LE DROIT A L'EGALITE: INTERFACE ENTRE DROITS INDIVIDUELS ET DROITS COLLECTIFS

Abstract

In the first place, this article identifies the series of choices which led the Supreme Court to consider itself bound, under section 15 of the Canadian Charter, to take into consideration the pre-existing situation of groups to which the holder of equality rights belongs, and it emphasizes the importance of this consideration in the decision-making process. In this regard, on the one hand, it brings to bear the connection between certain choices of the Court and that issue. On the otherhand, the article specifies how and why the attention given by the Court to the law and to the pre-existing situation of groups respectively, when applying the standard of section 15 in context, will vary depending at which stage of the analysis it takes place. Secondly, the author examines the most important decisions where the Court balanced equality rights with other fundamental rights, with a view to identifying the Court's attitude with regard to the tension between the individual and collective rights at that stage, and to discern the reasons for its approach. The author is of the opinion that, in those cases, the Court appears to be more sensitive to the collective dimension of fundamental rights when it strikes the balance at the stage of section 1 rather than when it does so at an earlier stage. He suggests a number of considerations which may explain this attitude. One such consideration, which the author believes plays a predominant role is the constitutional concept of a `democratic society', which served as the basis, in principle, for the judicial deference shown in R. v. Mills.