scholarly journals One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada

2019 ◽  
Author(s):  
Fay Faraday
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Pay Equity ◽  
Substantive Equality ◽  
The Supreme Court ◽  
One Step ◽  
Systemic Discrimination

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

2017 ◽  
Author(s):  
Lawrence Sonia
Keyword(s):  
Supreme Court ◽  
Complete Separation ◽  
Supreme Court Of Canada ◽  
Government Action ◽  
Canadian Charter ◽  
Doctrinal Development ◽  
Substantive Equality ◽  
The Supreme Court ◽  
The Relationship

This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.

scholarly journals Inside McClung J.A.'s Closet in Vriend v. Alberta: The Indignity of Misrecognition, the Tool of Oppressive Privacy, and an Ideology of Equality

1969 ◽  
pp. 648
Author(s):  
James R. Olchowy
Keyword(s):  
Supreme Court ◽  
Gay Rights ◽  
Supreme Court Of Canada ◽  
Classical Liberalism ◽  
Substantive Equality ◽  
The Supreme Court ◽  
Interpretive Approach ◽  
Majority Judgment ◽  
Postmodern Philosophy ◽  
Court Of Appeal

Addressing recent expressions of concern about the Supreme Court of Canada's alleged inability to articulate a principled and coherent philosophy of the Charter, the author scrutinizes Vriend v. Alberta, a controversial gay-rights case in which starkly antithetical philosophical approaches to the Charter come into focus. While differentiating theoretically between modern and postmodern paradigms of justice, and contracting McClung J.A. 's majority judgment for the Alberta Court of Appeal with the ruling of the Supreme Court of Canada in Vriend, the author argues that the Supreme Court — guided by the Charter's equality provisions — has begun to articulate a postmodern philosophy of the Charter centred on the idea of inclusive justice. This emerging philosophy of inclusive justice is premised on the notion that the law works to produce the reality in which we live. not merely to reflect it. Whereas, in Vriend, McClung J.A. 's philosophy of the Charter adheres to the assumptions of modern jurisprudence and the concepts of classical liberalism — in particular, concepts such as abstract individualism, the private/public divide, and formal equality — the Supreme Court's philosophy in Vriend is coloured by postmodern insights that cogently impugn McClung J.A. 's traditional assumptions and concepts. What the Supreme Court's position makes clear is that, by resorting to a rhetoric of misrecognition, an ideology of privacy, and an ideology of equality, McClung J.A. tellingly exposes the limitations of his Charter philosophy, which actually reinforces and perpetuates the discriminatory treatment and oppression of sexual minorities in Canadian society. Juxtaposed with McClung J.A. 's questionable interpretive approach is the Supreme Court's emphasis in Vriend on achieving substantive equality — an emphasis that the author construes as underscoring how the Supreme Court has actually gone some distance toward articulating a credible postmodern philosophy of the Charter.

scholarly journals Intersections and Roads Untravelled: Sex and Family Status in Fraser v Canada

2021 ◽  
Vol 30 (2) ◽  
pp. 29-42
Author(s):  
Jennifer Koshan
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Attorney General ◽  
Sex Discrimination ◽  
Supreme Court Of Canada ◽  
Family Status ◽  
Pay Equity ◽  
Employment Benefits ◽  
Equality Rights ◽  
The Supreme Court

It has been a long road to the judicial recognition of women’s inequality under the Cana‑ dian Charter of Rights and Freedoms.1 The Supreme Court of Canada ruling in Fraser v Can‑ ada is significant for being the first decision where a majority of the Court found adverse effects discrimination based on sex under section 15,2 and it was only two years prior that a claim of sex discrimination in favour of women was finally successful at the Court,3 almost 30 years after their first section 15 decision in Andrews v Law Society of British Columbia. 4 1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], s 15. 2 Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser]. 3 Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux,  2018 SCC 17 [Alliance] (majority found sex discrimination under s 15 and rejected the government’s justification argument under s 1 in the pay equity context). See also Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 [Centrale] (majority found violation of s 15 but accepted the government’s s 1 argument, also in the pay equity context). For comments on these decisions see Fay Faraday, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020) 94 SCLR (2d) 301; Jonnette Watson Hamilton & Jennifer Koshan, “Equality Rights and Pay Equity: Déjà Vu in the Supreme Court of Canada” (2019) 15 JL & Equality 1. See also British Columbia Teachers’ Federation v British Columbia Public School Employers’ Association, 2014 SCC 70 (a one-paragraph decision restoring an arbitrator’s award allowing a s 15 employment benefits claim by women); Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 (finding a violation of s 15 but accepting the government’s s 1 argument, again in the pay equity context).4 [1989] 1 SCR 143, 56 DLR (4th) 1.

scholarly journals Vriend v. Alberta, Law v. Canada, Ontario v. M. and H.: The Latest Steps on the Winding Path to Substantive Equality

1969 ◽  
pp. 683
Author(s):  
Craig D. Bavis
Keyword(s):  
Supreme Court ◽  
Analytical Framework ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
Substantive Equality ◽  
The Supreme Court ◽  
Significant Case ◽  
The Law

This article traces the continuing development of the analytical framework used by the Supreme Court of Canada to evaluate infringements of equality rights challenged under s. 15(1) of the Charter. This is achieved through examining the Court's recent decisions in Vriend, Law, and M. v. H. in the context of the claims heard in Andrews, the 'equality trilogy' of Miron, Egan, and Thibaudeau, and the subsequent equality cases heard by the Court. This article follows the initial analytical framework introduced in Andrews, through the Court's split in 1995. It then examines subsequent cases, finding that Vriend stands as a significant case in the evolution, and that the Court's restatement of its method in Law demonstrates a renewal of the Court's unanimous commitment to substantive equality as first articulated in Andrews and indicates that the troubling position favoured by a minority of judges in 1995 has been abandoned. In examining the application of the Law analysis in M. v. H., this article recognizes the possibility that the approach may be too subjective and warns that undue focus on legislative purpose instead of effect may undermine substantive equality.

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