Vriend v. Alberta, Law v. Canada, Ontario v. M. and H.: The Latest Steps on the Winding Path to Substantive Equality

Abstract

This article traces the continuing development of the analytical framework used by the Supreme Court of Canada to evaluate infringements of equality rights challenged under s. 15(1) of the Charter. This is achieved through examining the Court's recent decisions in Vriend, Law, and M. v. H. in the context of the claims heard in Andrews, the 'equality trilogy' of Miron, Egan, and Thibaudeau, and the subsequent equality cases heard by the Court. This article follows the initial analytical framework introduced in Andrews, through the Court's split in 1995. It then examines subsequent cases, finding that Vriend stands as a significant case in the evolution, and that the Court's restatement of its method in Law demonstrates a renewal of the Court's unanimous commitment to substantive equality as first articulated in Andrews and indicates that the troubling position favoured by a minority of judges in 1995 has been abandoned. In examining the application of the Law analysis in M. v. H., this article recognizes the possibility that the approach may be too subjective and warns that undue focus on legislative purpose instead of effect may undermine substantive equality.