Proving Discrimination: Evidentiary Barriers and Section 15(1) of the Charter

Abstract

The paper discusses three interrelated aspects of proof in constitutional discrimination claims that create barriers to justice for equality-seeking groups: (1) the elevated and elusive test for discrimination, (2) the challenge of establishing a causal link, in comparison to others, between state action and disadvantage, and (3) the problem of filling evidentiary vacuums. The main claim of the paper is that these evidentiary barriers are judicially created and function to make proving discrimination claims more challenging than any other Charter right. As a result, litigants who often have limited resources face the biggest challenges to proving their claims and vindicating their equality rights. This is the opposite of equality before and under the law. It raises serious questions about the judiciary's role and the potential for section 15(1) of the Charter to deliver on its promise substantive equality.

Keywords: Evidence, Equality, Discrimination, Charter of Rights and Freedoms, Constitutional Law