Not only does s. 15(1) require the government to exercise greater caution in making express
or direct distinctions based on personal characteristics, but legislation equally applicable to
everyone is also capable of infringing the right to equality enshrined in that provision, and so of
having to be justified in terms of s. 1. Even in imposing generally applicable provisions, the
government must take into account differences which in fact exist between individuals and so far
as possible ensure that the provisions adopted will not have a greater impact on certain classes
of persons due to irrelevant personal characteristics than on the public as a whole. In other words,
to promote the objective of the more equal society, s. 15(1) acts as a bar to the executive
enacting provisions without taking into account their possible impact on already disadvantaged
classes of persons.
65 The Court elaborated upon this principle in its recent decision in Eaton, supra. Although
Eaton involved direct discrimination, Sopinka J. observed that in the case of disabled persons, it
is often the failure to take into account the adverse effects of generally applicable laws that
results in discrimination. He remarked, at paras. 66-67:
The principles that not every distinction on a prohibited ground will constitute discrimination
and that, in general, distinctions based on presumed rather than actual characteristics are the
hallmarks of discrimination have particular significance when applied to physical and mental
disability. Avoidance of discrimination on this ground will frequently require distinctions to be
made taking into account the actual personal characteristics of disabled persons. In Andrews v.
Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 169, McIntyre J. stated that the
"accommodation of differences . . . is the essence of true equality". This emphasizes that the
purpose of s. 15(1) of the Charter is not only to prevent discrimination by the attribution of
stereotypical characteristics to individuals, but also to ameliorate the position of groups within
Canadian society who have suffered disadvantage by exclusion from mainstream society as has
been the case with disabled persons.
The principal object of certain of the prohibited grounds is the elimination of discrimination by
the attribution of untrue characteristics based on stereotypical attitudes relating to immutable
conditions such as race or sex. In the case of disability, this is one of the objectives. The other
equally important objective seeks to take into account the true characteristics of this group which
act as headwinds to the enjoyment of society's benefits and to accommodate them. Exclusion
from the mainstream of society results from the construction of a society based solely on
"mainstream" attributes to which disabled persons will never be able to gain access. Whether it is
the impossibility of success at a written test for a blind person, or the need for ramp access to a
library, the discrimination does not lie in the attribution of untrue characteristics to the disabled
individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it
is the failure to make reasonable accommodation, to fine-tune society so that its structures and
assumptions do not result in the relegation and banishment of disabled persons from participation,
which results in discrimination against them. The discrimination inquiry which uses "the attribution
of stereotypical characteristics" reasoning as commonly understood is simply inappropriate here.
It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of
a disabled individual, ignores his or her disability and forces the individual to sink or swim within
the mainstream environment. It is recognition of the actual characteristics, and reasonable
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