Wednesday, October 18, 2017
Jena McGill & Daphne Gilbert, Of Promise and Peril: The Court and Equality Rights, 78 Supreme Court Law Review (2d) 235 (2017)
In this brief reflection, we look back on 32 years of equality advocacy and outcomes at the Supreme Court of Canada. We recount the fraught trajectory of the Supreme Court of Canada’s section 15 jurisprudence over the past decades, tracing the evolution of three distinct approaches to equality rights and highlighting the unique role that the Women’s Legal Education and Action Fund (LEAF) and its feminist equality advocacy has played in shaping the Court’s jurisprudence at each stage of section 15’s life. We then look to the future of section 15, suggesting that recent jurisprudence indicates the emergence of a new era in equality rights at the Supreme Court characterized by a distinct turning away from section 15 arguments. We offer some preliminary comments on what this trend might mean for the future of equality rights and for the future of feminist litigation strategies under the Charter, arguing that some of LEAF’s ideas about how to pursue substantive equality under section 15 that have not been acknowledged by the Court offer promising new directions for the next chapter of section 15 jurisprudence. We conclude that while under the current state of section 15 jurisprudence equality rights may be imperilled, the promise of section 15 remains.