Adverse Impact: The Supreme Court's Approach to Adverse Effects Discrimination under Section 15 of the Charter

Abstract

The recognition and remedying of adverse effects discrimination is crucial to the realization of substantive equality. However, the Supreme Court of Canada’s analytical approach to section 15(1) of the Canadian Charter of Rights and Freedoms has made it difficult for equality claimants to mount successful claims of this type. This article comprehensively reviews and critiques the Supreme Court’s section 15(1) adverse effects discrimination jurisprudence in order to identify the barriers. We argue that the Court’s approach to section 15(1) has used direct discrimination as the paradigmatic case, creating an adverse impact on adverse effects discrimination claims. We identify the following problem areas: more burdensome evidentiary and causation requirements; assumptions about choice; reliance on a comparative analysis; acceptance of government arguments based on the “neutrality” of their policy choices; narrow focusing on discrimination as prejudice and stereotyping; and failing to “see” adverse effects discrimination, often because of the size or relative vulnerability of the claimant sub-group. We also examine two adverse effects claims currently before the Supreme Court, Taypotat and Carter, to analyze whether and how these problem areas play out in those appeals. We conclude by exploring how the harms of adverse effects discrimination can be placed on an equal footing with those of direct discrimination.