Канада Жоғарғы Сотының «Лоу» ісі және теңдік құқығының тестілеуі

Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 is a leading Supreme Court of Canada decision on section 15 of the Canadian Charter of Rights and Freedoms. The ruling is notable because the court created the Law test, a significant new tool that has since been used by Canadian courts for determining the validity of equality rights claims under section 15. However, the Law test has since been discredited by the Supreme Court.

The case involved Nancy Law, a 30 year old seeking survivor benefits under the Canada Pension Plan (CPP) which are limited only to people over age 35, disabled or with dependants at the time of the deceased's death. Otherwise, the survivor claimant is not entitled to benefits until he or she reaches age 65. She appealed to the Pension Plan Review Tribunal on the basis the age requirement was in violation of her equality rights under section 15(1) of the Charter (which specifically names age as a grounds on which one has rights against discrimination). The tribunal held that the legislation did not violate Law's rights. The majority held that even if it did it would be justified under section 1 of the Charter. However, the dissenting opinion found that the age distinction was arbitrary and Parliament could have targeted those in need better. The Federal Court of Appeal upheld the tribunal's decision. The question before the Supreme Court was "whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the ground that they discriminate on the basis of age against widows and widowers under the age of 35, and if so, whether this infringement is demonstrably justified in a free and democratic society under s. 1". Prior to Law, there had been a sharp divide in the Court in the interpretation of the section 15 test established in Andrews v Law Society of British Columbia. The dispute culminated in this case where the test was reformulated to reflect both sides of the dispute.

This case in some respects contradicted the earlier section 15 case Andrews v Law Society of British Columbia, in which it was ruled that differential, detrimental treatment directly affecting an enumerated or analogous ground constituted a violation of section 15, and that any discussion about the law's purpose or reasonableness should then take place in the section 1 analysis. As constitutional legal scholar Peter Hogg has written, by examining whether the challenged law undermines dignity while still looking at section 15, and not yet section 1, Law moved much of the analysis of the law's purpose and reasonableness from the traditional section 1 test, and into section 15. This means that a person who claims his section 15 rights are violated must himself prove his dignity was undermined. Reactions to Law have been varied, but responses for the most part have been negative. The decision provoked many criticisms by legal scholars centered around the third stage of the section 15 analysis: the elusive concept of human dignity. In an attempt to move towards an understanding of equality as substantive rather than formal, the Court in Law replaced its earlier focus on analogous grounds in Andrews with one focused around the idea of human dignity. This has been criticized on a variety of grounds: it is a vague and abstract term, lacks coherence, is subjective, conflates multiple concepts, is a circular argument that begs the question of equality and has been imbued with undue importance and centrality in equality claims. The human dignity test has notably been criticized for being a vague, abstract, and general term. The concept of human dignity has been characterized as being fundamentally inimical to equality claims analyses and has been deemed " too abstract and general to demarcate the specific province of section 15 or to assist in resolving equality litigation." Similarly, criticisms have been levelled against the Court on the ground that the human dignity test is muddled and is not sufficiently coherent a concept so as to effectively address concerns of equality claimants. This confusion may be due to the circularity of the concept of human dignity as a factor to consider in equality claims. For example, the Court in Eldridge v British Columbia (AG) wrote that the purpose of section 15(1) was to express "a commitment to the equal worth and human dignity of all persons". Human dignity cannot be both a factor in and a definition of equality. "Dignity requires respect, and respect is acknowledgment of human dignity." Another scholar identifies the same problem, arguing that harm to dignity is itself a type of harm, so it cannot be a factor in determining whether there has indeed been harm. Many criticisms levelled against the focus on human dignity point to inconsistencies in the Supreme Court's own definition of the term. Iacobucci J has variously characterized the term as referring to "personal autonomy and self determination", "physical and psychological integrity and empowerment", as well as "self respect and self worth", indicating a conflation of different understandings of equality. One scholar notes that this confusion "[forms] a haphazard amalgamation and intermingling of dignity", and that it is a disservice to our understanding of equality by failing to distinguish between human dignity and human interest. One scholar has explained this phenomenon by suggesting Law did not create a new test of human dignity, but rather that the court crystallized a pre existing yet implicit criterion into law. While the Supreme Court noted these criticisms, it did not explicitly reject human dignity as a factor in equality claims. It noted the centrality of the concept but read down the Law decision by noting that the human dignity test should not be seen as a separate and straightforward criterion or test. Rather, the Court implied that the concept of human dignity should instead be considered generally as an important factor in deciding s. 15 equality claims and that it should remain a central idea. Moreover, despite many claims that Law furthered a formalistic understanding of equality at the expense of substantive equality, the Supreme Court in Kapp explicitly noted that the human dignity test and the Law decision in general confirmed "Andrews’ interpretation of s. 15 as a guarantee of substantive, and not just formal equality. Moreover, Law made an important contribution to our understanding of the conceptual underpinnings of substantive equality."