A service provider can argue pursuant to s. 15(1)(g) that a denial or differentiation is based on a bona fide justification (BFJ). To invoke successfully the BFJ defence, s. 15(2) stipulates that a service provider must demonstrate that she/he has attempted to accommodate the persons affected and that the required accommodation would impose an undue hardship.

The Supreme Court of Canada has set out a stringent three-step test which respondent/service providers must meet to establish a BFJ.⁴³ Once a plaintiff establishes discrimination, the onus shifts to the respondent/service provider to prove on a balance of probabilities that the denial or differentiation is based on a BFJ. When Applied to CSC's approach to FSW with mental disabilities, the CSC would have to prove the following:

1. That the current approach to FSW with mental disabilities is based on a purpose or goal rationally connected to the function of the corrections system;
2. That the current approach was adopted in good faith and in the belief that it is necessary for the fulfilment of the purpose and goal of the corrections system; and
3. That the current approach is reasonably necessary to accomplish its purpose or goal because other approaches would impose undue hardship on the corrections system. Undue hardship may encompass factors such as impossibility, serious risk or excessive cost.

In summary, the CHRA prohibits service providers from discriminating against persons with mental disabilities unless they can prove that their actions are based on a BFJ. To substantiate a BFJ, a service provider must illustrate that her/his decision has a rational basis, is carried out in good faith, and is reasonably necessary in that accommodating the affected persons would constitute an undue hardship. Later this paper argues that various aspects of the CSC approach to FSW with mental disabilities violates s. 5 of the CHRA, which cannot be saved by the BFJ defence.

B. The Equality Guarantee of the Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms forms part of Canada's Constitution and thus, as a Constitutional document, is regarded as the supreme law of Canada. The Charter applies to government action (whether federal or provincial/territorial) which includes laws, programs, policies and practices.⁴⁴ Where a law, policy or program conflicts with the provisions of the Charter, it will be declared by the Court to be of no force or effect unless it can be established that the impugned law, policy or program is reasonably necessary in a free and democratic society.⁴⁵

Section 15 of the Charter guarantees equality to all Canadians:

(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.

The Constitutional guarantee of equality has played an instrumental role in reshaping our understanding of equality in Canada. The Supreme Court of Canada (SCC) has stated that equality does not necessarily mean treating everyone the same.⁴⁶ Indeed, the Court has recognized that identical treatment can sometimes create inequalities.