Legal writers call it “adverse effects discrimination” and “adverse discrimination effect,” which describes a situation in which a policy that seems on its face to treat everyone equally actually has an adverse impact on a protected group. Applied to gender inequality, ageism, and differential provisions for workforce training, there are plenty of cases to support the principle. One of the most notable Supreme Court cases in Canadian legal history is Gosselin v. Quebec (Attorney General). This chapter is an overview of some of the opinions published about Gosselin that exposes the Charter as negative law and constitutes part of a needs assessment for judicial instruction about deciding cases of equity.
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Ms. Gosselin’s case failed because, facing a complex claim based in deep systemic inequalities, it was easier under the current section 15 of the Charter to point to the government’s good intentions, and claim they must stay out of resource allocation in complex benefit schemes. Ms. Gosselin faced many disadvantages: poverty, physical and psychological health problems, lack of employability, substance abuse; and harassment, described by the majority only as “personal difficulties” without investigating the context, the systemic inequalities that may underlie the disadvantages.
Gosselin’s lawyer argued that, at the time (the mid-1980’s), section 29(a) of the Regulation Respecting Social Aid, RRQ (1981) violated the security of the person interest of section 7 of the Charter and discriminated on the ground of age under section 15. She also pleaded that the regulation violated section 45 of the Quebec Charter. The Court held however, that section 29(a) of the regulation did not infringe section 15 of the Charter nor did it violate the security of the person interest under section 7. The Court also held that section 29(a) of the regulation did not infringe section 45 of the Quebec Charter. The appeal was dismissed, and the regulation was upheld under the Constitution.