive provisions with respect to transfer did not apply because the prisoner was already classified as minimum and was seeking transfer to another facility within the same institution at the same level of security and not to another level.