The Inequality of Emerging Charter Jurisprudence: Supreme Court Interpretations of Section 15(1)

ANDREA YORK

ABSTRACT

The first Charter equality judgments in 1989 indicated that the Supreme Court of Canada would be willing to help remedy systemic discrimination through a broad interpretation of s.15(1). Since then, the Court has retreated from the recognition of substantive equality within the context of Charter jurisprudence. One after another, equality claims have been defeated at the Supreme Court. As a result, it is now questionable whether litigation under s.15(1) is an effective means of combating discrimination. In this article, the author chronologically examines Supreme Court equality jurisprudence and indicates where its reasoning fails to recognize the discrimination experienced by individual rights claimants. Through a critical examination of Egan, Miron, and Thibaudeau, the author reveals several shortcomings in the interpretations of the equality guarantee as provided by different members of the Supreme Court. Proceeding on the basis that Charter equality claims continue to have merit in advancing equality interests, the author specifies several alternatives still available to equality litigants. Drawing on precedent, she suggests that a thoughtful approach to "analogous grounds," may provide one means of refocusing the Court's attention on the discrimination suffered.

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Citation: (1996) 54(2) U.T. Fac. L. Rev. 327.
Copyright © 1996. University of Toronto Faculty of Law Review.
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