(2014) 64:5 University of Toronto Law Journal 641-668
28 Pages Posted: 9 Oct 2013 Last revised: 14 Jan 2015
Date Written: April 27, 2014
This paper addresses important, neglected questions of legal craft in relation to rights challenges to legislation, especially equality claims. It considers the perspective from which to assess multiple parts of a complex scheme in a challenge under the Canadian Charter of Rights and Freedoms. Is the challenge best framed against the scheme as a whole – all or nothing – or against the separate parts? The framing or perspective can have serious implications for the outcome. Furthermore, a private litigant, motivated by self-interest in her individual circumstances, may frame the challenge in a way that does not advance a larger group’s interests or even harms them. To study these matters, the paper focuses on Quebec (Attorney General) v A, which upheld the exclusion of unmarried couples from provincial marriage law. Supplementing concerns about the prominence of corporate litigants and the class biases of judges, that appeal exemplifies another type of rights case in which money talks.
Keywords: Canadian Charter of Rights and Freedoms, litigation, equality, unmarried cohabitants, welfare law
JEL Classification: K19
Suggested Citation: Suggested Citation