Social Justice and the Charter: Comparison and Choice

At a time of radical inequality, the changes sought by social justice advocacy are urgently needed. Yet repeatedly, courts fail to respond adequately to this challenge. A core issue plagues social justice jurisprudence under sections 7 and 15: the difficulty inevitable in the contemplation and expression of the social and political forms in which oppression and social injustice occur. This problem manifests doctrinally in ways specific to the rights at issue. In section 15 cases, the casting of comparator groups has been deeply problematic, and in both section 15 and section 7 cases, the courts fail to deliver a nuanced understanding of how notions of choice ought (and ought not) to figure in the consideration of rights claims. Judgments map a complex reality in both powerful and necessarily incomplete ways. Judicial attentiveness to this fact will determine the role that the Charter does or does not play in the reach for social justice.