Managing Charter Equality Rights: The Supreme Court of Canada's Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010
Supreme Court Law Review, Vol. 51, pp. 505-552, 2010
50 Pages Posted: 26 Jan 2011
Date Written: 2010
Through a study of the Court’s disposition of 177 leave to appeal applications in s.15 cases since 1989, the authors examine the role of the Supreme Court of Canada in guiding the development of Charter equality rights jurisprudence. The data reveals that the grant rate on leave applications in s.15 cases has declined markedly since the late 1990s, reaching historic lows in the past five years. The grant rate in s.15 cases has declined more precipitously than the grant rate in Charter cases as a whole, even though s.15 jurisprudence remains in an unsettled and unsatisfactory state, and even though the Court continues to be presented with compelling applications for leave to appeal in s.15 cases. When the Court has granted leave in s.15 cases in recent years, the Court has dismissed s.15 claims perfunctorily in a majority of cases as other legal issues took centre-stage. The data also reveals that the chances of being granted leave in s.15 cases, and of succeeding on appeal to the Supreme Court, are much higher for governments. The authors conclude that the Court has played a significant role, through its management of the appeal process, in directing a restricted scope for Charter equality rights.
Keywords: Equality rights, Constitutional Law, Canadian Charter of Rights and Freedoms, Supreme Court of Canada
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