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Osgoode Home > Osgoode Digital Commons > Journals > OHLJ > Vol. 55 > Iss. 3 (2019)

 

Keywords

Discrimination--Law and legislation; Canada. Canadian Charter of Rights and Freedoms; Canada. Supreme Court

Document Type

Article

Abstract

The Supreme Court of Canada’s articulation for the test for discrimination under section 15 of the Charter has undergone numerous permutations over the past twenty-five years. The Supreme Court introduced its latest round of changes in its 2013 decision in Québec (Attorney General) v A and its 2015 decision in Kahkewistahaw First Nation v Taypotat. Together, these two decisions clarified that the appropriate approach to section 15 was not one focused strictly on stereotype and prejudice, but rather on all contextual factors that may inform whether an impugned law violates the norm of substantive equality. This paper critically analyzes the impact of Québec v A and Taypotat by examining how courts across the country have articulated the doctrinal messages of these two decisions, and applied them in practice. Both quantitative and qualitative analyses are employed. Under the quantitative approach, the likelihood of mounting a successful s. 15 challenge under the new framework set by Québec v A and Taypotat as compared to the prior test from Kapp and Withler is considered. Under the qualitative approach, a number of key questions are asked, including: what the meaning of the Québec v A and Taypotat touchstone for discrimination – “arbitrary disadvantage” – is; what role stereotype and prejudice continue to play as indicia of discrimination; and what other contextual factors courts will examine in assessing whether discrimination has occurred. The author concludes that although the approach under Québec v A and Taypotat requires some fine-tuning, overall it is a positive move toward a less formalistic, less onerous standard for equality claimants that better reflects section 15’s focus on substantive equality.

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Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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