Bills of Rights as process: the Canadian experience

Please note that the original article is published in the International Journal of Law in ContextThis article seeks to address a specific aspect of Bills of Rights that tends to be neglected in the literature. That is, the process of how Bills of Rights are drafted. In particular it focuses on the drafting of a particular right-equality with a view to identifying if there is a link between: (a) the manner of how an equality provision is drafted and securing legitimacy of the final product; (b) whether a participative process can influence the formulation and articulation of an equality provision; and finally (c) if the ‘people’ have spoken through this document, does this encourage the judges to take a less restrictive approach in interpreting the equality provision? This task is undertaken by drawing upon the Canadian experience, which then will be used to draw out lessons for those jurisdictions where the process of drafting an equality provision in a Bill of Rights is under way. The article is supported in its conclusions by a series of semi-structured interviews with key players involved in the drafting and interpretation of the equality provision in the Canadian Charter.