J. Conclusion

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 380-383

Page 380

The Supreme Court has consistently given section 15 of the Charter a restricted meaning, requiring a claimant to show discrimination on a prohibited or analogous ground and substantive discrimination. These decisions seem to preclude wholesale judicial review of all laws that create burdens or confer benefits on some but not others. As in section 7, some may question whether the Court has achieved the appropriate balance between imposing definitional limits on the right and requiring the government to demonstrate under section 1 that limits on the right are reasonable and demonstrably justified. The Court’s approach has disappointed those who saw section 15 as a charter of social rights capable of remedying injustice on a more general scale. However, it coincides with the Supreme Court’s general inclination under the Charter to defer to legislative judgment on questions of distributive justice. It may be seen as consistent with the Court’s cautious approach to the interpretation of "life, liberty and security of the person" in section 7 and its refusal to recognize property rights as protected under the Charter.

On the other hand, where substantive discrimination has been shown on a prohibited or analogous ground, the Court has adopted a rigorous approach designed to ensure that the promise of equality will be respected. The Court has insisted that the equality guarantee mandates substantive review, avoiding a formalistic approach that would fail to take into account social reality. The Court has rejected the idea

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that a discriminatory intention must be shown, and it has proved willing to find a denial of equality from the failure to accommodate circumstances of actual disadvantage. It has also interpreted section 15(1) in a manner that, following section 15(2), defers to government’s attempts to ameliorate the conditions of the disadvantaged even when doing so requires distinctions on enumerated or analogous grounds of discrimination. More recently, in Kapp and in Withler, the Court has confirmed its commitment to substantive equality and the prevention of disadvantage through prejudice and stereotyping in section 15(1); it has held that a government can shelter a law from section 15(1) scrutiny by demonstrating that it has, as one of its purposes, the amelioration of the conditions of a disadvantaged group.

Section 15 has yielded significant gains for gays and lesbians, where the decisions of the Supreme Court can be...