Deep Disagreements in the Last Five Years of Equality Jurisprudence at the Supreme Court of Canada

Jennifer Koshan & Jonnette Watson Hamilton, "'Clarifications' or 'Wholesale Revisions'? The Last Five Years of Equality Jurisprudence at the Supreme Court of Canada" (2023) Supreme Court Law Review (Forthcoming)
Presented at the Asper Centre's Litigating Equality Symposium at the University of Toronto in May 2023

Over the past five years, the Supreme Court of Canada’s equality jurisprudence under the Canadian Charter of Rights and Freedoms has revealed deep disagreements within the Court. This paper reviews the six decisions that comprise that jurisprudence, drawing out the major points of contention on the role of substantive equality, the test for section 15(1), adverse effects discrimination, causation, evidence, contextualization, and positive obligations. Our argument is that while the section 15 majorities in the first three decisions – Alliance, Centrale, and Fraser – attempted to respond to the critiques of equality-seeking groups, these decisions could not paper over the profoundly ideological disagreements embedded in equality rights jurisprudence, particularly in cases of systemic discrimination. In light of the recent push-back by a significant proportion of the Court in R v CP and a majority in Sharma, we also discuss the implications of the six decisions for equality-promoting litigation strategies going forward.