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See generally: Brooks, supra. Embedded analogous grounds may be necessary to permit meaningful consideration of intra-group discrimination Corbiere , supra at paragraph Note that when the government enacts legislation aimed at remedying previous inequality or disadvantage, it may still unjustifiably limit section 15 if it does not fully remediate that inequality, or if it introduces another inequality. The fact that legislation is remedial does not immunize it from Charter review Hislop, supra at paragraph Also note that where the government has created an affirmative action or targeted ameliorative program aimed at improving the situation of a particular historically disadvantaged group e.

See the detailed discussion of section 15 2 below. This second stage is generally aimed at determining whether the distinction in question amounts to discrimination in the substantive sense. The Supreme Court has repeatedly underscored the importance of addressing the broader context in the substantive equality analysis Turpin , supra at ; Ermineskin Indian Band and Nation v. While the list of factors is not closed, none have been added since Law. The Court has repeatedly emphasized that not all factors will be relevant in every case and no one factor is determinative Law, supra at paragraph 62; Lavoie, supra at paragraph 46; Martin; Laseur, supra at paragraph 85; Withler, supra at paragraphs 38 and 66; Quebec v.

The Supreme Court has also stated that it is not necessary or desirable to apply a step-by-step consideration of these factors Quebec Attorney General v. Section 15 has a significant remedial component Andrews , supra at Therefore, one of the most compelling factors is the impact of the governmental action on individuals or groups who are vulnerable, the object of stereotypes, disadvantaged or members of "discrete and insular minorities" Law , supra at paragraphs A member of a group that historically has been more disadvantaged in Canadian society is less likely to have difficulty in demonstrating discrimination Law , supra at paragraph Where no such unique disadvantage is established, as distinct from the broader group which provides the basis for comparison, this factor does not play a significant role Gosselin, supra ; Martin; Laseur, supra at paragraph This factor is not determinative of an unjustifiable limit of section 15 1.

A member of any group, disadvantaged or not, may successfully bring a section 15 1 claim if he or she establishes a distinction on an enumerated or analogous ground that amounts to substantive discrimination. It is not necessary to show historical disadvantage in order to establish discrimination Law , supra at paragraph 65; Trociuk v.

British Columbia Attorney General , [] 1 S.

In many cases, this is the key contextual factor. Canada A. A law that fails to respond to the actual capacities and needs of the claimant may also have the effect of reinforcing or perpetuating arbitrary disadvantage Taypotat, supra at paragraph The fact that the claimant shares a need in common with the comparator group is not in itself sufficient to establish a lack of correspondence Lovelace, supra at paragraph The Supreme Court distinguishes between universal benefit schemes such as human rights codes Vriend, supra that are underinclusive because they exclude certain groups and targeted programs designed to benefit specific groups Lovelace, supra that are underinclusive.

The exclusion of a particular group from a comprehensive or universal program, one which is aimed at alleviating disadvantage experienced more broadly in society, is more likely to be associated with stereotyping and discrimination. Conversely, a benefit program targeting a particular disadvantaged group is less likely to impart the message that excluded groups are less worthy of respect and recognition Granovsky v.


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Canada Minister of Employment and Immigration [] 1 S. The Supreme Court has rendered a number of decisions dealing with the enumerated ground of disability mental or physical. Failure to accommodate the needs of persons with disabilities, thereby leaving individuals without access to the same level of government service or benefits as others, discriminates on the ground of disability Eldridge , supra ; Eaton v.

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Brant County Board of Education , [] 1 S. As physical or mental disability affects each individual in a unique manner, laws or policies in respect of persons with disabilities that are responsive to the actual circumstances of the individual e. Such a purpose or effect would be consistent the with section 15 protection of substantive equality and accordingly would militate against a finding of discrimination Lovelace, supra; Granovsky, supra.

While much of this inquiry has, after Kapp, supra , been subsumed by the section 15 2 analysis discussed below , the section 15 2 analysis considers only ameliorative purpose, not effect.

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Accordingly, where a program does not meet the requirements of an ameliorative purpose within the meaning of section 15 2 , it may be possible to argue that its ameliorative effects militate against a finding of discrimination. All other things being equal, the more severe and localized the economic, constitutional or social consequences of the government law or action for the affected individual or group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of section 15 1 Egan , supra at paragraphs ; Law , supra at paragraph The Supreme Court has identified a number of interests as significant within the context of section spousal relationships M.

A section 15 1 claim relating to an economic interest should generally be accompanied by an explanation as to how the purpose of section 15 is engaged Martin; Laseur, supra at paragraph ; see also Granovsky, supra at paragraphs 58, It should, however, be noted that claimants need not rebut a presumption that economic disadvantage is unrelated to interests implicating section In many circumstances, economic deprivation may perpetuate prejudice or disadvantage; in other cases, it may be symptomatic of negative attitudes toward the claimants Martin; Laseur, supra at paragraph In addition, section 15 2 enables governments to assist one disadvantaged group, or subset thereof, without being paralyzed by the necessity to assist all, including others who may suffer similar or equal disadvantage Cunningham , supra at paragraph Affirmative action programs accommodating disadvantage are an expression of equality, not an exception Kapp, supra at paragraph 37, citing P.

Hogg, Constitutional Law of Canada 5th ed. The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government.

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The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written Constitution still in force. The Constitution of the United States is a carefully balanced document.

To assure these ends, the Framers of the Constitution created three independent and coequal branches of government.

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That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to , state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. In this instance there is no will, administration has been had, creditors have been paid, proper steps have been taken, without success, to discover kin of the decedent, and, assuming the absence of relatives, the question is one of escheat, that is, whether the net assets shall go to Italy or to the State of New York.

IX, 10 Stat.


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Thompson, U. XIV, 37 Stat. Thompson, supra ; Matter of D'Adamo, N. The omission from Article VI of the Treaty with Persia of a clause of this sort, so frequently found in treaties of this class, must be regarded as deliberate. In the circumstances shown, it is plain that effect must be given to the requirement that the property of the decedent "shall be delivered up to the consul or agent of the nation of which the deceased was a subject, or citizen, so that he may dispose of them in accordance with the laws of his country," unless a different rule is to apply simply because the decedent was domiciled in the United States.

The language of the provision suggests no such distinction and, if it is to be maintained, it must be the result of construction based upon the supposed intention of the parties to establish an exception of which their words give no hint.

In order to determine whether such a construction is admissible, regard should be had to the purpose of the Treaty and to the context of the provision in question. The Treaty belongs to a class of commercial treaties the chief purpose of which is to promote intercourse, which is facilitated by residence. Those citizens or subjects of one party who are permitted under the Treaty to reside in the territory of the other party are to enjoy, while they are such residents, certain stipulated rights and privileges.

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Whether there is domiciliary intent, or domicile is acquired in fact, is not made the test of the enjoyment of these rights and privileges. The citizens and subjects of the two high contracting parties, travellers, merchants, manufacturers, and others, who may reside in the territory of either country, shall be respected and efficiently protected by the authorities of the country and their agents, and treated in all respects as the subjects and citizens of the most favored nation are treated.

It would be wholly inadmissible to conclude that it was the intention that citizens of the United States, making their residence in Persia under this Treaty, would be denied the benefit of Article III in case they acquired a domicile in Persia. The provision contemplated residence, nothing is said to indicate that domicile is excluded, and the clear import of the provision is that, so long as they retained their status as citizens of the United States, they would be entitled to the guaranty of Article III.

The same would be true of Persians permitted to reside here under the Treaty. Again, the provisions of Article V of the Treaty were of special importance, as they provided for extraterritorial jurisdiction of the United States in relation to the adjudication of disputes. The test of the application of every paragraph of Article V, with respect both to citizens of the United States and to Persian subjects, clearly appears to be that of nationality, irrespective of the acquisition of a domicile as distinguished from residence.

We find no warrant for a more restricted interpretation of the words "a citizen or subject of either of the contracting parties" in Article VI than that which must be given to the similar description of persons throughout the other articles of the Treaty. The same intention which made nationality, without limitation with respect to domicile, the criterion in the other provisions, dominates this provision.

The provision of Article VI is reciprocal. The property of a Persian subject dying within the United States, leaving no kin, is to be dealt with in the same manner as the property of a citizen of the United States dying in Persia in similar circumstances.

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There is no applicable principle which permits us to narrow them. As treaties are contracts between independent nations, their words are to be taken in their ordinary meaning "as understood in the public law of nations. Riggs, U. The treaty-making power is broad enough to cover all subjects that properly pertain to our foreign relations, and agreement with respect to the rights and privileges of citizens of the United States in foreign countries, and of the nationals of such countries within the United States, and the disposition of the property of aliens dying within the territory of the respective parties, is within the scope of that power, and any conflicting law of the State must yield.