The 2007 paper « Statutory Human Rights and Substantive Equality – Why and How to Avoid the Injury of the Law Approach » makes the case that the Law test should not be imported into the human rights context.

The paper emerged in relation to a May 2005 national consultation hosted by LEAF. Approximately 25 people, all experts in equality rights and human rights practice and theory, attended. The main topic of this discussion was whether the discrimination test should be the same or different within the Charter and human rights contexts and why; and whether the Law test for discrimination should be imported into the human rights context or vice versa. The first draft of this paper was used to inform discussion at the consultation. The final draft incorporates the discussion at the consultation.

The paper focuses on the question of whether the test for discrimination developed in the Charter context should be imported into claims of discrimination under human rights legislation. It concludes that there is no support among equality advocates for importing the Law approach into human rights claims, given the concerns about how the Law analysis undermines a substantive approach to anti-discrimination. The paper also concludes that there is no legal doctrine that requires the Law test to be imported into statutory human rights law.

Karen Schucher and Judith Keene prepared the paper for LEAF.

Download the paper below.