A conversation about equality.
Equality is a topic very near to my heart. Since I believe that you have to pose the right questions to get good answers, I will explore some of the who's, what's, when's, where's, and why's of equality, although not necessarily in that order. I sincerely hope that these questions will provide a basis for us to ask other questions, both of ourselves and of others. For posing questions, talking to each other, and thinking about what the concept of equality means and should mean will help all of us come to a better understanding of equality, how it applies, and what it means, both in our lives and in the law.
II. WHY IS EQUALITY SO IMPORTANT?
Why are we not prepared to accept that we can be treated with less dignity because of the groups to which we belong or with which we identify? In my opinion, our desire for equality stems from our desire for justice and, put simply, inequality is injustice. It is unjust to treat people as less worthy or less deserving because of inherent personal characteristics, circumstances in which they find themselves, or fundamental choices they have made. It is unjust for those who have historically held advantages and privileges in society to continue those privileges at the expense of others. When there is inequality, oppression is allowed, facilitated, and encouraged. In Canada, where we believe every member of society is a full member, it is contrary to our conception of justice to suggest that people can be treated as less worthy, less deserving, or less equal because of their personal characteristics or identity.
I ask you: if you were given the opportunity to design a model society, not knowing a priori who you would be or into what role you would be born, knowing only that the odds were roughly even that you would be born into a position of relative empowerment or relative disempowerment, what would your society look like? I put it to you that almost anyone in such a position would design a society that treated each and every individual with dignity, and offered them equal opportunity to realize their goals and expectations. Of course, I am not talking only about you, but about your children, and your children's children. The call to arms of equality seekers today is really an investment in tomorrow.
III. WHERE DO WE LOOK FOR INEQUALITY?
John Stuart Mill, one of the first philosophers to recognize the interrelationship between individual human dignity and the good of the community, observed that the law assumes that existing relationships of domination and subordination are "natural".(1) He argued that the law plays an insidious role when it adopts the status quo and converts a relationship of inequality from a purely physical fact to a legal right.(2) Once inequality is clothed in the legitimising language of rights and law, it receives the sanction of society.(3) Mill asked whether there is ever domination that appears unnatural to those who wield it.(4)
This observation is as true today as it was when he made it. Inequality permeates the social, legal, and political institutions that are central to the workings of our society. A renewed commitment to its eradication requires that we look deep into ourselves and into the reality experienced by those who have not historically dominated "by nature".
While it is interesting to note that the Canadian Charter of Rights and Freedoms was proclaimed in force in 1982, thereby constitutionalizing certain human, civil and political rights in Canada, implementation of section 15, which guarantees "equality without discrimination" to all individuals, was delayed until 1985.(5) Equality without discrimination was not a very new or revolutionary concept in 1982 and yet implementation of section 15 was delayed for three years beyond any of the other newly constitutionalized fundamental human rights. In my view, this delay allowed for the profound re-examination of Canada's basic laws and institutions that the recognition of such a right required. I find it a somewhat disturbing indictment of our past that, in 1982, we felt that our laws might be so discriminatory that we would need several years of grace before permitting individuals to challenge them.
A few brief comments on some of Canada's historical equality "benchmarks" demonstrates why our drafters' concerns may have been justified. For instance, it was not until 1929 that the British Privy Council, acting as Canada's final court of appeal, finally recognized that women were "persons", and thereby able to be appointed to the Senate.(6) Since that time, slowly but surely, other obstacles to equality have fallen under the relentless pressure of social change. However, many of these moves occurred much later than many people realize. Among the most blatant examples, women could not vote in Quebec elections until 1940.(7) Federally, Japanese Canadians could not vote until 1948, and status Indians gained the franchise only in 1960.(8) Thus, even glaring formal inequalities such as these permeated the very foundations of our democracy well into this century.
Parliament did enact an equality guarantee in the Canadian Bill of Rights in 1960.(9) While this was a positive step, no great immediate strides toward substantive equality came about as a result. The Bill of Rights was simply a statute like any other. It was interpreted narrowly because it lacked the authority of a constitutional document and it did not apply to provincial laws. In one infamous Bill of Rights case, Bliss v. Attorney General of Canada, the Supreme Court held that denying benefits on the basis of pregnancy was not sex discrimination, since the distinction was based on the fact that the women were pregnant, rather than the fact that they were women.(10) In another case, Attorney General v. Lavell, a law which disqualified native women who married non-natives from receiving certain benefits related to Indian status, but did not similarly disqualify native men, was held not to be discriminatory, since all native women were treated equally with respect to each other.(11) These cases demonstrated that the Bill of Rights, as the Supreme Court interpreted it, only guaranteed equality to the extent that people were the same. Women, minorities, and the disabled were fully "equal" within their individual groups, but only to the extent that they were no different from the grouping of white, able-bodied men. For those who were disadvantaged because they were different from what society considered the `norm', this road to equality was a dead end.
IV. WHAT DOES IT MEAN IN CANADA TO SPEAK OF "EQUALITY" IN THIS DAY AND AGE?
Unlike the American Bill of Rights, the Charter does not simply assert a right of "equal protection"; it speaks of "equality without discrimination".(12) My first observation about these two documents is that they grew out of two very different historical contexts. In order to understand the equality principle as it applies in Canada, it is necessary to consider the context in which it developed. If American constitutional ideals were born of war and revolution, Canada's grew through evolution. Bit by bit Canada negotiated its way towards independence, from Confederation in 1867, to the recognition of autonomy from Great Britain in 1931, to the patriation of the Constitution and the adoption of the Charter in 1982.(13)
The Charter was enacted nearly 200 years after the American Bill of Rights.(14) Thus, it reflects the developments in human rights law of the latter half of the 20th century, as well as a Canadian vision of liberty and the state, rather than the American civil libertarian vision of the 18th and 19th centuries. Perhaps for this reason, the Charter places less emphasis on individual rights and more on collective interests. This is seen in various provisions of the Charter, which tend to surprise many Americans. For instance, rights under the Charter are subject to an express limitation under section 1, which says that they are guaranteed, "subject ... to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."(15) Secondly, in Canada, diversity is not a debate--it is a constitutionally recognized value. Our constitution recognizes aboriginal treaty rights and minority language education rights, while section 27 of the Charter instructs courts to interpret Charter rights in a manner consistent with promoting and enhancing Canada's multicultural heritage.(16) Third, property rights are noticeably absent from the Charter, primarily due to the fear that the inclusion of property rights in a bill of rights would hamper the power of governments to administer or enact social legislation.
Turning to the Charter's provisions on equality, section 28 states that the "rights and freedoms referred to in the Charter are guaranteed equally to male and female persons."(17) Finally, section 15(1), guarantees "equality ... without discrimination, and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".(18) Affirmative action is specifically permitted under section 15(2).(19)
As the Canadian courts have interpreted these provisions, equality continues to be a comparative concept. It does not always require that we treat people in the same way. In fact, sometimes it requires that we treat them differently. In my view, the recognition that equality and discrimination are inextricably linked is an important one. It is indicative of a sophisticated understanding of the values that underlie equality. For equality isn't just about being treated the same, and it isn't a mathematical equation waiting to be solved. Rather, it is about equal human dignity, and full membership in society. It is about promoting an equal sense of self-worth. It is about treating people with equal concern, equal respect, and equal consideration. These are the values that underlie equality. These are the values that are offended when we discriminate, consciously or not.
In Canada, our present approach to equality, based on the recognition that true equality requires substantive change and accommodation rather than simply formalistic egalitarian treatment, was precipitated by the obviously unfair and inequitable results of equality claims determined under the Bill of Rights. When we moved from the Bill of Rights to the Charter, we made three very important changes. First, we elevated equality rights to a constitutional level. Second, we broadened the measure of equality rights. Third, we broadened the reach of equality rights. All three of these changes constituted essential elements of a trend intended to promote and achieve substantive democracy in Canada, rather than just procedural democracy. With the Charter, we have gone from requiring that laws be applied in the same way to everyone, to the stage of requiring that the laws, themselves, treat individuals as substantive equals. This, finally, is the language of substantive equality.(20)
Several Supreme Court cases illustrate particularly well the ways in which a determination of when substantive equality rights have been violated requires an examination of a group [sections] s treatment in the context of Canadian society, and of whether an individual [sections] s fundamental dignity is violated. They show why differential treatment may in some cases lead to substantive equality, just as in other cases, similar treatment may lead to substantive inequality.
Weatherall v. Canada is an example of a case where being treated differently did not lead to substantive inequality.(21) In that case, the male appellant had challenged the fact that male prisoners in penitentiaries were searched and patrolled by female guards, but that female prisoners were supervised only by members of their own gender.(22) The unanimous judgment of our Court held that the male prisoners had not been discriminated against relative to female prisoners.(23) The Court noted the historical, biological, and sociological differences between men and women, the history of women's disadvantage in society, and the realities of male violence against women.(24) Because of these factors, cross-gender searches do not have the same effects on men as they would have on women.(25) The Court's judgment, which upheld the different treatment of male and female prisoners, demonstrates that equality may sometimes allow or require differential treatment.
On the reverse side of the same coin, B.C. v. BCGSEU provides an excellent example of a case where being treated the same led to substantive inequality.(26) Tawney Meiorin was a firefighter who had performed her work satisfactorily for over three years.(27) Her union argued that she was improperly dismissed on the basis of her failure to meet a discriminatory aerobic standard required under a new series of fitness tests adopted by the British Columbia provincial Government.(28)
The Court held that under the B.C. Human Rights Code, the minimum fitness standard discriminated against women and could not be justified as a bona fide occupational requirement.(29) In other words, a lower standard could still provide sufficient protection to the public, while also having a less discriminatory impact on women. As in many other cases of human rights code violations, courts are recognizing that standards set in relation to a traditionally dominant group, such as male firefighters, must be reviewed from an equality perspective in order to determine whether they are reasonably necessary to the fulfillment of a legitimate work-related purpose.
Eldridge v. British Columbia is another case where similar treatment was held to create substantive inequality.(30) In that case, the appellants, who were deaf, challenged the failure of the British Columbia government to provide sign language interpreters as part of its publicly funded health care system.(31) The Court held that this constituted discrimination, since those who were not hearing impaired did not require interpretation services and they were provided with all the services necessary to receive effective medical care.(32) In contrast, hearing impaired people, who required interpreters in order to receive effective treatment, were required to pay for this service, and therefore, unlike others, did not receive the necessary services to enjoy free medical care.(33) Even though, formally, this constituted identical treatment, substantively, the hearing impaired did not receive equal services from the health care system.(34)
Another example is the case of Vriend v. Alberta, which dealt with the failure of the Alberta Individual's Rights Protection Act to provide gays and lesbians with protection against discrimination.(35) Technically, gays and lesbians and heterosexual people were treated the same: none could bring claims under the Alberta human rights legislation based on sexual orientation.(36) However, the fact that only gays and lesbians, not heterosexuals, generally experience discrimination based on sexual orientation meant that the failure to include them in the legislation, even though it formally treated all citizens equally, constituted discrimination.(37)
The Court's decision in Vriend shows the importance of looking beyond the Charter for the protection of equality rights, since it applies only to government action.(38) In looking for "WHERE" inequality occurs, we must also turn our attention to the actions of people outside government, to ensure that in relations with others, individuals, companies, and groups conduct themselves in accordance with the principles of equality. Decisions of the Supreme Court and of human rights commissions have reminded us that, for example, when sexual harassment occurs, when there is systemic discrimination within a workplace, or when rules of the workplace have a negative impact on members of certain groups, discrimination has occurred.(39)
Provincial and federal statutory human rights codes remind us that all of our actions must be consistent with the principles of non-discrimination, and that we must constantly be vigilant to ensure that we respect others' equality rights. Because of their importance, our Supreme Court has recognized that human rights codes have taken on a quasi-constitutional status, and for this reason I have advocated a large and liberal evolving interpretation of the protections contained in them. In Canada (Attorney-General) v. Mossop, for example, I argued for an expansive interpretation of the prohibition in the Canadian Human Rights Act against discrimination based on "family status."(40) Mr. Mossop did not receive bereavement leave to attend the funeral of his male partner's father, although he would have received this leave if his partner had been female.(41) I wrote that respecting the promise of equality contained in the Act required an evolving and expansive definition of family, one that recognized the reality of the diverse types of families that exist in our society. The application of the principles of equality required going beyond traditional definitions of family, to explore what "family" means to different people in our society.
We must constantly be alert to the fact that the scope of the protection set out in these equality provisions may still not be a reality for all.(42) We need to recognize that the need to identify inequality is not present only when allegations of discrimination have been brought under section 15 of the Charter, or under human rights codes. Rather, in examining other areas of law, we must be alert to the ways in which the laws' assumptions may not respect the principles of equality. This approach offers us new understandings in family law, in criminal law, and into how the law affects the poor and the elderly. It is changing the way we look at sexual assault, disability, freedom of expression and pornography. The task of rooting out inequality and injustice from our society is now advancing to a higher stage, since, increasingly, we are recognizing that inequality and discrimination stem not from positive intentions on the part of any given individual, but rather from the effects of often innocently-motivated actions. This analysis requires that we understand equality, and make it part of our thinking, rather than treading heavily on it with the well-worn shoes of unquestioned, and often stereotypical, assumptions.
I will mention just two examples where the analysis in other areas of law has required attention to the concept of equality. In Moge v. Moge, consideration of the principles of equality, and of the historic disadvantages women faced from marriage breakdown, informed the determination of the appropriate interpretation of the Divorce Acts provisions on spousal support.(43) Focusing on equality enabled the Court to look at the perspective and experiences of women, and to ensure that its understanding of spousal support took into account women's needs and realities. In R. v. Lavallee, Madame Justice Wilson, writing for the majority of our Court, considered the circumstances of women in relationships with abusive spouses and redefined the criminal law of self-defence in light of the realities of their experiences.(44) These cases, and others like them, show that thinking about equality is more than just analysing discrimination claims or interpreting human rights codes. Rather, its pursuit requires an understanding of the historical disadvantages experienced by members of some groups, an awareness of groups' differences and unique experiences, and a sensitivity to the fact that parts of the law have been designed by and for those with power and privilege. It requires that in the analysis we undertake in every area of law, we consider various perspectives, think about the experiences and realities of disadvantaged groups, and examine the assumptions on which our laws and jurisprudence are based.
V. WHO SHOULD BE CONCERNED ABOUT INEQUALITY?
Many individuals are privileged in numerous ways. Many have never directly experienced discrimination. Nonetheless, inequality is a problem that affects us all. It is short sighted to assume that it is in our interests to preserve the systems and institutions that perpetuate our advantage and the relative disadvantage of others. We now understand that people are interdependent, and the health and dignity of our society depends on the way we treat all of its members. When some lack the opportunities others have, or are treated without dignity, society suffers. When individuals or governments refuse to recognize or respect the differences of others, the cost is the fostering of intolerance in our society. Discrimination imposes costs on us all, not just on those who are its direct victims.
Crime, poverty, unemployment, the fear of walking in the streets of one's own neighbourhood at night, our heavily burdened social programs: few will now dispute that all of these problems have at least some of their roots in inequality. While working to stamp out inequality will not make these problems go away, it is clear that ignoring inequality may very well aggravate them. Given that inequality, discrimination and perceived injustice are highly destabilizing forces in society, anyone who seeks a stable society gains by weakening those forces. We all have something to learn in this regard, particularly those who think of equality only in terms of the costs required to achieve it. As my colleague on the Ontario Court of Appeal, Madame Justice Rosalie Silberman Abella has observed, "We have no business figuring out the cost of justice until we can figure out the cost of injustice".
For these reasons, we cannot be concerned only about inequality and discrimination that affect us directly, but we must be vigilant to inequality affecting others. Working toward a society free from inequality demands that we try to see the world as experienced by others. We must not only recognize the ways in which others are similar to us, but also acknowledge and celebrate others' differences. If we are privileged in certain ways, we must also affirm that others may be entitled to differential treatment in order to remedy past or present disadvantages imposed by society.
We must remember that inequality and discrimination are as much attitudes as actions. All of us now have a responsibility to continue to work to bring about changes that will enable the philosophy of non-discrimination to become a reality of substantive equality. The quest for equality does not stop when, for instance, a woman gets a job. It demands pay equity, and a workplace that is sensitive to the social and family demands that women often face. Equally important, it demands that we recognize that not all men measure success purely by virtue of career and financial advancement. New opportunities in the workplace will not bring meaningful change until it becomes socially acceptable to use them. And in striving to achieve such ends we must never be deterred by novel solutions.
VI. How Do WE ADVANCE THE CAUSE OF EQUALITY?
Equality is a term that, standing alone, means nothing. It has no universally recognized, inherent or intrinsic content. But rather than simply trying to define the term, I think that it is helpful to conceive of equality as a language like every other: with rules of grammar and syntax, nuances, exceptions, and dialects. After all, a language is more than a form of communication. It is an embodiment of the norms, attitudes, and cultures that are expressed through that language. Learning a language and learning a culture go hand in hand. I believe that all of us are already familiar with the basic vocabulary of equality. On the other hand, I hesitate to say that we are fluent in this language when, in fact, we may only have a working knowledge of it so far. This language is new to us, because equality analysis does not fit easily into traditional legal discourses and concepts. It is not easy to undertake an analysis of the multiple and overlapping manifestations of inequality in our society using traditional legal tests and tools.
But like many immigrants who once came, and continue to come to North America, we have now firmly assumed the obligation of learning a new language, which will help carry us into tomorrow. More importantly, and after much delay, we have finally committed ourselves to learning to speak in terms of meaningful equality.
In our quest to learn the language of equality, we are going through many of the same difficulties encountered by someone trying to learn a new language. We interpret simple sentences very well. However, we lack the experience to deal with more difficult situations. We may improvise by applying approaches found in traditional legal discourse, but experience shows that resorting to those rules is only appropriate when the structures underlying the two languages are substantially the same. Our new task is to revisit our underlying assumptions about people and social structure, to look beyond the four corners of our respective legal and social institutions, and to contemplate change when our examination reveals that the languages are inconsistent. We must try to think in terms of this new language. As any of you who has tried to learn a second language knows, learning to think in that language is probably the most important step to understanding the language, and this understanding is what is needed in turn to speak it fluently.
We are all students of this language called equality. I should note that this language class is particularly difficult because it is a course in which the students must teach themselves. Fortunately, we are not without direction. Our Rosetta Stone, our key to understanding, lies in our respective past social experiences, in the present realities endured by those less fortunate, and in the future aspirations of one and all. And yet the job does not end here. Implicit in our task of breaking down barriers, learning a new language, and questioning assumptions underlying some of our oldest and most venerable institutions, is our undertaking to rebuild what we take apart.
You will recall that I began my remarks to you by posing the question, "Why equality?". I now conclude by observing that the real question to my mind is no longer "WHY equality?" but rather "WHEN equality?" In my view, moreover, the appropriate answer is "Now!" To permit or perpetuate inequality is to permit or perpetuate injustice. Our public policies, our workplaces, our institutions, and our homes may serve us well, but how do they serve others? Do they enable all people to enjoy full membership in society, and an equal sense of self-worth? Do they accord each human being equal concern, respect and consideration? These are difficult questions, but I put it to you that we owe a duty to ourselves, to others and to the generations to come, to answer these questions, and then to act on the answers until we've lived up to the equality standard.
The urgency of the task of promoting equality means that the guarantees of equality in constitutional and international human rights documents here and around the world are perhaps the most important constitutional or legal instruments we have. These guarantees will, I hope, be at the centre of much of the work of the courts in coming years, not only when appeals based on equality provisions themselves are heard, but also as norms which inform and influence our analysis throughout all areas of law and of life.
Yet as all students know, our understanding of concepts such as equality continues to evolve, and it requires a constant questioning of our work and our assumptions to ensure that our task is being accomplished well. By conversing about equality, by explaining to each other our experiences and understandings, and by listening to others, we can better comprehend the nuances of this evolving concept. Questions about fairness and justice in law and society will never disappear. It is my hope, however, that future generations will converse about these questions fluently, in the language of equality, just as we speak in our native language, or mother tongue: without effort, and in an intuitive and natural way. For when the language of equality becomes our common language, we will truly be able to say that we live in a just society.
(*) This paper was initially published in a longer form as C. L'Heureux-Dube, Conversations on Equality (1999) 26 Man. L.J. 273.
THE HONOURABLE CLAIRE L'HEUREUX-DUBE, JUSTICE OF THE SUPREME COURT OF CANADA, I wish to thank my law clerks for their invaluable assistance in the preparation of this paper.
(1) Daniel Proulx, L'objet des droits constitutionnels a l'egalite 29 C. de D. 567,570 (1988).
(3) Lorenne Clark, Liberalism and the Living Tree: Women, Equality and the Charter 28(2) Alta. L. Rev. 384, 390 (1988), citing J.S. Mill, "The Subjugation of Women" in Essays on Sex Equality 129-130 (Alice S. Rossi ed., 1970).
(4) Id. at 391.
(5) Const. Act 1982, pt. I, [sections] 15 (Canadian Charter of Rights and Freedeoms), Schedule B to the Canada Act, 1982, ch. 11 (U.K.). [hereinafter the Charter]
(6) Edwards v. Canada,  A.C. 124.
(7) Susan Jackel, Women's Suffrage in THE CANADIAN ENCYCLOPEDIA: YEAR 2000 EDITION 2535 (McClelland & Stewart Inc., 1999).
(8) John C. Courtney, Franchise in THE CANADIAN ENCYCLOPEDIA: YEAR 2000 EDITION 907 (McClelland & Stewart Inc., 1999).
(9) Canadian Bill of Rights, S.C. 1960, c.44 reprinted in R.S.C. 1985 (App. III). hereinafter the Bill of Rights]
(10) Bliss v. Attorney General of Canada,  1 S.C.R. 183.
(11) Attorney General of Canada v. Lavell,  S.C.R. 1349.
(12) U.S. CONST., amend. XIV; Canadian Charter of Rights and Freedoms [sections] 15(1).
(13) Const. Act 1982, pt. I, [sections] 15 (Canadian Charter of Rights and Freedoms), Schedule B to the Canada Act, 1982, ch. 11 (U.K.).
(14) Id., U.S. CONST., amend. I-X.
(15) Canadian Charter of Rights and Freedoms [sections] 1.
(16) Id. at [subsections] 23, 25, 27.
(17) Canadian Charter of Rights and Freedoms [sections] 28.
(18) Id. at [sections] 15(1).
(19) Id. at [sections] 15(2).
(20) See Law v. Canada,  1 S.C.R. 497, 548. For the first use of "substantive equality" in a Supreme Court decision, see Symes v. Canada,  4 S.C.R. 695, 786 (per L'Heureux-Dube J. dissenting). All Supreme Court of Canada judgments since 1985 are available through the Court's website, http://www.scc-csc.gc.ca/index_e.htm
(21) Weatherall v. Canada,  2 S.C.R. 872.
(26) British Columbia (Public Service Employee Relations Committee) v. BCGSEU,  3 S.C.R. 3.
(29) Id., Human Rights Code, R.S.B.C., ch. 210 (1996)(Can.).
(30) Eldridge v. British Columbia,  3 S.C.R. 624.
(35) Vriend v. Alberta,  1 S.C.R. 493.
(38) See RWDSU v. Dolphin Delivery Ltd.,  2 S.C.R. 573.
(39) Janzen v. Platy Enterprises,  1 S.C.R. 1252; Action Travail des Femmes v. Canadian National Railway,  1 S.C.R. 1114; O [sections] Malley v. Simpsons-Sears,  2 S.C.R. 550.
(40) Canadian Human Rights Commission v. Mossop,  1 S.C.R. 554; Canadian Human Rights Act, S.C. ch.33 (1976-1977) reprinted in R.S.C. ch. H6 (1985)(Can.).
(41) Mossop,  1 S.C.R. at 554.
(42) For a recent decision illustrating this point, see, e.g., M. v. H.,  2 S.C.R. 3 (holding that the opposite-sex definition of "spouse" used for spousal support determination in the province of Ontario's Family Law Act violated sec. 15 of the Charter).
(43) Moge v. Moge,  3 S.C.R. 813.
(44) R. v. Lavallee,  1 S.C.R. 852.
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|Title Annotation:||Canadian law|
|Publication:||Denver Journal of International Law and Policy|
|Date:||Dec 22, 2000|
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