Breaking the Law's Grip on Equality: A New Paradigm for Section 15

Abstract

Equality is an elusive and often divisive concept. The Supreme Court of Canada has struggled with its interpretation, tacking back and forth between periods of unanimity and division it is interpretation of section 15, the equality clause under the Canadian Charter of Rights and Freedoms. The late 1980s was a period of unanimity in the Court's initial attempts to define the right to equality under section 15. However, within a number of years that unanimity broke down as the Court fractured into at least three different approaches to the interpretation of section 15. By 1999, the Court had returned to unanimity in the Law case, setting out a complicated multi-factor contextual analysis conceptually anchored in the idea of human dignity. However, the unanimity of Law proved to be short-lived and by 2002, Law was beginning to rupture.

This paper argues for a revised approach to the interpretation of equality under section 15. The authors assert that the interpretation of equality has become overly contextualized under Canada's Charter resulting in two key negative effects. First, the emphasis on context has made interpreting equality more elusive than ever, losing the sort of certainty and predictability that are important elements of the rule of law. Second, Law's penchant for context has essentially eviscerated any role for section 1, the limitations clause under the Canadian Charter. We propose a simplified, less contextual approach to equality that would return the equality analysis to its origins under the Canadian Charter and shift the burden of demonstrating reasonableness of a limitation back to the government under section 1 of the Charter where it belongs.

Keywords: Canadian Constitution, Canadian Charter, Canada, equality, dignity, balancing, judicial review, comparative law, comparative constitutionalism, comparative equality