Building an Equality Rights Case after Andrews and Turpin
Building an Equality Rights Case after Andrews and Turpin Ottawa: Court Challenges Program, C.C.S.D., 1989, 12 pp.
13 Pages Posted: 3 May 2014
Date Written: 1989
Two recent Supreme Court of Canada decisions give guidance as to the content and application of the section 15 equality guarantees contained in the Canadian Charter of Rights and Freedoms. The clear message is that s.15 is to be used so as to promote substantive equality, that is, conditions under which all persons experience equal results in terms of social, economic and political life in Canada. Individuals and groups which cannot demonstrate actual disadvantage will not be able to exploit s.15.
Andrews and Turpin mark an important turning point in Canadian law, because our Supreme Court has rejected its pre-Charter definitions of equality which focussed on whether a law was, on its surface “non-discriminatory”, and whether it was applied “equally” to all persons. These two recent cases require that equality seekers show that they are currently “unequal” in Canadian society, apart from any effects created by the law in question. They must then demonstrate that the law creates new disadvantage or reinforces pre-existing disadvantage, which may include a showing that the law has a harsher effect on certain groups, producing unequal results. If these aspects are accepted by the court, it is then up to the federal government defending its laws to convince the court that this violation of the equality rights is justified by significant policy concerns which cannot be addressed by any less invasive mechanisms.
I will first summarize the two cases, and then, in the second part I will highlight the specific legal points which equality seeking groups will want to be aware of in framing their own Charter arguments.
Keywords: Andrews, Turpin, Supreme Court of Canada, equality, section 15, substantive equality, social, economic, political, Canada, Charter
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