Sonia: So, do you think that this case sets up a new approach to section 15 (again)? What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case? What about the approach to the “line” between section 15 and section 1?
All the posts in our roundtable can be found here. We started on Monday with Bruce Ryder, and heard from Hester Lessard on Wednesday. Now, Robert Leckey:
RL: I share Hester’s doubts about the solidity of the cluster that purported to endorse Abella J.’s s. 15 discussion. But I would persist—certainly in advocacy—in taking those judges at their word that theirs is a majority view. The length and pointedness of Abella J.’s and LeBel J.’s discussion on whether a successful claim must show stereotyping or prejudice hints that they, at least, think it matters.
I agree with Bruce that basing a claim on disadvantage rather than stereotyping might help claimants. For example, if the Supreme Court grants leave in H.C. v. P.N., (Quebec Court of Appeal decision here) – Anne-France Goldwater’s challenge to the feds’ recognition of Quebec’s child-support guidelines for divorce purposes – it might be much easier to show material deprivation on the part of divorced women and their children in Quebec than animus on the federal government’s.
I’m puzzled, though, by what it means to say that the equality analysis has “evolved substantially” (para 338 in Quebec v. A) such that Walsh need not be followed. At this point, a decade’s string of failed equality claims reveals more about the Court’s receptiveness to s. 15 claimants than does its formulation or reformulation of one test or another.