Realizing equality in the twentieth century: the role of the Supreme Court of Canada in comparative perspective

Abstract

The article analyzes the equality jurisprudence of the Supreme Court of Canada over the course of the twentieth century and juxtaposes its approach with that of the United States Supreme Court. Prior to the advent of the Canadian Charter of Rights and Freedoms in 1982, the Supreme Court of Canada had no constitutional document like the American Bill of Rights to interpret and apply. Thus, early equality cases do not loom over Canadian constitutional history in the same way as a case such as Plessy v. Ferguson has in the United States. The Charter elevated equality rights to a constitutional level, broadened their measure, and extended their reach. Canadian and U.S. equality jurisprudence have diverged dramatically in the Charter era, for historical reasons, but also because of the rigidity of U.S. equal protection doctrine, the happenstance of which issues have been presented to the court, and the differing levels of political will to support equality-seekers and to implement courtroom victories. This essay, based on a lecture given in the fall of 2001, is written in the spirit of fostering a useful transnational dialogue about constitutional approaches to human equality, a dialogue that eschews empty platitudes in favor of honest and constructive criticism. It both critiques and praises the work of the Supreme Court of Canada, a Court on which I have had the honor to sit, with respect to its decisions over the course of the twentieth century in the area of equality law. At various points, moreover, this essay juxtaposes the Canadian Court’s approaches with that of the United States Supreme Court in related time periods on related issues. It does so because it is valuable for judges of all national courts confronted with basic questions of human rights to be aware of