Assessing Analogous Grounds: The Doctrinal and Normative Superiority of a Multi-Variable Approach

Abstract

This paper argues for a multi-variable approach to identifying analogous grounds under section 15 of the Canadian Charter of Rights and Freedoms. The author begins with a review of Supreme Court of Canada jurisprudence to demonstrate how the Court has consistently applied such a multi-variable approach. In the course of that review, he notes the lack of clarity in the core factors considered by the Court, namely, immutability and constructive immutability. Then, the author argues in favour of a multi-variable approach because it is more sensitive to the complexities of identity formation and because it is more effective at recognizing grounds worthy of protection under the Charter.

Keywords: analogous grounds, section 15, Charter, Supreme Court of Canada, equality