core, the appellants’ claim is grounded in freedom of religion.
This is reflected in the factual record and in the way the case was
litigated in the Divisional Court. There is an insufficient basis to
determine whether the options proposed by the College would
meet the concerns of physicians with conscience-based objections
and, if not, how the cost or burden on those physicians is to be
weighed in the proportionality analysis. It is not appropriate to
explore the contours of freedom of conscience in a case that
does not have a robust evidentiary record. Like the Divisional
Court, given my conclusion that the Policies infringe the appellants’ s. 2(a) religious freedom, I find it unnecessary to consider
the appellants’ alternative argument that the Policies infringe the
appellants’ s. 2(a) freedom of conscience.
(3) Section 15(1)
[86] Section 15(1) of the Charter provides:
15(1) 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.
[87] The Divisional Court referred to the two-part test for
establishing a breach of s. 15(1) articulated in Taypotat, at
paras. 19-20: (1) whether, on its face or in its impact, a law
creates a distinction on the basis of an enumerated or analogous
ground; and (2) whether the impugned law fails to respond to
the actual capacities and needs of the members of the group
and instead imposes burdens or denies benefits in a manner
that has the effect of reinforcing, perpetuating or exacerbating
their disadvantage.
[88] The focus of the inquiry is “whether a distinction has the
effect of perpetuating arbitrary disadvantage on the claimant
because of his or her membership in an enumerated or analogous
group” such that it is a “discriminatory distinction”: Taypotat, at
paras. 16, 18; and Quebec (Attorney General) v. A, [2013] 1 S.C.R.
61, [2013] S.C.J. No. 5, 2013 SCC 5, at para. 331.
[89] Applying this test, the Divisional Court dismissed the
appellants’ claim that the Policies infringe their equality rights
under s. 15(1) of the Charter. Without deciding whether the
Policies create a distinction on the basis of religion, the Divisional
Court held that the Policies do not have the effect of reinforcing,
perpetuating or exacerbating a disadvantage or promoting
prejudice against religious physicians. Nor do they restrict access
to a fundamental social institution or impede full membership in
Canadian society.
