Is Substantive Equality a Constitutional Doctrine?

44 Pages Posted: 12 Nov 2007 Last revised: 30 Apr 2015

See all articles by Beverley Baines

Beverley Baines

Queen's University - Faculty of Law

Date Written: 2005

Abstract

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

Suggested Citation

Baines, Beverley, Is Substantive Equality a Constitutional Doctrine? (2005). Les Editions Thémis, 2005; Queen's University Legal Research Paper No. 2015-042. Available at SSRN: https://ssrn.com/abstract=1028944

Beverley Baines (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada

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