The authors present an empirical review of courts’ dispositions of legal challenges to government laws or policies based on alleged violations of the equality rights in section 15 of the Charter of Rights and Freedoms. They tabulated the results of all Supreme Court of Canada rulings, and over 300 lower court rulings, disposing of section 15 claims during the past 15 years. They found that, throughout the 15-year period, equality claims had a significantly lower chance of success compared to the success rate of Charter claims generally at the Supreme Court of Canada. The success rate of equality claims has increased slightly over time, casting some doubt on the view that the Law v. Canada (1999) ruling made equality claims even more difficult to establish than was the case in the decade following Andrews v. Law Society of British Columbia (1989). A close examination of the pattern of recent Supreme Court section 15 decisions reveals that the Court has not consistently adhered to its stated preference for substantive over formal equality. The authors argue that adjustments are necessary to prevent the “correspondence factor” set out in Law from becoming the vehicle through which the limited understanding of equality embodied in the “similarly situated test” re-emerges as dominant in the jurisprudence.
Ryder, Bruce; Faria, Cidalia C.; and Lawrence, Emily.
"What’s Law Good For?: An Empirical Overview of Charter Equality Rights Decisions."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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