What is Equality?: The Winding Course of Judicial Interpretation

Abstract

It has been 20 years since section 15 of the Charter came into force. In this paper, Professor Hogg traces the "winding course" of judicial interpretation of section 15. The Supreme Court of Canada has changed the ground rules every few years as the judges have journeyed along that winding course. It has been a serious problem for any commentator foolish enough to try and keep a treatise on constitutional law up to date. Professor Hogg discusses the difficulty of applying a guarantee of equality focusing on cases from Andrews to Law and cases subsequent to Law and states that Law has unfortunately supplanted Andrews as the leading case on section 15. The element of human dignity, Professor Hogg points out, effectively sidelines the role of section 1. Section 1 at least had the advantage of providing very carefully structured legal tests and put the burden of proving each step of the way on government not the claimant. The element of human dignity that is now apparently firmly embedded in the jurisprudence is vague, confusing and burdensome to equality claimants. However in unusual cases section 1 justification may still uphold a discriminatory law.