Section 15 and Distributive Underinclusiveness: Aristotle's Revenge
(2018) 38 National Journal of Constitutional Law 125
29 Pages Posted: 4 May 2018
Date Written: March 1, 2018
This article argues that the Supreme Court of Canada's rejection of a similarly-situated approach to s. 15(1) of the Canadian Charter [conferring a right to equality without discrimination] is ironic as well as mistaken. It is ironic because in its first s. 15(1) case (Andrews v. British Columbia-1989) and in every successful s. 15(1) case up to now, the Court has in fact been using such an approach. Not its discredited legalistic version, but a substantive, moral version, which requires that persons get equal legal benefits when this is compelled by moral reasoning. It is further argued that this doctrine of equality and discrimination (which is called ‘distributive underinclusiveness') is morally and practically attractive, and thus fits the judiciary's role as the guardian of a ‘culture of justification’ in Canadian public law. Indeed, it may well be the preeminent doctrine of substantive equality under s. 15(1), and the failure to acknowledge it has been a source of many wanderings. The article begins by explaining the elements of distributive underinclusiveness and showing its immanence in the s. 15(1) case law. It then addresses its fitness as a judicial doctrine. Finally, it discusses its interpretive implications as to the notion of ‘analogous grounds' of discrimination and to the role of s. 1 [the justification clause].
Keywords: constitutional law, constitutional rights, equality, discrimination, judicial review, proportionality, culture of justification, legal reasoning, Canada
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