The Relevance of Relevance to Equality Rights
Queen's Law Journal, Vol. 31, No. 696, 2006
35 Pages Posted: 28 Jul 2008
Date Written: July 28, 2006
Critics of Canadian equality jurisprudence complain that the test in Law v. Canada for a breach of Charter section 15 improperly requires claimants to argue that the statutory criteria for allocating a benefit or burden are not relevant to the purposes of the legislation. They maintain that arguments about whether the criteria are relevant to the legislative purpose should be confined to section 1, and that the burden should be on the government to make out those arguments.
This paper argues that some forms of relevance argument should be part of the section 15 analysis. The author distinguishes three types of relevance argument: formal, instrumental and constitutive. Formal relevance arguments claim that the criteria for allocating a benefit are relevant to a statute's purpose because the legislature says they are. This form of argument has no place in section 15 analysis because it is circular and too deferential to the legislature. Instrumental relevance arguments claim that the allocative criteria are instrumental in achieving the legislative objective. If these criteria are not relevant, or are a bad proxy for other appropriate criteria, revealing such defects is properly part of the section 15 analysis. Finally, constitutive relevance arguments claim that the allocative criteria constitute part of the legislative objective. That is, the criteria used to allocate a benefit partly constitute the benefit itself. The author argues that these arguments are always relevant to section 15 analysis, though they pose special dangers to which we must be alert. Constitutive relevance arguments should always redirect our attention to the constitutional acceptability of the legislative objective itself. Thus, contrary to what some critics claim, relevance arguments cannot be entirely eliminated from section 15. Further, the effort to do so risks producing an equality analysis that fails to demonstrate the wrong of discrimination, without which justification under section 1 is likely to succeed too easily. The use of relevance arguments in section 15 will also require adaptation of the Oakes test.
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