Review on The Supreme Court of Canada’s Decisions on Section 15 of the Charter of Rights and Freedoms: Focused on The Understanding of Substantive Equality and The Analytical Approach
Date Issued
2014
Date
2014
Author(s)
Huang, Chun-Hua
Abstract
This thesis can be roughly dividied into two parts. In the first part, I review a series of the Supreme Court of Canada’s decisions on section 15 of the Canadian Charter of Rights and Freedoms, includes Andrews, Law, Eldridge, Vriend, Lovelace, and Kapp. To clarify how the Supreme Court of Canada achieve the promise of substantive equality, my case review focuses on the judges’ explaination of the purpose of section 15, the definition of discrimination, the diverse approachs taken by different justices during the 1995 trilogy, and the analytical framework since Andrews, Law to Kapp. Then I reflect on the enumerated and analogous grouds approach, the court’s attitude toward amelioratve measures, and the opinion on the government positive obligations. Those are important issues that researchers in Taiwan mostly concern and the Canadian experience may give some inspirations. To sum up, the most significant features of the Supreme Court of Canada’s approach are the emphasis on the impact of the distinction rather than the intent, contexualized methods, and concerns about disadvantages.
In the second part, I employ the Supreme Court of Canada’s analytical framework developed in section 15 cases to review the judicial interpretation no. 584 and no. 649 of the Council of Grand Justices to show the differences of the approaches to solving cases on equality between the Supreme Court of Canada and the Council of Grand Justices in Taiwan. The couclusion is that the Council of Grand Justices failed realizing the promise of substantive equality and not yet develop an analysis for the equal protection clause distinct from the analysis for freedom-protecting clauses. Compared with the Supreme Court of Canada, the Concil of Grand Justices usually lays greater stress on the majority groups’ need in society and not sensitive to the subordinations or disadvantages experienced by minorities.
Subjects
加拿大最高法院
實質平等
優惠性差別待遇
權利與自由憲章
加拿大憲法
釋字649號解釋
釋字584號解釋
平等權
Type
thesis
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