The Disappearance of the Four Equality Rights and Systemic Discrimination from Canadian Equality Jurisprudence
Mary Eberts & Kim Stanton, “The Disappearance of the Four Equality Rights and Systemic Discrimination from Canadian Equality Jurisprudence” National Journal of Constitutional Law (2018) 38:1, 89-124
Kim Stanton has published a new article on Charter equality jurisprudence in the latest volume of the National Journal of Constitutional Law, a Thomson Reuters publication. The abstract summarizes the article as follows:
Forged in great hope, s. 15 of the Charter of Rights has not fared well in the analysis of the Supreme Court of Canada, forcing equality-seekers to frame cases under s. 7, a combination of ss. 7 and 15, or other sections of the Charter. Two main features of Supreme Court interpretation account for much of the disappointing performance of s. 15. One is that in cases it characterizes as being about social and economic policy, the Court conducts a “balancing” of the interests of the vulnerable under s. 15, instead of performing its balancing exercise under s. 1. Invariably, the Court defers to the balancing chosen by Parliament without examining the equality issues underlying the initial complaint. Secondly, the Court is reluctant to grant remedies for systemic discrimination per se, or recognize the significant connection between systemic discrimination and substantive equality. In cases such as Ipeelee, Williams and Gladue, it has recognized systemic inequality as a contextual factor, once a case has been made that an individual’s rights under s.15 have been violated. This approach puts a premium on being able to establish an individualized formal equality case, and excludes from the reasoning under s. 15 the existence and effect of systemic discrimination against the group or groups to which the plaintiff belongs. In this article, we turn to the language of s. 15 itself in search of a way of opening up the inquiry under that section, and ensuring that significant elements of inequality are not routinely excluded from s. 15 analysis. There are four guarantees in s. 15: of equality before the law, equality under the law, equal benefit of the law, and equal protection of the law. Except in the earliest cases under the section, the Court has not explored the meaning and content of each particular guarantee. Rather it has proceeded almost directly to the term “discrimination,” using it as the analytical lynch pin of the section. This article argues that imbuing the four guarantees with meaning is a way of bringing back into consideration all of the necessary elements of an equality claim, including systemic inequality, and re-enabling the section to do the work intended for it.