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

(2015) 19:2 Review of Constitutional Studies 191-235

49 Pages Posted: 20 Nov 2014 Last revised: 30 May 2015

See all articles by Jonnette Watson Hamilton

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Jennifer Koshan

University of Calgary - Faculty of Law

Date Written: November 19, 2014

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.

Suggested Citation

Hamilton, Jonnette Watson and Koshan, Jennifer, Adverse Impact: The Supreme Court's Approach to Adverse Effects Discrimination under Section 15 of the Charter (November 19, 2014). (2015) 19:2 Review of Constitutional Studies 191-235. Available at SSRN: https://ssrn.com/abstract=2528157

Jonnette Watson Hamilton

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

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