The Continual Reinvention of Section 15 of the Charter

Forthcoming, University of New Brunswick Law Journal

41 Pages Posted: 4 Apr 2013

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: April 3, 2013

Abstract

Over the past three decades the Supreme Court of Canada has taken three distinctive approaches to equality rights under section 15 of the Canadian Charter of Rights and Freedoms, as exemplified in the decisions Andrews v Law Society of British Columbia, Law v Canada (Minister of Employment and Immigration), and R v Kapp. In this paper, we reflect upon these approaches and the conceptual and analytical difficulties they raise. In our opinion, the Court’s various reinventions of section 15 have led to a marked lack of success for equality-seekers, despite its periodic recognition of some of the problems with these approaches. Subject to a small number of important exceptions, we believe the Court’s reinvention in Kapp (and Kapp’s companion cases) is the least likely to achieve substantive equality and remedy the oppression of disadvantaged groups in Canada. Through a review of the cases, we identify a number of ongoing problems with the Supreme Court’s interpretations of section 15, which indicate that although the Court continually describes its goal as one of substantive equality, it has yet to develop an approach that truly embraces that notion. We also review the most recent decision of the Supreme Court on section 15, Quebec (Attorney General) v A, addressing the implications of that case for our arguments in the conclusion.

Suggested Citation

Koshan, Jennifer and Hamilton, Jonnette Watson, The Continual Reinvention of Section 15 of the Charter (April 3, 2013). Forthcoming, University of New Brunswick Law Journal. Available at SSRN: https://ssrn.com/abstract=2244637

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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