May 13, 2021
Professors, alumnus published in Constitutional Forum constitutionnel
The Constitutional Forum constitutionnel provides an opportunity for interdisciplinary debate and dialogue on constitutional issues. Articles are generally short with insightful commentary on current topics of Canadian and international constitutional importance.
Jonnette's article, "Cautious Optimism: Fraser v Canada (Attorney General)," explores adverse effects discrimination, which arises when a law that appears to be neutral on its face has a disproportionate and negative impact on members of a group identified by a protected ground. Fraser v Canada (Attorney General) is only the third adverse effects claim under section 15(1) of the Canadian Charter of Rights and Freedoms3 to succeed since section 15 came into force in 1985. Fraser is notable simply because it is the first successful adverse effects claim in twenty-two years.
Jennifer's article, "Intersections and Roads Untravelled: Sex and Family Status in Fraser v Canada," looks at the long road to the judicial recognition of women’s inequality under the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada ruling in Fraser v Canada is significant for being the first decision where a majority of the Court found adverse effects discrimination based on sex under section 15, and it was only two years prior that a claim of sex discrimination in favour of women was finally successful at the Court, almost 30 years after their first section 15 decision in Andrews v Law Society of British Columbia.
In "The Alchemy of Equality Rights," Joshua Sealy-Harrington, JD'13 posits that a clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms recognized equality as “an elusive concept” that “lacks precise definition.” Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics.