scholarly journals Critical Reflections on Fraser: What Equality Are We Seeking?

2021 ◽  
Vol 30 (2) ◽  
pp. 43-52
Author(s):  
Sonia Lawrence
Keyword(s):  
Attorney General ◽  
Canadian Charter ◽  
Critical Reflections

In this brief comment, I contextualise and complicate the conventional reading of Fraser v Canada as a victory for equality seeking groups.1 Instead, or at least alongside that reading, I want to suggest some other stories about the trajectory of equality in Canada since the Charter2 era began, and about what future doctrinal developments Fraser might lead us to predict. 1 Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser]. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

scholarly journals Cautious Optimism: Fraser v Canada (Attorney General)

2021 ◽  
Vol 30 (2) ◽  
pp. 1-14
Author(s):  
Jonnette Watson Hamilton
Keyword(s):  
British Columbia ◽  
Health Services ◽  
Adverse Effects ◽  
Negative Impact ◽  
Attorney General ◽  
The Other ◽  
Adverse Impact ◽  
Canadian Charter ◽  
The Third ◽  
Direct Discrimination

Adverse effects discrimination arises when a law that appears to be neutral on its face has a disproportionate and negative impact on members of a group identified by a protected ground.1 The discrimination is usually not as easy to see as it is in cases of direct discrimination, where distinctions are drawn by a law, program, or policy. This may be why Fraser v Canada (Attorney General)2 is only the third adverse effects claim under section 15(1) of the Canadian Charter of Rights and Freedoms3 to succeed since section 15 came into force in 1985.4 Fraser is notable simply because it is the first successful adverse effects claim in twenty-two years.5 1 Jonnette Watson Hamilton & Jennifer Koshan. “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2015) 19:2 Rev Const Stud Studies 191 at 196 [“Adverse Impact”]. 2 2020 SCC 28 [Fraser]. 3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 4 The other two cases in which adverse effects claims were successful were Eldridge v British Columbia, [1997] 3 SCR 624, 151 DLR (4th) 577 [Eldridge cited to SCR] and Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385 [Vriend cited to SCR]. 5 At least five adverse effects claims made under section 15 of the Charter failed in the intervening twentytwo years: Health Services and Support — Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

scholarly journals Comment on Fraser v Canada (AG): The More Things Change

2021 ◽  
Vol 30 (2) ◽  
pp. 85-96
Author(s):  
Richard Moon
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Academic Career ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Special Issue ◽  
Canadian Charter ◽  
Equality Rights ◽  
The Supreme Court

Very early in my academic career I wrote two pieces about section 15.1 The first was written in 1987, before the Supreme Court of Canada had heard any section 15 cases,2 and the second in 1989 was a comment on Andrews v Law Society of British Columbia, the first of the Court’s section 15 decisions.3 When I re-read these pieces recently it struck me that with a few minor updates they could be read as comments on the Court’s recent decision in Fraser v Canada(Attorney General). 4 The same issues and tensions that were there at the beginning of section 15 are still there. They are built into the concept of constructive/effects discrimination and are not about to disappear. Shamelessly, I have reconstituted these two earlier pieces into a comment, of sorts, on the Fraser case. Other contributors in this special issue of the Constitutional Forum have set out the facts of the Fraser case and so I have not done so here. 1 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Richard Moon, “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26:4 Osgoode Hall LJ 673.3 Richard Moon, “A Discrete and Insular Right to Equality: Comment on Andrews v. Law Society of British Columbia”(1989) 21:3 Ottawa L Rev 563.4 2020 SCC 28 [Fraser].

Sign in / Sign up

Export Citation Format

Share Document