Expanding Equality
Click here to read “Expanding Equality”.
Section 15 of the Canadian Charter of Rights and Freedoms (hereafter: Canadian Charter) guarantees the constitutional right to equal protection. The provision protects individuals against direct and indirect forms of discrimination. Direct discrimination implies that a law is discriminatory on its face. Indirect discrimination implies that a neutrally-worded law adversely impacts certain individuals and groups. Canadian courts tend to interpret the constitutional right to equality restrictively.
In a recently published article, I argue that courts should interpret the constitutional right to equality more broadly. The article is entitled “Expanding Equality” and it was published in the Dalhousie Law Journal. In the article, I demonstrate that the right to equal protection is interpreted narrowly in at least three respects. First, judicial interpretations of the right to equality fail to protect certain individuals against obvious forms of direct discrimination. Second, courts have rejected certain quasi-immutable traits — such as poverty and homelessness — as grounds of discrimination under s. 15 of the Charter. Third, s. 15 of the Charter is largely absent from the Supreme Court of Canada’s criminal law decisions. In the concluding parts of the article, I provide a framework that aims to address these shortcomings and expand the right to equality.
Here is the abstract of the article:
Section 15 of the Canadian Charter provides a constitutional right to equality. But the Supreme Court of Canada has interpreted this right restrictively. Today, the Constitution fails to protect certain individuals and groups against obvious forms of direct and indirect discrimination.
This article argues that s. 15 of the Charter is interpreted narrowly in three respects and advances proposals to expand the right to equality. First, the right to equality framework fails to protect marginalized persons and groups against direct discrimination. Second, courts overlook how individuals can suffer discrimination based on quasi-immutable traits, which are personal characteristics that are relatively stable and difficult to change. Third, s. 15 of the Charter is largely absent from areas of the law where discrimination is widespread, such as criminal law and procedure.
This article offers a more expansive right to equality framework that addresses these limitations. In doing so, it deepens our understanding of discrimination based on different personal traits, distinguishes their respective normative significance, and offers an account of their different psychological harms. It also explains why the right to equality can call the State to account for discrimination—and require the State to justify disparate treatment—in ways that other constitutional rights cannot. Ultimately, this article offers a path forward to broaden the right to equality in order to counteract unconstitutional discrimination more effectively.
All views expressed in this article are my own. They do not represent — and are not endorsed by — any academic institution or research centre. These views do not constitute any form of legal advice.
