Comment on Fraser v Canada (AG): The More Things Change

Abstract

Very early in my academic career I wrote two pieces about section 15.¹ The first was written in 1987, before the Supreme Court of Canada had heard any section 15 cases,² and the second in 1989 was a comment on Andrews v Law Society of British Columbia, the first of the Court’s section 15 decisions.³ When I re-read these pieces recently it struck me that with a few minor updates they could be read as comments on the Court’s recent decision in Fraser v Canada
(Attorney General). ⁴ The same issues and tensions that were there at the beginning of section 15 are still there. They are built into the concept of constructive/effects discrimination and are not about to disappear. Shamelessly, I have reconstituted these two earlier pieces into a comment, of sorts, on the Fraser case. Other contributors in this special issue of the Constitutional Forum have set out the facts of the Fraser case and so I have not done so here.

1 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 Richard Moon, “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26:4 Osgoode Hall LJ 673.
3 Richard Moon, “A Discrete and Insular Right to Equality: Comment on Andrews v. Law Society of British Columbia”(1989) 21:3 Ottawa L Rev 563.
4 2020 SCC 28 [Fraser].