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Law Discrimination

Making Equality Rights Real

Securing Substantive Equality under the Charter

contributions by Fay Faraday, Margaret Denike, M. Kate Stephenson, Beverley Baines, Gwen Brodsky, Melina Buckley, Shelagh Day, Judith Keene, Jennifer Koshan, Claire L’Heureux-Dubé, Diana Majury, Sheila McIntyre, Sophia Moreau, Dianne Pothier, Melanie Randall, Denise G. Réaume, Leslie A. Reaume, Fiona Sampson, Karen Schucher & Andrea Wright

preface by Claire L'Heureux-Dubé

Irwin Law Inc.
Initial publish date
Nov 2009
Discrimination, Constitutional, Gender & the Law
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In the two decades since Section 15 of the Canadian Charter of Rights and Freedoms came into effect, the right to equality has been one of the most hotly contested Charter rights, being disputed in over 350 reported court cases across Canada. It is a right that in very short order has become deeply engrained in Canadian legal, political, and social discourse. It has become a bedrock value, fundamentally reflecting and shaping how Canadians view themselves and their society.

Making Equality Rights Real critically assesses the state of equality jurisprudence from many angles. Collectively, these 13 essays attempt to advance substantive equality as section 15 of the Charter moves into its second generation. Each of the papers in this collection aims to deepen our understandings of the dynamics of inequality and oppression and so produce a richer more nuanced legal framework for eradicating discrimination and promoting substantive equality. With only two decades’ experience with Charter equality litigation, the project to secure substantive equality remains a work in progress.

About the authors

Fay Faraday is a social justice lawyer in Toronto, representing community groups and coalitions, unions, and individuals. With a practice focusing on constitutional and appellate litigation, labour, human rights, and administrative/public law, she has extensive  experience with Charter litigation at all levels of court, including numerous cases before the Supreme Court of Canada and the Ontario Court of Appeal.  In her legal practice, Fay has addressed a wide range of social justice issues relating to migrant workers and workers in precarious employment, women’s equality, race discrimination, gender and work, rights of persons with disabilities, employment equity, poverty, income security, international human rights norms, and homelessness and the right to adequate housing. Fay has also served as an adjunct professor at Osgoode Hall Law School teaching courses in legal ethics and ethical lawyering, and has published extensively on constitutional law and human rights.


Fay Faraday's profile page

Margaret Denike is an assistant professor and coordinator of the Program in Gender Equality and Social Justice at Nipissing University in North Bay, Ontario. In 2005–2006, she was on sabbatical leave conducting research on equality jurisprudence and international human rights law as an LLM candidate at Queens University. She is a member and former co-chair of the National Legal Committee of LEAF.


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M. Kate Stephenson is a lawyer at the law firm WeirFoulds LLP in Toronto and was called to the Bar in 1996. She has a litigation practice that focuses on human rights, constitutional, and administrative law. She has been counsel in several equality cases, often involving low income people and people on social assistance, often on a pro bono basis. In addition, she was seconded for two years (2002–2004) to the Clinic Resource Office of Legal Aid Ontario, where she was the clinic barrister, doing court litigation for clinics all across the province of Ontario. She was a member of the National Legal Committee of LEAF from 1999 to 2004, and she chaired that committee for two years.

As a law student, Ms. Stephenson was the director of the Centre for Spanish Speaking People's Student Legal Clinic, and presently, she is a board member of the Income Security Advocacy Centre in Toronto. In 2004 she received the first ever Advocates' Society Arleen Goss Young Advocates' Award; this award was created to acknowledge a lawyer who has been called to the bar for less than 10 years and who has demonstrated "innovative and passionate advocacy, contribution to social justice, and commitment to the community."

M. Kate Stephenson's profile page

Justice Claire L'Heureux-Dubé served on the Supreme Court of Canada for fifteen years, from 1987 to 2002. During that time, she participated in over six hundred Charter of Rights and Freedoms decisions.


Claire L'Heureux-Dubé's profile page

Beverley Baines was a constitutional equality rights consultant for the Canadian Advisory Council on the Status of Women, the National Association of Women and the Law, and the Ad Hoc Committee of Canadian Women on the Constitution, during the fight to strengthen women’s Charter rights in the early 1980s. With Ruth Rubio-Marin, she co-edited The Gender of Constitutional Jurisprudence (Cambridge University Press, 2004), examining the constitutional rights of women in twelve countries. A Professor in the Faculty of Law at Queen’s University, she is currently Head of the Women’s Studies Department in the Faculty of Arts & Science and teaches Law and Public Policy in the School of Policy Studies.


Beverley Baines' profile page

Gwen Brodsky is a leading national and international expert on human rights law, with graduate degrees from Harvard Law School and Osgoode Hall. She practises, teaches, and writes in the areas of human rights and constitutional law and she has acted as counsel in many Charter equality rights cases. An adjunct professor in the University of British Columbia Faculty of Law, she has taught a course on social and economic rights and the Charter. Dr. Brodsky has written extensively about equality rights theory, the Charter, and access to justice problems experienced by members of disadvantaged groups. She is a Director of the Poverty and Human Rights Centre and she was LEAF’s first Litigation Director.


Gwen Brodsky's profile page

Melina Buckley is a lawyer and legal policy consultant in Vancouver, working primarily in the areas of constitutional law, human rights legislation, access to justice, and dispute resolution. She holds a Ph.D. in law from the University of British Columbia. Her doctoral research investigated mechanisms to enhance the capacity of Canadian courts and human rights commissions to enforce equality rights and centred on the development of transformative human rights practices. She has been active in equality rights litigation under the Charter and human rights, and has written extensively on equality and access to justice issues. Dr. Buckley has been a member of West Coast LEAF’s Legal Committee and Board and served as Chair of the Board of the Court Challenges Program of Canada.


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Shelagh Day is a well-known Canadian human rights expert and advocate. She is a Director of the Poverty and Human Rights Centre, whose central goal is to strengthen the human rights of the poorest women. She is also the publisher of the Canadian Human Rights Reporter, the leading law reporter on statutory human rights in Canada, and the co-author of two books and numerous articles on women’s equality rights: Women and the Equality Deficit is the leading study of the impact on women of restructuring Canada’s social programs, and One Step Forward, Two Steps Back was the first examination of how the Charter’s equality rights guarantee works for women. With extensive experience in the international field, Shelagh Day has appeared on behalf of Canadian women before United Nations treaty bodies examining Canada’s compliance with its international human rights obligations. She is the former Director of the Saskatchewan Human Rights Commission, the first President of the Women’s Legal Education and Action Fund (LEAF), and a founder of the Court Challenges Program. In addition, she was a Vice-President of the National Action Committee on the Status of Women (NAC) at the time of the Charlottetown Constitutional Talks. Currently, Shelagh Day is the Special Advisor on Human Rights to the National Association of Women and the Law (NAWL), and the Chair of the Human Rights Committee of the Canadian Feminist Alliance for International Action (FAFIA).


Shelagh Day's profile page

Judith Keene joined the Clinic Resource Office of Legal Aid Ontario after practising with provincial administrative tribunals for eight years.. She provides legal advice and litigation support to Community Legal Clinics and Student Legal Aid Societies, with a focus on human rights legislation and section 15 of the Charter of Rights applied to issues affecting poor people. She has provided advisory support in constitutional challenges to cutbacks and restrictions in social programs (for example, Falkiner v. Ontario (Ministry of Community and Social Services), Irshad v. Ontario (Ministry of Health), Rogers v. Ontario (Ontario Works Administrator, Sudbury), Broomer v. Ontario (Attorney General)). Judith Keene has published a legal text on human rights and numerous articles on human rights legislation and on the Charter of Rights.


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Jennifer Koshan is an Assistant Professor at the University of Calgary Faculty of Law. Her teaching and research interests are in the areas of constitutional law, particularly equality rights, human rights law, labour law, violence against women, and public interest advocacy. Before joining the Faculty of Law, Jennifer Koshan practised for several years in the Northwest Territories as Crown counsel, and worked as the Legal Director of West Coast LEAF. She was a member of LEAF’s National Legal Committee from 1999 to 2005, and was a member of LEAF’s Board of Directors from 2003 to 2005.


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The Honourable Claire L’Heureux-Dubé was appointed to the Supreme Court of Canada in 1987. She retired from the Court in July 2002. Called to the Quebec Bar in 1952, she served in private practice in Quebec City from 1952 to 1973, and was appointed Queen’s Counsel in 1969. She was appointed to the Superior Court of Quebec in 1973 and to the Quebec Court of Appeal in 1979. Her contributions to law and public life have been recognized with eleven honourary doctorates and numerous prestigious awards. These honours include The Yves Pelicier Award, presented by the International Academy of Law and Mental Health (2002), the Margaret Brent Women Lawyers of Achievement Award, from the American Bar Association Commission on Women in the Profession (1998), the Prix de la Justice, presented by the Canadian Institute for the Administration of Justice (1997), and The Canadian Award, presented by the Canadian Hadassah-WIZO (for An outstanding Canadian Advocate of Equality and Champion of Human Rights). On her retirement from the Supreme Court of Canada, the University of Ottawa honoured Justice L’Heureux-Dube by establishing the Claire L’Heureux-Dube Fund for Social Justice. She was appointed as a Companion of the Order of Canada in 2003 and was awarded the Quebec Order of Merit (l’Ordre national du Quebec) in 2004.


Claire L’Heureux-Dubé's profile page

Diana Majury is an Associate Professor in the Law Department at Carleton University in Ottawa. Her research and teaching interests include the Charter and equality theory, human rights, criminal law, women’s health, and law and literature. She has been active in various capacities with both NAWL and LEAF since their inceptions/conceptions.


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Sheila McIntyre was a member of the Faculty of Law at Queen’s University from 1984 to 2003. In 2003, she became a member of the Common Law Section of the Faculty of Law at the University of Ottawa and served as the Director of the University’s Human Rights Research and Education Centre until July 2005. For twenty-five years she has been a legal activist involved in education equity struggles, test case litigation, and law reform initiatives designed to reduce systemic bias in Canadian law and legal institutions and to advance the equality of disempowered groups. She was a member of the National Legal Committee of LEAF from 1990 to 1994 and has been a member of numerous LEAF sub-committees responsible for Supreme Court of Canada facta since 1988. She has also worked with national coalitions of women’s organizations to secure equality-driven amendments to criminal sexual offence laws. The focus of her scholarship remains the analysis of systemic inequality and egalitarian change in law and the universities.


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Sophia Moreau is Assistant Professor of Law and Philosophy at the University of Toronto. Her current research focuses on equality rights in the public and private sectors. She has written on the role of comparator groups in equality rights analysis (Journal of Law and Equality); on the relevance of philosophical analysis to constitutional argument (Traversing Disciplinary Difference); on practical reasoning and character (Ethics); and on a number of issues in normative ethics (Ethics and Proceedings of the Aristotelian Society). Prior to joining the University of Toronto, she clerked for Chief Justice Beverley McLachlin at the Supreme Court of Canada (2002–2003).


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Dianne Pothier has been teaching at Dalhousie Law School since 1986 and has been a Full Professor since 2001. Her teaching and research subjects include constitutional law, conflict of laws, public law, labour law, human rights, equality rights, and disability rights. She was legal counsel to the Canada Labour Relations Board from 1984 to 1986, a Supreme Court of Canada law clerk to Justice Brian Dickson in 1983, and is currently on the Equality Rights Panel of the Court Challenges Program. In 2005, she received a Frances Fish Women Lawyers’ Achievement Award from the Nova Scotia Association of Women and the Law. She was called to the Nova Scotia Bar in 1982 and her litigation experience includes being the appellant’s co-counsel in the Supreme Court of Canada in R.D.S. v. The Queen, and being counsel for the joint intervention of LEAF and DAWN in British Columbia v. Auton.


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Melanie Randall is an associate professor at the Faculty of Law, University of Western Ontario. She has undertaken research and educational work on issues relating to violence against women and the law. Her published work has addressed legal remedies for sexual violence, including legal constructions of “ideal victims” in domestic violence criminal cases, legal misunderstandings of women’s responses to violence and abuse, comparative approaches to asylum claims based on gender persecution in refugee law, and using the law to seek state accountability for violence against women. She is co-writing the first Canadian Bench Book on domestic violence and the law for judges, which will accompany the National Judicial Institute’s educational program, and is entitled “Violence and Abuse in Intimate Relationships: Enhancing Judicial Skills in Cases involving Domestic Violence.”


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Denise G. Réaume is Professor of Law at the University of Toronto where she has taught since 1982. She holds law degrees from Oxford University and Queen’s University, as well as a degree in history from Queen’s. Professor Reaume teaches in the areas of tort law, discrimination law, legal responses to a multicultural society, and feminist analysis of law. Her current research projects include work on official language rights in Canada, discrimination law, and feminist issues in tort law, all subjects on which she has published. She has also been a member of several LEAF factum writing sub-committees.


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Leslie A. Reaume is counsel to the Canadian Human Rights Commission. Prior to working with the Commission, she developed an equality rights firm in London, Ontario, with a focus on statutory human rights, the Charter, as well as administrative and civil cases engaging human rights issues. She has argued cases in numerous administrative law forums and at all levels of Canadian Courts, including the Supreme Court of Canada. From 1997 to 2001, she was appointed part-time at the University of Western Ontario, and is currently teaching in the Faculty of Law at Queen’s University. The publication of her new book, Human Rights Law in Canada, co-authored with Philippe Dufresne, is forthcoming from Irwin Law Inc.


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Fiona Sampson is a poet, essayist, and critic whose most recent books include a new edition of Percy Bysshe Shelley and Music Lessons: The Newcastle Poetry Lectures. Published in more than thirty languages, she has eleven books in translation, including Patuvachki Dnevnik, which was awarded the Zlaten Prsten. In 2009, she received a Cholmondeley Award and was elected an FRSL; she has since been elected to the Council of the Royal Society of Literature. She has received the Newdigate Prize, Writer's Awards from the Arts Councils of England and of Wales and from the Society of Authors and has been shortlisted twice for both the T. S. Eliot Prize and Forward Prizes. She is currently Distinguished Writer at the University of Kingston and Visiting Research Fellow at the Institute of Advanced Studies, University of London. Her critical survey of contemporary British poetry, Beyond the Lyric will appear in autumn 2012.

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Karen Schucher has been involved in equality and human rights litigation for many years. She was co-counsel in the Federation of Women Teachers’ Associations of Ontario human rights litigation and worked on numerous equality rights issues on behalf of trade unions in her former practice with Cavalluzzo Hayes Shilton McIntyre & Cornish. Karen Schucher was counsel to LEAF in the NAPE intervention and is currently a member of LEAF’s National Legal Committee. She has written on a wide range of human rights issues and is actively involved with women’s organizations working on violence against women, most currently with Canadian Chiapanecas Justice for Women (CCJW), a recently-established North/ South working group.


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Andrea Wright is presently counsel to the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, specializing in national security and human rights, and the comparative study of accountability mechanisms for security intelligence in democratic countries. A graduate of the Faculty of Law, McGill University, she has practised with McCarthy Tetrault in Toronto, and has been involved in a number of public law projects and conferences. At the time of the presentation of her paper in this volume, she was counsel to the Canadian Human Rights Commission, litigating statutory human rights, Charter, and administrative law cases in both official languages before numerous courts and tribunals, including the Supreme Court of Canada.


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Other titles by Fay Faraday

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Other titles by Shelagh Day

Other titles by Judith Keene

Other titles by Claire L’Heureux-Dubé

Other titles by Sheila McIntyre

Other titles by Sophia Moreau

Other titles by Dianne Pothier

Other titles by Melanie Randall

Other titles by Karen Schucher

Other titles by Andrea Wright