Women’s Charter Equality at the Supreme Court of Canada: Surprising Losses or Anticipated Failures?

Forthcoming in The Surprising Constitution, Howard Kislowicz, Kerri Froc, and Dick Moon, eds

20 Pages Posted: 9 Feb 2022

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Date Written: February 8, 2022

Abstract

This paper examines the failure of the Supreme Court of Canada to recognize sex discrimination against women under s 15 of the Canadian Charter of Rights and Freedoms until 2018, with only two successful claims to date. We explore how this failure exists despite the mobilization of women’s and other equality-seeking groups to ensure that the Charter’s equality rights would be worded and interpreted to result in transformative change, despite women’s continuing lack of equality in Canada, despite the promise of the Court’s first s 15 decision, Andrews v Law Society of British Columbia in 1989, and despite women’s early successes in human rights sex discrimination claims. Women have also lost almost every other case where they relied on other grounds of discrimination, and we critique the lack of intersectional analyses in the Court’s judgments despite opportunities to consider how sex intersects with other grounds in (re)producing women’s inequalities. We also discuss other barriers to women’s equality claims, including causation issues and evidentiary burdens, courts’ inability to see adverse effects discrimination, and their reluctance to impose positive obligations on government, all of which perpetuate women’s systemic inequality. We conclude by offering thoughts on the uncertain future of women’s s 15 claims.

Suggested Citation

Koshan, Jennifer and Hamilton, Jonnette Watson, Women’s Charter Equality at the Supreme Court of Canada: Surprising Losses or Anticipated Failures? (February 8, 2022). Forthcoming in The Surprising Constitution, Howard Kislowicz, Kerri Froc, and Dick Moon, eds, Available at SSRN: https://ssrn.com/abstract=4030006 or http://dx.doi.org/10.2139/ssrn.4030006

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

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

Jonnette Watson Hamilton

University of Calgary - Faculty of Law ( email )

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

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
126
Abstract Views
450
rank
322,371
PlumX Metrics