ABSTRACT

This chapter investigates empirically how supportive of substantive gender equality proportionality analysis (PA) has been in two jurisdictions which employ this method of adjudicating alleged infringements on the right to gender equality. Complainants alleging gender discrimination that is not explicit in a legislative enactment have had great difficulty navigating the doctrinal complexities of the Prima Facie Stage of Canadian equality jurisprudence. As Beverley Baines demonstrates, interpretations more generous to gender equality remain viable. Nevertheless, the "notwithstanding" clause does feature in the analysis of balance-of-powers considerations both because it is a tool provincial parliaments have used to override the Charter's sex equality requirement, among other rights provisions and because it remains in Parliament's tool kit, pending the will to use it. In the equality context the Supreme Court of Canada (SCC)'s retreat from Oake has been most effectively manifest in the doctrinal obstacles which complainants must overcome just to get to the Justification Stage (JS) of PA.