The Continual Reinvention of Section 15 of the Charter

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I. INTRODUCTION

The Supreme Court of Canada has taken three different approaches to section 15 of the Canadian Charter of Rights and Freedoms (1) as exemplified in the 1989 decision in Andrews v Law Society of British Columbia, (2) Law v Canada (Minister of Employment and Immigration) (3) decided ten years later, and R v Kapp, (4) handed down in 2008. Essentially, each decade the Court has tried a new approach to equality claims. In our view, these are not slightly different analytical frameworks; each includes new formulas with new focuses requiring new types of evidence. This continual reinvention justifies Justice McIntyre's claim in Andrews that equality is "an elusive concept," (5) and illustrates the Court's admission in Law that section 15 "is perhaps the Charter's most conceptually difficult provision." (6)

In this paper, (7) we reflect upon these reinventions and conceptual and analytical difficulties. We began writing together about section 15 as a result of the Kapp decision and have now jointly authored four articles (8) and a number of blogs (9) about developments since 2008. Our writing is informed by our volunteer work with the Women's Legal Education Action Fund (LEAF), where we have both been members of LEAF litigation committees. (10) We have found that it is useful to write about section 15 together because the case law is copious, rather technical and complex, and there is a great deal of secondary literature.

In our opinion, the continual reinvention of section 15 has led to a marked lack of success for equality-seeking individuals and groups before the Supreme Court, (11) despite its periodic recognition of some of the problems with its previous approaches. (12) Subject to a small number of important exceptions, we believe that the Court's reinvention in Kapp (and Kapp's companion cases) is its worst, and is the least likely to achieve substantive equality and remedy the oppression of disadvantaged groups in Canada. (13) We will support our claim through a brief review of the case law from Andrews to Kapp, and then focus on Kapp and the Court's subsequent decisions in Withler v Canada (Attorney General) (14) and Alberta (Aboriginal Affairs and Northern Development) v Cunningham. (15) We will also review a number of other recent cases where Kapp was applied and section 15 was given short shrift. Through this case review, we will identify a number of ongoing problems with the Supreme Court's approach to section 15, including its narrow definition of discrimination, its difficulties with fully recognizing adverse effects discrimination, its refusal to recognize any positive duty to remedy inequality, its importation of section 1 considerations such as arbitrariness and government policy into section 15, its factoring in of the cost of benefits outside the context of remedies, and its deference to governments in cases involving benefits and targeted programs. These problems indicate that although the Court continually describes its goal as one of substantive equality, it has yet to develop an approach that truly embraces that notion.

We also include some consideration of the most recent decision of the Supreme Court on section 15, Quebec (Attorney General) v A, (16) a decision rendered while this paper was under review. We will address the implications of that case for our arguments in the conclusion. (17) Our initial response to the question posed by this issue, "The Promise of Equality--Are We There Yet?", was a definite "no." Our answer is still "no", as we will explain.

II. THE PROMISE OF SECTION 15 ITSELF

The wording of section 15 was broader than any comparable constitutional guarantee of equality in other jurisdictions, largely because of the advocacy of women and other equality-seeking groups during the drafting of the Charter. (18) For example, the first part of section 15(1) speaks of what Andrews described as four basic rights: (19) equality before the law, equality under the law, the right to the equal protection of the law, and the right to equal benefit of the law. …