Author ORCID Identifier

Fay Faraday: 0000-0003-3519-9315

Document Type

Article

Publication Date

2021

Source Publication

Constitutional Forum, vol. 30, no. 2, 2021, p. 15.

Abstract

A great unacknowledged challenge in litigating systemic discrimination claims under the section 15 equality guarantee of the Canadian Charter of Rights and Freedoms1 is that claimants bear a double burden. Like all litigants, they must meet the burden of proving the elements of their legal claim. But, before they can do that, equality claimants must often first meet the extraordinary burden of dislodging judges’ phenomenological anchoring in worldviews shaped by privilege. Where judges lack lived experience of systemic oppression, claimants must convince them that oppression exists. This gulf between lived experiences — what I call the reality gap — is the elephant in the room in many section 15 cases. The study of unconscious (and explicit) bias in judging generally is not new, and critical scholarship is growing about its implications in particular areas of law. But the same scrutiny has not been applied to analyze how judicial privilege plays out when interpreting the constitutional right to equality. We simply do not talk about it. Yet, confronting the distorting effects of privilege head on would go a long way to explaining Canada’s chaotically inconsistent section 15 jurisprudence. The reality gap manifests as a persistent chasm between majority and dissenting judgments across the decades of the Supreme Court of Canada’s equality rulings and is on full display most recently in Fraser v Canada (Attorney General). Instead of being identified and dismantled, the reality gap is sublimated into unflagging doctrinal disputes about and a preoccupation with the legal test by which to prove a breach of section 15. Justice Abella’s majority reasons in Fraser make meaningful advances towards substantive equality by consolidating and clarifying the Court’s section 15 test. But the dissent by Justices Brown and Rowe pushes back by challenging the very notion of substantive equality, which they call “an open-ended and undisciplined rhetorical device by which courts may privilege, without making explicit, their own policy preferences.” Meanwhile, the dissent by Justice Côté adheres to a strict formalism which makes no mention of either systemic discrimination or substantive equality. Instead, she actively eradicates a gender lens from the analysis: a remarkable feat in a claim about sex discrimination.

Download

Request a copy that is accessible using assistive technology (link opens in a new window)

Share

COinS