In the past decade, several decisions from the Supreme Court of Canada have articulated a revised understanding of the way that section 15 of the Charter is to be applied in Charter litigation. In particular, Fraser has been interpreted by some as modifying the approach by claimants in establishing a section 15 breach and placing more focus on the government’s burden of justification. Most recently, Sharma has articulated an evidentiary burden as part of the test. The Courts have also been challenged to examine the implication of equality rights in Charter challenges and sentencing cases in the criminal law context in ways that place a heavy focus on racial inequities. The events of the summer of 2020 and the Black Lives Matter movement have highlighted the importance of cases such as R v Sharma and R v Morris, that have recently been considered by our courts. The Supreme Court of Canada has also shown an increasing interest in scholarship in the analysis of the law, while at the same time, we are seeing an increased interest and influence of interveners in these cases.
In light of the above developments, the Asper Centre convened a one-day Symposium (in-person and via Webinar) on Friday May 26th, 2023, to critically examine the status and future of equality litigation in Canada. The Symposium was aimed at both practitioners (lawyers and NGOs) who are engaged in public interest litigation and scholars and students who study and analyze the impact of these cases.
Some of the themes that were covered in the Symposium include an analysis of the recent Supreme Court rulings under s.15 of the Charter and their impact on litigation strategies on behalf equality seeking groups and the government; whether and how interveners have made an impact on these cases; the nature of the evidence required to successfully argue or defend these cases; and, lessons from successful as well as unsuccessful litigation in this area extracted from individual cases.
This Symposium builds on some of the themes explored in the Asper Centre’s 2018 Public interest Litigation Conference (and the publication following that Conference) in order to contribute to the practical scholarship on equality litigation in Canada and to produce a follow-up publication to this earlier work.
The Symposium included a morning plenary session on the role of interveners in equality litigation in Canada, a closing panel offering reflections and perspectives from the bench, as well as a full day of panel discussions by academics and practitioners focusing on the above-noted issues.