Constitutional equality rights in Canada

• Jurisdiction: South Africa
• Citation: 2001 Acta Juridica 241
• Pages: 241-254
• Date: 23 May 2019
• Published date: 23 May 2019
• Author: Gwen Brodsky

Constitutional equality rights in Canada

GWEN BRODSKY*

University of British Columbia

I THE ASSESSMENT

It was on April 17, 1985 that s 15, the constitutional equality rights

guarantee of the Canadian Charter of Rights and Freedoms,

1

came

into force. Sixteen years later, equality rights activists in Canada

have some things to celebrate. There has been concerted work among

community organizations to develop participatory models of litiga-

tion; to develop a Court Challenges Programme that provides test

case funding to individuals and groups;

2

to establish credibility in

the courts as intervenors; and to ground Charter litigation in commu-

nity-based politics and connect it to other political strategies. There has

also been a lot of feminist and progressive academic writing, monitor-

ing and critiquing the emergent Charter jurisprudence. Importantly,

this body of scholarship demonstrated, very early on, the need for a

uniquely Canadian substantive equality jurisprudence, that was both

different from United States constitutional jurisprudence and distinct

from Canada’s own earlier jurisprudence under the Canadian Bill of

Rights.

3

This has been a period of effervescence in judicial education,

and equality rights activism, thinking, and writing in Canada.

As a result, it is fair to say that we have an equality rights jurispru-

dence that is less hostile to group-based claims of disadvantage than it

might have been. The highest Court purports to have adopted new

purposive, contextual, effects-oriented approaches to the interpretation

of the Charter’s equality rights guarantees; to have repudiated the

similarly situated test and the extreme deference to legislators that

characterized decisions under the Bill of Rights; to have accepted

the insight that discrimination is a question of adverse effects; to

have recognised that s 15 is not just an individual rights guarantee;

* LLM (Harvard) D Jur (York, Toronto); Adjunct Professor, Law Faculty, University of

British Columbia.

1

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982 (Schedule B

to the Canada Act 1982 (UK) ch. 11). Hereafter referred to as ‘the Charter’.

2

Information about the Court Challenges Programme can be found at this web site:

www.ccppcj.ca.

3

Under the Bill of Rights S.C. 1960, c. 44 (reprinted in R.S.C. 1970, App. III.), it had been

held that discrimination against Aboriginal women was not discrimination if all women in the

group were treated the same, and that discrimination against women when they are pregnant is

not discrimination on the basis of sex, but rather a gender-neutral distinction between pregnant

and non-pregnant persons. By the time that the first s 15 Charter cases were heard by the

Supreme Court of Canada, this body of jurisprudence had been discredited, as the Court itself

acknowledged.

241

2001 Acta Juridica 241

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