Journal Article/Book Review
Charter of Rights and Freedoms, Section 15, Enumerated Grounds, Supreme Court of Canada, Discriminatory Grounds
From the outset, the prevailing approach to human rights statutes in Canada has been predicated on a closed list of prohibited grounds of discrimination. The early drafts of s. 15 of the Canadian Charter of Rights and Freedoms likewise had a closed list of enumerated grounds, but the final version qualifies those grounds as "in particular", opening the door for a broader application of s. 15. Nonetheless, the Supreme Court of Canada, with the exception of Justice L'Heureux-Dube, has insisted that establishing a prohibited ground, either enumerated or analogous, is a requisite condition to a s. 15 breach. In the aftermath of Vriend, the interaction between the Charter and human rights legislation now means that the consitution can dictate the addition of further grounds of discrimination to human rights statutes. Although the grounds of discrimination have been expanding, both by legislative and constitutional intervention, grounds of discrimination remain a principal focus of anti-discrimination law, both statutory and constitutional. Is the continuing insistence on grounds appropriate, or would it be preferrable, as advocated by Justice L'Heureux-Dube, to move away from a focus on grounds? My short answer is that it would be a mistake to abandon or de-emphasize grounds. My longer answer, as explored in what follows, is that while a formalistic approach to grounds is problematic, a more "complicated" approach to grounds offers more insight than hinderance. Furthermore, the overlapping and intersection of grounds is an important part of that complication. A fuller appreciation of the significance of grounds, rather than a de-emphasis on grounds, is what is needed.
Notes from Prof. Pothier
Author's manuscript submitted to Canadian Journal of Women and the Law.
Dianne Pothier, "Connecting Grounds of Discrimination to Real People's Real Experiences" (2001) 13:1 CJWL 37.