The Strange Double Life of Canadian Equality Rights

Abstract

The author explores the different approaches taken by the Supreme Court of Canada to the interpretation of constitutional equality rights, protected by s.15 of the Charter of Rights and Freedoms, and statutory prohibitions on discrimination in human rights legislation. The contrast between the Court’s consistent, confident, clear and succinct approach to the claimant’s burden in the realm of statutory equality rights, and its fluctuating, verbose, demanding and anxious approach to the claimant’s burden in the context of section 15(1) of the Charter, is striking. The Court’s record on Charter equality rights is distinguished by its doctrinal plasticity, the remarkable series of about-turns and mea culpas one finds in the Court’s section 15 rulings during the last decade. The other distinguishing feature of the Court’s recent section 15 jurisprudence is its consistent record of dismissing Charter equality rights claims, or denying leave to appeal to promising Charter equality rights claims, regardless of the operative test for discrimination at the time. In light of the costs and burdens of Charter litigation, and the uncertainties produced by the instability and divisions in judicial approaches to section 15, statutory equality rights administered by human rights commissions and tribunals will likely continue to play a dominant role in developing Canadian anti-discrimination law and promoting substantive equality.

Keywords: Anti-Discrimination Law; Equality Rights; Constitutional Law