The social benefit challenges under the Charter’s equality guarantee offer insight into the Supreme Court of Canada’s approach to claims for distributive justice. In most of these cases, the financial costs to government of rights recognition play a role in the analysis. A survey of the outcomes of these cases and the “dollars” at stake reveals a “follow the money” pattern. In all cases in which the claim that the government regime creates an inequality was successful, the cost to the public purse of finding in favour of the equality claimant was characterized by the Court as low or inexpensive. All those cases in which the public cost of recognition was regarded as significantly high have failed, although some inexpensive claims have also failed. The correlation suggests that a minimal budgetary impact is a necessary, albeit not sufficient, condition for a successful social benefit challenge. Conversely, the correlation indicates that a significant budgetary impact poses a serious, if not insurmountable, barrier to success. The social benefit equality cases have also been the occasion of the Court’s elaboration of a doctrinal framework for factoring budgetary impacts into the adjudication of rights claims under the Charter. Much of the discussion in this regard has been on the question of at what stage of Charter analysis — the rights analysis, the section 1 analysis (and its subparts), and/or the remedy stage — the public cost of rights recognition should or should not be weighed against other factors. From an initial position of high principle — that governmental concerns about saving time and money should not trump rights — the jurisprudence has, over the past 30 years, reached a point at which the financial impact on government may play a significant role at all three stages of analysis, often curtailing a meaningful exploration of both the Charter values and the non-monetary regulatory concerns at stake. If the Charter equality guarantee is truly to be given substantive content, the n judges, lawyers and legal scholars need to work out a more coherent framework for taking account of budgetary impacts. an overview is provided of the sorts of considerations that need to be integrated into such a framework.
Lessard, Hester A..
"“Dollars Versus [Equality] Rights”: Money and the Limits on Distributive Justice."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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