Faculty of Law
University of British Columbia
February 1, 1996
This paper was commissioned, in March , 1995, by the newly-reinstated Court Challenges Program to address the comparative absence of Charter s. 15 cases addressing issues of racial inequality. Against the background of the equality jurisprudence that has developed through s. 15 litigation over the past 10 years, the Program has expressed concern about the very low number of litigants -- both appearing in the courts and seeking Program funding -- who claim "race" as a ground of discrimination (1).
At the onset, it must be emphasized that this paper represents no more
than a preliminary effort to address a complex and important set of
issues. There is virtually no academic or empirical work in Canada
examining the difficulties of litigating for racial equality under the
Charter. One short paper cannot fill this vacuum. Thus, the focus of this
work is upon discussing the various barriers to such litigation faced by
those seeking to use s. 15 to address problems of racial inequality in
Canadian society. These include:
barriers in the Charter generally;
barriers in the Program's mandate;
barriers in the equality jurisprudence; and
difficulties arising from inter- and intra-group implications of mounting a case.
In discussing these various problems, I draw upon examples from cases which have been litigated under s. 15 as well as racial inequality issues which are of pressing concerns to equality seeking groups. The second section of the paper briefly suggests some strategies for overcoming some of the problems I have identified. Clearly, much more analysis of the barriers to litigating for racial equality under the Charter must be completed before comprehensive strategies and solutions can be advanced.
I Why there are so few cases
Any enquiry into the reasons for the relative absence of s. 15 cases alleging race discrimination must start with a basic appreciation of the forms racism takes within Canadian society, together with the dominant social attitude towards it. Much of the adversity experienced by racialized groups in this country arises from a racism that is pervasive, but subtle; embedded deeply within legal institutions and practices, rather than evident on the face of the law. (2) These features
make much of Canadian racism very hard for the law to "see," particularly since law and the legal system are organised from the perspective of the dominant group in Canadian society. (See generally, Crenshaw 1989, 3; Duclos 1993; 42; Iyer 1993; Kline, 1994, 454.) Most obviously, this group has little or no experience of racism which means that it is ill-equipped to know what to look for in trying to redress it. Further, the dominant group is also implicitly implicated, in any allegations of racism, as the wrongdoer. Because of the powerful stigma attached to the words "racism" and "racist," there is a significant reluctance within the legal system to use these labels (Carasco 1993, 15 1) -- it is just not very "nice" and, according to the national self-image, Canadians are always "nice."
One important consequence of this is the widespread and persistent perception that racism/race discrimination is "abnormal:" -- an aberration -- rather than part of the way things are (Black 1994, 83-4; Young 1992, 6-9). This means that cases which allege race discrimination in the basic fabric of aspects of our legal system, particularly in areas which involve, in large measure, the exercise of discretion, are particularly difficult to challenge. Cases like Smith (3) , a claim about policing and apprehension practices, MKS (4), a claim about child apprehension practices, and Crowe (5) claim about the treatment of inmates, all alleged racism in the "ordinary" operation of legal regimes and the discretion they authorised. All three were rejected by the courts.
Before turning to an analysis of the various barriers I have identified, it is important to sketch out some of the basic limits on using the Charter to achieve racial equality. First, a part of the problem clearly lies beyond the ambit of the legal system; other social institutions, such as the media and the education system have a crucial role to play as well. Second, there are a number of problems endemic to the legal system in general that cannot be changed through Charter litigation. These include the problems of representation and of knowledge of racial inequality issues in the bar and bench, and the current grip of neo-conservative ideology (and the hostility to social justice issues this entails) on law-makers and Canadian society. Also in this category are problems arising from racialized groups' lack of awareness of rights and/or distrust of the legal system, the lack of effective avenues for redress and/or the excessive time and money needed to pursue them. Although there has been some recent recognition of some of these issues, for example the "individual complaints" model has been criticized as an adequate basis for litigating discrimination claims in the human rights context (Black 1994), change is slow and uncertain.
Finally, it is important to remember that the Charter is only one instrument for change, and the Program only addresses a small portion of potential Charter claims. It certainly cannot carry the whole burden of redressing racial inequality. Therefore, I have briefly outlined barriers to litigating for racial equality which arise from the Charter generally and from the Program's mandate (Sections A and B) not only to provide additional reasons for the absence of cases, but also to set some on what the Program can expect to change. There are important efforts that can be made within the of Charter litigation in the Program's mandate; while these will likely not result in a flood of cases, they may well encourage litigants to start addressing racial inequality issues through the Program, particularly through case development, and might help to build up precedents which create a jurisprudence that is able to property address racial inequality claims.
A. Barriers in the Charter Generally
The following problems are endemic to any Charter litigation. In my view, however, they
can become especially onerous in the context of s. 15 claims alleging racial discrimination.
The current restrictive approach to interventions (see Canadian Council of Churches (6) ) restricts the ability of equality seeking groups to articulate racial equality claims and concerns. By contrast, a broader approach would allow groups to raise issues on behalf of individuals or groups in a more economical way than commencing litigation; it also allows the implications for racial equality to be spelled out by intervenors in cases in which they might otherwise be overlooked by judges (and, perhaps the parties).
The need to satisfy standing requirements can prevent racial equality issues from coming to court at all. One illustration of this barrier is the difficulties encountered by non-citizens and those not in Canada who would wish to complain about immigration, refugee and related issues
The very restrictive interpretation of "government activity" in McKinney (7) and subsequent cases has effectively immunized a whole range of institutions from Charter scrutiny whose practices may particularly affect racialized groups (for example, hospitals and health care institutions). These practices may not be adequately monitored through human rights legislation.
Speed of the Judicial Process
In the context of race discrimination cases, the tendency of lower courts to be more hostile to such claims increases the considerable time required to litigate a case by adding the need to appeal most cases. Where a timely intervention is required, as was the situation in Native Women's Association of Canada (8), for example, litigation might result in an expensive and hollow victory.
Closely related to the time factor is the requirement for sufficient financial resources to conduct Charter litigation. This becomes very onerous (and may call for resources beyond those available through the Program) when a systemic discrimination claim is advanced (and, for reasons discussed below, most race discrimination claims must be framed in this way). In many of the cases I have examined, substantial evidence was crucial to the success of a claim (for example, see Sparks (9)). The resources required to compile the evidentiary basis to support a systemic discrimination claim are, of course, in addition to those required to respond to governmental "delaying" tactics which have been deployed by government lawyers in responding to Program-funded cases in the past.
Considerable financial resources may be required to compile -- and to create -- sufficient empirical evidence to address s.1 issues. This is especially onerous in race discrimination cases because of the misperception of racism as "abnormal" and the institutional reluctance to find that ordinary practices authorised by various legal regimes (policing, etc.) are racially discriminatory.
Finally, even if a case is mounted and it succeeds on the merits, the current law on Charter remedies (Schachter (10)) makes it very difficult to use the Charter to require positive government action. Yet it is because many racially discriminatory practices arise in the "private" sphere that equality seeking groups must look to government to act affirmatively on their behalf to redress "private" discrimination.
B. Barriers in the Program
The most significant restriction in the Program, as you well know, is the federal jurisdiction requirement. An enormous number of racial inequality issues occur within provincial jurisdiction: for example, policing practices, education, employment, social assistance, and housing, all fall within the provincial sphere. It is extremely difficult in most of these cases to find a plausible federal link. (It should be noted that the legal analysts under the former Court Challenges Program conducted a lot of valuable research and analysis in helping litigants to identify and develop such federal links.) Even if a federal connection is found, this adds another level of complexity to what is already a complicated case, and may constitute a further basis for a court to make an adverse ruling. When it is open to the Program to provide partial funding for a case that raises both federal and provincial issues, the amount of funding may not justify the additional complexity and, of course, it does nothing to help the litigant with the funds required for the provincial aspect of her/his claim.
Adequacy of funding may also present a problem even where the federal connection requirement is met, in complex cases of systemic discrimination, especially where the litigant must search extensively to find or create empirical evidence to support the adverse impact/adverse effects allegation. Further, there may be issues about the adequacy of funding to develop cases involving multiple grounds and multiple, potentially conflicting interests of various groups. Group consultations (which can be expensive) become very important to ensuring a productive working relationship in the latter situation.
C. Barriers in the Equality Jurisprudence
Although formal equality was supposedly unequivocally rejected in Andrews (11), it persists in judicial decisions in the lower courts (for example, Eldridge (12); Gould (13) ) and, even more distressing, it seems to be resurfacing, with increasing frequency, in the Supreme Court of Canada (14) . Some of the problems inherent in Andrews are now emerging, particularly those revolving around the inconsistent treatment of listed and analogous grounds. These uncertainties about the Court's commitment to substantive equality are especially worrisome in the context of racial discrimination claims, in my view, because they can only exacerbate a fundamental tension within racial equality analysis. There is a serious unresolved division within the judiciary (and within the groups themselves) concerning the appropriate approach to analysing and redressing racial inequality. The two competing approaches which are advanced can be termed the "colour-blind" (formal equality) approach and the "colour-sensitive" (substantive equality) approach. Although I discuss the divisions between the groups on this issue below, it is worth noting that any lack of consensus among litigants on this fundamental issue is likely to contribute significantly to the lack of coherence in the jurisprudence.
The difference between the two analytical approaches to issues of racial inequality is quickly evident in a case like Smith (15) , which involved two black accused who appealed from their convictions for "causing a disturbance by fighting" on the basis that the investigation and prosecution leading to their convictions were fatally tainted by racial discrimination. The charges arose out of a three day "race riot" at a high school in Nova Scotia. More blacks than whites were charged with offences arising from the incidents (ten and eight respectively); seven blacks and four whites were tried; only the two appellants were convicted. It is not clear from the judgement dismissing the appeal whether the complaint was that the police and prosecutors discriminated because they were not colour-blind or because they were not colour sensitive. The "colour-blind" complaint would be that the authorities targeted blacks when they should have treated them the same as whites -- had they been "blind" to colour, an equal number of blacks and whites would have been charged, prosecuted and/or convicted. The "colour sensitive" argument would be that the authorities should have been particularly conscious of the racial dimensions of the case, especially given that the incident being investigated was a racially motivated fight; had they been appropriately sensitive to colour in the investigation and prosecution of the incidents, more whites than blacks would have been charged, prosecuted and/or convicted, in part because racism is experienced differently by the two groups.
Another example can be drawn from cases challenging the composition of juries in criminal cases. Again there is a real tension between those cases in which the accused's desire for representation on the jury of members from her/his own group (a "colour-sensitive" claim) is firmly rejected as violating the "colour-blind" approach (see for example Nepoose (16) ; Yooya (17) ) and a case such as Parks (18) in which it was held that asking potential jurors about their possible racial prejudice against a black accused was permissible, a colour-sensitive approach. The question was relevant because of the court's finding that there was a realistic possibility that a citizen of Metro Toronto would be prejudiced against blacks. The confusion between these approaches may have contributed to the outcomes of some of the cases; it also points to a confusion in the equality jurisprudence that has serious implications for future race discrimination litigation.
A second problem in the jurisprudence arises from its inadequate understanding of claims of discrimination on multiple grounds. When grounds of discrimination other than race are advanced in a racial discrimination claim, there is a tendency in human rights cases to focus on those other grounds, treating "race" as secondary or failing to address it if the other ground of discrimination is established (Young 1992, 26). This forecloses an important avenue for developing the jurisprudence of race discrimination. Further, when a claim combines race with an "excluded" ground of discrimination -- including situations where an "analogous ground" claim is rejected and, more frequently, those where the court considers that the adverse treatment is based on a factor not included in s. 15 -- the adverse treatment tends to be attributed to the excluded ground so that the race discrimination component of the treatment is erased and the claim fails. (An example of this problem, although not involving a claim of racial discrimination, can be found in the majority judgement in Mossop (19).) Since many issues of racial inequality are intertwined with issues of poverty/economic status, as well as other categories, this problem is a significant hurdle to litigating for racial equality (see, for example, MK (20); Crowe (21)).
The problem is exacerbated further by judicial discomfort with and a tendency towards a purely formal (and empty) understanding of the content of the category "race" and of racism. The formal approach means that a lot gets written out of the category of "race" - for example, language discrimination is not race discrimination (22), neither is adverse treatment of immigrants necessarily race discrimination, despite Andrews (23) . This approach also contribute to the lack of appreciation of potential racial equality implications of cases not explicitly framed as "race cases." For example, in Weatheral, (24) , a sex equality challenge to female searches and scrutiny of male inmates, there was no mention of the disproportionately non-white composition of the prison population in light of the racial categorisation of the guard population. This may well be a relevant factor when addressing the impact of the conduct in issue.
While it is true that there are some encouraging indications that judges are beginning to be more receptive to equality theories that recognise the multiple and interactive character of discrimination, such as the judgement of the Nova Scotia Court of Appeal in Sparks (25), much work
needs to be done to develop the few promising precedents.
A third problem in the jurisprudence arises from its in hospitability to claims of systemic discrimination. As mentioned earlier, s. 15 of the Charter, like protection against discrimination in human rights laws, is an individual, not a collective, right (26) . The problems inherent in trying to adapt an individual, complaints-based adjudicative model to claims of systemic discrimination are well-documented with respect to human rights legislation (Black 1994; Duclos 1993; Young 1992) and, in my view, are equally applicable to Charter litigation. Since the current judicial understanding of the meaning of "race" in the context of race discrimination tends towards the purely formal (i.e. the law must say "race" on its face, "language", or "immigrant" is not good enough), most race discrimination claims will have to be framed as adverse effect cases. This means that the plaintiff must prove the disproportionately adverse effect on the group of the law in dispute and show that this generally adverse impact was operative in her/his case. This is quite a different -- and much more complex -- requirement than a showing of "direct discrimination" where a court is able to "see" for itself that, for example discrimination against public housing tenants in Nova Scotia just is discrimination on the basis of race, sex and income. In Fletcher Challenge (27) , a human rights case, the court overturned a tribunal's ruling on the basis that language discrimination (a man of Punjabi origin for whom English was a second language) was not race discrimination unless an employee's English language proficiency requirement could be proven to have an adverse effect on racialized groups. Since the complainant had not framed his case as an adverse effects case, it was dismissed. In both MKS (28) a case alleging race discrimination in the operation of child apprehensions and Crowe (29) , a case alleging race discrimination in the treatment of prisoners, the claims failed despite evidence accepted by the court of disproportionately high numbers of First Nations child apprehensions (in MKS) and of worse treatment of First Nations inmates (in Crowe). The reason, in both cases, was the complainants' failure to prove that the systemic racism established in general was the cause of the treatment they experienced as individuals.
The three problems I have discussed in the current equality jurisprudence - the ongoing confusion between formal and substantive theories of equality (colour-blindness versus colour-sensitivity), the inadequate treatment of multiple grounds claims, and the inhospitability to systemic discrimination claims -- are exacerbated by two factors. First, efforts to persuade courts to adopt a substantive approach to equality in the context of race discrimination tends to promote a conception of racism as pervasive and "normal" that is extremely unsettling to those who believe that the system is basically fair. Adopting a substantive approach and acceding to systemic discrimination complaints means accepting that race discrimination is part of the ordinary operation of policing and prosecutorial practices, of cud apprehensions, and so on. For adjudicators who necessarily have a personal investment in the current legal system, this is no easy task.
Second, and closely related to the first factor, the highly stigmatising nature of a finding of race discrimination in a context where such discrimination is seen as "abnormal" paradoxically leads to judicial concern about and sympathy for the respondents/defendants. Precisely because judges agree that racism is a really bad thing, they are concerned not to "mislabel" the defendant/respondent. This tendency has been noted in human rights cases with respect to individual respondents (Young 1992, 7); 1 believe it is also present in s. 15 cases where judicial concern for the (well-intentioned) police (30), prison official (31), or child welfare authority (32), seems to me to be an undertone in the cases. The consequence is an unstated elevation of the burden of proof -- in many of the cases, much is made of the need for comprehensive and compelling evidence(Sparks is a rare example of a case where there was sufficient evidence), evidence that is very hard for plaintiffs to find.
D. Implications of Mounting a Case
The barriers to litigation discussed in this section differ from those
described in the first three sections in that they are internal rather than
external. Moreover, unlike the barriers in the Charter generally, in the
Program's mandate, and in the jurisprudence, all of which are clearly
detrimental to litigating for racial equality and which we can work to
overcome, the challenge posed by the implications of mounting a s. 15
case will -- and should -- always be with us. The need to carefully
consider the implications of a potential race discrimination case must be
carefully considered because of the enormous diversity among and within
racialized groups in Canada. We differ with respect to our political and
religious beliefs, and with respect to our positions in the various social
hierarchies (of gender, racialization, sexuality, disability, class, and so
on). We differ in our aspirations and, more generally in our understandings
of ourselves and each other. These differences mean not only that groups
may disagree (with each other and within themselves) about the issues
raised by various race discrimination claims, but the consequences of the
various possible outcomes of a case may be very different for different
groups. Two sets of implications must be considered with respect to any
potential claim: the potential consequences for other groups, and the
potential consequences for persons with differing social characteristics
(gender, class, sexual orientation, etc.) within the group.
Divisions between and within racialized groups on the question of whether a formal or a substantive (colour-blind versus colour-sensitive) approach to equality should ground racial discrimination claims under s. 15, alluded to earlier, have important implications for the jurisprudence and for the usefulness of the Charter in redressing racial (and other) inequality. Not only may this issue be divisive between particular racialized groups, but its outcome may have a profound effect on the equality jurisprudence with respect to other grounds. For example, will advocating a formal equality approach in the context of race discrimination claims tend to erode gains made in redressing sex discrimination based on a theory of substantive equality? How will adoption of one or the other approach (colour blind or colour sensitive) affect the tensions present in the emerging sexual orientation equality jurisprudence, or the development of concepts such as "reasonable accommodation" in the disability equality jurisprudence?
Another set of inter-group implications arises from the differing aspirations of racialized groups with respect to what we want from government. Important divisions arise between First Nations and immigrant or "multicultural" groups in this regard, as evidenced, for example by the differing positions taken by these groups on the Charlottetown Accord.
In the process of developing a position in a contemplated litigation, it is also important to consider its potential impact on other groups. Since there are so few race discrimination cases under s. 15, this is most easily illustrated with respect to the impact of other s. 15 litigation on racialized groups. What was the impact, for example of the Symes (33) litigation (alleging that not allowing a businesswoman to deduct her nanny's salary as a business expense was sex discrimination) on domestic workers? Was that impact considered in the process of developing the plaintiff s arguments?
Just as the groups may diverge with respect to their positions on an issue, there may be a differential impact on constituencies within the group mounting a claim. One particularly troubling subset of this kind of problem is the situation of intra-group litigation. This has arisen within First Nations with respect to the Native Women's Association of Canada case, and also with respect to a number of conflicts arising from the enactment of Bill C31 (34) and its impact on existing bands their resources. In this context, who is authorised to speak for a particular racialized group or culture? What is the appropriate role for an "outsider" arbiter (the judge or the funding body) in an "inside" dispute? These problems are certainly not confined to First Nations; they can arise out of religious, political, gendered and other divisions within any group. Even when they do not present themselves explicitly in the form of intra-group litigation, care must be taken to examine the position advocated in any race discrimination claim to discover any potential adverse impact on differently situated members of the group. For example, care must be taken in framing a racial equality challenge to family sponsorship rules not to advance a heterosexist model of family that would be damaging to lesbian/gay family litigation in the same area.
11 Strategies for overcoming existing barriers to litigation
First and foremost, we need to work on establishing a racial equality jurisprudence. This requires us to formulate amongst ourselves a coherent understanding of and consensus on what racial equality means and how to approach achieving it in law: colour blind or colour conscious? This is not a simple choice. Many of the differences between and within racialized groups are implicated in this question and will surface (and resurface) when particular claims are proposed. Developing a racial equality jurisprudence (and persuading courts to accept it) in a manner that is attentive to the implications for other s. 15 grounds and the people in these various overlapping categories will have to be gradually worked out in the context of particular issues. Considerable allowance must be made for the possibility of losses, given the inhospitable environment in which Charter racial equality litigation must be conducted. Further, given the barriers I have described, it must be accepted that the Program will not likely be able to fund many s. 15 race discrimination cases. Therefore, the development of the jurisprudence must seek to take advantage of other s. 15 litigation.
What follows are a few practical suggestions for embarking upon this task.
1. Encourage all groups applying for funding, regardless of the s. 15 ground advanced, to consider (and address in their applications) the impact of their arguments and their proposed position on racial inequality issues.
2. Require case analysts to address the racial equality dimensions of applications for funding as well as potential impact of the issues for racial equality jurisprudence in their written and oral case presentations.
3. Fund consultations and coalitions with representative groups/individuals where specific racial implications of equality arguments in a particular case have been identified.
4. Actively encourage applications which claim multiple grounds of discrimination, and assist applicants to develop multiple grounds wherever possible.
5. Monitor current and emerging racial equality issues in the media and, in the case of pressing/egregious issues, conduct positive "recruitment" of potential litigants (for example, contacting appropriate groups to inform them about the Program and its interest in the issue).
6. With respect to current issues appearing to fall within provincial jurisdiction (for example, Ontario's cuts to social assistance for sponsored immigrants), contact relevant groups to strategize about possible federal connections.
7. Compile resources on racial equality theory generally and on particular issues which can be made available to groups and potential litigants (bibliographies, articles, lists of experts etc.).
8. Prepare a study of previous Program analyst's efforts to develop "federal connection" arguments together with an examination of the relevant jurisprudence and make this available to groups contemplating equality litigation in provincial jurisdiction.
It should be apparent from this brief review that the reasons for the paucity of Charter cases and Program applications raising racial equality issues are complex. The various barriers to mounting such litigation are deeply entrenched in the sociolegal fabric. Within this context, the Program's capacity to foster such litigation is very limited. However, this should not be cause for despair. By taking up the challenge to articulate racial equality issues at every opportunity through the strategies I have suggested, the Program can interrupt the silence about racism that is the norm in Canada. Making racism visible in multiple ways and on multiple occasions provides the context necessary to enable us to develop an effective and inclusive vision of racial equality.
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Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics." University of
Chicago Legal Forum [ 1989], 139
Duclos (Iyer), Nitya. 1992. " A Remedy for the Nineties: Schachter v. R. and Haig & Birch v.Canada." Constitutional Forum 4:1, 22------------
1993. "Disappearing Women: Racial Minority Women in Human Rights Cases."
Canadian Joumal of Women and the Law 6:1, 25
Iyer, Nitya. 1993. "Categorical Denials: Equality Rights and the Shaping of Social Identity."
Queen's Law Joumal 19, 179
Kline, Marlee. 1994. "The Colour of Law: Ideological Representations of First Nations Discourse."
Social & Legal Studies 3:4,451
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Importance to Ethnocultural and Visible Minority Community Organizations TRI994-2e. Ottawa:
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Young, Donna. 1992. The Handling of Race Discrimination Complaints at the Ontario Human
Rights Commission. Toronto: Ontario Human Rights Commission
1 I use "race" in the broadest possible sense, including colour, ethnicity, national or ethnic origin, culture and ancestry. I put the term in quotation marks because I want to remind readers that it is very much a constructed category: at different times and places, different groups are racialized that is, they are perceived by the dominant society to comprise different "races."
2 The Report prepared in 1994 by Patricia File for the Minority Rights
Advocacy Council, Gaps in Obtaining Justice: A Study of Justice Issues
of Importance to Ethnocultural and Visible Minority Community
Organizations, TRI994-2e (hereafter "MARC 1994") catalogues the
diversity of experiences of racism within the Canadian justice system.
3 R. v. Smith (1993) 84 C.C.C. (3d) 221 (N.S.S.C. App. Div.)
4 M.K.S. and J.D. v. Nova Scotia (Minister of Community Services) (1988) 86 N.S.R. (2d) 209 (Co. Ct.); aff'd 88 N.S.R. (2d)418 (N.S.S.C. App. Div.)
5 Crowe v. Canada(1993) F.T.R. 177
6 Canadian Council of Churches v. Canada (Minister of Employment and Immigration  1 S.C.R. 236
7 McKinney v. University of Guelph  3 S.C.R. 229
8 Native Women's Association of Canada v. Canada (1992) 95 D.L.R. (4th) 106 (F.C.A.)
9 Dartmouth/Halifax Regional Housing Authority v. Sparks (1993), 101 D.L.R. (4th) 224 (N.S.S.C. App. Div.)
10 Schachter v. Canada  2 S.C.R. 679. For an elaboration of this criticism, see Duclos 1992.
11 Andrews v. Law Society of British Columbia [ 1989] 1 S.C.R. 143
12 Eldridge v. British Columbia (1995), 125 D.L.R. (4th) 323 (B.C.C.A.); leave to appeal to S.C.C. filed.
13 Gould v. Yukon Order of Pioneers (1993) (1993) 79 B.C.L.R. (2d) 14 (Yuk. Terr. C.A.); leave to appeal to S.C.C. granted 1994) 89 B.C.L.R. (2d) xxxiii.
14 Since Gould was argued before the Supreme Court of Canada in October, 1995, the Court will soon have an opportunity to clarify its approach to equality, albeit in the context of a human rights, rather than a Charter, case.
15 Supra, note 3.
16 R. v Nepoose (1991) 85 Alta. L.R. (2d) 18 (Q.B.)
17 -R. v. Yooya (1994) 26 Sask. R. I (Q.B.)
18 R. v. Parks (1993) 15 O.R. (3d) 324 (Ont. C.A.)
19 Canada (Attorney-General) v. Mossop [19931 1 S.C.R. 554
20 Supra, note 4.
21 Supra, note 5.
22 Fletcher Challenge Canada Ltd. v. British Columbia (Council of Human Rights) & Grewal (1992) 18 C.H.R.R. D/422 (B.C.S.C.)
23 Supra note I 1.
24 Weatherall v. Canada; Conway v. Canada  2 S.C.R. 872.
25 Supra, note 9.
26 Native Women's Association of Canada, supra, note 8 at 177.
27 Supra, note 22.
28 Supra, note 4.
29 Supra, note 5.
30 Smith, supra, note 3.
31 Crowe, supra, note 5.
32 M.K.S., supra, note 4.
33 Symes v. Canada (1993), 1 10 D.L.R. (4th) 470 (S.C.C.)
34 Bill C-31 was enacted as An Act to Amend the Indian Act. S.C. 1985, c. 27. The provision which has aroused the most controversy is s. 4.