‘Blissed Out: Section 15 at Twenty’

Abstract

This paper was written for the 20th anniversary of the coming into force of section 15(1) of the Canadian Charter of Rights and Freedoms. Unfortunately the same themes that defeated Stella Bliss in 1979, when she launched her Canadian Bill of Rights challenge to the Canadian Unemployment Insurance Act continue. While equality law has moved on from the specific facts of Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183, and from some of the discrete judicial conclusions in that case, it is still true that the series of critical ways of understanding the relationship between equality rights, individuals and the state that mark Bliss persist. This essay is an exploration of how current constitutional policy law has never really left the Bliss analysis behind.

This chapter begins with a quick recap of Bliss that includes identification of three conceptual errors into more general inadequacies in equality law thinking, in order to show how the equality thinking of Bliss remains a strong thread in recent argument, although the factual issues may be things of the past. My contention is that current equality jurisprudence replicates and reinforces the failings that were so pointedly obvious in Bliss.

Keywords: Canadian Charter of Rights and Freedoms, Equality before the law, Discrimination