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?
BR: I see Quebec v A as the third installment of the Court’s efforts to revise its own recent jurisprudence to reduce the burdens on equality claimants. In Kapp, the Court jettisoned the human dignity test from Law. In Withler, it rejected the mirror comparator group requirement put forward in Auton and Hodge. In Quebec v A, Justice Abella’s majority opinion on s.15(1) rejected the requirement of proving the operation of prejudice or stereotype set out in Kapp and Withler, and refused to follow the Court’s ruling in Walsh. Justice Abella held that claimants should not have to meet the “unquantifiable” and “ineffable” burden of proving that governments were motivated by negative attitudes (paras 329-330). The focus of s.15(1) analysis, she affirmed, should be on the effects of a challenged law: if the law imposes adverse differential impact on a historically disadvantaged group, then it is discriminatory (para 332). The problem with the Court’s earlier ruling in Walsh is it shifted the focus of the s.15(1) analysis from effects to the validity of the legislative objective (paras 338-347).
Cumulatively these are potentially important adjustments to the s.15(1) jurisprudence. They ought to relieve the burdens on s.15(1) claimants and allow the analysis to move more quickly to s.1, where government should have to show why it cannot achieve its objectives without imposing adverse differential impact on historically disadvantaged groups on the basis of prohibited grounds. It all depends on whether the Court is willing to hold the government to a meaningful burden of justification under s.1.
We ought to be sceptical about whether the post-Kapp doctrinal revisions will produce different results. The McLachlin Court’s record on Charter equality rights is distinguished by two features: one is its doctrinal plasticity, the remarkable series of about turns and mea culpas described above; the other, that I’ve documented elsewhere, is its consistent record of dismissing Charter equality claims, regardless of the test applied. In this sense, there is nothing new about Quebec v A, it is just another example of the Court dismissing a Charter equality rights claim in a verbose, overwrought and angst-ridden set of opinions. By way of contrast, the Court has issued clear, confident and succinct rulings on statutory equality rights (eg, Meiorin; Moore). Why are the judges so anxious about Charter equality rights? I think we need to put the Court on the couch. I’m looking forward to my colleagues’ therapeutic insights.