April 19, 1996
Part I. Significant Developments in Equality Rights Jurisprudence
A. Positive Developments
(i) Section 15: Not Just A Formal Equality Guarantee
(ii) The Purpose of Section 15
(iii) Supreme Court of Canada Confirms Commitment to Substantive Equality Rights
(iv) Positive decisions in Other Courts
(vi) No Importation of Levels of Scrutiny
(vii) Effective Interventions
B. Concerns Arising from Equality Rights Jurisprudence
(ii) Lingering Attachment to Formal Equality
(iii) Disadvantaged Groups Refused Relief
(a) The Requirement for Monocausal Linkage Between Law and Detrimental Effects
(b) The Requirement that All Members of the Group Are Identically Affected
(c) The Requirement that No Members of Any Other
Group be Affected
(iv) Economic Distinctions Constitute a Special Category of Discrimination that is Off Limits for Courts
(v) No Right of Participation in Constitutional Reform
(vi) Issues of Serious and Complex Inequality Not Addressed
Part II. Future Directions
Part III. Conclusion
This paper was commissioned by the newly re-instated Court Challenges Programme in March, 1995. The Programme decided that research and analysis should be undertaken to provide an overview of equality rights litigation issues, concentrating on developments subsequent to 1992 when the original Court Challenges Programme was canceled.
I presented the substance of the paper to a meeting of the Court Challenges Programme on April 28, 1995. That meeting marked both the reinstatement of the Court Challenges Programme and the 10th anniversary of s. 15 of the Charter.(1) Since then,
some important decisions have been rendered, among them the Supreme Court of Canada trilogy of Thibaudeau,(2) Miron.(3) and Egan;(4) Vriend,(5) a decision of the Alberta Court of Appeal in holding that it is constitutionally permissible for human rights legislation to omit protection against sexual orientation discrimination; and Masse,(6) a decision of the Ontario Divisional Court holding that the welfare cuts of the Harris government do not engage Charter rights. As well, the British Columbia Court of Appeal ruled in --- .- (7) that the
failure of the British Columbia government to pay for interpreters to facilitate access to medical services does not violate s. 15.
This paper makes reference to the most recent decisions and offers some commentary about them. However, true to its original purpose, the primary analytical focus of the paper is on decisions that were handed down prior to the 10th anniversary of s. 15, on April 17, 1995. As will be shown, recent decisions add complications to s. 15 jurisprudence, without eliminating any pre-existing complications. In general, they increase the hurdles which the plaintiff must cross to succeed in a s. 15 challenge.
It should also be noted from the outset that the paper is not intended to be exhaustive in its coverage of s. 15 decisions. But rather, its goal is to highlight issues and patterns that emerge from the jurisprudence.
The equality guarantee of the Charter added a new dimension to the struggles of disadvantaged groups to challenge their inequality. Section 15 provided a legitimating framework for contestation and debate about issues of group-based disadvantage. Since 1985 when s. 15 came into effect, groups involved in the equality rights movement have invested hope and energy in efforts to influence the interpretation and implementation of s. 15, in a variety of fora, including the courts. In particular, there has been an emphasis on advancing
an approach to equality rights theory that would make it capable of responding to actual conditions of inequality and to group dimensions of discrimination.
It is timely to reflect critically on developments in equality rights law, and to consider the question of future directions for equality rights litigation. Where have we come from? What has been accomplished? What are the the issues to worry about? What are the challenges that lie ahead? In this paper I attempt to respond to these questions, in hopes of contributing to conversation about future litigation strategies, to further the substantive equality project which I understand as a struggle against structures and values of sexism, racism, ablebodyism, homophobia, and classism, in all institutions and relationships.
The conversation I am referring to has always been fragile because the inequalities that concern the equality rights movement are complex, diverse, and serious. conversation has also been difficult to pursue because there have always been so few resources for people from across the country to meet, and talk. The task was made even more difficult by the cancellation of the Court Challenges Programme in 1992, and other cuts to the budgets of community-based organizations by successive federal governments.(8)
The Court Challenges Programme was canceled because of opposition to the equality-seeking goals of marginalized groups such as gays, lesbians, prisoners and immigrants, which had been furthered by Programme-funded equality rights litigation. Some members of government contended that public funds should not be made available to assist such groups in exercising constitutional rights. Reinstatement of the Programme was an election promise of the Liberal Party.
I hope that the reinstatement of the Program means that the efforts of community organizations to find a common language in which to talk about inequality, and to make effective coalitions, are facilitated. It is my conviction that worthwhile engagement with rights by the equality rights movement depends on there being ongoing conversation, about where we have come from, our accomplishments, the obstacles that confront disadvantaged groups, setbacks, and our purpose. What makes the equality project a movement and not just a collection of assorted lawsuits is that people have been working to find a common language in which to talk about inequality; develop common understandings about what it means to embark on strategies that will inevitably affect significant numbers of people; to make effective coalitions; and to communicate both warnings and hope.
Part 1. Significant Developments in Equality Rights
This part of the paper will discuss key developments in equality rights jurisprudence from Andrews v. The Law Society of British Columbia
(9) onwards, following with developments since the cancellation of the original Court Challenges Programme in 1992. I will attempt to give a shape to the evolving case law that reflects positive developments, as well as points of resistance to equality claims.
A. Positive Developments
(i) Section I5: Not Just A Formal Equality Guarantee
The 1989 decision of the Supreme Court of Canada in Andrews v. The Law Society of British Columbia was a watershed development in equality rights jurisprudence. What made Andrews important to equality rights jurisprudence is not the change that it effected in legislation relating to British Columbia lawyers, but rather its interpretive approach to the Charter's equality guarantee. The most important element in Andrews is its acknowledgement that group-based disadvantage is a concept relevant to s. 15. This recognition was a crucial first step in establishing equality rights that could be used to challenge conditions of inequality experienced by marginalized groups.
Prior to Andrews, formal equality was the dominant model of equality for s. 15. (10)Formal equality does not serve the interests of disadvantaged groups because it is preoccupied with questions of formal sameness and difference, and indifferent to the actual conditions of people's lives, and group patterns of inequality. Its goal is facially neutral law. Under the formal equality regime biological difference became a justification for subordination and marginalization. The social consequences of difference were never talked about. Legitimate claims of discrimination based on sex and race were defeated. There was a thundering silence about actual conditions of inequality. Certain groups such as gays and lesbians, and people with disabilities were deemed to fall outside the formal equality framework, and therefore not even entitled to make equality claims.
The Andrews Court recognized that s. 15 is not simply about formal sameness or difference of treatment between decontextualized individuals. In coming to this conclusion, the Court stated that not every distinction between groups creates a violation of s. 15. Justice McIntyre stated that the distinctions created by s. 15 are those that involve prejudice or disadvantage, and Justice Wilson stated more boldly,
While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or
reinforce the disadvantage of certain groups and
individuals by denying them the rights freely accorded to others.(11)
Wilson J. stated further that,
... s. 15 is designed to protect those groups who suffer social, political and legal disadvantage in society ....(12)
It is only by taking into account Bill of Rights jurisprudence, and pre Andrews Charter decisions of lower courts that the significance of the Supreme Court decision in Andrews can be properly understood. The Court repudiated earlier Supreme Court interpretations of equality developed under the Canadian Bill of Rights as inadequate for interpreting the Charter, explicitly recognizing that the wording of s. 15 was deliberately chosen to overcome the shortcomings of the Bill of Rights.
In defining the discrimination that is prohibited by s. 15 the Court looked not to Bill of Rights jurisprudence, but to human rights jurisprudence, a richer source of ideas about what people need in order to flourish and live together.(13) The Court adopted a broad interpretation of discrimination that encompasses unintentional and systemic discrimination.
Andrews made it clear that the burden of justifying any
infringement of s. 15 rests with the state under s. 1, and that
s.15 does not contain internal justificatory limits. This was also thought to be an advance for equality rights jurisprudence. Under s. 1(b) of the Bill of Rights, the party challenging the legislation was required to show that the legislation was not based on a valid constitutional objective. (14) This had proven to be an extremely onerous burden for plaintiffs, in most s. 1(b) cases.
To summarize this section, Andrews represented the rudimentary
beginning of a substantive theory of equality.(15)
There have also been a number of positive developments in equality jurisprudence that flow from the decision of the Supreme Court of Canada in Andrews. The next part of this paper explores some of those developments.
(ii) The Purpose of Section 15
In Andrews it was held that the list of enumerated grounds is not exhaustive. The Andrews approach to unenumerated grounds is known as the analogous grounds or disadvantaged groups approach. In Turpin, (16) the Court elaborated on this approach, emphasizing the importance of a finding of disadvantage that exists apart from the particular legal distinction being challenged. The Court agreed unanimously that a purpose of s. 15 is, " ... remedying or preventing discrimination against groups suffering social, political, and legal disadvantage in our society.(17)
One consequence of the analogous grounds approach, first enunciated in Andrews, and further developed in Turpin, is that the volume of s. 15 claims made by corporations fell off significantly. From 1985 to 1989 there was a flood of corporate commercial claims.(18) Many challenges were to government regulations about matters ranging from airport landing fees, to the size of fish boats. By 1980 such cases were virtually absent from the case reports. Also reduced in number were the s. 15 criminal law claims, like Turpin, concerning regional variations in enforcement schemes. Even more important, together, Andrews and Turpin signalled a shift in judicial commitment away from a formal conception of equality rights based on the goal of symmetrical treatment of "similarly situated" individuals towards a substantive conception of equality rights based on remedying the inequality of disadvantaged groups.(19)
(iii) supreme Court of Canada Confirms Commitment to Substantive Equality Rights
Subsequent to Andrews the Supreme Court of Canada reversed the Bliss (2O) decision, ruling in Brooks (2l) that human rights prohibitions against sex discrimination encompass discrimination based on pregnancy. The Court also ruled in Janzen (22) that sexual harassment violates prohibitions against sex discrimination. In both Brooks and Janzen, the Court rejected formal equality arguments, in favour of analyses that focus on the social context of inequality in which the practices of pregnancy discrimination and sex harassment take place. (23) In Brooks the Court refers to its virtually concurrent decision in Andrews, confirming its rejection of the similarly situate test, and extending the application of Andrews to human rights jurisprudence.
In another post-Andrews decision, Swain (24), the Supreme Court of Canada struck Canada's archaic insanity laws. (25) Swain broke a log jam in an area of the criminal law that, for decades, had been in dire need of reform. The Swain decision rests primarily on s. 7 grounds rather than s. 15 grounds; it is nonetheless an important equality precedent. Basic to the Court's reasoning in Swain is the equality-focused insight that it is not acceptable to restrict a person's decision-making autonomy or freedom from arbitrary detention, based on blanket assumptions about mental disability.
The Court rejected the same-treatment version of equality, this time in connection with a group of people who are particularly vulnerable to being labelled "different." The Court acknowledged the inequality of people with disabilities and, instead of allowing difference to function as a justification for discriminatory treatment, read the Charter as being designed to remedy inequality. The Court said, the "overall purpose" of s. 15 is "remedying or preventing discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society." This application of substantive equality analysis was particularly significant for the evolution of disability equality jurisprudence, because the label "different" has so often served as a self justifying legal reason for denying people with disabilities enjoyment of the most basic rights and freedoms taken for granted by so-called "normal" people. (26)
Another significant Supreme Court equality decision is Weatherall. (27) In this case, male prisoners of an Ontario penitentiary raised objections to cross-gender frisk searches. (28) Their challenge rested on ss. 7,8, and 15 of the Charter. The s. 15 argument was based on the evidence that female penitentiary inmates were not similarly subject to cross-gender frisk searches. The Court found that ss. 7 and 8 were not implicated. The Court also decided that it was doubtful that s. 15 had been violated. Articulating a s. 15 analysis which attends to a dynamic of unequal power relations between men and women, and, in particular, the relative inequality of women, the Court stated,
The jurisprudence of this Court is clear: equality does not necessarily connote identical treatment, and, in fact, different treatment may be called for in certain cases to promote equality. Given the historical, biological, and sociological differences between men and women, equality does not demand that practices which are forbidden where male officers guard female inmates must also be banned where female officers guard male inmates. The reality of the relationship between the sexes is such that the historical trend of violence perpetrated by men against women is not matched by a comparable trend pursuant to which men are the victims and women the aggressors. Biologically a frisk search or surveillance of a man's chest area conducted by a female guard does not implicate the same concerns as the same practice by a male guard in relation to a female inmate. Moreover, women generally occupy a disadvantaged position in society in relation to men. Viewed in this light, it becomes clear that the effect of cross-gender searching is different and more threatening for women than for men. (29)
The Court also recognized that the assignment of women guards to surveillance of male inmates--a relatively recent phenomenon--is a means whereby Parliament's ideal of achieving employment equity is given material application.
Other decisions in which the Supreme Court of Canada has demonstrated sensitivity to equality concerns include Moge, (30) and Butler. (31) In Moge, although s. 15 is not referred to directly, the Supreme Court of Canada applied a contextualized, disadvantage-centred approach, ruling that in calculating maintenance awards courts should take into account economic advantages to a higher income spouse arising from marriage as well as the consequences of on-going economic disadvantages.
Similarly, Butler is a decision in which the Supreme Court of Canada takes equality concerns into account, without actually making a s. 15 ruling. Challenged in Butler was the definition of obscenity in the Criminal Code. The Court held that s. 163(8) violates s. 2(b) of the Charter, but that the restriction on freedom of expression does not outweigh the legislative objective which includes avoiding harm to women and children, and enhancing respect for all members of society, and non-violence and equality in all their relations with each other. (32)
These are some of the significant post-Andrews developments in the Supreme Court of Canada. The next section of this paper considers some developments in other appeal courts.
(iv) Positive Decisions in Other Courts
There have been instances in which the Supreme Court of Canada decision in Andrews has been applied, by appeal courts, in favour of disadvantaged groups. I will consider three decisions that extend benefits and protections to members of disadvantaged groups, mandating improvements in the conditions of people's daily lives.
In Haiq, (33) the Ontario Court of Appeal ruled that s. 15 of the Charter requires that the list of grounds in the Canadian Human Rights Act be extended to provide protection from discrimination, to gays and lesbians. As a consequence of the decision of the Ontario Court of Appeal in Haig, the Canadian Human Rights Commission is able to accept complaints of discrimination based on the ground of sexual orientation. Previously, human rights protections for gays and lesbians were absent from the Canadian Human Rights Act also confirmed that gays and lesbians are protected by s. 15 of the Charter, consistent with previous holdings of other courts and tribunals. (34)
In another case, Sparks, (35) the Nova Scotia Court of Appeal struck down provisions of the Residential Tenancies Act (36) which excluded public housing tenants from the security of tenure afforded other tenants of residential premises. The appellant Sparks was a Black, single mother on social assistance. As a tenant of public housing, her lease provided for termination on one month's notice. Had she been a private sector tenant, the Residential Tenancies Act would have given her security of tenure, meaning that she could not have been evicted except by the order of a judge, based on default of a tenant's obligations under the Act.
The Nova Scotia Supreme Court earlier rejected Ms. Sparks' s.15 challenge, saying that:
(The appellant] would have to show that the legislation somehow exempted blacks, women, and recipients of social assistance from the protection of the statute by singling out a characteristic of being a black, female social assistance recipient.... (37)
Reversing the Supreme Court, the Nova Scotia Court of Appeal found that the effect of denying security of tenure to public housing tenants was to discriminate against public housing tenants as a group, on the basis of race, sex and income. In reaching its decision that public housing tenants are an analogous groups for purposes of s. 15 analysis, the Court found that low income is a characteristic shared by all residents of public housing, and that poverty is a condition experienced more frequently by blacks and by women, in particular single mothers, as well as by senior citizens. The Court said,
Single mothers are now known to be the group most likely to experience poverty in the extreme. It is by virtue of being a single mother that this poverty is likely to affect this group. This is no less a personal characteristic of such individuals than noncitizenship was in Andrews. To find otherwise would be to strain the interpretation of "personal characteristics" unduly. (38)
Eaton, (39) a 1995 decision of the Ontario Court of Appeal, concerned the rights of children with disabilities to an education in a regular classroom, in a regular public school. The Brant County Board of Education had decided that Emily Eaton, a ten year old girl with cerebral palsy, should be placed in a special class exclusively for disabled children, notwithstanding that she had previously attended a neighborhood school, and her parents objected to her being placed in a segregated setting.
The school board was authorized by the Education Act (4O) of Ontario to require a disabled student to be educated in a segregated classroom, over the parents' objection, without having to show why less exclusionary forms of placement could not reasonably be expected to meet the child's special educational needs. The Board's request for a special placement for Emily Eaton was approved by the Identification, Placement, and Review Committee, and upheld in two successive tribunal hearings. As well, an application for judicial review was dismissed.
On appeal, the Ontario Court of Appeal ruled that the Act violates the Charter, in that it permits infringements of s. 15. (41) The Court found that the Charter requires that a nonconsensual exclusionary placement is a discriminatory measure, resort to which may not be had unless alternatives are proven inadequate.
In addition to advancing the rights of students with disabilities, the Eaton decision is a help to equality rights jurisprudence because of its sensitive handling of the question of the relationship between forced segregation and segregation that is freely chosen. Correctly, in my view, the Court attaches a very high value to inclusion, placing the educational choice to be included, in the broader context of equality rights, freedom of choice, and the community benefit which is to be derived from the interaction of all members of society. The Court recognizes that the goal pursued by the disability rights movement in the past few decades has been integration and inclusion in all areas of communal life. The Court finds that when analyzed in its social historical and political context, the decision to put Emily Eaton in a segregated classroom is burdensome.
Equally significant is what the Eaton Court does not say. The
Court does not establish integration as a rule of universal
application to which everyone must be bound, regardless of the circumstance. The Court says, instead, that:
Isolation by choice is not necessarily a disadvantage.
People often choose to live on the margin of a group, for
their better personal fulfillment. But forced exclusion
is hardly ever considered an advantage. Indeed, as a
society, we use it as a form of punishment. (42)
The distinction recognized by the Court, between forced and chosen segregation, has parallels in diverse situations where members of disadvantaged groups may, for an equality-promoting purpose need certain spaces and resources to be restricted for their exclusive use. An illustration is provided by the facts of Pandora Publishing (43) in which a tribunal ruled in favour of respect for the of a women's newspaper establishing a women only space for women to express their views about equality for women.
The remedy in Eaton also bears comment. The Court determined that the Act should be read to include a direction that, unless the parents of the child who has been identified as exceptional by reason of a physical or mental disability consent to the placement of that child in a segregated environment, the school board must provide a placement that is the least exclusionary from the mainstream and still reasonably capable of meeting the child's special needs. The Court chose the remedy of reading in, with the express goals of achieving Charter compliance and minimizing impact on the legitimate legislative objectives of the Act. The question of how best to meet Emily's needs was remitted to a new differently constituted Special Education Tribunal.
The Court specifically commented on the inappropriateness of the Tribunal's stance with respect to the invocation of Emily's legal rights. The Ontario Special Education (English) Tribunal had criticized the parents for what was referred to as "unnecessarily rigorous adherence to principle"; "turning to judicial and quasi-judicial avenues of redress, in short, taking an adversarial approach, (which pushed the] ... disagreement away from compromise and into competition, away from accommodation and into dispute." on behalf of a unanimous Court, Arbour J.A. wrote,
I agree that cooperation is a desirable course of action in such matters. However, I do not agree with the Tribunal's suggestion that the pursuit of Emily's legal rights to equality, by her parents who are her legal representatives, was ill-conceived and detrimental to the child. It could just as easily be suggested that it was ill-conceived and detrimental to the child for the school board not to simply yield to her parents' wishes and leave her in an integrated setting. (44)
There may be an ongoing pedagogical debate as to what is best for Emily's education. There can be no doubt, however, that as a person with disabilities, it is not (45) against her best wishes to assert her equality rights.
To conclude this section, there have been some important cases in which s. 15 has been used by courts to assist marginalized groups in redressing conditions of inequality. The cases discussed were Haig, which increased legal protections for gays and lesbians; Sparks, which increased legal protections for tenants of public housing in Nova Scotia; and Eaton which advanced the right of students with disabilities to be free from unwanted segregation. In each of these cases, judges demonstrated sensitivity to groups dimensions of inequality, and established legal principles that can serve as useful precedent for the future. The next section of the paper offers some general observations about the topic of remedies.
In the early days of s. 15 litigation equality rights advocates were apprehensive that the reaction of courts to unconstitutional benefit schemes would be to reflexively strike rather than being open to a range of remedial options. (46) Concerns were somewhat alleviated by the decision of the Supreme Court of Canada in Schachter (47) which established that the Charter gives flexibility in determining what course of remedial action to take. In Schachter the Court held that depending upon the circumstances, a court may either:
1. strike down;
3. strike down or sever and temporarily suspend the declaration
of invalidity, as for example the Court did in Swain; (48) or
4. resort to the techniques of reading in or reading down.
Both Haig (49) and Eaton (50) are examples of Courts adding a protection or benefit, rather than striking down. In the
Ontario Court of Appeal effectively read in the ground of sexual orientation. In Eaton the Court added a requirement of "least exclusionary" placement to the discretion conferred on school boards.
(vi) No Importation of Levels of Scrutiny
Also a concern in the earliest years of Charter equality rights litigation was the question of whether courts would develop a hierarchy of equality rights. In United States equality jurisprudence there is such a hierarchy of equality protections, known as the levels of scrutiny doctrine, the effect of which has been to make some forms of discrimination virtually impossible to challenge, among them, discrimination against women. In McKinney, (51) the Supreme Court of Canada expressly rejected levels of scrutiny doctrine.
Notwithstanding the Court's statements in McKinney, levels of scrutiny has been a contested issue in some s. 15 cases. For example, in the Eaton case referred to above, the Brant County Board of Education argued, in opposition to the s. 15 claim, that disability is unanalogous to race. The Board argued that unless there were an affirmative action programme, differential treatment based on race would always be impermissible, whereas disability requires an individual approach which attends to individual characteristics.
The Board's argument was rejected by the Ontario Court of Appeal. Without denying that there are differences between disability and race, the Court adopted an anti-hierarchical approach to grounds of discrimination, saying that "there is no hierarchy of prohibitions elevating some grounds of discrimination to a more suspect category and requiring a higher degree of scrutiny."
(vii) Effective Interventions
It is apparent that the openness of the courts to intervenors in s. 15 litigation has been of critical importance in the formation of the first ten years of equality rights
jurisprudence. Andrews, (52) Brooks, (53) Janzen, (54) Swain,(55) Eaton,(56) Schachter, (57) Butler, (58) and Seabover (59) all bear the mark of thoughtful and effective interventions by equality rights groups. The success of these interventions has confirmed that efforts by equality rights organizations to make coalitions, to educate themselves, and the courts, about intersecting and overlapping forms of discrimination have not been wasted. The support of the Court Challenges Programme was vital to the success of a number of these interventions.
The early pessimism of some Charter critics regarding the likelihood that Courts would roll back progressive legislation has proven to be exaggerated. There is little evidence that Charter decisions have created insurmountable obstacles to governments enacting and maintaining progressive legislation. Although there were some roll backs in cases, they have not prevented governments from enacting replacement legislation that meets their goals and complies with the Charter.
Despite these positive developments, there is little room for complacency. When various areas of jurisprudence are examined it becomes apparent that the courts' transition from formal equality to a substantive conception of equality that can respond to structural causes and manifestations of inequality is slow, and uneven.
B. Concerns Arising from Equality Rights Jurisprudence
This section identifies concerns arising from a review of equality rights jurisprudence. To anticipate, the concerns may be summarized as follows. There is a lingering attachment to the formal equality model. There are also jurisprudential problems in s. 15 cases that involve more than one possible ground, or adverse impact discrimination. There have been cases in which meritorious s. 15 claims have been dismissed either because the plaintiff failed to show that law is the one and only cause of the alleged inequality, or because of a failure to show that all members of the group are identically affected, or because some members of another group are affected. There is a tendency for courts to automatically refuse relief in cases involving economic benefits, when challenges are brought by members of disadvantaged groups. As well, the jurisprudence does not yet recognize aspirations to participate in the democratic process, as equality rights.
(ii) Lingering Attachment to Formal Equality
Notwithstanding an express rejection of the similarly situated test, the rule of same treatment is still operating as the only theory of equality in some cases. For example, in R v. Hess,, (60)
the Supreme Court of Canada upheld a statutory rape law, based on a sameness/difference approach to sex discrimination.
The accused, Hess and Nguyen, challenged s. 146 (1) of the Criminal Code which created the strict liability offence of sexual intercourse, defined as penetration, by a male, with a female under the age of fourteen. The s. 15 challenge arose because section 146(l) does not apply to sexual acts between men and young boys. Nor does it apply to sexual acts between women and young boys.
The two accused, Hess and Nguyen, invoked ss. 7, and 15 of the Charter. In the final analysis the decision turns on the s. 7 claim. However, it is the s. 15 aspect of the judgment which is most relevant to this paper. The Court provides two analyses, both of which rest firmly on a sameness/difference approach to sex discrimination.
In dissent, McLachlin J., with Gonthier concurring, find that the statutory rape provision violates s. 15. Writing for herself and Gonthier J., McLachlin J. notes that the Attorneys-General argue that there is no discrimination because even though the legislation distinguishes between men and women, this is not an irrelevant distinction because only male offenders having sexual intercourse with female victims can result in one of the major evils to which the legislation is directed, female pregnancy. Furthermore, argue the Attorney General, men and boys suffer no disadvantage apart from and independent of the particular legal distinction being challenged. Men, it is submitted are not a discrete and insular minority which the Charter intended to benefit.
McLachlin J. rejected the arguments of the Attorneys-General. She said that there is no suggestion in the language of Turpin that men should be excluded from protection under s. 15, and interpreted the element of "independent disadvantage" required in Turpin, not as an "absolute requirement" but rather as an element which is likely to be found in cases where discrimination is found. McLachlin J. notes that rights and freedoms referred to in the Charter are guaranteed to men and women equally, pursuant to s. 28 of the Charter. Without any further analysis of s. 15 or s. 146 (1), she says,
... I find that s. 146 constitutes discrimination under s. 15 of the Charter. It makes distinctions on the enumerated ground of sex. It burdens men as it does not burden women [who have sex with boys under 14]. It offers protection to females which it does not offer young males [who are victimized by older women]. (61)
In the end, McLachlin J. finds that s. 146 (1) is saved by s. 1 of the Charter. She reasons that only males are capable of causing pregnancy, and only females are capable of becoming pregnant, thus the singling out of males as the only offenders is justified.
There are three steps in McLachlin J.'s analysis: 1. Men are entitled to the same protection as women, under s. 15, Turpin, notwithstanding; 2. the allocation of unequal burdens and protections between men and women, in favour of women, is discriminatory; 3. the exclusive capacity of men to make girls pregnant and of girls to become pregnant is a justification for discrimination.
For the majority, Wilson J. finds that s. 146 (1) does not infringe s. 15. Like, McLachlin J.'s judgement, the majority opinion rests exclusively on what the Court refers to as "biological fact." However, the majority conducts its analysis exclusively within the confines of s. 15, rather than resorting to s. 1. In a disappointingly shallow decision, the Court reasons that men and women are different in that only men are capable of penetration, within the meaning of the Code. Therefore, different treatment is warranted, the Court concludes.
Perhaps the outcome of the Hess decision is not unjust. It is arguable that unequal power relations between men and female children justify the targeted criminalization of adult male intercourse with girl children. Unfortunately, such arguments were not explored by the Court. Instead, an examination of inequality in social relations between men and female children was preempted by exclusively biological justifications.
Equality analysis that turns on biological sameness or difference rather than inequality in social relations does not move the jurisprudence forward, but rather represents a return to the model of reasoning which resulted in defeat of Stella Bliss' equality claim. Sameness and difference are simply flip sides of the same old formal equality coin.
(iii) Disadvantaged Groups Refused Relief
In any discrimination claim there will be an interaction between law, detrimental effects, and s. 15 grounds. Unfortunately, courts are foundering on the question of what the required interconnection is between them. In particular, s. 15 jurisprudence lacks a coherent approach to claims involving adverse impact discrimination, or more than one possible ground. There are also divergent approaches emerging among Supreme Court of Canada judges concerning the proper analytical approach to s. 15. In Vriend, Madam Justice Hunt of the Alberta Court of Appeal observed that Justices McLachlin, Cory, Iacobucci, and probably Sopinka have adopted a two-step approach to s. 15 whereas Justices Gonthier, La Forest and Lamer prefer a three-step approach with a somewhat different content; and Madam Justice L'Heureux Dube favours yet another approach. (62)
I believe that in order to reveal structural causes of group-based inequality, and true to the Court's approach in Andrews, Turpin, and Swain, the guiding question that Courts should be asking in s. 15 cases is: does the challenged law contribute to the inequality of a disadvantaged group? Perhaps even better would be: is there something that could be done by means of law in the circumstance of this case to remove a barrier to the equality of a disadvantaged group? Adoption of the latter question may be too much to hope for in a time of growing judicial conservatism, but to drop below the threshold of the former question is to place the legitimacy of equality rights jurisprudence in jeopardy.
To understand the importance of this interpretive question, --is the challenged law contributing to the inequality of a disadvantaged group?-- it is helpful harken back to Bliss. (63)
The equality claim of Stella Bliss was rejected because pregnancy-related discrimination was understood to be caused by nature, not by law. The Court said, "Any inequality between the sexes in this area is not created by legislation, but by nature.,, (64) The Court was not prepared to acknowledge the contributory role that legislation was playing, in transforming difference into inequality.
No equality rights provision can be effective if there is a requirement on the plaintiff to show that law is the exclusive cause of inequality. Requiring that the plaintiff prove that there is one and only one causal factor involved in a circumstance of entrenched inequality is unreasonable because there will always be multiple factors operating. Plaintiffs are simply not in a position to assert with absolute confidence that a particular law is the sole cause of a discriminatory outcome. I refer to this as the requirement for monocausal linkage.
Related to the requirement for monocausal linkage between law and the alleged detrimental effects is another requirement that is also virtually impossible for plaintiffs to satisfy: totality of effects. According to this requirement, the effects of an impugned provision or practice must apply identically to all members of the group.
This requirement arose in Bliss. The Court was impressed by the logic that if the legislation treated women differently from other unemployed persons, it is because they were pregnant not because they were women. If some members of the group, women, are not affected by pregnancy discrimination, the requirement of totalizing effects is not satisfied.
In 1989, in Brooks (65) requirements for monocausal linkage, and totality of effects, were repudiated by the Supreme Court of Canada. In Brooks, which overruled Bliss, the Court abandoned the requirement of monocausality, and with it the requirement of totality of effects. It found that an employee disability insurance scheme that excluded pregnant women, whether or not they were disabled, constituted sex discrimination, contrary to the human rights legislation of Manitoba. The Court reasoned that the categorical exclusion of pregnant women from a benefit scheme is discriminatory because only women have the capacity to become pregnant, and it is unfair to impose the entire cost of child bearing --a benefit to society as a whole --on one half of the population. This contrasts to the Bliss model of reasoning, according to which the claim of sex discrimination could have been dismissed, on the basis that any inequality was not caused by the policy, but rather, by nature; and, further, that not all women are pregnant all the time, or to state the proposition in another way, the insurance policy treated non-pregnant men, and non-pregnant women, identically.
Similarly, in Janzen the Supreme Court held that sexual harassment in the workplace is a form of sex discrimination because it is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment, women mainly. The respondents' main defence was that women are only harassed if they are attractive, not just because they are women. The theoretical foundation for this defence would seem to be that sex discrimination does not exist unless all members of the group are affected in precisely the same way, what I have called, totality of effects. An alternative but even less plausible theoretical foundation for the Platy defence might be that sexual harassment is that the individual attractiveness of some women is in fact the cause of sexual harassment.
It may also be noted that vulnerability to sex harassment is not confined exclusively to women. other vulnerable groups include children and gay men. Had the Court insisted that to establish discrimination the plaintiff must show that the detrimental effects are confined to one ground only, it would have been necessary for the Court to come to a different conclusion than it did.
Notwithstanding holdings favourable to women's rights in Brooks and Janzen, the requirements of monocausal linkage, totality of effects, and confinement of effects have reappeared in some s. 15 cases, with the consequence that s. 15 claims have been defeated. The next part of the paper considers examples of these obstacles, in operation.
(a) The Requirement for Monocausal Linkage Between Law and Detrimental Effects
In Symes, (66) the s. 15 claim was rejected because the tax detriment experienced by Beth Symes is understood to be caused by a "family decision," not by law, notwithstanding that the choice to deduct child care expenses as a business expense is non-existent. Iaccobucci J., said, on behalf of the majority,
... the appellant and her husband made a 'family decision' to the effect that the appellant alone was to bear the financial burden of having children.... (T]he 'family decision' is not mandated by law and public policy.,, (67)
As is implied by the dissent of L'Heureux Dube J. the majority misapprehended the Symes claim. The s. 15 argument was not based on an empirical claim that married business women pay a greater share of childcare expenses than their husbands. Symes sought to compare her nondeductible childcare expenses with other types of expenses that are deductible by business men. Although the majority is no doubt correct in its observation that Beth Symes and her husband made a decision to divide child care expenses in a particular manner, it is not apparent why the fact of that interpersonal decision should detract from the force of Symes' argument that the Income Tax Act favours business men, as a group, over business women,, as a group. However, only Judge L'Heureux Dube recognized that the nondeductibility of child care expenses is a factor that contributes to the inequality of women. Symes, then, is an example of a s. 15 claim failing because the plaintiff was unable to show that the impugned law was the exclusive factor causing the detrimental effects complained of. In this case, personal choice is understood to be the more important cause of inequality.
(b) The Requirement that All Members are of the Group Are Identically Affected
In Layland and Beaulne, (68) a sexual orientation discrimination challenge is rejected based on the specious reasoning that not all members of the group are identically affected. The plaintiffs Todd Layland and Pierre Beaulne brought a s. 15 challenge to the Marriage Act of Ontario. A majority of the Ontario Divisional Court ruled against the plaintiffs on the basis that: "The law does not prohibit marriage by homosexuals provided it takes place between persons of the opposite sex. Some homosexuals do marry." The defeating logic of this decision seems to be that to be successful in a challenge to the Marriage Act, a plaintiff would have to establish, not only that homosexuals are categorically precluded from marrying one another, but that the Act also precludes homosexuals from marrying members of the opposite sex! As long as some homosexuals have not been deterred from marrying members of the opposite sex, there is no sexual orientation discrimination, apparently.
(c) The Requirement that No Members of Any Other Group be Affected
In Thibaudeau-(69) the Federal Court of Appeal imported into s. 15 analysis a requirement that no members of any other group be affected by the alleged harm. Suzanne Thibaudeau challenged the deduction/inclusion scheme of the income tax act which required that custodial parents be taxed on child support payments. The s. 15 challenge was based on two grounds: sex and the family status of being a separated single parent. By many women the system was experienced as conferring a tax break on non-custodial parents, most of whom are men, and a tax penalty on custodial parents, most of whom are women. The scheme had long been a source of added hardship to custodial mothers especially poor single mothers whose resources to feed and clothe their children are minimal.
The Federal Court of Appeal rejected the sex discrimination claim on the basis that 2% of the group affected by the challenged law are men. Hugessen J.A. said that he had no doubt that paragraph 56(l)(b) of the Act impacts adversely on more women than men. This is because mothers are far more likely to be custodial single parents than fathers. Since, however, according to Hugessen J.A. the legislation impacts in exactly the same way on custodial fathers, although in very small numbers, it cannot be said to differentiate or to discriminate on the basis of sex. Effectively, the approach of the Federal Court of Appeal in Thibaudeau drains adverse impact discrimination of its meaning. If the reasoning in Thibaudeau becomes entrenched in equality rights jurisprudence, the protection accorded to women by the sex equality guarantee will be dramatically diminished.
Suzanne Thibaudeau was also unsuccessful in the Supreme Court of Canada. Although the highest Court adopted a somewhat different approach than that of the Federal Court of Appeal, it by-passed the opportunity to discredit the Appeal Court's s. 15 analysis. A majority of the Supreme Court found that there was no sex discrimination involved because the legislation provides a benefit to the post-divorce couple, and that if the benefit is not fairly divided between divorced spouses, the resulting inequity is not the fault of the income tax system. Justices McLachlin and L'Heureux Dube dissented.
Unfortunately, the Federal Court of Appeal decision in Thibaudeau is not an isolated instance of a court requiring that the s. 15 claimant establish that the discriminatory effects complained of are confined to one group. Egan, a gay rights challenge to the Old Age Security Act is another case involving multiple grounds of discrimination. The Federal Court of Appeal dismissed the sexual orientation discrimination challenge, reasoning that the Act does not discriminate against gays and lesbians exclusively, but rather it discriminates against everyone who is in a "non-spousal" relationship. To this, Mahoney J.A. added a further reservation to the effect that, the appellants, by comparing themselves to common law couples, were asking the Court to make an ... illegitimate application of the similarly situated test."
The Federal Court of Appeal was accurate in its observation that the Old Age Security Act excludes a range of other "nonspousal" relationships. Indeed, it is arguable that the Act is in need of major alterations because of multiple defects. However, it is not clear why more shortcomings in a legislative scheme should serve to immunize the scheme from challenge by a particularly aggrieved group, in this case, gays. At bottom, the Federal Court of Appeal in Egan was unwilling to recognize that awarding special benefits to heterosexual couples is in any way problematic.
The Federal Court of Appeal decision in Egan was unsuccessfully appealed to the Supreme Court of Canada. Four members of the Court rejected the s. 15 claim on the basis that sexual orientation is "relevant to the functional values" underlying the legislation. The insertion into s. 15 of a "relevant to the functional values" test, if it prevails in future decisions of the Court, will establish a new burden for the s. 15 claimant, reversing the Andrews position that the onus of establishing justificatory limits rests entirely with the party defending the legislation.
Also, in Eldridge, (70) can be seen the requirement of confined effects asserting itself, to the unmitigated detriment of a disadvantaged group. The British Columbia Court of Appeal held that the failure of the government of British Columbia to provide interpretation services for the deaf does not contravene s. 15. The Court reasoned that even though the failure of the government to pay for interpreting services limits the access of deaf people to the medical system, that failure cannot be said to be discriminatory because there is no provision for funding of any non medical service. The Medical and Health Services Act provides for the payment of medically required services for both deaf and non-deaf persons.
The cases to which I have referred in this section, namely, Symes, Thibaudeau, Egan, Layland and Beaulne, and Eldridge can be understood either as claims of discrimination based on adverse impact, and or as claims involving multiple grounds. The concept of adverse impact should apply where an impugned provision, has an adverse impact on a group, notwithstanding that the provision is neutral on its face. For example, the Old Age Security Act, which was challenged in Egan, on its face, is neutral as to sexual orientation. The Act does not specify that otherwise qualified beneficiaries are ineligible if gay. Instead, the Act defines 'spouse' as restricted to opposite sex partners. The adverse impact argument is that the Act penalizes gays by failing to acknowledge same sex relationships that otherwise satisfy the requirements for eligibility.
The discrimination occasioned by the Old Age Security Act can also be understood as discrimination based on the multiple grounds of sexual orientation, family status, marital status, sex, and family status, depending on the lens through which one views the preferential treatment of opposite sex couples. (71)
The decisions in these cases reveal that courts lack a coherent approach to s. 15 claims involving adverse impact discrimination or multiple grounds. This is an urgent matter for the continued development of s. 15 jurisprudence.
(iv) Economic Distinctions Constitute a Special Category
of Discrimination that in Off Limits for Courts
Another crucial issue for equality rights jurisprudence relates to the material dimensions of inequality. There is a tendency for courts to treat the economic dimensions of inequality as though they were off limits for courts. For example, in a dissenting opinion in the Federal Court decision in Thibaudeau, Letourneau J.A. refused to find that the Income Tax Act discriminates on any basis. Letourneau portrayed the Income Tax Act as "essentially economic legislation" and "amoral," thereby establishing authority for the Income Tax Act which places it outside the legitimate realm of judicial review, simultaneously sheltering from scrutiny the values underlying both the legislation and the Judge's decision.
A message of the Letourneau judgement is that ordinary people are in no position to judge the Income Tax Act because it is driven by unchallengeable, unknowable, value-free, economic factors. It can be inferred that not even the judiciary should second guess government judgements about how best to generate income through taxes. It follows, according to the logic of the discursive framework, that no one should question Letourneau J.A. when he designates certain Income Tax Act distinctions as unfortunate, but not discriminatory.
Notwithstanding a purported reliance upon a supposedly objective source, economics, in Thibaudeau Letourneau J.A. privileges certain substantive perspectives on taxation, families, and women's equality aspirations, and ignores other perspectives and information. It is against a backdrop of compulsory judicial deference to economic legislation, that Letourneau J.A. ignored the question of who it is that receives the benefits of the income-splitting that is facilitated by the Act. On its face, the Act conferred a benefit on the parent who paid the child support. The Judge's unexamined assumption is that the non-custodial parent and the custodial parent functioned as one person, notwithstanding that they are two people, a man and a woman, whose marital union has been dissolved.
Despite repeated acknowledgment of the importance of attention to difference, Letourneau overlooked all differences between the non custodial payor spouse who received the tax saving and the custodial spouse who may or may not benefit from that tax saving. The issue of sex discrimination was not even explicitly considered. Although Letourneau suggested that low income women receive a benefit and advantage from the income splitting permitted by the system, a footnote in the judgement indicates that he is relying upon evidence of the cost to government of providing the tax subsidy represented by the inclusion/deduction system. There is no evidence on the record or referred to by the Court of this subsidy trickling down from the non-custodial parent to the custodial parent.
For another example of a court showing deference to a legislative choice concerning economic benefits, regard may be had to the decision of the Ontario Divisional Court in Masse, (72) wherein Ontario welfare cuts were challenged. The applicants argued unsuccessfully that it is contrary to their equality rights to force them as welfare recipients to bear an inordinate share of the budget cuts without consideration of their basic requirements. The Court adopted an extremely deferential posture, positing that much economic and social policy making is simply beyond the institutional competence of the courts, their role being to protect against incursions on fundamental values, not to second guess policy decisions.
As the jurisprudence develops it appears that when economic claims are made by members of disadvantaged groups the burden of proof is exceptionally high. This is so despite the fact that in Symes, the Supreme Court of Canada said that income tax legislation is not subject to a lower standard of review, and has made numerous decisions protecting the economic interests of corporations. (73)
(v) No Right of Participation in constitutional Reform
At issue in Native Women's Association of Canada v. Canada (74) was a claim brought by Aboriginal women in respect of constitutional reform discussions leading up to the Charlottetown Accord. The federal government provided $10 million to fund participation of four national Aboriginal organizations: the Assembly of First Nations (AFN), the Native Council of Canada (NCC), the Metis National Council (MNC), and the Inuit Tapirisat of Canada (ITC). The Native Women's Association of Canada (NWAC) was specifically not included in the funding, and was excluded from direct participation in the discussions.
The NWAC challenge was based on the guarantees of sex equality, and freedom of expression. NWAC filed cogent evidence in support of its claim that exclusion from direct federal government funding for constitutional matters and from direct participation in constitutional discussions threatened the equality of Aboriginal women. In particular, NWAC raised compelling concerns regarding the lack of advocacy, on the part of the four funded organizations, in favour of the inclusion of the Charter in any negotiated form of Aboriginal self-government. (75)
Notwithstanding an extensive and well-prepared record of evidence, the Charter claims of NWAC were given short shrift. NWAC's challenge to the funding practices and decision-making processes of the federal government was rejected in its entirety. All evidence of inequality put forward by NWAC was rejected by the Court. The Court emphasized that s. 2(b) of the Charter (freedom of expression) does not guarantee any particular means of expression or place a positive obligation to fund or consult anyone.
In dissent, Madam Justice L'Heureux-Dube disagreed with the majority, opining that when the government does decide to provide a particular platform of expression, it must do so in a manner consistent with the Charter. In a separate dissent McLachlin J. said that she would allow the appeal on the ground that the freedom of governments to choose and fund their advisors on matters of policy is "not constrained" by the Charter.
(vi) Issues of Serious and Complex Inequality Not Addressed
There is a danger that the vision that animated the efforts to convince courts to recognize the claims of disadvantaged groups is getting lost. Although s. 15 judgements now routinely refer to "disadvantaged groups," in their outcome many decisions fall short of requiring redress for conditions of disadvantage.
In most s. 15 decisions, discussion concerning evidence and analysis of group-based disadvantage is quite thin. Further, serious situations of material deprivation--poverty, and lack of adequate housing--and some of the most complex cases of intersecting inequalities--such as race, sex, and poverty--are not getting before the courts. When such cases are pursued, frequently they are not well received. Old biases and stereotypes continue to operate.
Barriers to proactive s. 15 litigation by members of disadvantaged groups have always been formidable. On top of traditional financial obstacles the courts have added procedural (76) impediments, and additional financial disincentives to participation in Charter litigation. In R v. Butler (77) the Court made an order of costs against the intervenor LEAF, notwithstanding that the Court used LEAF's submissions quite extensively. The Butler precedent, adding as it did, an element of financial risk to interventions, was not only disappointing to LEAF; it could have a chilling effect on future interventions. The Butler cost award is one of several recent decisions of the Supreme Court of Canada that make groups worried about where the post-Dickson and Wilson Court is headed on equality issues.
The issues of disadvantaged groups are not being effectively addressed in other venues either. In the 1990's many Canadians are living below the poverty line, and single mothers, aboriginal people, people with disabilities, and people of colour are among the worst off. Conditions are worsening. The aspirations of disadvantaged groups are directly threatened by the neo-liberal economic project which understands government measures to address poverty, reduce disparities between groups, and attenuate environmental degradation, as unwarranted interferences with the freedom of the market place.
The next several years are likely to be crucial ones for shaping Charter jurisprudence. The task of interpreting Charter equality rights is becoming more complex. Disadvantaged groups have a vital stake in the process of interpretation, and its outcomes.
Part II. Future Directions
In light of aspirations, experience, and critique, what are some future directions for equality rights litigation? This paper offers several proposals:
In light of the difficulty that courts are having in cases that may involve adverse impact discrimination or multiple grounds of discrimination, a priority should be made of advancing a coherent theory of discrimination for s. 15, with a particular emphasis on cases of discrimination based on adverse impact and or multiple grounds. Experience suggests that interventions are the most promising vehicle for this work. The Court Challenges Programme could be of assistance by supporting appropriate interventions, and related coalition meetings and consultations among equality rights organizations. It would also be of assistance if the Court Challenges Programme could establish or support an early warning system that would provide groups with information about potentially important cases that are wending their way up through the court system.
Unless there is resignation to s. 15 being indifferent to poverty and other material inequalities, there are some hard questions that people involved in the equality rights movement must address about priorities, and proposals for action, in connection with the growing problem of poverty and the ascendance of neo-liberal market ideology.
Given the deterioration in material conditions that is being experienced by many Canadians, should we not be identifying the preservation of social programmes, and poverty, as priority concerns for the substantive equality project? If so, can we develop a substantive equality critique and strategy for challenging the structures that create poverty, and the rhetoric that legitimates it?
Although it may not be realistic to imagine that poverty would be eradicated through Charter litigation, perhaps litigation could be a useful tool to defend existing social programs, and to expose the increasing gap that exists between the promise of equality and conditions of many people's lives. Inspiration can be drawn from the joint intervention by the Thibaudeau Coalition (Charter Committee On Poverty Issues, National Action Committee On the Status of Women, Federated Anti-Poverty Groups of British Columbia, and Women's Legal Education and Action Fund), and from the joint presentation by NAPO and NAC to the UN Committee on Economic Social and Cultural Rights in Geneva, regarding the repeal of the Canada Assistance Plan.
The following are some suggestions of issues that might be discussed in furtherance of the goal of developing an oppositional critique and strategy:
(i) What are the elements of such a strategy? Consciousness raising and general education within the equality rights Movement? Mobilization? Diversity of strategies? Educating the judiciary? Broader public education? Collaboration between groups representing more and less privileged individuals? Emphasis on the links between gender, poverty, race, disability, or being a single mother? Research?
(ii) Can equality rights litigation help? Must the equality rights movement be willing to take some legal losses? Is there such a thing as a strategic loss? Can some possible stepping stones be imagined? Are there some successes, inconsistencies, or other openings in the jurisprudence that could be built upon?
(iii) Given certain difficulties inherent in running cases jointly with individual plaintiffs, is it interventions that should be imagined? If so, interventions in what kind of cases?
(iv) It may be helpful if the Court Challenges Programme could provide support for the following endeavors:
(a) Research concerning Quebec human rights jurisprudence on discrimination with respect to social condition; jurisprudence on the justiciability of social and economic rights in other jurisdictions; the schism between civil and political rights, and social and economic rights in international human rights law; changing patterns of poverty in Canada; possible litigation strategies to challenge structures that create poverty, homelessness, and cuts to social programmes; the relationship between poverty and membership in a racially or sexually stigmatized group; the relative usefulness of various analytic categories such as 'class', 'social status', and 'poverty'; the question of whether the inapplicability of Court Challenges Programme funding to discriminatory provincial legislation is a serious obstacle to equality litigation;
(b) Consultations between groups involved in anti-poverty work, and equality rights litigation, concerning possible collaborative efforts to develop a substantive equality critique of poverty, and strategic proposals for action;
(c) A joint forum involving equality rights activists and equality positive academics who are supportive and willing to assist community based activists, by sharing theoretical analyses, research, and constructive proposals for action;
Finally, priority should be given to ongoing participation in the interpretation of core elements of s. 15 claims: law; detrimental effects; and s. 15 ground(s); as well as the connections between ss. 15(l) and 15(2). Interventions are likely to be the most promising vehicle for this work.
This paper has attempted to identify both strengths and difficulties in s. 15 jurisprudence, and to offer some suggestions for future priorities. I have shown that the post Andrews story is contradictory. Since the Bill of Rights era, some progress has been made. But there are also difficulties.
The difficulties are not insignificant. Nor are they confined to the legal arena. There is palpable resistance to the aspirations of the equality rights movement, in various settings. Resistance is reflected in media attitudes about organizations representing disadvantaged groups. So called "special interest" groups have been relegated to the category "predictable and extreme". Resistance is also reflected in the stepped up efforts of the Reform Party, REAL Women and other such groups who oppose substantive equality measures and substantive equality interpretations of law.
Resistance to the aspirations of the equality rights movement takes diverse rhetorical forms. The substantive equality project is called "reverse discrimination". It is called "the legalization of politics". It is called "anti-democratic". It is called "a perversion of equality". It is also called "anti-individual". We are told that there should be no "special benefits" for gays and lesbians; that disadvantaged groups have gone too far or that the judiciary has stepped over the line. Although each of these objections is painfully familiar, we must not lose heart. Political progress is never even, nor without setback. The equal rights project is not a series of one-shot transactions in the courts, in which progress can be measured by a win or loss tally. It is an ongoing process of debate, protest, and negotiation to delegitimate discourses of dominance, and to remake institutions to better reflect the ideal of equality for all.
The difficulties that the courts are having in maintaining a steady and clear course on equality rights questions, reflect some important realities. I would include these: 1. The meaning of equality is not fixed. It is contested terrain. 2. Judges are not indifferent to shifts in the political climate. They are influenced by them. 3. Who the judges are matters-the post Dickson-Wilson court is more uncertain in its commitments to disadvantaged groups. 4. In the name of the Charter, judges are being asked to engage in tasks to which they are still new. In a November 1994 speech to the judges of the Supreme Court of Israel, the Chief Justice of our Supreme Court said that the most important thing that Canadian judges have learned from twelve years of experience with the Charter is how much they have yet to learn.
Judges are not alone in their need to learn more about inequality problems, and possible solutions to them. Within the equality rights movement people are still learning how to build a more inclusive, less stratified world. The period of equality rights movement litigation has been characterized by tremendous effort to build bridges across lines of race, gender, sexual orientation, class, and personal differences of opinion. It is hard work. At times the difficulty of the task defeats us. Solutions elude us.
A crucial challenge, for everyone who identifies with the equality rights movement, as the struggle for substantive equality is continued, will be to maintain a hopeful and inclusive vision of the project. In this time of intensified pressure from the political right, government deference to corporate agendas, uncertainty on the bench, and media cynicism, it is critically important that disadvantaged groups not be excluded from the ongoing process of giving content to the Charter's equality guarantees, and that the equality rights movement not fall silent.
1. Section 15 came into effect on April 17, 1985,
following a three year moratorium.
2. Thibaudeau v. Canada (1994), 114 D.L.R. (4th) 261
(F.C.A.); affirmed on appeal, (1995) 2 S.C.R. 627.
3. Miron v. Trudel, (1995] 2 S.C.R. 418.
4. Egan v. Canada,  2 S.C.R. 513.
5. Vriend v. Alberta, (1996) 25 C.H.R.R. D/i
6. Masse v. Ontario (Ministry of Community and Social
Services, (1996] O.J. No. 363 (Ont. Div. Ct.).
7. Eldridge v. British Columbia (Attorney General) (1995), 7 B.C.L.R. (3d) 156 (B.C.C.A.); application for leave to appeal submitted to the Supreme Court of Canada January 12, 1996 (Court File No.: 24896).
8. In The Right to an Adequate Standard of Living in a Land of Plenty: Submissions of the National Anti-poverty Organization and the Charter Committee on Poverty Issues to the Committee on Economic, Social and Cultural Rights, May 17, 1993 (Geneva), NAPO and CCPI commented on the impact of the cancellation of the Court Challenges programme. At pp. 88 89 of their written submission, they said, "The government refused to heed the Committee's advice [Committee on Human Rights and Status of Disabled Persons]. The offices of the Court Challenges Programme were closed last August. Equality seeking groups now no longer meet. Many are collapsing. A unique Canadian movement, brought into being by the enthusiasm for human rights that flowed from the introduction of a new Charter of Rights in Canada, has been largely destroyed by an unprecedented attack on its meager resources."
9. Andrews v. The Law Society of British Columbia
(1989), 10 C.H.R.R. D/5719 (S.C.C.).
10. Brodsky and Day, Charter Equality Rights for
Women: One Step Forward or Two Steps Back (Ottawa:
The Canadian Advisory Council on the Status of Women, 1989).
11. Supra, note 9 at D/5721.
12. Ibid. at 5723. In Andrews, Justice Wilson's statements regarding group disadvantage were contained in a minority concurring opinion. She developed this analysis further in R. v. Turpin, (1989) 1 S.C.R. 1296, in which she spoke for a majority of the Court.
13. In particular, the Court referred to its own human rights decisions in Ontario Human Rights Commission v. Simpsons-Sears, (1985] 2 S.C.R. 536, and Canadian National Railway v. Canada (Canadian Human Rights Commission), (1987] 1 S.C.R. 1114.
14. McKay v. The Queen, (1980] 2 S.C.R. 370.
15. Equality rights organizations played a crucial role in Andrews, intervening in the Supreme Court of Canada to advance an alternative to formal equality. The intervenors, The Women's Legal Education and Action Fund (LEAF) and Coalition of Provincial organizations of the Handicapped (COPOH) offered a critique that challenged formal equality, and proposed alternatives to it, that focused on group based disadvantage. The path chosen by the Court was much more in line with the arguments of LEAF and COPOH than with the positions of the various governments. LEAF argued that the purpose of promoting the substantive equality of powerless, excluded and disadvantaged groups should animate the interpretation of s. 15. Similar arguments were made by COPOH. Specifically, LEAF argued against the application of the formal equality formulation to the assessment of substantive equality claims by members of disadvantaged groups, recommending instead a substantive test that would require an applicant to explain his or her disadvantage, how it relates to the legislation in issue, and how the provision impairs his or her equality. Measures of substantive inequality proposed by LEAF included whether the classification in question is:
... institutionalized throughout society so as to affect, in a systemic and cumulative way, dignity, respect, access to resources, physical security, credibility, membership in community, or power; (and whether the group that experiences this classification] has a history of disempowerment, exploitation, and subordination to and by dominant interests. (LEAF Factum para 50)
16. Supra, note 12.
17. Supra, note 12 at 1331-1332. On behalf of the
Court, Wilson J. stated:
[I]t is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, I thinks in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.
In my respectful view, it would be stretching the imagination to characterize persons accused of one of the crimes listed in s. 427 of the Criminal Code in all the provinces except Alberta as members of a "discrete and insular minority". I hasten to add that this categorization is not an end in itself but merely one of the analytical tools which are of assistance in determining whether the interest advanced by a particular claimant is the kind of interest s. IS of the Charter is designed to protect. It is a means of ensuring that equality rights are given the same kind of broad, purposive interpretation accorded to other Charter rights ... Differentiating for mode of trial purposes between those accused of s. 427 offences in Alberta and those accused of the same offences elsewhere in Canada would not, in my view, advance the purposes of 9. IS in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society. A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case... To recognize the claims of the appellants under s. 15 of the Charter would, in my respectful view, "overshoot the actual purpose of the right or freedom in question".... [emphasis added]
18. Brodsky and Day, supra note 10.
19. "[S]imilarly situated" is in quotations because, in practice, the task of ascertaining what constitutes a similarly situated individual is extremely complex, and application of the similarly situated test has a tendency to be circular, and its results are frequently unfavourable to members of historically marginalized groups.
20. Bliss v. Canada (Attorney General), (1979] 1
21. Brooks v. Canada Safeway (1989), 10 C.H.R.R.
22. Janzen and Govereau v. Platy Enterprises (1989),
10 C.H.R.R. D/6205 (S.C.C.).
23. Interventions by LEAF were important in Brooks,
and in Janzen.
24. R v. Swain, (1991] 1 S.C.R. 993.
25. Swain was the first case to be heard by the Court regarding the Charter rights of people labelled with a mental disability. The appellant Owen Swain was an accused who had had the "defence" of insanity forced on him by the Crown, and then pursuant to an insanity "acquittal" been subject to mandatory and indeterminate incarceration. A coalition comprised of the Canadian Disability Rights Council, the Canadian Mental Health Association, and the Canadian Association for Community Living intervened in the case. They put forward an argument that sought to place the circumstance of the individual accused, Owen Swain, in the wider context of the centuries-long discrimination experienced by people labelled with mental disabilities.
26. As the intervenors told the Supreme Court of Canada in a joint factum, people labelled with mental disabilities have been "systematically isolated, segregated from the mainstream of society, devalued, ridiculed, and excluded from participation in ordinary social and political processes. These practices reflect attitudes ranging from fear and hatred to pity and condescension and they have been permitted and enforced by law." See Factum of the C.D.R.C. et al filed in Swain.
27. Weatherall v. Canada, (1993] 2 S.C.R. 872.
28. There were interventions in Weatherall at the
Supreme Court of Canada, by LEAF, COPOH, and Minority
Rights and Advocacy Council (MARC).
29. Ibid., at 877.
30. Moge v. Moge (1992), 99 D.L.R. 4th 456 (S.C.C.).
31. R. v. Butler, (1992] 1 S.C.R. 452.
32. The Butler decision is controversial within lesbian, gay and artistic communities, in which people worry, with cause, that any state censorship is likely to be applied to suppress politically unpopular perspectives, and images. However, it should be noted that the Court does not include within its definition of obscenity explicit sex which is neither degrading nor dehumanizing.
33. Haig v. Canada (1992), 94 D.L.R. (4th) 1 (Ont.
34. A contradictory decision which holds that the Charter does not mandate inclusion of the ground sexual orientation in human rights legislation is Vriend v. Alberta, [1996) A.J. No. 182 (Alta.C.A.). It seems likely that Vriend will be appealed to the Supreme Court of Canada.
35. Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 35 N.S.R. (2d) 91 (N.S.C.A.).
36. R.S.N.S 1989, c. 401, ss. 10(8)(d) and 25(2).
37. This passage is quoted by the Court of Appeal in
Sparks, supra, note 35 at 95.
38. Ibid. at 98.
39. Eaton v. Brant County Board of Education (1995), 123 D.L.R. (4th) 43 (Ont. C.A.); application for leave to appeal to the Supreme Court of Canada filed April 14, 1995 (Court File No. 24668).
40. R.S.O. 1990 c. E. 2, as amended and the
41. There were interventions by the Canadian
Disability Rights Council, and the Ontario
Association for Community Living.
42. Supra, note 39.
43. Keyes v. Pandora Publishing Assn. (No. 1) (1991), 16 C.H.R.R. D/145; (No. 2) (1992), 16 C.H.R.R. D/148 (N.S. Bd.Inq.).
44. Supra note 39.
46. This is what the Nova Scotia Court of Appeal did in Reference Re Family Benefits Act (1986), 75 N.S.R. (2d) 338.
47. Schachter v. Canada, (1992] 2 S.C.R. 679.
48. Supra note 24.
49. SuRra note 33.
50. Supra note 39.
51. McKinney v. University of Guelph (19901, 3 S.C.R. 229.
52. Supra note 10.
53. Supra note 21.
54. Supra note 22.
55. Supra note 24.
56. Supra note 39.
57. Supra note 47.
58. Supra note 31.
59. R. v. Seabover; R. v. Gayme, (1991] 2 S.C.R. 577.
60. R. v. Hess; R. v- Nguyen, (1990] 2 S.C.R. 906.
61. Ibid. at 191.
62. Under Andrews, Turpin, and swain s. 15 analysis
required decision-makers to address these questions:
1. Does the law draw a distinction, intentional or not, between the appellant and the respondent based on a personal characteristic?
2. If the law does draw a distinction based on a personal characteristic is that distinction discriminatory, in other words, is it a burdensome or disadvantageous distinction?
3. Assuming that both an "inequality" and "discrimination" can be found, it must be determined whether the personal characteristic at issue constitutes either an enumerated or analogous ground for the purposes of s. 15(l) of the Charter.
After Miron, Thibaudeau, and Egan suggests Madam
Justice Hunt in Vriend, the two-step approach of the
McLachlin group is:
1. Has there been a denial of one of the four equality rights, due to a distinction created by the law? Has the challenged law drawn a distinction between the claimant and others, based on personal characteristics?
2. Does the distinction constitute discrimination? To show discrimination, the claimant must show that the denial of equality rests upon one of the enumerated grounds in s. 15 or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group of personal characteristics.
Hunt J. suggests further that the three-step approach
of the Gonthier group is:
1. Has the law drawn a distinction between the
claimant and others?
2. Does the distinction result in a disadvantage? To decide this, the direct or indirect impact of the law must be examined.
3. Is the distinction based upon irrelevant personal characteristics that are enumerated in (or analogous to) s. 15 grounds. To decide this, the judge must first determine the personal characteristics of the particular group and then whether the personal characteristic is relevant to the "functional values underlying the legislation.
The approach of Madam Justice L'Heureux Dube, noted Hunt J. requires that independent content be given to the term discrimination. In dissent in Eqan, L'Heureux Dube J. said that a distinction is discriminatory if it promotes or perpetuates the view that a person is less capable or less worthy of recognition or value as a human being or as a member of Canadian society.
Madam Justice Hunt found that the most significant
difference between the two main interpretations was in the approach to the question of what constitutes discrimination. The Gonthier group is of the opinion that if a distinction between groups of people identified in a statute is relevant to the statute's goals, there will be no discrimination unless those goals themselves offend the Charter. However, the McLachlin group contends that a distinction that is relevant to the statute's legislative goals may still be discriminatory if it impacts upon the claimant in a way that is contrary the purpose of s. 15.
63. supra note 20.
64. Ibid. at 190.
65. Supra note 21.
66. Symes v. Canada, [1993) 4 S.C.R. 695.
67. Ibid. at 764.
68. Layland v. Ontario (Minister of Consumer and Commercial Relations), (1993) 104 D.L.R. (4th) 214 (Ont. Div. Ct.).
69. supra note 2.
70. Supra note 7.
71. The basic outline of a possible argument in
connection with each of these grounds is this:
Sexual orientation--The argument is that the exclusion of gays and lesbians is intentional, and that, in any event, the impact falls disproportionately on gays and lesbians;
Marital status--The argument is that the Act confers a benefit on married or common law couples, disregarding and devaluing the intimate relationships made by other couples;
Sex--One argument based on the ground of sex is that the opposite sex requirement serves as a bar to the entitlement of a partner who is the wrong sex. In a lesbian rights case there is also another sex discrimination argument to be made to the effect that preferential treatment for heterosexual couples reinforces the gender hierarchy, and restricts the autonomy of women;
Family status--The eligibility criteria have been drawn so as to illegitimately favour some family relationships over others.
72. supra note 6.
73. See for example RJR-MacDonald Inc. v. Canada (Attorney General) (1995] 3 S.C.R. 199, striking down legislation requiring tobacco health warnings, as a violation of freedom of expression.
74. Native Women's Association of Canada v. Canada,
(1994] 3 S.C.R. 627.
75. The opposition of the Assembly of First Nations (AFN), to the application of the Charter to Aboriginal self-government, is a matter of public record. The AFN is the largest and most influential of the four funded Aboriginal organizations. The Supreme Court judgement states, "AFN denies that it was unalterably opposed to the application of the Charter to Native self-governments. Rather, AFN rejected the 'undemocratic, non-consensual imposition of the Charter, without protection for First Nations' languages, cultures, and traditions'. The Court made no finding of fact with respect to the AFN's position on the application of Charter to Aboriginal self-government.
76. See for example, Canadian Council of Churches v. Canada (1992], 1 S.C.R. 236, in which the Court takes a restrictive approach to the standing of a group to bring a Charter challenge on behalf of others. The Council was unsuccessful in seeking public interest standing in a declaratory action challenging provisions of the Immigration Act, S.C. 1976-77, c. 52, as unconstitutional.
77. Supra note 31.