What is the impact of the Respondent’s shift in emphasis from common law adoption to Charter infringement?

I have dealt at greater length than perhaps needed on the common law adoption argument in the light of the Respondent’s shift of emphasis from an argument based on the common law to an argument based on a Charter infringement. I did so in part because it is not entirely clear that the Respondent abandoned the common law argument and so it had to be dealt with and additionally because such an analysis appears to be called for in a s. 15 Charter assessment by Law v. Canada (1999) 1999 CanLII 675 (SCC), 170 D.L.R. (4th) 1 (S.C.C.). That decision has been referred to approvingly in all s. 15 cases since its issuance and I have relied heavily on it in this analysis.

In particular, with respect to my review of the Respondent’s common law argument the guidance in Law v. Canada (supra) is as follows as p. 39: The equality guarantee is a comparative concept, which ultimately requires a court to establish one or more relevant comparators. The claimant generally chooses the person, group or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry. However, where the claimant's characterization of the comparison is insufficient, a court may, within the scope of the ground or grounds pleaded, refine the comparison presented by the claimant where warranted. Locating the relevant comparison group requires an examination of the subject-matter of the legislation and its effects, as well as a full appreciation of context.