The Supreme Court of Canada and Constitutional (Equality) Baselines

Abstract

In its approach to defining “analogous grounds” for the purposes of section 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. The essay argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15; and the fact that heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct or“multi-pronged” or more synthetic, “common denominator” approach to the question of analogical development. The Court, over time, has also implicitly shifted from the first to the second of these approaches. For comparative constitutional scholars, the lessons of Canadian Charter jurisprudence are thus that the number and scope of the analogical baseline categories in a constitution — and how courts approach their relationship to each other — can matter a great deal for the subsequent recognition of new constitutional categories . For those seeking to design broad constitutional guarantees of equality, or other provisions containing express analogical baselines, the lessons are potentially even more specific: that more may not always be better when it comes to encouraging judges to give effect to a preferred constitutional understanding.