Substantive Equality As Equal Recognition: A New Theory of Section 15 of the Charter

Abstract

This article presents a novel theory of the concept of substantive equality under section 15(1) of the Canadian Charter of Rights and Freedoms called Substantive Equality as Equal Recognition. This contribution is timely in light of the Supreme Court of Canada's recent disagreement over the proper jurisprudential approach to interpreting section 15(1) in the 2013 case of Quebec v A. Substantive Equality as Equal Recognition holds that the purpose of section 15(1) is to ensure that the law's application does not reflect, through its impact or effects, hierarchies of status that exist between citizens within Canadian society. The article argues that the theory is disclosed by the doctrinal principles laid down by Justice McIntyre in Andrews v Law Society of British Columbia, the first decision on section 15(1) of the Charter. It also argues that the account of the wrongfulness of discrimination generated by Substantive Equality as Equal Recognition is preferable to other accounts and that the theory can help navigate the disagreement between the judges in Quebec v A. (English) [ABSTRACT FROM AUTHOR]