This Court has recognised that “[t]he more vulnerable the group adversely affected by the discrimination, the more likely the discrimination will be held to be unfair.” Vulnerability in turn depends to a very significant extent on past patterns of disadvantage, stereotyping and the like. This is why an enquiry into past disadvantage is so important. In a passage endorsed in M v H, Iacobucci J in the Law case expressed this tellingly as follows:
“[P]robably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping or prejudice experienced by the individual or group [citations omitted]. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact on them, since they are already vulnerable.”
- Per O’Regan J in President of the Republic of South Africa and Another v Hugo 1997 (6) BCLR 708 (CC); 1997 (4) SA 1 (CC) at para 112 as confirmed by the Court in the Sodomy case above n 34, at para 27 and n 33 in that judgment.
- Above n 45 at para 68.
- Above n 50 at para 63.