Acceso usuarios
Jennifer Koshan, Jonnette Hamilton
This article examines the contribution made by the Supreme Court of Canada's decision in Withler v Canada (Attorney General) to equality rights jurisprudence under section 15(1) of the Canadian Charter of Rights and Freedoms. The Court's approach to issues concerning substantive equality, the use of comparative analysis and comparator groups, and the role and application of the contextual factors from Law v Canada are addressed. The authors raise concerns about the Court's narrow definition of discrimination, its return to the language of "relevance", the ways in which the Court imports section 1 justification considerations into the section 15(1) analysis, and the Court's lack ofattention to the roader context beyond the benefits scheme at issue, including its lack of attention to the gender and class dimensions of the case. Overall, the authors conclude that although the Court has repeatedly stated a commitment to the principle of substantive equality in its section 15(1) Charter decisions, Withler is another example in a long line of cases that fails to give effect to that principle
