Since Andrews v. Law Society of BC, the Supreme Court’s section 15 jurisprudence has been marked by inconsistency, judicial disagreement, and scholarly criticism. In Fraser v. Canada, female RCMP offıcers challenged a policy that prevented access to full-time pension benefits. Refining the concept of adverse impact discrimination and drawing on evidence of women’s economic disadvantage, the majority found that the policy constituted sex discrimination. While Justice Abella’s majority judgment has been hailed as a major victory, Justices Brown and Rowe’s dissent sharply criticized the concept of ‘substantive equality’, confirming longstanding divisions. This paper uses Fraser to reflect on the narrative of substantive equality. First, it re-examines the oft-maligned cases decided under the Canadian Bill of Rights. The prevailing story – that the Bill of Rights jurisprudence relied on a narrow, ‘formal equality’ model which was then remedied by the Charter’s section 15 – is incomplete. A closer examination reveals a complex conceptualization of ‘equality before the law’ in pre-Charter jurisprudence. Second, the paper proposes that the principle of ‘equality before the law’, with its focus on identical standards and equal treatment, remains a powerful and necessary concept. Unsettling the strict dichotomy between substantive and formal equality, the paper concludes, can help to reveal the true nature of the Court’s continuing division on how to apply section 15’s guarantee of equality.
"Equality before the Charter: Reflections on Fraser v. Canada (Attorney General)."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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