실질적 평등과 사법심사: 캐나다 연방대법원의 평등심사를 단초로 하여

Today, constitutional practice examines almost all fundamental rights disputes from the perspective of equal rights. However, it fails to capture the issues inherent in equal rights and the proper role that equal rights play in the constitutional state. This problem soon leads to a kind of equality inflation phenomenon that causes a decrease in the value of the constitutional currency of equality. In this regard, the Supreme Court of Canada has protected minorities who are separated and isolated in society and has developed jurisprudence that considers substantive equality in judicial review. The Court has brought issues of indirect discrimination, reasonable accommodation, and affirmative action, which are overlooked in equality rights review, into the judicial review. By doing so, it has determined whether the contested law corresponds to the actual needs, capabilities, and circumstances of the party concerned. Considering the differences in the constitutional text and structure, the Supreme Court’s standards for equality review cannot be directly applied in our constitutional practice. Nevertheless, the following comparative constitutional reference points can be derived from the Court’s equal rights jurisprudence. The Court considers whether a discrimination is based on personal attributes and how much such discrimination has the effect of isolating and alienating the individual or group in question. This position can be used as an important indicator in determining the intensity of equal rights scrutiny. In addition, the Court considers whether the legislation in question is providing an appropriate level of support in light of the specific situation and personal characteristics and whether it aims at improving the treatment of structural minorities. This position can also be considered in the judicial review of equality related to welfare rights.