The Continual Reinvention of Section 15 of the Charter

Abstract

Over the past three decades the Supreme Court of Canada has taken three distinctive approaches to equality rights under section 15 of the Canadian Charter of Rights and Freedoms, as exemplified in the decisions Andrews v Law Society of British Columbia, Law v Canada (Minister of Employment and Immigration), and R v Kapp. In this paper, we reflect upon these approaches and the conceptual and analytical difficulties they raise. In our opinion, the Court’s various reinventions of section 15 have led to a marked lack of success for equality-seekers, despite its periodic recognition of some of the problems with these approaches. Subject to a small number of important exceptions, we believe the Court’s reinvention in Kapp (and Kapp’s companion cases) is the least likely to achieve substantive equality and remedy the oppression of disadvantaged groups in Canada. Through a review of the cases, we identify a number of ongoing problems with the Supreme Court’s interpretations of section 15, which indicate that although the Court continually describes its goal as one of substantive equality, it has yet to develop an approach that truly embraces that notion. We also review the most recent decision of the Supreme Court on section 15, Quebec (Attorney General) v A, addressing the implications of that case for our arguments in the conclusion.