On April 17, 1982, Canada repatriated its constitution from the Parliament at Westminster, sweeping away one of the final vestiges of its colonial past. At the same time, a Canadian Charter of Rights and Freedoms was constitutionally entrenched, giving the people express constitutional rights for the first time. The equality provisions, in particular, represented a new era in Canadian constitutional law. The intense debate leading up to the entrenchment of the Charter raised profound questions about the basic nature of the country, its values, and its ability and willingness to acknowledge equality for women and other disadvantaged groups. Since the entrenchment of the Charter in 1982, equality seekers have continued to play a significant role. They have used litigation and other strategies in order to clarify and develop approaches to constitutional theory and interpretation so that the Charter's promise of equality will be realized. From the outset, they recognized that entrenched comprehensive equality rights would not bring about legal equality on their own; in order for people to become true equal bearers of rights under the Charter, the content of established rights and concepts would have to be challenged, and the legal norms of existing societal and institutional structures premised on inequality would have to be changed. It is the Author's view that the Supreme Court of Canada, to quite a remarkable degree, has recognized the egalitarian challenge the Charter presents. In the past few years, the Court has launched a promising new era for equality jurisprudence quite unique in the world. The equality theory developed by the Court goes far beyond that which underlies the constitutional law of other western societies, including Europe and the United States. The Court has fashioned principles that give disadvantaged groups a better chance than ever before to alleviate the inequities they experience in laws, policies, and the practices of governments and government officials. This is because, instead of using abstract, formal rules to analyze equality and discrimination, the Canadian Supreme Court applies a purposive, contextual approach to constitutionally entrenched equality guarantees, which in turn defines the scope and purpose of these guarantees in terms of individuals and groups persistently disadvantaged by the legal system. To fully understand the Canadian approach to Charter equality guarantees, the history of equality and discrimination law must be examined. To a large extent, the Supreme Court's interpretation of constitutional equality guarantees in the Charter has been informed and influenced by the lessons and themes which have emerged from the common law, human rights legislation, and earlier attempts at constitutional reform. In this Article, I discuss the development of legal equality in Canada, including pre-Charter recognition of the concepts of equality, inequality, and discrimination, as well as post-Charter interpretations of constitutional equality guarantees. I also discuss the effects of the Supreme Court's constitutional-equality jurisprudence beyond constitutional law—effects which may ultimately hold the greatest promise for the achievement of social equality in Canada.
Kathleen E. Mahoney,
The Constitutional Law of Equality in Canada,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol44/iss2/2