The Supreme Court’s Approach to Adverse Effects Discrimination Under Section 15

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Authors: Professor Jonnette Watson Hamilton and Professor Jennifer Koshan

This paper presents a comprehensive review and critique of the Supreme Court of Canada’s adverse effects discrimination jurisprudence. Using various case studies like Andrews v Law Society of British Columbia, Eldridge v British Columbia (Attorney General), Vriend v Alberta, Taypotat v Taypotat, and Carter v Canada (Attorney General), this paper begins by exploring both the history and current framework of the Court’s s 15 jurisprudence. The authors go on to review the Supreme Court’s adverse effects discrimination cases in the context of three different analytical approaches to s 15(1).  Lastly, they focus on Carter, seen as the newest challenge to the constitutionality of the criminal prohibition against assisted suicide, and which is about to be heard by the Supreme Court.  The authors conclude by contemplating the way forward for adverse effects claims.  A list of S.C.C. s. 15(1) equality cases is attached.

This paper was presented at the Constitutional Law Symposium in October 2014.

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