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

• Author: Suzy Flader
• Position: Holds an Honours B. Arts Sc. from McMaster University
• Pages: 43-60

APPEAL VOLUME 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 Canad ians. However, its life, libert y, and security of the person gua rantees are

not currently expansive enoug h to truly protect the interest s of marginal ized claim ants.

Furthermore, the equa lity protections gua ranteed by section 15 of the Charter are of ten

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 bar riers that individua ls face when attempting to protec t their

Charter rights. With t his denition in mind, the paper considers four Supreme Court of

Canada decisions—PHS, Boudreault, Gosselin, and Carter— to examine recent equa lity

trends beyond section 15 of the Charter a nd consider the pressing need for equa lity as

a new principle of fundamental just ice. Finally, the benets of the proposed principle

are weighed aga inst potential judicia l concerns in order to suggest t hat balance wi ll

be necessar y to satisfy opposing i nterests. e overall mes sage here is not that Charte r

litigation can  x every need, but rather th at everyone should have fair oppor tunities 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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APPEAL VOLUME 25

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