Expectations of Equality

33 Sup Crt L Rev 23.

22 Pages Posted: 18 Aug 2014

See all articles by Bruce Porter

Bruce Porter

Social Rights Advocacy Centre

Date Written: 2006

Abstract

Interpretation of constitutional rights ought to be informed not only by the intentions of governments involved in drafting and adopting text but also by the expectations those whose rights are to be guaranteed. This is particularly true of the equality rights provision in section 15 of the Canadian Charter of Rights and Freedoms, the text of which was fundamentally altered during constitutional negotiations as a result of extensive mobilization of equality seeking groups. Relying on documentary evidence from the time, this article assesses the expectations of equality seeking groups, as articulated during the lobbying for textual changes and subsequent submissions as to how the text should be interpreted. In 1985, a Subcommittee of the House of Commons Standing Committee on Justice and Legal Affairs heard submissions from over 250 witnesses about the expected effect of section 15 and what was expected of governments. It is clear from these submissions that equality seeking groups expected the new guarantee of equality to be interpreted as a positive right, fully consistent with Canada’s international human rights commitments to social and economic rights and focused on remedying systemic, socio-economic inequality. Reviewing subsequent evolution of section 15 jurisprudence from the Supreme Court of Canada, the author concludes that the expectations of equality-seeking groups are in serious jeopardy. The Court appears to have reverted to the formal, negative-rights orientation which equality seeking groups thought had been put to rest in during the constitutional negotiations. The author urges a reclaiming of the fundamental expectations of equality that lie behind the Canadian Charter, by courts, rights claimants and governments.

Keywords: equality, constitution, Canada, substantive equality, international human rights, economic, social rights, section 15, Charter

Suggested Citation

Porter, Bruce, Expectations of Equality (2006). 33 Sup Crt L Rev 23., Available at SSRN: https://ssrn.com/abstract=2470375

Bruce Porter (Contact Author)

Social Rights Advocacy Centre ( email )

Canada

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