Meaningless Mantra: Substantive Equality after Withler

38 Pages Posted: 17 Sep 2011 Last revised: 27 Sep 2011

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Date Written: August 30, 2011

Abstract

This article examines the contribution made by the Supreme Court of Canada’s decision in Withler v. Canada (Attorney General) to equality rights jurisprudence under s. 15(1) of the Canadian Charter of Rights and Freedoms. The Court’s approach to issues concerning substantive equality, the use of comparative analysis and comparator groups, and the role and application of the contextual factors from Law v. Canada are addressed. The authors raise concerns about the Court’s narrow definition of discrimination, its return to the language of “relevance”, the ways in which the Court imports s.1 justification considerations into the s. 15(1) analysis, and the Court’s lack of attention to the broader context beyond the benefits scheme at issue, including its lack of attention to the gender and class dimensions of the case. Overall, the authors conclude that although the Court has repeatedly stated a commitment to the principle of substantive equality in its s. 15(1) Charter decisions, Withler is another example in a long line of cases that fails to give effect to that principle.

Keywords: equality, discrimination, Canadian Charter of Rights and Freedoms

Suggested Citation

Koshan, Jennifer and Hamilton, Jonnette Watson, Meaningless Mantra: Substantive Equality after Withler (August 30, 2011). Available at SSRN: https://ssrn.com/abstract=1928032 or http://dx.doi.org/10.2139/ssrn.1928032

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

Jonnette Watson Hamilton

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

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