A Kick in the Caboose: Recovering the Judicial Horizontality of Constitutional Equality Rights

Résumé

The peculiarity I examine in this paper is that the judiciary’s involvement in the horizontality of equality has little to do with modifying the common law applicable to private parties to create antidiscrimination duties. Rather, it is restricted to following behind legislative efforts to protect citizens from discrimination perpetrated by other citizens. Courts opt to interpret section 15 as in certain circumstances prohibiting legislatures from not going far enough to cover the “residual category” of horizontal private relations left untouched by an antidiscrimination statute, an approach that has been fittingly referred to as “caboose constitutionalism.” I argue that we Canadians should reject this approach — that we should kick the caboose. I sketch a theoretical blueprint for how to do this, and I make suggestions about how to operationalize this blueprint in practice.