WHAT ARE REASONABLE LIMITS TO EQUALITY RIGHTS?
AbstractThe fundamental problem in interpreting the scope of equality rights under the Charter of Rights and Freedoms is to determine whether section 15(1) confers a general right of likes to be treated alike (the principle of formal equality), a right limited only to the extent necessary to achieve overriding political goals; or whether section 15(1) and section 1 combine to protect the rights of persons to equal respect (the principle of juridical equality). The latter view is preferable for the following reasons. First, the principle of formal equality is a norm not for discrete laws but only for a system of laws and yet it is only discrete laws that are at issue in constitutional adjudication. Second, there is in principle no right to formal equality, since this norm can countenance the universal denial of substantive rights of respect and is redundant as a justification for their general recognition. Third, the right of persons to equal respect is at once a natural law criterion of legal validity and a condition of democratic self-rule. Hence the limitation of equality rights to rights of equal respect reconciles (as the alternative view cannot) substantive judicial review with democracy. This interpretation of the scope ofequality rights supports the application of rationality analysis as the single appropriate standard of equality review under section 1.
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