The Supreme Court of Canada's evolving tests for section 15(1) of the Canadian Charter of Rights and Freedoms: a jurisprudential analysis

Abstract

This thesis explores the Supreme Court of Canada’s (SCC) evolving tests for section 15(1) of the Canadian Charter of Rights and Freedoms, which guarantees equality rights. It provides a comprehensive overview of the development of the Court’s jurisprudence, highlighting key cases that have shaped the current tests for determining whether discrimination has occurred. The SCC has had to understand s.15 by looking at the meaning of discrimination and the need for substantive equality. The test for section 15 has used three landmark cases to get to the place that it is today. Starting with Andrews v. Law Society of British Columbia (1989), then moving to Law v. Canada (1999), and finally R. v. Kapp (2008). The first case sets the stage for acknowledging that distinctions are made in discrimination based on enumerated and analogous grounds and that substantive equality is the most important aspect to consider in an equality case. The next major case introduces the human dignity standard, and the last case moves somewhat back to the first test and explains s.15(2) with ameliorative purposes. This thesis also analyses the criticisms that have been leveled against the Court’s approach and suggests potential areas for future development. Ultimately, the paper argues that while the Court’s tests have evolved over time, there is still work to be done to fully realize the promise of equality under Section 15 of the Charter