The Elephant in the Room and Straw Men on Fire

Abstract

A great unacknowledged challenge in litigating systemic discrimination claims under the section 15 equality guarantee of the Canadian Charter of Rights and Freedoms¹ is that claimants bear a double burden. Like all litigants, they must meet the burden of proving the elements of their legal claim. But, before they can do that, equality claimants must often first meet the extraordinary burden of dislodging judges’ phenomenological anchoring in worldviews shaped by privilege. Where judges lack lived experience of systemic oppression, claimants must convince them that oppression exists. This gulf between lived experiences — what I call the reality gap — is the elephant in the room in many section 15 cases.

1 s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.