Law's meanings for equality in the Americas : less impoverished visions for Canada

Equality is a ubiquitous concept that many assume is intuitively understood. There is however significant contention over its ‘true’ meaning. Following the enactment of constitutionalized equality guarantees under s. 15 of the Canadian Charter of Rights and Freedoms, there were high expectations for judicial interpretation that moved decisively away from a formal equality conception and embraced a substantive understanding. An extensive critique emerged early in response to the Supreme Court of Canada’s jurisprudence and criticism has been sustained. For its part, the Court has consistently framed its approach as that of “substantive equality”. Although its jurisprudence purportedly incorporates substantive elements that extend beyond the formalist “treating likes alike” and “same treatment” approach, the widespread disappointment is generally well-founded, given the gap between aspiration or rhetoric and the Court’s judgments. The arguably contingent nature of equality means that other rights protection systems have generated different conceptions of its meaning. The approach to equality in the Inter-American human rights system (IAHRS) offers one such set of understandings. The objective of bringing together these two different systems is to consider how s. 15 jurisprudence falls short of a substantive equality vision, by considering the regional rights system of which Canada is a member. Critical equality scholarship provides the basis for elaborating key elements of substantive equality. Three such elements are highlighted in evaluating the Court’s jurisprudence and how the IAHRS’s equality law and discourse stands up to a similar analysis, namely, the contextualized methodology, an indivisible approach to social rights, and a strong state responsibility doctrine. The two systems are generating different equality meanings and the IAHRS’s framework is more consonant with redress of pervasive substantive inequalities in the Americas, including through its employment of a deeply contextualized analysis, the development of positive state obligations and ‘indivisible’ approaches to equality in conjunction with other civil, political, social, cultural and economic rights. As such, the IAHRS is of interest to Canadian equality-seeking groups, including those interested in exploring engagement with the system. At a minimum, the IAHRS’s understandings may stir the legal imagination of advocates assessing future strategies for transformative social change in Canada.

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