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35 Can. J. Women & L. 1 (2024)

handle is hein.journals/cajwol35 and id is 1 raw text is: Grounds-Based Distinctions: Contested Starting Points in Equality Law Colleen Sheppard Over the past five years, the Supreme Court of Canada has continued to grapple with the meaning of constitutional equality and discrimination. In this regard, there is a clear consensus that the Court should follow a two-step test to assess violations of section 15(1) of the Canadian Charter of Rights and Freedoms. First, the Court must identify a grounds-based distinction and, second, deter- mine whether the distinction violates substantive equality. While both parts of the test present interconnected conceptual and contextual challenges, this arti- cle focuses on how the Court has applied thefirst step of the section 15 equality analysis. Recent case law reveals a deeply divided Court. First, fundamental differences are apparent with respect to whether grounds-based distinctions may be understood as inextricably embedded in legislative schemes. Second, the justices diverge on the exigencies ofproving adverse impact discrimination. Legal technicalities, comparator group formalities, and fear of imposing any positive rights obligations on governments obscure critical dimensions of the disproportionate effects of law. Third, the association of adverse impact with unintentional discrimination risks overlooking the importance of the actual knowledge of disparities in the effects of laws and policies. Finally, the com- plex realities of intersectionality, while recognized by some justices, continue to remain on the periphery ofequality rights doctrine. While the second step of the equality analysis engages more directly with an assessment of the contextual realities of substantive inequality, it is critical to ensure that courts reach this stage of the analysis and that it is not thwarted or obstructed by narrow and formalistic approaches to identifying grounds-based distinctions. Au cours des cinq dernieres annees, la Cour supreme du Canada a continue de s'interroger sur la signification de l'egalite constitutionnelle et de la dis- crimination. A cet egard, le consensus est clair: la Cour devrait faire une verification en deux &tapes pour evaluer les violations du paragraphe 15(1) de la Charte canadienne des droits et libertes. D'abord, la Cour doit identifier I wish to thank Nikita Tafazoli, Alexandrine Lahaie, Angela Yang, and Genevieve Plumptre for their excellent research and editorial assistance in preparing this article as well as the Social Sciences and Humanities Council for its financial support. CJWL/RFD doi: 10.3138/cjwl.2023. 06.12

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