Is Substantive Equality a Constitutional Doctrine?
Les Editions Thémis, 2005
44 Pages Posted: 12 Nov 2007 Last revised: 30 Apr 2015
Date Written: 2005
To interpret the equality guarantee in section 15(1) of the Charter, the SCC has identified two legal principles - formal equality and substantive equality. Aligning the former with similarly situated analysis and the latter with discrimination and then dignity analysis, the Court has expressed a consistently unambiguous preference for the latter. However the Court has also denied many equality claims, most at the section 15(1) stage of its analysis. The magnitude of these losses suggests the timeliness of revisiting the legal principles that inform the equality guarantee in section 15 of the Charter. The author identifies four independent legal principles - similarly situated, discrimination, dignity, and anti-subordination - that could explain the equality guarantee, arguing we should resist collapsing them into formal versus substantive equality. Taken collectively all four may enrich equality analysis.
Keywords: Equality, constitutional law, Canada, Charter
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