BALANCING INDIVIDUAL RIGHTS TO EQUALITY AND SOCIAL GOALS

Abstract

In this paper the author analyzes how the Court balances equality rights and social goals in relation to the forty four cases in which the Supreme Court has been asked to consider section 15. After a review of basic principles describing the relationship between s.15 and s.1, an overview of decided s.15 cases is provided. The evolving test for establishing a breach of section 15 is explored in order to analyze whether there is balancing built into the rights definition/breach stage. The general and evolving standards of review under s.l are canvassed and then analyzed to determine how they have been applied to the equality cases which have reached this stage of analysis. The author questions the soundness and applicability of rationales put forward by the Court to justify infringement to equality rights, including a critique of a deferential standard of review, and concludes with suggestions on how to integrate more fully the purpose of equality rights and the seriousness of the breach into the s.l analysis .