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
Date Written: February 8, 2022
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.
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