
Cautious Optimism: Fraser v Canada (Attorney General)
Author(s) -
Jonnette Watson Hamilton
Publication year - 2021
Publication title -
constitutional forum
Language(s) - English
Resource type - Journals
eISSN - 1927-4165
pISSN - 0847-3889
DOI - 10.21991/cf29418
Subject(s) - charter , law , supreme court , adverse possession , watson , adverse effect , political science , medicine , history , land tenure , archaeology , land law , natural language processing , computer science , agriculture
Adverse effects discrimination arises when a law that appears to be neutral on its face has a disproportionate and negative impact on members of a group identified by a protected ground.1 The discrimination is usually not as easy to see as it is in cases of direct discrimination, where distinctions are drawn by a law, program, or policy. This may be why Fraser v Canada (Attorney General)2 is only the third adverse effects claim under section 15(1) of the Canadian Charter of Rights and Freedoms3 to succeed since section 15 came into force in 1985.4 Fraser is notable simply because it is the first successful adverse effects claim in twenty-two years.5
1 Jonnette Watson Hamilton & Jennifer Koshan. “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2015) 19:2 Rev Const Stud Studies 191 at 196 [“Adverse Impact”]. 2 2020 SCC 28 [Fraser]. 3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 4 The other two cases in which adverse effects claims were successful were Eldridge v British Columbia, [1997] 3 SCR 624, 151 DLR (4th) 577 [Eldridge cited to SCR] and Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385 [Vriend cited to SCR]. 5 At least five adverse effects claims made under section 15 of the Charter failed in the intervening twentytwo years: Health Services and Support — Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC