Although both the Canadian Charter and the United States Constitutions protect persons from denial of equal protection of the law, the interpretation of the broad language of the two equality guarantees has been quite different. The Supreme Court of Canada has adopted an approach of substantive equality, concluding that section 15 is designed to prevent the loss of human dignity that accompanies discrimination based on disadvantage and stereotype. At least with regard to race, a majority of the justices on the United States Supreme Court adhere to a jurisprudence of formal equality, concluding that the Fifth and Fourteenth Amendments prohibit - absent compelling justifications - any formal distinction, regardless of whether differential treatment results from racism or a sincere desire to ameliorate prior conditions of racial equality. This paper suggests that Canadian equality jurisprudence has developed over the last twenty years into a workable constitutional doctrine that deserves attention and, indeed, emulation in the United States. Although from a purely descriptive perspective there are a variety of historical and value-based differences between American and Canadian society that can explain the different constitutional doctrines developed in each country, the paper considers and rejects the hypothesis that these differences are so significant as to render Canadian insights irrelevant to the American context. The paper concludes that the Canadian approach is more faithful to a jurisprudence sensitive to the limited judicial activism called for by the landmark American decision in Carolene Products.
Stephen F. Ross, Charter Insights for American Equality Jurisprudence, 21 Windsor Y.B. Access Just. 227 (2002).