The Evolving Approach to Section 15(1): Diminished Rights or Bolder Communities?

Abstract:     
Complex and far reaching constitutional cases form a dynamic platform on which earlier conflicts within the law are resolved, and new ones develop. One concern that remains to be resolved, is the precise balance between the values and interests that define the right to equality under section 15 of the Charter, and those that characterize justification, under section 1. Drawing on themes laid out in the modern communitarian movement, the authors suggest that in 2004, the Supreme Court of Canada embarked on a more communitarian approach to the values and interests considered in section 15, showing greater recognition of community interests and a corresponding movement away from past emphasis of individualistic and subjective concerns. The themes exhibited in the Court's recent equality decisions include a communitarian approach to the "needs correspondence" factor, a greater recognition of the importance of both community economic interest and community goals, as well as a shift away from reliance on subjective components of the equality analysis. The authors conclude with an assessment of the benefits and disadvantages of the apparent changes in the Court's approach to section 15.

Keywords: Charter, rights, Supreme Court of Canada , Constitution, justification, limits, communitarian, equality, equality rights, justifiable limits, theory, liberal theory, communitarian theory

JEL Classification: K39

Accepted Paper Series