The Evolving Approach To Section 15(1): Diminished Rights or Bolder Communities?

Inevitably, cases of complex and far reaching constitutional issues form a dynamic platform on which earlier conflicts within the case law are resolved and new ones develop. One concern that refuses resolution, to this point, is the precise balance between the values and interests that define the right to equality under section 15 of the Charter, and those that characterize justification, under section 1. Drawing on the mes laid out in the modern communitarian movement, the authors suggest that in 2004, the Court embarked on a more communitarian approach to the values and interests considered in section 15, showing greater recognition of community interests and a corresponding movement away from past emphasis of individualistic and subjective concerns. The the mes exhibited in the Court’s recent equality decisions include a communitarian approach to the “needs correspondence” factor, a greater recognition of the importance of both community economic interest and community goals, as well as a shift away from reliance on subjective components of the equality analysis. The authors conclude with an assessment of the benefits and disadvantages of the apparent changes in the Court’s approach to section 15