Fundamental Rights for All: Toward Equality as a Principle of Fundamental Justice under Section 7 of the Charter

AuthorSuzy Flader
PositionHolds an Honours B. Arts Sc. from McMaster University
Pages43-60
APPEALVOLUME 25
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ARTICLE
FUNDAMENTAL RIGHTS FOR ALL:
TOWARD EQUALITY AS A PRINCIPLE OF
FUNDAMENTAL JUSTICE UNDER SECTION 7
OF THE CHARTER
Suzy Flader *
CITED: (2020) 25 Appeal 43
ABSTRACT
Section 7 of the Canadian Cha rter of Rights and Freedoms has led to some groundbrea king
wins for Canadians. However, its life, liberty, and security of the person guarantees are
not currently expansive enough to truly protect the interest s of marginalized claimants.
Furthermore, the equality protections guaranteed by section 15 of the Charter are often
insucient for margin alized claimant s due to unsettled jurisprudence. In response to t he
need for novel claims to al leviate complex systemic problems, this paper advoc ates for the
introduction of equality a s a principle of fundamental justice underly ing the section 7 test.
e equality conceptu alized at the heart of this a rgument is intersectional and therefore
inclusive of the various barriers that individuals face when attempting to protect their
Charter rights. With t his denition in mind, the paper considers four Supreme Court of
Canada decisions—PHS, Boudreault, Gosselin, and Carterto examine recent equa lity
trends beyond section 15 of the Charter and consider the pressing need for equality as
a new principle of fundamental justice. Finally, the benets of the proposed principle
are weighed against potential judicial concerns in order to suggest that balance will
be necessary to satisfy opposing interests. e overall message here is not that Charte r
litigation can x every need, but rather that everyone should have fair opportunities to
advocate for their protected rig hts.
* Suzy Flader holds an Hon ours B. Arts Sc. from McMas ter University. In spring 2020, she will
graduate from the joint JD/MPA program at the Un iversity of Victoria. Suz y is grateful to
Professor Patricia Cochran as well a s Emmett Rogers, Medina Ab delkader, and the rest of
theAppeal team for their suppor t throughout the writing and public ation processes.
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TABLE OF CONTENTS
INTRODUCTION..................................................45
I. SECTION 7 OF THE CHARTER AND THE PRINCIPLES OF
FUNDAMENTAL JUSTICE .......................................46
II. CONCEPTUALIZING EQUALITY .................................48
III. RECENT EQUALITY TRENDS BEYOND SECTION 15 ...............50
A. Equality and Section 7: PHS ......................................50
B. Equality and Section 12: Boudreault.................................51
IV. THE PRESSING NEED FOR EQUALITY AS A NEW PRINCIPLE
OFFUNDAMENTAL JUSTICE ....................................53
A. Gosselin: An Unfair Precedent for Positive Section 7 Rights ...............53
B. Carter: A Groundbreaking Win with Unjust Results for Marginalized
Claimants ....................................................55
C. Summary.....................................................57
V. WEIGHING EQUALITY AS A PRINCIPLE OF FUNDAMENTAL
JUSTICE .......................................................58
A. e Ideal Benets for Marginalized Claimants .........................58
B. Potential Judicial Concerns .......................................59
CONCLUSION ....................................................60

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