2015 Substantive Equality As Equal Recognition: A New Theory of Section 15 of the Charter; Substantive Equality As Equal Recognition: Anthony Robert Sangiuliano. This article is posted based on our concerns with the Canadian Income Support benefit system that shows economic incongruency in the amounts paid to each citizen in the country across the various territories. It is unusual when it is found out that the money is sent from one central location; in Ontario although the policies are quite different in each territory or province. It is our suggestion that the amounts paid must be essentially, purposefully equal in amount to ensure the safety of the citizen in a country with similarly cold, harsh winters in all territories although there could be difference in program delivery, substance or form; in the way the payments are communicated to the recipients. So, each program in each program maintains the facade of uniqueness; if that is what you wish to maintain.
Volume 52, Issue 2 (Winter 2015) Tax Policy for a Better Tomorrow: Intersectoral and Multidisciplinary Connections, a Workshop in Honour of Neil Brooks Guest Editor: Tim Edgar, Thaddeus Hwong & Jinyan Li Article 9 2015 Substantive Equality As Equal Recognition:
A New Theory of Section 15 of the Charter
Substantive Equality As Equal Recognition: A New Theory of Section
15 of the Charter Anthony Robert Sangiuliano Follow this and additional works
at: https://digitalcommons.osgoode.yorku.ca/ohlj Part of the Civil Rights and
Discrimination Commons, and the Constitutional Law Commons Article This work is
licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works
4.0 License.
Citation Information Sangiuliano, Anthony Robert.
"Substantive Equality As Equal
Recognition: A New Theory of Section 15 of the Charter." Osgoode Hall Law
Journal 52.2 (2015) : 601-646. DOI: https://doi.org/10.60082/2817-5069.2821
https://digitalcommons.osgoode.yorku.ca/ohlj/vol52/iss2/9 This Article is
brought to you for free and open access by the Journals at Osgoode Digital
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It has been
accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of
Osgoode Digital Commons. Substantive Equality As Equal Recognition: A New
Theory of Section 15 of the Charter Substantive Equality As Equal Recognition:
A New Theory of Section 15 of the Charter Abstract Abstract This article
presents a novel theory of the concept of substantive equality under section
15(1) of the Canadian Charter of Rights and Freedoms called Substantive
Equality as Equal Recognition. This contribution is timely in light of the
Supreme Court of Canada’s recent disagreement over the proper jurisprudential
approach to interpreting section 15(1) in the 2013 case of Quebec v A.
Substantive Equality as Equal Recognition holds that the purpose of section 15(1)
is to ensure that the law’s application does not reflect, through its impact or
effects, hierarchies of status that exist between citizens within Canadian
society.
The article
argues that the theory is disclosed by the doctrinal principles laid down by
Justice McIntyre in Andrews v Law Society of British Columbia, the first
decision on section 15(1) of the Charter. It also argues that the account of
the wrongfulness of discrimination generated by Substantive Equality as Equal
Recognition is preferable to other accounts and that the theory can help
navigate the disagreement between the judges in Quebec v A. Keywords Keywords
Canada. Canadian Charter of Rights and Freedoms. Section 15; Equality before
the law; Civil rights; Canada Creative Commons License Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No
Derivative Works 4.0 License. This article is available in Osgoode Hall Law
Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol52/iss2/9 601
Substantive Equality As Equal Recognition: A New Theory of Section 15 of the
Charter ANTHONY ROBERT SANGIULIANO*
This article
presents a novel theory of the concept of substantive equality under section
15(1) of the Canadian Charter of Rights and Freedoms called Substantive
Equality as Equal Recognition. This contribution is timely in light of the
Supreme Court of Canada’s recent disagreement over the proper jurisprudential
approach to interpreting section 15(1) in the 2013 case of Quebec v A.
Substantive Equality as Equal Recognition holds that the purpose of section
15(1) is to ensure that the law’s application does not reflect, through its
impact or effects, hierarchies of status that exist between citizens within
Canadian society. The article argues that the theory is disclosed by the
doctrinal principles laid down by Justice McIntyre in Andrews v Law Society of British
Columbia, the first decision on section 15(1) of the Charter. It also argues
that the account of the wrongfulness of discrimination generated by Substantive
Equality as Equal Recognition is preferable to other accounts and that the
theory can help navigate the disagreement between the judges in Quebec v A. Cet
article propose une théorie novatrice pour expliquer le concept de l’égalité
réelle selon l’article 15(1) de la Charte canadienne des droits et libertés,
qui assimile l’égalité réelle à une reconnaissance égale. Cette contribution
arrive en temps voulu alors que la Cour suprême du Canada se trouvait en 2013
en désaccord relativement à l’approche jurisprudentielle à adopter pour
interpréter l’article 15(1) dans l’affaire Québec v A. L’égalité réelle
assimilée * JD Candidate 2015, Osgoode Hall Law School.
An earlier
version of this article was presented at the 7th Annual Canadian Law Student
Conference (University of Windsor Faculty of Law, 13 March 2014). I would like
to thank the participants in that conference for helpful discussions. I am also
appreciative for the assistance of Fay Faraday, the instructor of the
“Discrimination & the Law” seminar at Osgoode Hall Law School in the fall
semester of 2013 for which this article was originally written. Her exemplary
guidance and insight were integral to the drafting of this article.
Finally,
thanks are owed to three anonymous reviewers for their comments and to the
editors of the Osgoode Hall Law Journal.(2015) 52 OSGOODE HALL LAW JOURNAL 602
I. A JURIDICAL CONCEPTION OF SUBSTANTIVE EQUALITY
...............................................................607 II.
SUBSTANTIVE EQUALITY AS EQUAL RECOGNITION
........................................................................611
III. SUBSTANTIVE EQUALITY AS EQUAL RECOGNITION IN ANDREWS
.....................................................615 A. Four Principles
from Andrews
.................................................................................................616
B. Substantive Equality as Equal Recognition Is Disclosed by the Four Andrews
Principles 619 1. The Idea of Formal Equality
................................................................................619
2. What Makes Formal Equality Unacceptable?
.....................................................622 3. Other Principles
from Andrews ................................................................................626
IV. DISCRIMINATION AS THE NEGATION OF RECOGNITION: RESPONSES TO OBJECTIONS
..............629 A. Responses to Pluralism
.....................................................................................................629
1. Stereotyping Is Reducible to the Negation of Recognition
.................................629 2. Prejudice Is Reducible to the Negation
of Recognition.......................................630 3. The Denial of
Access to Basic Goods Does Not Explain the Wrong of Discrimination
...............................................................................631
B. Responses to Competing Unitary Theories
.......................................................................635 1. Human
Dignity-Based Theories
..........................................................................635
2. Autonomy-Based Theories
..................................................................................639
V. CONCLUSION: THE IMPLICATIONS OF SUBSTANTIVE EQUALITY AS EQUAL RECOGNITION
FOR THE TENSION BETWEEN CERTAINTY AND FLEXIBILITY IN QUEBEC V
A...........................................644 à une reconnaissance égale
prétend que l’objectif de l’article 15(1) consiste à faire en sorte que
l’application de la loi ne reflète pas, par son impact ou ses effets, une
hiérarchisation du statut des citoyens dans la société canadienne. L’article
prétend que cette théorie découle des principes doctrinaux établis par le juge
McIntyre dans la cause Andrews c. Law Society of British Columbia, premier
verdict s’appuyant sur l’article 15(1) de la Charte. Il prétend également que
le rapport de discrimination illicite découlant de l’égalité réelle assimilée à
une reconnaissance égale est préférable à d’autres rapports et que cette
théorie peut permettre d’aplanir le désaccord des juges dans Québec v A. At the
end of the day there is only one question: Does the challenged law violate the
norm of substantive equality in s. 15(1) of the Charter? —Chief Justice
McLachlin and Justice Abella1 Discrimination is unacceptable in a democratic
society because it epitomizes the worst effects of the denial of equality, and
discrimination reinforced by law is particularly repugnant.
The worst
oppression will result from discriminatory measures having the force of law. It
is against this evil that s. 15 provides a guarantee. —Justice McIntyre2 1.
Withler v Canada (Attorney General), 2011 SCC 13 at para 2, [2011] 1 SCR 396
[Withler] [emphasis added]. 2. Andrews v Law Society of British Columbia,
[1989] 1 SCR 143 at para 35, 56 DLR (4th) 1 [Andrews] [emphasis
added].SANGIULIANO, SUBSTANTIVE EQUALITY 603 THE HISTORY OF THE SUPREME COURT
OF CANADA’S interpretive approach to section 15(1) of the Canadian Charter of
Rights and Freedoms3 has been characterized by continual reinvention.4 The test
for whether a law is discriminatory within the meaning of section 15(1) has
been in flux since its inception in Andrews v Law Society of British Columbia,5
as the Court has struggled to achieve consensus on the best doctrinal
methodology for identifying the type of inequality that the provision aims to
prevent.6 T his struggle is exemplified by the recent case of Quebec (Attorney
General) v A.7 Justice LeBel wrote the dissenting opinion on the section 15(1)
infringement issue in that case.8 He began his reasons by explicating what he
took to be the 3. 4. 5. 6. 7. 8. Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), c 11 [Charter]. Section 15(1) of the
Charter provides: “Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race, national
or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of
Section 15 of the Charter” (2013) 64 UNBLJ 19 [Koshan & Watson Hamilton,
“Continual Reinvention”]. Andrews, supra note 2. Koshan and Watson Hamilton
identify three divergent approaches to interpreting s 15(1). Koshan &
Watson Hamilton, “Continual Reinvention,” supra note 4 at 19. After it agreed
on the s 15(1) test in the 1989 Andrews case, the Court was severely fractured
in the 1995 Equality Trilogy—Miron, Egan, and Thibaudeau. See Miron v Trudel,
[1995] 2 SCR 418, 124 DLR (4th) 693 [Miron]; Egan v Canada, [1995] 2 SCR 513,
124 DLR (4th) 609 [Egan]; Thibaudeau v Canada, [1995] 2 SCR 627, 124 DLR (4th)
449. A unanimous Court reinvented the test in Law in 1999, only to alter it
again in Kapp in 2008. See Law v Canada (Minister of Employment and
Immigration), [1999] 1 SCR 497, 170 DLR (4th) 1 [Law cited to SCR]; R v Kapp,
2008 SCC 41, [2008] 2 SCR 483 [Kapp]. See also The Constitutional Law Group,
Canadian Constitutional Law, 4th ed, by Patrick Macklem et al (Toronto: Emond
Montgomery, 2010) at 1237-1335. 2013 SCC 5, [2013] 1 SCR 61 [Quebec v A].
Readers may find it curious that I begin by discussing the dissenting opinion
in Quebec v A. LeBel J’s reasons on how to determine whether s 15(1) is
infringed, with which Fish, Moldaver, and Rothstein JJ concurred, in fact
formed part of the majority judgment. For LeBel J, s 15(1) was not infringed in
the case. It was therefore not necessary to determine whether the infringement
was justified under s 1 of the Charter, which provides that Charter rights are
subject to “such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.” McLachlin CJ concurred with the
reasons of Abella J, discussed below, to form a majority on how to determine
whether s 15(1) is infringed. The majority on s 15(1) found that s 15(1) was
indeed infringed, which necessitated an analysis of the infringement’s
justification under s 1 of the Charter. However, McLachlin CJ disagreed with
the majority position on the infringement of s 15(1) when she considered the s
1 analysis, holding that the infringement was justified. The result of this
change of position was that the view of LeBel J that s 15(1) was not infringed
and the view of McLachlin CJ that any infringement was justified generated the
final disposition of Quebec v A, according to 604 (2015) 52 OSGOODE HALL LAW
JOURNAL underlying values of section 15(1). While he endorsed the prevailing
view that section 15(1) guarantees substantive equality rather than mere formal
equality in the law’s application, he added that the provision’s purpose is to
protect the value of human dignity, to which the principle of personal autonomy
is linked.9 He affirmed the two-step test developed in R v Kapp for whether a
law discriminates against a claimant under section 15(1): • Does the law create
a distinction based on an enumerated or analogous ground of discrimination? •
Does the distinction discriminate by imposing disadvantage through the
perpetuation of prejudice or stereotyping?10 He also affirmed the four
contextual factors developed in Law v Canada (Minister of Employment and
Immigration) to aid in identifying discrimination.11 More contentiously,
however, he insisted that a law is not discriminatory unless it involves
prejudice or stereotyping against the claimant, even if it imposes a
disadvantage on the claimant. Proof of disadvantage is insufficient because
prejudice or stereotyping is a “crucial, although not the only, factor to be
considered”12 when a court analyzes an equality claim. which the impugned law
at issue was constitutionally valid. For a discussion of the difficulties
involved in identifying the ratio of Quebec v A, see Michelle Biddulph &
Dwight Newman, “Equality Rights, Ratio Identification, and the Un/Predictable
Judicial Path Not Taken: Quebec (Attorney General) v. A and R. v. Ibanescu” UBC
L Rev [forthcoming in 2015]. 9. LeBel J wrote that “[s]afeguarding personal
autonomy implies the recognition of each individual’s right to make decisions
regarding his or her own person, to control his or her bodily integrity and to
pursue his or her own conception of a full and rewarding life free from
government interference with fundamental personal choices.” Quebec v A, supra
note 7 at para 139. His additional appeal to human dignity is contentious
because, in Kapp, the Court appeared to remove the violation of human dignity
as an independent factor to be considered when determining whether a law
infringes s 15(1). Kapp, supra note 6 at paras 21-25. LeBel J’s claim in Quebec
v A is not that human dignity is part of the legal test under s 15(1) but that
it informs the purpose of the provision. Nevertheless, given that the Court has
distanced itself from the concept of human dignity when it comes to the
constitutional protection of equality, the claim might still be met with some
suspicion. I return to this issue in Part III(B)(1), below. 10. Kapp, supra note
6 at para 17. 11. These contextual factors are: (a) the presence or absence of
pre-existing disadvantage experienced by the claimant; (b) the correspondence
or lack thereof between the ground on which the discrimination claim is based
and the actual needs, capacity, or circumstances of the claimant or affected
group; (c) whether the impugned law has an ameliorative purpose or effect for
certain members of society; and (d) the nature of the interest of the claimant
affected by the law. Law, supra note 6 at para 88. 12. Quebec v A, supra note 7
at para 185.SANGIULIANO, SUBSTANTIVE EQUALITY 605 Justice Abella wrote the
majority opinion on the section 15(1) infringement issue.13 She likewise
endorsed the Kapp test and the Law contextual factors in her majority judgment.
Unlike Justice LeBel, she did not articulate the core values of section 15(1)
beyond holding that the purpose of the provision is to protect the norm of
substantive equality. She rejected the view that prejudice or stereotyping are
necessary elements which the claimant is obligated to demonstrate, preferring
to regard them as indicia that help determine whether a law violates
substantive equality.14 Since prejudice and stereotyping are disadvantaging
attitudes, a requirement that the claimant demonstrate them would be unduly
formalistic and contrary to a substantive equality approach, which focuses on
discriminatory effects.15 For Justice Abella, rejecting the dissent’s view led
to “a flexible and contextual inquiry into whether a distinction has the effect
of perpetuating arbitrary disadvantage on the claimant.”16 Hence, section 15(1)
is infringed if a law that makes a distinction on a prohibited ground violates
substantive equality, no matter which factors are used to identify the
violation and, specifically, whether or not the violation takes the form of
prejudice or stereotyping against the claimant. My interest in canvassing the
disagreement between the judges in Quebec v A is not to assess the factual
outcome of the case (others have ably undertaken this task17), but to highlight
the ambiguity in the conceptual trajectory of the Charter’s constitutional
guarantee of equality.18 Justice LeBel tried to secure a degree of certainty
for the section 15(1) test by thoroughly articulating the provision’s purposes
and solidifying prejudice or stereotyping as critical factors that make a law
discriminatory. Justice Abella, however, preserved a flexible approach to
section 15(1) that enables judges to identify the disadvantaging impact of a
law and avoids imposing additional burdens of proof on equality 13. Abella J’s
reasons, however, formed part of the dissent in the result of Quebec v A. See
supra note 8 and accompanying text. 14. Quebec v A, supra note 7 at para 325.
15. Ibid at para 329. Such rejection is similar to how the human dignity test
was rejected by the Court in Kapp. See supra note 9 and accompanying text. 16.
Quebec v A, supra note 7 at para 331. 17. See e.g. Robert Leckey, “Strange
Bedfellows” (2014) 64:5 UTLJ 641; Sonia Lawrence, “Quebec v. A roundtable:
Leckey on the Symbiosis of Law and Social Forces” Institute for Feminist Legal
Studies at Osgoode (6 June 2013), online: <ifls.osgoode.yorku.ca/
quebec-v-a-roundtable-leckey-on-the-symbiosis-of-law-social-forces>. 18. For
similar conceptual diagnoses of the Quebec v A decision, see Bruce Ryder, “The
Strange Double Life of Canadian Equality Rights” (2013) 63 Sup Ct L Rev (2d)
261 at 285-91; Jennifer Koshan, “Under the Influence: Discrimination under
Human Rights Legislation and Section 15 of the Charter” (2014) 3:1 Can J Hum
Rts 115 at 134-37.606 (2015) 52 OSGOODE HALL LAW JOURNAL claimants.19 Quebec v
A therefore indicates that the tension the Court must navigate to avoid
ambiguity in its equality jurisprudence is the tension between certainty and
flexibility. As Colleen Sheppard argues, the injunction to examine the
discriminatory impact of a law using any relevant factors does not provide
sufficient guidance to litigants and adjudicators in equality cases. But the
Court must also avoid retreating to the certainty afforded by formalism, as
this does not generate equitable outcomes or allow for an appreciation of the
complex structural and systemic inequalities in society.20 Sheppard’s own
suggestion for navigating the tension between certainty and flexibility is to
insist on clarifying the promise of substantive equality.21 T his article takes
inspiration from Sheppard’s suggestion. It is indeed essential to frame a
conceptually rigorous understanding of substantive equality as it operates in
Canadian equality jurisprudence. The protection of this value has been
explicitly regarded as a central objective of section 15(1) ever since the 1997
case of Eldridge v British Columbia (Attorney General),22 and important
subsequent cases affirm this idea.23 Both the majority and dissent in Quebec v
A relied on a commitment to substantive equality. This commitment is clearly
evinced in Withler v Canada (Attorney General), where the Court stated that
“the central issue in this and other s. 15(1) cases is whether the impugned law
violates the animating norm of s. 15(1), substantive equality.”24 The Court has
also consistently emphasized that substantive equality mandates a contextual
19. Quebec v A, supra note 7 at para 329. 20. Colleen Sheppard, Inclusive
Equality: The Relational Dimensions of Systemic Discrimination in Canada
(Montreal: McGill-Queen’s University Press, 2010) at 61. 21. Ibid. Sheppard
defends a concept called “inclusive equality,” which “emphasizes the integral
connection between process and substance” (ibid at 61). For another example of
a scholar who pursues the goal of clarifying the promise of substantive
equality, see Margot Young, “Unequal to the Task: ‘Kapp’ing the Substantive
Potential of Section 15” (2010) 50 Sup Ct L Rev (2d) 183 at 190-99. 22. [1997]
3 SCR 624, 151 DLR (4th) 577 [Eldridge cited to SCR]. In Eldridge, LaForest J
stated that the provision is “intended to ensure a measure of substantive, and
not merely formal equality” (ibid at para 61). See also Vriend v Alberta, [1998]
1 SCR 493 at para 83, 156 DLR (4th) 385 [Vriend]; Corbiere v Canada (Minister
of Indian and Northern Affairs), [1999] 2 SCR 203 at para 92, 173 DLR (4th) 1
[Corbiere]; Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2
SCR 625 at para 82, 175 DLR (4th) 193. 23. Law, supra note 6 at para 25; Kapp,
supra note 6 at paras 14-16. 24. Withler, supra note 1 at para 2. See also
Jennifer Koshan & Jonnette Watson Hamilton, “Meaningless Mantra:
Substantive Equality after Withler” (2011) 16:1 Rev Const Stud 31 at 44, 49
[Koshan & Watson Hamilton, “Meaningless Mantra”].SANGIULIANO, SUBSTANTIVE
EQUALITY 607 approach to analyzing equality claims that focuses on identifying
an impugned law’s discriminatory effects.25 In addition to informing the purpose
of section 15(1), substantive equality now forms the essential element of the
legal test for whether a law is discriminatory.26 In Withler, the Court stated
that, while it did not wish to restrict the factors that may aid in assessing a
claim of discrimination, inquiries into the perpetuation of prejudice and
stereotyping are specifically directed towards ascertaining whether an impugned
law violates the norm of substantive equality.27 Justice Abella relied on this
dictum in Quebec v A when she argued that a violation of substantive equality,
no matter how it is identified, is what causes a law to conflict with the
Charter.28 Hence, as stated in this article’s first epigraph, to determine
whether a law violates section 15(1), there is only one question: Does the law
violate the norm of substantive equality? In this article, I intend to
contribute to the goal that Sheppard and others have pursued of clarifying the
concept of substantive equality. These introductory remarks have shown that the
Court’s recent section 15(1) judgments in Quebec v A are strongly indicative of
a need for the contribution, at least on one reading of that decision. I. A
JURIDICAL CONCEPTION OF SUBSTANTIVE EQUALITY Substantive equality is widely
seen as a methodological principle directing courts to analyze section 15(1) in
a way that invokes “the contextualization of equality claims” and ensures
“equality of results or outcomes.”29 Despite recent descriptions of substantive
equality as a norm, there has been no comparable agreement 25. See especially
Law, supra note 6 at para 55; Withler, supra note 1 at paras 45-54. 26. As
early as Law, Iacobucci J held that “the existence of a conflict between an
impugned law and the purpose of s. 15(1) is essential in order to found a
discrimination claim.” Law, supra note 6 at para 41. 27. Withler, supra note 1
at para 39. 28. Quebec v A, supra note 7 at para 327. 29. Beverley Baines, “Is
Substantive Equality a Constitutional Doctrine?” in Ysolde Gendreau, ed, La
doctrine et le développement du droit/Developing Law with Doctrine (Montreal:
Les Editions Thémis, 2005) 59 at 79. See also Young, supra note 21 at 196;
Sheppard, supra note 20 at 39-40, 47, 51-52; Koshan & Watson Hamilton,
“Meaningless Mantra,” supra note 24 at 44; Koshan & Watson Hamilton, “Continual
Reinvention,” supra note 4 at 25-26; R v Turpin, [1989] 1 SCR 1296 at 1328, 69
CR (3d) 97; Law, supra note 6 at para 25; Kapp, supra note 6 at paras18-20;
Ermineskin Indian Band and Nation v Canada, 2009 SCC 9 at para 194, [2009] 1
SCR 222; Withler, supra note 1 at para 2; Quebec v A, supra note 7 at para
342.608 (2015) 52 OSGOODE HALL LAW JOURNAL on substantive equality as a state
of affairs, i.e., what a situation in which the ideal is instantiated through
law would look like, as opposed to the ideal’s methodological dimension. Nor
has substantive equality been given a positive definition by the Court.30
Rather, it has been defined negatively as an approach to section 15(1)
contrasting with a formal equality approach.31 Formal equality itself is
construed both methodologically, as the “decontextualized application of
objectified rules and definitions,”32 and positively, as a state of affairs in
which those similarly situated are treated alike.33 Elucidating in positive
terms the distinctive state of affairs that substantive equality represents is
a key element of my ambition to clarify substantive equality in this article.
To realize this ambition, I propose to develop a juridical conception of
substantive equality. A juridical conception of a normative ideal such as
substantive equality seeks to disclose the latent normative presuppositions of
law’s internal doctrinal principles and to bring them to the surface through a
process of abstraction.34 The doctrinal principles that I analyze are those outlined
by Justice McIntyre in Andrews, the first decision on section 15(1) of the
Charter. I select this route because the Court has continually referred to
Andrews to substantiate assertions about the correct way to analyze equality
claims and about the purpose of section 15(1).35 In Kapp, the Court stated:
“Andrews set the template for this Court’s commitment to substantive equality—a
template which subsequent decisions have enriched but never abandoned.”36 In
Withler, 30. Baines, supra note 29 at 91; Koshan & Watson Hamilton,
“Meaningless Mantra,” supra note 24 at 32; Koshan & Watson Hamilton,
“Continual Reinvention,” supra note 4 at 21. Margot Young describes the Court’s
use of the concept as an “unelaborated, cryptic guidepost.” Young, supra note
21 at 185. 31. See e.g. Canadian Foundation for Children, Youth and the Law v
Canada (Attorney General), 2004 SCC 4 at para 91, [2004] 1 SCR 76; Gosselin
(Tutor of) v Quebec (Attorney General), 2005 SCC 15 at para 15, [2005] 1 SCR
238 [Gosselin]; Kapp, supra note 6 at para 15; Withler, supra note 1 at paras
39, 41-42. 32. Sheila McIntyre, “Answering the Siren Call of Abstract Formalism
with the Subjects and Verbs of Domination” in Fay Faraday, Margaret Denike
& Kate M Stephenson, eds, Making Equality Rights Real: Securing Substantive
Equality Under the Charter (Toronto: Irwin Law, 2006) 99 at 105. 33. Sheppard,
supra note 20 at 39. 34. See Ernest J Weinrib, Corrective Justice (Oxford:
Oxford University Press, 2012) at 9-15. Weinrib elucidates a juridical conception
of the normative ideal of corrective justice that underlies private law. For
the Court’s acknowledgement of corrective justice, see Clements v Clements,
2012 SCC 32 at para 7, [2012] 2 SCR 181. 35. See generally Law, supra note 6 at
paras 23-30, 40-44. Iacobucci J stated that Andrews “articulates many of the
basic principles which continue to guide s. 15(1) analysis to the present day”
(ibid at para 22). 36. Kapp, supra note 6 at para 14.SANGIULIANO, SUBSTANTIVE
EQUALITY 609 the Court cited Justice McIntyre’s reasons to reject a formalistic
approach to comparator groups under section 15(1)37 and to vindicate the
assertion that substantive equality is an essential element of the legal test
for discrimination.38 Justice Abella and Justice LeBel each explicitly relied
on Andrews in penning their divergent reasons in Quebec v A.39 As I will
explain more fully below, the juridical conception of substantive equality I
espouse in this article draws upon a distinction between (i) the vertical
application of the law by the state to citizens’ activities and (ii) horizontal
relations among citizens within society that make up the context within which
the law’s vertical application is embedded.40 I construe the horizontal
inequalities that obtain within citizens’ social relations by reference to
patterns of what the American constitutional theorist Jack Balkin calls “status
hierarchy.”41 Patterns of status hierarchy obtain not just when there are
material disparities in wealth within society, but primarily when some social
groups are perceived as having higher or lower degrees of symbolic prestige
relative to others.42 Accompanying these hierarchies are structures of
domination and oppression: Members of groups with lower status are subordinated
to members of groups with higher status in that the identity associated with
the former is defined as it is constructed by the latter. The cultural values
of subordinate groups are hence labelled as deviant relative to the norm
controlled by dominant groups. I claim that the wrong produced by status
hierarchies consists in the negation of recognition for members of subordinate
groups.43 That is, it consists in a denial of subordinate 37. Withler, supra
note 1 at para 42. For discussion and critique of the role of comparator groups
in the Court’s s 15(1) jurisprudence, see e.g. Daphne Gilbert & Diana
Majury, “Critical Comparisons: The Supreme Court of Canada Dooms Section 15”
(2006) 24:1 Windsor YB Access Just 111; Sophia Reibetanz Moreau, “Equality
Rights and the Relevance of Comparator Groups” (2006) 5:1 JL & Equality 31.
38. Ibid at para 2. 39. For Abella J’s reliance on Andrews, see Quebec v A,
supra note 7 at paras 319-25. For LeBel J’s reliance on Andrews, see Quebec v
A, supra note 7 at paras 137, 142-45. 40. I adapt this distinction from a
similar formulation made by Sophia Moreau. See Sophia R Moreau, “The Wrongs of
Unequal Treatment” (2004) 54:3 UTLJ 291 at 317 [Moreau, “Wrongs of Unequal
Treatment”]. 41. JM Balkin, “The Constitution of Status” (1996) 106:8 Yale LJ
2313 at 2321. 42. While status hierarchies are often intertwined with economic
inequalities in the distribution of material resources, such as wealth and
property, economic and status inequalities are nevertheless analytically
distinct. Nancy Fraser, “From Redistribution to Recognition? Dilemmas of
Justice in a ‘Post-Socialist’ Age” (1995) 1:212 New Left Rev 68 at 72-73. See
also Balkin, supra note 41 at 2322. 43. See generally Fraser, supra note 42;
Charles Taylor, “The Politics of Recognition” in Amy Gutmann, ed, Multiculturalism:
Examining the Politics of Recognition (Princeton, NJ: Princeton University
Press, 1994) 25.610 (2015) 52 OSGOODE HALL LAW JOURNAL groups’ ability to view
their own identities authentically and as worthy starting points from which to
formulate and pursue a conception of the good life. My thesis is that the state
of affairs of substantive equality is a condition in which the law does not
transmit horizontal status hierarchies, and the systems of oppression attached
to them, through its vertical impact. In the terms of this article’s second
epigraph, the purpose of section 15(1) is to ensure that the oppression
constitutive of horizontal inequalities is not imbued with the force of law.
Discrimination under section 15(1) of the Charter—the negation of
recognition—occurs when this transmission occurs. I call the theory produced by
conjoining these two claims Substantive Equality as Equal Recognition.44 As we
shall see, Substantive Equality as Equal Recognition generates a unitary
account of the wrong of discrimination that treats the negation of recognition
44. The theory rests on the idea that discrimination is substantive inequality,
or the denial of the norm of substantive equality. See e.g. Law, supra note 6
at para 84; Withler, supra note 1 at para 35; Quebec v A, supra note 7 at paras
192, 201; Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at
para 79, [2013] 1 SCR 467. I would not be the f irst to explain the purpose of
s 15(1) by appealing to recognition theory or to the goal of combatting the
legal transmission of social and cultural subordination. For authors that
appeal to subordination, oppression, and domination, see e.g. Baines, supra
note 29 at 79; Young, supra note 21 at 195-96; McIntyre, supra note 32 at 103.
See also Avigail Eisenberg, “Rights in the Age of Identity Politics” (2013)
50:3 Osgoode Hall LJ 609. For an author who appeals to recognition theory, see
Luc B Tremblay, “Promoting Equality and Combatting Discrimination Through
Affirmative Action: The Same Challenge? Questioning the Canadian Substantive
Equality Paradigm” (2012) 60:1 Am J Comp L 181. None of these authors, however,
inquire into the relation between s 15(1) and subordination using recognition
theory as comprehensively as I attempt to do. Tremblay is concerned not only
with the purpose of s 15(1), but also with the relationship between this
provision and s 15(2) of the Charter, which states: “Subsection (1) does not
preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.” Appeals to status harms have,
however, been comprehensively discussed in the American literature on the
Fourteenth Amendment of the US Constitution. See Owen M Fiss, “Groups and the
Equal Protection Clause” (1976) 5:2 Phil & Public Affairs 107; Jack M
Balkin & Reva B Siegel, “The American Civil Rights Tradition: Anticlassification
or Antisubordination?” (2003) 58:1 U Miami L Rev 9. My goal in this article can
be understood as an attempt to conceptualize status harms in the context of
Canadian constitutional law to the same degree of comprehensiveness as they
have been conceptualized in the American context. Will Kymlicka and Alan Patten
undertake deeper, philosophical explorations of the concept of recognition in
relation to the ideal of equality and multiculturalism. See Will Kymlicka,
Multicultural Citizenship: A Liberal T heory of Minority Rights (New York, NY:
Oxford University Press, 1995); Alan Patten, Equal Recognition: The Moral
Foundations of Minority Rights (Princeton, NJ: Princeton University Press,
2014).SANGIULIANO, SUBSTANTIVE EQUALITY 611 as “explanatorily basic.”45 In this
sense, it contrasts with pluralist theories of the wrong of discrimination,
which posit multiple factors that make discrimination wrong, none of which are
reducible to others.46 It also contrasts with unitary theories that posit
factors other than the negation of recognition as the sole explanation for the
wrong of discrimination, such as violations of human dignity or autonomy. To
support my thesis, I argue that other factors that pluralist theories might
posit to explain the wrong of discrimination are either reducible to the
negation of recognition or implausible as they stand. I also criticize unitary
theories based on human dignity and autonomy. In Part II, I develop with
greater precision the theory of Substantive Equality as Equal Recognition. In
Part III, I argue that the theory can be abstracted from the foundational legal
principles articulated in Andrews concerning the proper approach to analyzing
equality claims. I concentrate especially on Justice McIntyre’s rejection of
the formal equality paradigm in that case. The central line of thought in Part
III incorporates novel explanations of what formal equality amounts to, what
makes it unacceptable, and what it means to reject it, as these explanations
emerge from the Andrews decision. In Part IV, I support the unitary account of
the wrong of discrimination that Substantive Equality as Equal Recognition
generates by arguing against pluralist accounts and other unitary accounts. II.
SUBSTANTIVE EQUALITY AS EQUAL RECOGNITION Let us begin by exploring the theory
of Substantive Equality as Equal Recognition. I have mentioned that the theory
employs a distinction between the vertical application of the law by the state
and horizontal social relations among citizens. The rationale for drawing this
distinction is that it captures how we can think about the law’s application by
the state in isolation from the social context in which the law applies, about
social conditions in isolation from the law’s application, and, moreover, about
the interaction between these two variables. To think about this interaction is
to consider whether—and the degree to which—the law has the effect of mirroring
the patterns of social relations that form when citizens congregate in a
political community and shape their cultural identities through public life.
45. For use of this term see Moreau, “Wrongs of Unequal Treatment,” supra note
40 at 314, n 44. 46. For an example of a pluralist theory, see ibid.612 (2015)
52 OSGOODE HALL LAW JOURNAL Substantive Equality as Equal Recognition regards
horizontal social relations as unequal because they are characterized by status
hierarchies. Balkin argues that some social groups (groups organized around
common lifestyles and cultural values) have more “approval, respect, admiration,
or positive qualities” attached to them, while others are imputed with
“corresponding disapproval and negative qualities.”47 The dominant groups in
such relations oppress the subordinate groups in the sense that the “identity
of one is defined in part by its relationship to the identity of the other.”48
Such oppression consists in what Iris Marion Young refers to as “cultural
imperialism.”49 Dominant groups’ cultural values and life styles are privileged
over those of subordinate groups because dominant groups have primary access to
social patterns of representation, interpretation, and communication.50 Their
life experiences and values are expressed in the cultural conceptions of social
prestige, honour, and moral approval51 that are the most widely disseminated in
society and, as such, they are established as normal and unremarkable.52 Given
the normality of its own identity, Young writes, “the dominant group constructs
the differences which some groups exhibit as lack and negation. These groups become
marked as Other.”53 In being marked as deviant in relation to the life styles
of dominant groups, subordinate groups’ identities and cultural values are
conceived as lacking in social prestige, honour, and moral approval. In
contemporary society, a status hierarchy exists, for example, between
heterosexuals as the dominant group and homosexuals as the subordinate group.54
Homosexuals’ ways of being are conceived as deviant relative to heterosexuals’
ways of being. Oppression in this relation takes the form of the construction
of norms that privilege heterosexuality and devalue homosexuality.55 A status
hierarchy also exists between men and women. Oppression between these groups
involves the construction of norms that privilege masculinity and that promote
what Nancy Fraser refers to as “subjection to androcentric norms in 47. Balkin,
supra note 41 at 2321. 48. Ibid at 2323. 49. Iris Marion Young, Justice and the
Politics of Difference (Princeton, NJ: Princeton University Press, 1990) at 59
[Young, Politics of Difference]. 50. Fraser, supra note 42 at 71. 51. Balkin,
supra note 41 at 2331. 52. Young, Politics of Difference, supra note 49 at 59.
53. Ibid. 54. Sexual orientation has been named an analogous ground of
discrimination by the Court. See Egan, supra note 6. 55. Fraser, supra
note 42 at 77.SANGIULIANO, SUBSTANTIVE EQUALITY 613 relation to which women
appear lesser or deviant.”56 Finally, there is a racial status hierarchy
between white people as the dominant group and people of colour as subordinate
groups. Racism consists in the construction of norms that privilege traits
associated with whiteness and the subjection of non-whites to Eurocentric norms
relative to which other races appear deviant.57 T he wrong suffered by members
of subordinate social groups is a negation of recognition. The concept of
recognition, as articulated in the work of Charles Taylor,58 is rooted in the
ideal of authenticity. Authenticity means being true to oneself and living
one’s life in accordance with one’s own particular viewpoint on what it is like
to be-in-the-world: “Being true to myself means being true to my own
originality, which is something only I can articulate and discover. In
articulating it, I am also defining myself.”59 Taylor writes that we define
ourselves “dialogically,” meaning that we formulate our own authentic identity
through public intercourse with others.60 Our identity is our conception of
“‘where we’re coming from’ … the background against which our tastes and
desires and opinions and aspirations make sense.”61 Our authentic understanding
of our identity as a worthy starting point from which to pursue a conception of
the good depends on its recognition by others as similarly worthy simply due to
its particularity to ourselves. It is disrupted when it is defined in
juxtaposition to the identity and life style of others. T he life styles of
subordinate social groups in status hierarchies are denied recognition because
they are publicly conceived through precisely this sort of juxtaposition. The
dialogical construction of subordinate groups’ identities is disrupted, and
their members are unable to authentically conceptualize their way of
being-in-the-world in positive terms.62 Axel Honneth remarks: If [the]
hierarchy of societal values is structured so as to downgrade individual forms
of living and convictions for being inferior or deficient, then it robs the
subjects in 56. Ibid at 79. 57. Ibid at 81. 58. Taylor, supra note 43. 59. Ibid
at 31. 60. Ibid at 32-34. 61. Ibid at 33-34. 62. This “identity model” has been
the dominant way to understand the wrong of the negation of recognition in the
literature. Fraser, who held this view initially, has criticized and moved away
from it to develop a different view. See Nancy Fraser, “Rethinking Recognition”
(2000) 2:3 New Left Rev 107. An examination of the debate raised by Fraser’s
work is beyond the scope of this article. For a summary of both Fraser’s views
and arguments against her revisionist position, see Christopher F Zurn,
“Identity or Status? Struggles over ‘Recognition’ in Fraser, Honneth, and
Taylor” (2003) 10:4 Constellations 519.614 (2015) 52 OSGOODE HALL LAW JOURNAL
question of every opportunity to accord their abilities social value. Once
confronted with an evaluation that downgrades certain patterns of
self-realization, those who have opted for these patterns cannot relate to
their mode of fulfillment as something invested with positive significance
within their community. The individual who experiences this type of social
devaluation typically falls prey to a loss of selfesteem—that is, he is no
longer in a position to conceive himself as a being whose characteristic traits
and abilities are worthy of esteem.63 Since the negation of recognition
consists in a failure to recognize the particularity of a group’s life style,
instead defining the group as Other relative to established normalcy, remedying
it requires promoting the differentiation of that group. The remedy takes the
form of emphasizing the specificity of a social group and affirming the value of
that specificity.64 According to Substantive Equality as Equal Recognition,
substantive equality is a norm regulating the interaction between a law’s
vertical application and horizontal social inequalities. It is instantiated if
a law’s vertical effects do not transmit status hierarchies, that is, if the
oppression of subordinate social groups by negative characterizations of their
identity is not given the force of law.65 The state therefore uses a law to
discriminate if the law’s vertical effects reproduce horizontal status
hierarchies. Because the inequality constitutive of status hierarchies negates
the recognition of subordinate groups’ authentic identities, the wrong of
state-perpetrated discrimination can be described as the negation of the recognition
of the authentic identities of citizens belonging to those groups.66 63. Axel
Honneth, “Integrity and Disrespect: Principles of a Conception of Morality
Based on the Theory of Recognition” (1992) 20:2 Pol Theory 187 at 191-92. 64.
Fraser, supra note 42 at 74. 65. This is similar to how US anti-subordination
theorists contend that “guarantees of equal citizenship cannot be realized
under conditions of pervasive social stratification” and argue that “law should
reform institutions and practices that enforce the secondary social status of
historically oppressed groups.” See Balkin & Siegel, supra note 44 at 9.
Owen Fiss has also written that the constitutional protection of equality under
the US Constitution’s Fourteenth Amendment requires that laws do not “impair or
threaten or aggravate” the “subordinate position of a specially disadvantaged
group.” Fiss, supra note 44 at 157. 66. For authors who also apply recognition
theory to conceptualize the protection of equality under s 15(1) of the
Charter, see Tremblay, supra note 44 at 190-91; Judy Fudge, “The Canadian
Charter of Rights: Recognition, Redistribution, and the Imperialism of the
Courts” in Tom Campbell, Keith Ewing & Adam Tomkins, Sceptical Essays on
Human Rights (Oxford: Oxford University Press, 2001) 335 at 340-52. I have
described the wrong of state-perpetrated discrimination as a wrong against
individuals, but it is important to note that Substantive Equality as Equal
Recognition entails that discrimination is also wrongful in relation to the public
value of equality governing state-citizen interaction. According to one
conception of this public value that is receiving widespread acceptance, for a
state to be egalitarian is for it to oppose hierarchies of power, to abolish
oppression, to repudiate SANGIULIANO, SUBSTANTIVE EQUALITY 615 III. SUBSTANTIVE
EQUALITY AS EQUAL RECOGNITION IN ANDREWS Having articulated Substantive
Equality as Equal Recognition more carefully, I now turn to discussing Andrews.
In that case, the Court found that the Law Society of British Columbia’s
requirement that lawyers be Canadian citizens was discriminatory. Justice
McIntyre’s highly influential majority judgment on section 15(1) outlined four
principles concerning the provision’s purpose and the proper method for analyzing
equality claims. Before proceeding to the discussion of Andrews, I note a
caveat about my presentation of Justice McIntyre’s reasons in the case. Justice
McIntyre engaged extensively with pre-Charter jurisprudence on the concepts of
equality and discrimination. A conceptually rigorous understanding of what
Justice McIntyre accomplished in the case (when he broke from the pre-Charter
jurisprudence, and thereby set the stage for subsequent interpretations of
section 15(1) of the Charter that so frequently cite Andrews), requires an
appreciation of his reasons on their own terms. The ensuing discussion’s
construction of the pre-Charter jurisprudence, while perhaps not providing an
entirely accurate depiction outside of the context of Andrews, proceeds through
the lens of Justice McIntyre’s own construction of that jurisprudence. In my
view, it is necessary to treat the pre-Charter jurisprudence in such a manner
to properly attend to the heritage of the constitutional equality guarantee in
Canada and the principled foundations of the modern juridical conception of
substantive equality laid down in Andrews.67 distinctions of moral worth based
on social identity, and to create a social order in which citizens may live
together in a democratic community, rather than a hierarchical one. This
conception of equality has been called “democratic equality” by Elizabeth
Anderson and the “social and political ideal of equality” by Samuel Scheffler.
See Moreau, “Wrongs of Unequal Treatment,” supra note 40 at 292, n 4; Elizabeth
S Anderson, “What is the Point of Equality?” (1999) 109:2 Ethics 287 at 312-15;
Samuel Scheffler, “What is Egalitarianism?” (2003) 31:1 Phil & Public
Affairs 5 at 21-24. 67. Readers may also find it objectionable that I leave out
of my summation of the important principles articulated in Andrews the claim by
McIntyre J that the “promotion of equality entails the promotion of a society
in which all are secure in the knowledge that they are recognized at law as
human beings equally deserving of concern, respect and consideration.” Andrews,
supra note 2 at para 34. It is true that this has been an influential claim.
See especially Law, supra note 6 at para 51. I would construe it as a nascent
claim about the state of affairs of substantive equality under s 15(1) that has
not received concerted development (outside of the attempt by Iacobucci J in
Law to define substantive equality in terms of human dignity, an attempt
repudiated in Kapp). On my Substantive Equality as Equal Recognition view, I
would explain the claim as reaching towards the account of substantive equality
developed in this article wherein the law does not reflect through its vertical
impact 616 (2015) 52 OSGOODE HALL LAW JOURNAL A. FOUR PRINCIPLES FROM ANDREWS T
he most important principle emerging from Andrews for the purposes of this
argument is Justice McIntyre’s rejection of a formal equality approach to
analyzing section 15(1) claims. Justice McLachlin of the British Columbia Court
of Appeal (as she then was) recommended this approach at the time Andrews was
litigated.68 According to Justice McIntyre, the approach holds that “things
that are alike should be treated alike, while things that are unalike should be
treated unalike in proportion to their unalikeness.”69 Thus, those who are similarly
situated should be treated similarly.70 Justice McIntyre held that “mere
equality of application to similarly situated groups or individuals does not
afford a realistic test for a violation of equality rights.”71 Two reasons he
gave for this holding were that a “similarly situated test” would justify the
odious Nuremberg laws of Nazi Germany, which contemplated similar treatment for
all Jews,72 and the notorious separate but equal treatment doctrine applied by
the US Supreme Court in the Plessy v Ferguson.73 Additionally, prior the
Charter’s introduction, formal equality and the similarly situated test
informed Canadian courts’ interpretations of section 1(a) of the Canadian Bill
of Rights.74 These concepts were relied on by the British horizontal social
inequalities. Indeed, it could be explained as an account of the wrong of
discrimination in terms of the public value of equality with which Substantive
Equality as Equal Recognition accords. See supra note 66 and accompanying text.
68. See Andrews v Law Society of British Columbia (1986), 27 DLR (4th) 600 at
para 16, 2 BCLR (2d) 305 (CA). 69. Andrews, supra note 2 at para 27. McIntyre J
notes that the McLachlin J, writing in the British Columbia Court of Appeal,
derived the formal equality principle from an influential article written by
the American scholars Joseph Tussman and Jacobus tenBroek. See “The Equal
Protection of the Laws” (1979) 37:3 Cal L Rev 341. It is interesting to note
that Tussman and tenBroek referred to the substantive equal protection
principle in their article, but concluded that the US Supreme Court had never
adopted it (ibid at 346). See also Baines, supra note 29 at 79. 70. Young,
supra note 21 at 191; Sheppard, supra note 20 at 40. 71. Andrews, supra note 2
at para 28. 72. Ibid at para 28. 73. Plessy v Ferguson, 163 US 537, 16 S Ct
1138 (1896) [Plessy]. 74. RSC 1970, c 44 [Bill of Rights]. Section 1(a) of the
Canadian Bill of Rights provides: It is hereby recognized and declared that in
Canada there have existed and shall continue to exist without discrimination by
reason of race, national origin, colour, religion or sex, the following human
rights and fundamental freedoms, namely … the right of the individual to
equality before the law and the protection of the law.SANGIULIANO, SUBSTANTIVE
EQUALITY 617 Columbia Court of Appeal in R v Gonzales,75 which decided that the
provision of the Indian Act making it a criminal offence for Aboriginals to
possess intoxicants off reserve was not discriminatory. In The Queen v
Drybones, which involved a similar Indian Act prohibition making it an offence
for an Aboriginal to be intoxicated off reserve, the Supreme Court of Canada
criticized the approach in Gonzales. Justice Ritchie, in a dictum endorsed by
Justice McIntyre in Andrews, stated that formal equality is iniquitous because
it would permit discriminatory legislation as long as all those to whom the
legislation applies are discriminated against in the same way.76 Justice
McIntyre also stated that the Court applied a similarly situated test in the
pre-Charter cases of Bliss v Canada (Attorney General)77 and Attorney General
of Canada v Lavell.78 The claimant in Bliss, a pregnant woman, argued that
unemployment insurance legislation discriminated against her on the basis of
sex by denying her benefits to which she would have been entitled had she not
been pregnant. The Court rejected her claim because the class into which she
fell under the legislation was that of pregnant persons, and, within that
class, all persons were treated equally.79 Formal equality also justified the
Lavell decision, wherein the Court held that a statute depriving women, but not
men, of membership in Aboriginal groups if they married non-Aboriginals was not
discriminatory. Justice McIntyre held that these adherences to formal equality
produced unacceptable outcomes for equality claimants. He maintained that while
section 15(1) of the Charter is concerned with a law’s application, “a bad law
will not be saved merely because it operates equally upon those to whom it has
application.”80 Rather, consideration must be given to a law’s impact upon
those to whom it applies and those it excludes from its application. In
contrast with the formalistic similarly situated test, the proper approach to
determining whether a law is discriminatory under section 15(1) must be
contextual and consider a law’s effects.81 The paradigm of substantive equality
thus grew out of this rejection of formal equality in Andrews. T he second
legal principle articulated in Andrews is that section 15(1) prevents adverse
effects discrimination, which occurs where a law that does not 75. (1962), 32
DLR (2d) 290, 37 CR 56 (BC CA) [Gonzales cited to DLR]. 76. The Queen v
Drybones, [1970] SCR 282 at para 40, 9 DLR (3d) 473 [Drybones]. 77. [1979] 1
SCR 183, 92 DLR (3d) 417 [Bliss cited to SCR]. 78. [1974] SCR 1349, 38 DLR (3d)
481 [Lavell cited to SCR]. 79. Andrews, supra note 2 at para 29. 80. Ibid at
para 28. 81. Ibid at para 30.618 (2015) 52 OSGOODE HALL LAW JOURNAL create a
distinction on its face (i.e., is facially neutral) discriminates in its
effects.82 Justice McIntyre acknowledged that discrimination under the Charter
need not be intentional but could be the unintentional by-product of innocently
motivated rules or standards.83 The third principle is that equality under the
Charter is a comparative concept. Equality requires courts to compare the
conditions of various groups in the social context in which an equality claim
arises.84 T he final principle is that not every legislative distinction
infringes section 15(1). The state must be allowed to treat different groups of
citizens in different ways in order to govern effectively: “The classifying of
individuals and groups, the making of different provisions respecting such
groups, and the application of different rules, regulations and qualifications
to different persons is necessary for the governance of modern society.”85
Indeed, laws will often have to make distinctions for the state to accommodate
differences among citizens and to ameliorate the positions of disadvantaged
groups through affirmative action.86 Hence, Justice McIntyre rejected the
suggestion offered by Professor Peter Hogg that every distinction made by a law
constitutes discrimination.87 He instead held that a distinction infringes section
15(1) only if it is based on enumerated or analogous grounds88 and has a
discriminatory impact.89 I argue that Substantive Equality as Equal Recognition
is latent in these four legal principles articulated in Andrews. My focus is
predominantly on Justice McIntyre’s rejection of formal equality. I contend
that once we understand precisely what formal equality amounts to and what
makes it unacceptable, we are 82. See Eldridge, supra note 22 at paras 60-61.
83. Andrews, supra note 2 at para 37, citing Canadian National Railway Co v
Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114 at 1139, 40 DLR
(4th) 193. See also O’Malley v Simpsons-Sears Ltd, [1985] 2 SCR 536 at 551, 23
DLR (4th) 321. In an oft-quoted passage, Justice McIntyre wrote: [D]iscrimination
may be described as a distinction, whether intentional or not but based on
grounds relating to personal characteristics of the individual or group, which
has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members of
society. Andrews, supra note 2 at para 37. 84. Ibid at para 26. 85. Ibid. 86.
Ibid. See also McIntyre, supra note 32 at 100. 87. Andrews, supra note 2 at
para 44. 88. Ibid at para 43. 89. Ibid at para 46.SANGIULIANO, SUBSTANTIVE
EQUALITY 619 compelled to embrace Substantive Equality as Equal Recognition as
an attractive juridical conception of substantive equality under section 15(1)
of the Charter. B. SUBSTANTIVE EQUALITY AS EQUAL RECOGNITION IS DISCLOSED BY
THE FOUR ANDREWS PRINCIPLES 1. THE IDEA OF FORMAL EQUALITY What does formal
equality amount to? I claim that it attends only to equality in the law’s
vertical application by the state to citizens independently of the law’s
effects. As Justice McIntyre noted in Andrews, state governance consists in
using laws to classify general categories of citizens in society and to carve
them out for certain kinds of treatment different from the treatment given to
those excluded from the categorization.90 Citizens caught within these
categories are deemed to be similarly situated. Formal equality requires only
that the vertical application of a law must affect equally each member of a group
carved out by a legislative classification. Thus, those similarly situated must
be treated similarly. Formal equality in pre-Charter interpretation of the Bill
of Rights grew out of a Diceyan view of the rule of law, which requires “the
equal subjection of all classes to the ordinary law of the land.”91 Justice
Rand famously expressed this view in Roncarelli v Duplessis.92 In that case,
Quebec Premier Maurice Duplessis had revoked Frank Roncarelli’s liquor licence
for posting bail for a group of Jehovah’s Witnesses. The statute pursuant to
which he acted allowed him to revoke licences at his discretion. Justice Rand
wrote that, as regards public officials, “there is no such thing as absolute
and untrammelled ‘discretion,’ that is that action can be taken on any ground
or for any reason that can be suggested to the mind of the administrator.”93
For Justice Rand, the law as a totality must apply equally to all members of
society, regardless of whether they hold public office.94 Premier Duplessis’s
conduct offended the rule of law because he exempted himself as a public
official from the law’s application through an exercise of discretion 90. For a
philosophical discussion of this matter, see WJ Waluchow, A Common Law Theory
of Judicial Review: The Living Tree (Cambridge: Cambridge University Press,
2007) at 194-97. 91. Walter S Tarnopolsky, “The Equality Rights (Ss. 15, 27 and
28)” in Walter S Tarnopolsky & Gérald A Beaudoin, The Canadian Charter of
Rights and Freedoms: Commentary (Toronto: Carswell, 1982) 395 at 399, citing AV
Dicey, Introduction to the Law of the Constitution, 10th ed, ed by ECS Wade
(London, UK: Macmillan, 1961) at 202-203. 92. [1959] SCR 121, 16 DLR (2d) 689.
93. Ibid at para 41. 94. Tarnopolsky, supra note 91 at 400.620 (2015) 52 OSGOODE
HALL LAW JOURNAL unrestrained by law.95 Dicey’s view of the rule of law was
also adopted in Lavell by Justice Ritchie, who wrote that “‘equality before the
law’ as recognized by Dicey as a segment of the rule of law, carries the
meaning of equal subjection of all classes to the ordinary law of the land.”96
Formal equality, or the similarly situated test, amounts to a microcosmic
version of Dicey’s view of the rule of law. Dicey’s view is that the law in
toto must apply equally to all citizens in society, regardless of whether they
wield public power. Formal equality holds that a particular law must apply
equally to all citizens carved out and classified into a particular category by
the law. We can find this understanding of formal equality in Gonzales. Justice
Tysoe wrote that there exists in Canada “a right in every person to whom a
particular law relates or extends … to stand on an equal footing with every
other person to whom that particular law relates or extends.”97 He reasoned
that the prohibition against Aboriginals possessing intoxicants off reserve was
not racially discriminatory because every Aboriginal person to whom the law
creating the offence extended was equally subject to the offence. Although
Justice Ritchie putatively rejected this reasoning in Drybones, his decision in
Drybones was still influenced by the similarly situated test. He held that the
Bill of Rights required that all laws enacted by the federal government be
applied equally to all those to whom they extend.98 The combination of the
federally-enacted Indian Act, which prohibited Aboriginals from being
intoxicated off reserve, and the federally-enacted Criminal Code, which
contained no similar prohibition for non-Aboriginals, entailed that federal
laws in toto did not apply equally to all those to whom they extend. In other
words, an expansive construction of the category of citizens demarcated by
federal law, which contemplated all Canadian citizens subject to the Criminal
Code and, within that category, Aboriginals subject to the Indian Act, meant
that those who were similarly situated under federal law as a totality were not
treated similarly.99 Justice Ritchie therefore held that the prohibition in
Drybones was discriminatory.100 95. This view of the rule of law was affirmed
more recently in the Secession Reference, where the Court claimed that “the law
is supreme over the acts of both government and private persons.” See Re
Secession of Quebec, [1998] 2 SCR 217 at para 71, 161 DLR (4th) 385. 96.
Lavell, supra note 78 at 1366. 97. Gonzales, supra note 75 at para 23 [emphasis
in original]. 98. Drybones, supra note 76 at 297. 99. This was essentially how
Ritchie J understood Drybones when referring to it in Lavell. Lavell, supra
note 78 at 1372. 100. Ritchie J stated that a person is denied equality “if it
is made an offence punishable at law, on account of his race, for him to do
something which his fellow Canadians are free to do without having committed
any offence.” Drybones, supra note 76 at 297.SANGIULIANO, SUBSTANTIVE EQUALITY
621 T his covert acceptance of formal equality in Drybones might explain why
its connection with the rule of law was implicitly reinforced in Bliss and
Lavell. In Bliss, Justice Ritchie defined equality as the equal administration
and enforcement of the law.101 He also accepted the Federal Court of Appeal’s
definition of the right to equality as “the right of an individual to be
treated as well by the legislation as others who … would be judged to be in the
same situation.”102 In finding that the law in the instant case, which denied
unemployment insurance to pregnant women, did not discriminate against women,
he agreed with the Court of Appeal that the law did not treat unequally those
to whom it applied. Those similarly situated under the law (both men and women)
were treated similarly; those excluded from the law’s classification (all
pregnant persons) were equally denied insurance benefits.103 In Lavell, Justice
Ritchie explicitly connected equality under the Bill of Rights to the rule of
law, stating that equality is “frequently invoked to demonstrate that the same
law applies to the highest official of government as to any other ordinary
citizen.”104 He found that the law requiring Aboriginal women to forfeit their
Aboriginal status if they married a non-Aboriginal was not racially
discriminatory. When combined with other federal laws, it did not treat
Aboriginals differently from those situated similarly to them. It concerned
“the internal regulation of the lives of Indians on Reserves,”105 while other
federal laws governed the Canadian citizenry generally. The claimant, who was
subject to the impugned law when she was on reserve, was situated differently
from non-Aboriginal Canadians, who were not subject to the law. Thus, she did
not fall into the same legal category as non-Aboriginals, and it was not
necessary that she be treated similarly to them under the federal laws
applicable within that category. The claimant in Lavell was therefore
distinguishable from the claimant in Drybones. Recall that in Drybones the
claimant, when off reserve, was subject to the same federal laws governing the
Canadian citizenry generally, including the Criminal Code, and fell into the
same legal category as non-Aboriginals. Once he became similarly situated with
non-Aboriginals in this way, it became necessary that he be treated similarly
to them by the criminal prohibitions contained in the Indian Act.106 101.
Bliss, supra note 77 at 192. 102. Ibid. 103. Ibid at 190-91. This is also
McIntyre J’s interpretation of Bliss in Andrews. Andrews, supra note 2 at para
29. 104. Lavell, supra note 78 at 1366. 105. Ibid at 1367. 106. See ibid at
1372.622 (2015) 52 OSGOODE HALL LAW JOURNAL Lastly, the US Supreme Court in the
objectionable Plessy case also drew upon a construction of formal equality in
terms of a Diceyean view of the rule of law. Plessy upheld a law requiring
railway companies to provide separate but equal accommodations for white and
black persons. Justice Brown stated that a law does not violate the
constitutional guarantee of equality unless it confers on public authorities
“arbitrary power,” such as the power to give or withhold licences “at their own
will, and without regard to discretion, in the legal sense, of the term.”107 He
held that the impugned statute was not unreasonable on this standard.108 This
line of thought parallels that of Justice Rand in Roncarelli in that it
contains vestiges of the account of the rule of law developed in that case. 2.
WHAT MAKES FORMAL EQUALITY UNACCEPTABLE? What is it then that makes formal
equality unacceptable? To be sure, a construction of formal equality in terms
of a Diceyean view of the rule of law may be essential to promoting the ideal
of equality, as it appeared to be in Roncarelli.109 However, borrowing from the
writing of Sheila McIntyre, I claim that the formal equality paradigm
frequently involves the “application of the law with one’s eyes shut.”110 In
attending only to equality in the law’s application by the state, rather than
the social context in which the law’s application takes place, the paradigm
ignores how similar treatment of those similarly situated under a law can
reflect, through the law’s vertical effects, horizontal inequalities among
citizens in society. For example, the equal vertical application of the Nuremberg
laws to all those they carved out for similar abhorrent treatment transmitted
the subordinate status of Jewish identity and culture that existed horizontally
within Nazi Germany society. In Gonzales and Lavell, the law’s vertical
application transmitted the horizontal status hierarchy existing between
subordinate Aboriginals and dominant non-Aboriginals. In denying Aboriginals
the ability to possess intoxicants off reserve, the law in Gonzales in effect
treated Aboriginals as unworthy of doing what non-Aboriginals were able to do
with widespread public social approval, implying that the Aboriginal life style
was deficient relative to that of non-Aboriginals. The law in Lavell produced
an outcome that deprived Aboriginal women of their cultural identification. In
requiring Aboriginal women to forfeit their 107. Plessy, supra note 73 at 550.
108. Ibid. 109. I am indebted to an anonymous reviewer for prompting me to
acknowledge this point. For further discussion, see Moreau, “Wrongs of Unequal
Treatment,” supra note 40 at 302, n 26. 110. McIntyre, supra note 32 at
103.SANGIULIANO, SUBSTANTIVE EQUALITY 623 Aboriginal status if they married
non-Aboriginals, it gave the force of law to the subordination of both
Aboriginal identity to non-Aboriginal identity and female identity to male
identity.111 It therefore reflected the oppression that characterizes the
horizontal status hierarchies between these groups by transmitting an image of
Aboriginal culture and femininity as Other relative to non-Aboriginal culture
and masculinity, respectively. Finally, in denying insurance benefits to
pregnant women, the law in Bliss failed to respect women’s particular way of
being-in-theworld, mirroring how women’s values and ways of being are
subordinated by being defined as deviant relative to the values and ways of
being of men. This is all true despite how the law in these cases applied
equally to subordinated social groups by treating similarly all those it
classified for similar treatment. It is also instructive to observe that in
Plessy, unlike in the pre-Charter equality cases, Justice Brown examined the
interaction between the law’s vertical application and the horizontal status
hierarchy in American society whereby blacks are subordinated by whites.
However, he found that the former did not transmit the latter. He rejected the
argument that “the enforced separation of the two races stamps the colored race
with a badge of inferiority” even though he implicitly recognized that blacks
are in an “inferior position” while whites hold a position of “dominant
power.”112 Justice Harlan, who dissented, argued that the statute was
discriminatory because its vertical impact reflected the American black-white
status hierarchy. He wrote: T he white race deems itself to be the dominant
race in this country. And so it is, in prestige, in achievements, in education,
in wealth and in power … But in view of the Constitution, in the eye of the
law, there is in this country no superior, dominant, ruling class of citizens.
There is no caste here. Our Constitution is color-blind, and neither knows nor
tolerates classes among citizens.113 T hus, Justice Harlan denounced the
separate but equal doctrine associated with formal equality for failing to
attend to the social context in which a law applies. 111. This statement draws
upon the idea that discrimination can occur on the basis of the multiple,
intersecting grounds of race and sex. For further discussion of this concept of
intersectionality, see Dianne Pothier, “Connecting Grounds of Discrimination to
Real People’s Real Experiences” (2001) 13:1 CJWL 37; Denise G Réaume, “Of
Pidgeonholes and Principles: A Reconsideration of Discrimination Law” (2002)
40:2 Osgoode Hall LJ 113; Nita Iyer, “Categorical Denials: Equality Rights and
the Shaping of Social Identity” in David Dyzenhaus, Sophia Reibetanz Moreau
& Arthur Ripstein, eds, Law and Morality: Readings in Legal Philosophy, 3d
ed (Toronto: University of Toronto Press, 2007) 480. 112. Plessy, supra note 73
at 551. 113. Ibid at 559.624 (2015) 52 OSGOODE HALL LAW JOURNAL Putting all
this together, a conception of formal equality rooted in Dicey’s view of the
rule of law unacceptably ignores the transmission of horizontal status
hierarchies through a law’s equal vertical application to all those it classifies
for similar treatment. Hence, Justice McIntyre’s rejection of formal equality
in Andrews in favour of a substantive equality approach to section 15(1) of the
Charter laid down the principle that a law is discriminatory when it reflects,
through its vertical impact, horizontal status hierarchies in society. This is,
I submit, the exact claim made by Substantive Equality as Equal Recognition. T
his submission is capable of further support. Consider that a common admonition
of the formal equality paradigm is that its recommendation of rigid
proceduralism when analyzing equality claims fails to consider the substantive
social outcomes of a law’s formal application.114 The state of affairs of
formal equality (wherein those similarly situated are treated similarly) tends
to be realized by a methodology that privileges the decontexualized application
of rules to facts. I have claimed that formal equality rests on a Diceyan view
of the rule of law. Notice that the Supreme Court of Canada has invoked such a
view when developing the rules of procedural fairness in constitutional and
administrative law.115 This affinity between the doctrine of procedural
fairness in public law and the Diceyan view of the rule of law explains why
formal equality has a distinctive yet unacceptable procedural nature.
Additionally, some Supreme Court of Canada decisions since Andrews have closely
approximated Substantive Equality as Equal Recognition. In Vriend v Alberta,
the Court held that Alberta’s human rights legislation infringed section 15(1)
by not including sexual orientation as a prohibited ground of
discrimination.116 Justice Cory indicated how the effects of the legislative
omission reflected the subordinate status of homosexuals and depicted their
identity as less worthy of approval relative to that of heterosexuals: “Fear of
discrimination will logically lead to concealment of true identity and this
must be harmful to personal confidence and self-esteem. Compounding that effect
is the implicit message conveyed by the exclusion, that gays and lesbians,
unlike other individuals, are not worthy of protection.”117 In M v H, the Court
held that Ontario’s Family Law Act was discriminatory because it excluded
same-sex couples from its spousal 114. See e.g. Sheppard, supra note 20 at 39;
McIntyre, supra note 32 at 105. 115. See e.g. Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 SCR 817 at para 53, 174 DLR (4th) 193.
See also David Dyzenhaus, “Constituting the Rule of Law: Fundamental Values in
Administrative Law” (2002) 27:2 Queen’s LJ 445 at 447-48. 116. Judy Fudge also
explains the Vriend decision in terms of recognition theory. See Fudge, supra
note 66 at 341. 117. Vriend, supra note 22 at para 102.SANGIULIANO, SUBSTANTIVE
EQUALITY 625 support provisions. The exclusion promoted the view that
individuals in same-sex relationships are “less worthy of recognition and
protection” and “incapable of forming intimate relationships of economic
interdependence as compared to opposite-sex couples.”118 The congruency of these
dicta with Substantive Equality as Equal Recognition supports the theory’s
viability as a juridical conception of substantive equality under the Charter.
Finally, one clear ambition of Canadian constitutional equality jurisprudence
since Andrews has been to repudiate the separate but equal treatment doctrine
of Plessy. It is therefore important to appreciate how the US Supreme Court
itself repudiated that doctrine in Brown v Board of Education of Topeka.119
Chief Justice Warren’s judgment in that case closely approximated Substantive
Equality as Equal Recognition by holding that “it is wrong for the state to
engage in practices that enforce the inferior social status of historically
oppressed groups.”120 Brown struck down laws in four US states that required
segregation of black and white children in public schools because the laws were
racially discriminatory contrary to the US Constitution’s equality guarantee.
Chief Justice Warren stated that separating black children from others of
similar age and qualifications solely because of their race “generates a
feeling of inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone.”121 Echoing the
judgement of Justice Harlan in Plessy, this statement expresses the view that
the impugned laws were discriminatory because their vertical application
reflected the black-white status hierarchy in American society. They did this
by giving the force of law to the subordinate status of black persons and to the
oppressive characterization of their identity and worth as inferior relative to
white persons’ identity and worth. T he rationale animating Brown’s rejection
of the separate but equal treatment doctrine was carried forward in the 1967
case of Loving v Virginia,122 in which the US Supreme Court invalidated a law
prohibiting interracial marriage because it enforced a racial status
hierarchy.123 Chief Justice Warren wrote that there was no purpose other than
“invidious racial discrimination” which justified the impugned law: “The fact
that Virginia prohibits only interracial marriages involving white persons
demonstrates that the racial classifications must stand on 118. M v H, [1999] 2
SCR 3 at para 73, 171 DLR (4th) 577. 119. 347 US 483, 74 S Ct 686 (1954) [Brown
cited to US]. 120. Reva B Siegel, “Equality Talk: Antisubordination and
Anticlassification Values in Constitutional Struggles over Brown” (2004) 117:5
Harv L Rev 1470 at 1472-73, 1484-89. 121. Brown, supra note 119 at 494. 122.
388 US 1, 87 S Ct 1817 (1967) [Loving cited to US]. 123. Siegel, supra note 120
at 1503.626 (2015) 52 OSGOODE HALL LAW JOURNAL their own justification, as
measures designed to maintain White Supremacy.”124 In carrying Brown’s
reasoning forward in this way, the US Supreme Court again closely approximated
Substantive Equality as Equal Recognition. 3. OTHER PRINCIPLES FROM ANDREWS
Before concluding Part III, and for the sake of completeness, I will briefly
show how Substantive Equality as Equal Recognition is also disclosed by the
other three legal principles articulated in Andrews. Doing so is necessary to
fully demonstrate the credentials of the theory as a juridical conception of
substantive equality. First, Justice McIntyre’s acknowledgment of adverse
effects discrimination in Andrews supports the theory by demonstrating that a
statute could reflect horizontal status hierarchies through its vertical
outcomes even if the legislature does not intend to do so or if the law is
facially neutral. In fact, this was precisely the situation in Vriend v
Alberta, where a legislative omission in Alberta’s human rights legislation
reflected the subordinate status of homosexual persons. Second, Substantive
Equality as Equal Recognition mandates a comparative approach to analyzing
equality claims under section 15(1). That is, determining whether a law
transmits status hierarchies requires examining the relations of oppression and
subordination that constitute such hierarchies. The theory is thus consistent
with academic endorsement of the comparative nature of substantive equality.
Beverley Baines’s remarks provide a fine example of this endorsement. She
writes: the main task of this principle is not classification of harms, but
comparison of those who are harmed with those who harm. In effect, the
substantive equality principle exposes the relations of power between those who
are privileged and those who are not, between oppressors and the oppressed, and
between dominance and subordination.125 In mandating a comparative approach to
equality claims in this fashion, Substantive Equality as Equal Recognition
presupposes a relational conception of 124. Loving, supra note 122 at 11. 125.
Baines, supra note 29 at 81. See also McIntyre, supra note 32 at 103; Young,
supra note 21 at 197-98.SANGIULIANO, SUBSTANTIVE EQUALITY 627 the self.126 This
is because, given its incorporation of the concept of recognition, it holds
that a person’s authentic identity is constructed in comparison with social
groups other than her own. It is worth noting that this presupposition gives
the theory added ammunition against the formal equality paradigm, as the
Diceyan view of the rule of law on which formal equality rests presupposes an
individualistic conception of the self. An individualistic conception of the
self sees personal identity as a product of rational free choice unencumbered
by relations with others and political liberty as organized around the need to
preserve individual autonomy.127 By insisting on the equal formal application
of the law to those similarly situated, the Diceyan view of the rule of law
regards the conferral of untrammelled discretion on public officials as
unjustifiably subjecting citizens to arbitrary coercion by the state. That is,
official discretion undermines citizens’ expectations about the limits of the
state’s ability to interfere with their liberty and about the parameters within
which they may make choices and pursue their life plans free from such
interference.128 According to D.J. Galligan’s description: Coercion of this
kind is a deprivation of liberty in a special and negative sense; that is, the
liberty that results from having a sphere of activity protected by rules, and
within which officials may not interfere except in accordance with the rules.
... Where power is exercised according to known and general rules, the
individual is able to live within those roles, and will be coerced only if by
his own choice he puts himself in violation. In such a situation he is free in
so far as there are parameters within which he must live, and within those
parameters he may make choices, and he is free from official interference in
doing so. Conversely, where officials are given powers which may be exercised
in ways which interfere with the individual and his private interests, and
where it is left to officials to decide in their discretion under 126. For
discussion of the relational conception of the self, see Jennifer Nedelsky,
Law’s Relations: A Relational Theory of Self, Autonomy, and Law (Oxford: Oxford
University Press, 2012) ch 1; John Christman, “Relational Autonomy, Liberal
Individualism, and the Social Constitution of Selves” (2004) 117:1-2 Phil Stud
143 at 144-56. Richard Moon explicitly ties a relational theory of the self
into the protection of equality under s 15(1) of the Charter in the context of
discussing the constitutional protection of freedom of expression in Canada.
See Richard Moon, “Accommodation without Compromise: Comment on Alberta v
Hutterian Brethren of Wilson Colony” (2010) 51 Sup Ct L Rev (2d) 96 at 113.
127. See Catriona Mackenzie & Natalie Stoljar, “Introduction: Autonomy
Refigured” in Catriona Mackenzie & Natalie Stoljar, eds, Relational
Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (New
York: Oxford University Press, 2000) 3 at 4-5. 128. See the discussion in Gus
Van Harten, Gerald Heckman & David J Mullan, Administrative Law: Cases,
Text, and Materials, 6th ed (Toronto: Emond Montgomery, 2010) at 951-57.628
(2015) 52 OSGOODE HALL LAW JOURNAL what circumstances and in what ways
interference may occur, then the individual is threatened with a form of
coercion that infringes his liberty.129 T he problem for formal equality is
that the Supreme Court of Canada has eschewed reliance on an individualistic
conception of the self to resolve constitutional challenges.130 Most
importantly, it did so in Quebec v A.131 In that case, Justice Abella
explicitly adopted the relational conception of the self, individual choice,
and autonomy defended by such theorists as Margot Young.132 I shall return to the
notions of choice and autonomy below. T hird, Substantive Equality as Equal
Recognition allows that not every legislative distinction is discriminatory
under the Charter.
According to
the theory, subordinate groups are disadvantaged in that the particularity of
their identity is obscured by being defined as deviant relative to the
identities of dominant groups. The remedy for this disadvantage is a measure
that emphasizes the group’s differentiation and specificity rather than its
juxtaposition with other groups. In this sense, the remedial measure is
ameliorative.
It is
therefore consistent with the assertion that it is permissible for the state to
create some non-discriminatory distinctions among citizens.133 129. DJ
Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford,
UK: Clarendon Press, 1990) at 202-203. 130. Canada (Attorney General) v
Bedford, 2013 SCC 72 at paras 85-92, [2013] 3 SCR 1101 [Bedford]. 131. Quebec v
A, supra note 7 at paras 336, 338-347, Abella J. 132. Ibid at para 342; Young,
supra note 21 at 193-94. 133.
For these
reasons, Substantive Equality as Equal Recognition could potentially ground a
theory of ameliorative programs under s 15(2) of the Charter. The Court has
stated that s 15(2) is aimed at permitting governments to improve the situation
of members of disadvantaged groups that have suffered discrimination in the
past, in order to enhance substantive equality.
It does this
by affirming the validity of ameliorative programs that target particular
disadvantaged groups, which might otherwise run afoul of s. 15(1) by excluding
other groups. It is unavoidable that ameliorative programs, in seeking to help
one group, necessarily exclude others. Alberta (Aboriginal Affairs and Northern
Development) v Cunningham, 2011 SCC 37 at para 40, 2 SCR 670 [emphasis in
original]. For recent insightful academic discussion of s 15(2), see Tremblay,
supra note 44; Jonnette Watson Hamilton & Jennifer Koshan, “Courting
Confusion?
Three Recent
Alberta Cases on Equality Rights Post-Kapp” (2010) 47:4 Alta L Rev 927; Jena
McGill, “Section 15(2), Ameliorative Programs and Proportionality Review”
(2013) 63 Sup Ct L Rev (2d) 521.SANGIULIANO, SUBSTANTIVE EQUALITY 629 IV.
DISCRIMINATION AS THE NEGATION OF RECOGNITION: RESPONSES TO OBJECTIONS I now
respond to objections to Substantive Equality as Equal Recognition’s account of
the wrong of discrimination, i.e., discrimination as the negation of
recognition. As explained above, on this account the wrong of discrimination
consists in the disruption of individuals’ dialogical construction of their
identity, a disruption that is brought about by their identities’ negative
juxtaposition as Other relative to those of dominant social groups.
This
juxtaposition obscures oppressed groups’ authentic self-conceptualization of
their own particular life styles. T he two kinds of objections that this
account must confront are posed by pluralist theories and competing unitary
theories of the wrong of discrimination. I will first discuss pluralist
theories.
A. RESPONSES
TO PLURALISM T he account of discrimination that appeals to the negation of
recognition posits exactly one factor that makes discrimination wrong. It thus
invites the objection that many factors make discrimination wrong, with no one
factor being reducible to another. Sophia Moreau argues in favour of such a
pluralist view of discrimination.134 On her argument, stereotyping, prejudice,
the denial of access to basic goods, and the perpetuation of oppressive power
relations are all explanations of the wrong of discrimination that “are not
reducible to a single, unifying explanation.
”135 T he
factor of the perpetuation of oppressive power relations is similar to the
account of the wrong of discrimination as the negation of recognition produced
by status hierarchies. Therefore, to defend the account from pluralist
objections, I will focus on the other three factors articulated by
Moreau—stereotyping, prejudice, and the denial of access to basic goods. 1.
STEREOTYPING IS REDUCIBLE TO THE NEGATION OF RECOGNITION Moreau describes
stereotyping as a generalized depiction of a social group that is treated by
another group as capturing an essential feature of individuals 134.
Moreau,
“Wrongs of Unequal Treatment,” supra note 40 at 294. 135. Ibid. Moreau also
seems to suggest that the diminishment of individuals’ feelings of self-worth
is also a sui generis wrong of discrimination. However, she states that “this
way of understanding the wrong of unequal treatment cannot stand on its own as
a complete explanation of why certain forms of differential treatment are
unacceptable” (ibid at 313).
For this
reason, I do not include it in my discussion of pluralism in this article.630
(2015) 52 OSGOODE HALL LAW JOURNAL belonging to the first group. Stereotypes
are wrong because they “have been adopted by one group as a description of
other individuals, rather than derived from these individuals’ own attempts at
self-definition.”136 Rather than being allowed to present her identity as she
conceptualizes it, the stereotyped individual is presented in a manner of
another’s choosing.
137 I contend
that the plight of the stereotyped individual on Moreau’s description is
identical to that of members of subordinate groups in status hierarchies
posited by Substantive Equality as Equal Recognition. The cultural values and
life styles of subordinate groups in status hierarchies are characterized in a
manner of another’s choosing; they are defined as deviant relative to the
cultural values and life styles of dominant groups. In this sense, the
identities of subordinate groups’ members are conceived of as juxtaposed to the
identities of dominant groups, rather than as authentically self-defined
through their dialogical recognition by others living in their social
community.
Indeed, Iris
Marion Young explicitly appeals to stereotyping to articulate the phenomenon of
cultural imperialism that Substantive Equality as Equal Recognition draws upon:
“As remarkable, deviant beings, the culturally imperialized as stamped with an
essence ... These stereotypes so permeate the society that they are not noticed
as contestable.”138 Hence, stereotypes permeate the structures of oppression
found within status hierarchies. Because discrimination produced by a law that
reflects status hierarchies is wrongful because it negates individuals’
recognition, the wrong of stereotyping is reducible to the wrong of the
negation of recognition.
2. PREJUDICE
IS REDUCIBLE TO THE NEGATION OF RECOGNITION For Moreau, prejudice is a belief
in the inferiority of another that “involves a malicious desire to ... cause
harm to him.”139 When perpetrated by the state, it involves the active setting
out by the government to harm citizens. The wrong of prejudice thus amounts to
an abuse of government power.140 An intuitively plausible story can be told
about how prejudice, understood in terms of attitudes of animus or contempt
towards an individual, is an outgrowth 136. Ibid at 298. 137. Ibid at 299. 138.
Young, Politics of Difference, supra note 49 at 59. 139. Moreau, “Wrongs of
Unequal Treatment,” supra note 40 at 302. For a similar view of prejudice, see
Denise Réaume, “Dignity and Discrimination” (2003) 63:3 Louisiana L Rev 646 at
679. Réaume, however, argues that the wrong of prejudice is explicable in terms
of the way it attacks others’ human dignity. I address her views in Part
III(B)(1), below. LeBel J cites her definition of prejudice in Quebec v A. Supra
note 7 at para 195. 140. Moreau, “Wrongs of Unequal Treatment,” supra note 40
at 302-303.SANGIULIANO, SUBSTANTIVE EQUALITY 631 of horizontal status
hierarchies. Status hierarchies involve the negative characterization of the
life styles of subordinate groups as deficient, inferior, and unworthy of moral
approval. This manner of oppression by dominant groups can become compounded
and magnified through time as it becomes further entrenched and invisible. It
can thereby transform beyond mere belief in the inferiority of subordinate
groups relative to established social norms into an active desire to harm
members of subordinate groups simply because they are conceived as deviant or
Other. In this way, the negation of recognition produced by status hierarchies
can legitimize in the minds of dominant groups acts of violence towards
subordinate groups. Such violence is systemic in nature: “it is directed at
members of a group simply because they are members of that group.”141 The
systemic legitimation of violence leaves members of subordinate groups in a
further state of oppression. This further oppression takes the form of a
constant threat of harm that subordinate groups may face because, due to their
group membership, they are constantly liable to be harmed without concomitant
social and moral disapproval. For example, systemic animus towards women can
leave them persistently liable to acts of rape, harassment, or attack that are
publicly conceived as normal or acceptable. According to Substantive Equality
as Equal Recognition, if a law transmits status hierarchies it is
discriminatory in that it negates the recognition of the authentic identities
of subordinate groups. The law thus potentially transmits the systemic violence
that can accompany status hierarchies. If it does so, it amounts to state
action that transmits the animus held by dominant groups towards subordinate
groups. It then constitutes an abuse of state power. Since these features of
the law describe its prejudicial quality on Moreau’s view, her account of the
wrong of prejudice is reducible to the wrong of the negation of
recognition. 3. THE DENIAL OF ACCESS TO BASIC GOODS DOES NOT EXPLAIN THE WRONG
OF DISCRIMINATION A third factor that makes discrimination wrong on Moreau’s
view is that it denies citizens access to basic goods. These goods are deemed
to be important because of their contribution to an individual’s wellbeing, or
because having them is a 141. Young, Politics of Difference, supra note 49 at
62-63.632 (2015) 52 OSGOODE HALL LAW JOURNAL necessary condition to function as
an equal in society.142 Moreau writes that “if the government wishes to
legislate over a certain matter and to provide certain benefits, it must do so
in a way that does not leave the most disadvantaged groups in our society
without access to the relevant basic goods.”143 Hence, for Moreau the wrong of
discrimination has a redistributive dimension beyond the symbolic,
representational, and cultural dimension exclusively ascribed to discrimination
when it is construed as the negation of recognition.144 T here are, however,
two difficulties with the idea that the wrong of discrimination derives from a
redistributive concern about access to basic goods. First, the Supreme Court of
Canada has historically been reticent to find violations of section 15(1) of
the Charter when equality claimants challenge laws on the basis that they deny
access to basic goods. Judy Fudge claims: “The closer an equality claim is
pitched to the recognition pole of the injustice spectrum, the more likely that
the Supreme Court of Canada will uphold it.”145 Similarly, Ran Hirschl argues
that despite Canada’s strong commitment to Keynesian welfare state values,
section 15(1) of the Charter has not been interpreted to protect subsistence
rights to basic goods. The Court “has repeatedly rejected claims that would
have required the state to provide benefits to rights holders, either directly
through a social program (e.g., health care, unemployment benefits) or
indirectly 142. Moreau, “Wrongs of Unequal Treatment,” supra note 40 at
307-308. Réaume similarly argues that the denial of benefits makes
discrimination wrong, but reduces this factor to its infringement of human
dignity, writing that it is wrongful “only if the benefit at stake is important
to a life of dignity.”
Réaume,
“Dignity and Discrimination,” supra note 139 at 687. For other authors who
interpret the concept of equality in terms of sufficient access to important
basic goods, see Derek Parfit, “Equality or Priority?” (1997) 10:3 Nous 202;
Harry Frankfurt, “Equality as a Moral Ideal” (1987) 98:1 Ethics 21. 143.
Moreau, “Wrongs of Unequal Treatment,” supra note 40 at 309 [original emphasis
removed]. 144. On the difference between recognition and redistribution, see
Fraser, supra note 42 at 68-75; Fudge, supra note 66 at 339-50; Sujit Choudhry,
“Distribution vs. Recognition: The Case of Antidiscrimination Laws” (2000) 9:1
Geo Mason L Rev 145. 145. Fudge, supra note 66 at 341. See also Andrée Lajoie,
Éric Gélineau & Richard Janda, “When Silence is no Longer Acquiescence:
Gays and Lesbians under Canadian Law” (1999) 14:1 CJLS 101, cited in Fudge,
supra note 66 at 341. Lajoie, Gélineau and Janda argue that “[t]o the extent
that Charter claims brought by lesbians and gay men cleave closely to the
recognition pole of injustice claims and do not involve redistribution they are
likely to be upheld” (ibid at 342).SANGIULIANO, SUBSTANTIVE EQUALITY 633
through legislation that imposes obligations on private actors.”146
These
observations suggest that an account of the wrong of discrimination that
appeals to the negation of recognition—such as the account generated by
Substantive Equality as Equal Recognition—is a more viable candidate for a
juridical conception of substantive equality under the Charter than an account
which appeals to redistributive concerns, such as the denial of access to basic
goods. T he second difficulty with an access to basic goods approach is found
at a deeper conceptual level. The difficulty is that our intuitions about
discrimination and the denial of access to basic goods seem to come apart too
easily for the former to be a plausible explanation of the latter.
On the one
hand, a citizen can be denied access to basic goods by the state without
intuitively being (at least directly) discriminated against. The state might
deny her unemployment insurance for reasons concerning redistributive policy
and fiscal responsibility that are not intentionally discriminatory.
Alternatively, a state official could deny certain benefits to a politically
antagonistic group of physically disabled individuals, not because of their
membership in that group but simply to seek revenge for such political
antagonism.
To fix ideas
we could further imagine that if the antagonistic group was characterized by a
different prohibited ground of discrimination, for example, age, the official
would still have denied it benefits out of a vengeful motive without regard for
the group’s characteristics. The denials of goods in these situations might of
course be wrongful, but that does not seem to be because they are
discriminatory. On the other hand, we can imagine a situation in which members
of a group of citizens are directly discriminated against because of their
membership in that group, but where these citizens are not denied access to
basic goods. Consider a society containing a status hierarchy between speakers
of English as the dominant group and speakers of French as the subordinate
group. English-speakers oppress French-speakers by defining the French
linguistic heritage as deviant relative to the English linguistic heritage.
Suppose that the state in this society enacts a law that prohibits the use of
the French language in the public sphere. According to Substantive Equality as
Equal Recognition, this law is discriminatory because its 146. Ran Hirschl,
“Canada’s Contribution to the Comparative Study of Rights and Judicial Review”
in Linda A White et al, eds, The Comparative Turn in Canadian Political Science
(Vancouver: UBC Press, 2008) 77 at 84-85. Among the cases that Hirschl cites to
support this claim are Gosselin, in which the Court decided that s 15(1) does
not entail substantive obligations to provide adequately for disadvantaged
groups relying on social assistance, and Auton, in which the Court held that
provincial health care plans are not required to fund special treatment regimes
for autistic children. See Gosselin, supra note 31; Auton (Guardian ad litem
of) v British Columbia (Attorney General), 2004 SCC 78, [2004] 3 SCR 657.634
(2015) 52 OSGOODE HALL LAW JOURNAL vertical application reflects the
English-French status hierarchy that exists horizontally in the hypothesized
society. Its outcome is the negation of the recognition of French-speakers’
authentic self-conceptualization of their own identities.
It might be
argued that what makes this scenario discriminatory is not the negation of
recognition of French-speakers’ identity, but the fact that the prohibition of
the French language in the public sphere denies French-speakers access to
certain basic goods, such as the court system or other mechanisms of
government. We can, however, modify the scenario by supposing further that,
whenever a French-speaker applies to engage the courts or for access to a
particular benefit conferred by the state, she is given a French-English
interpreter that allows her to navigate the system designed to confer the
benefit notwithstanding her inability to understand English. We can then see
that the scenario contains discriminatory treatment explicable by the negation
of recognition even though it allows for subordinate groups to have
comprehensive access to basic goods.
These
difficulties lead to the conclusion that the denial of access to basic goods is
not a plausible explanation of the wrong of discrimination. Moreover, an
account of the wrong of discrimination in terms of the negation of recognition
succeeds where the account in terms of access to basic goods fails. It is
important to note, however, that it does not follow from this conclusion that a
wrongful consequence of the negation of recognition could be a distributive
injustice whereby subordinate groups are denied access to basic goods.
Indeed, one
effective way to ameliorate the condition of those who suffer a negation of
recognition that is given the force of law could be to redistribute economic
resources to them.147 Furthermore, it does not follow that redressing the
situation of those who lack access to basic goods, such as the homeless and
indigent, is not an important public goal to be pursued. The above conclusion
only entails that such a goal is not identical to the goal of eliminating
discrimination against subordinate groups. The former goal responds to the
interest in satisfying basic human needs, rather than the interest in
anti-discrimination.
In Iris Marion
Young’s words, the moral obligation to improve the material situation of the
least well-off “derives not from the fact of inequality as such, but from the
fact of need. It is wrong for some people to lack what they need to live a
minimally decent life when others are able to contribute to meeting those needs
at relatively little costs to themselves.”148 147. Fraser, supra note 42 at
72-73; Balkin, supra note 41 at 2322.
148. Iris
Marion Young, “Equality of Whom? Social Groups and Judgments of Injustice”
(2001) 9:1 Pol Theory 1 at 7.SANGIULIANO, SUBSTANTIVE EQUALITY 635 B. RESPONSES
TO COMPETING UNITARY THEORIES In positing the negation of recognition as
explanatorily basic, the account of the wrong of discrimination generated by
Substantive Equality as Equal Recognition also invites the objection that other
singular factors besides the negation of recognition constitute the basic
explanation of the wrong of discrimination. Such competing unitary theories
might alternatively appeal to either the wrong of violating human dignity or
the wrong of violating autonomy as the sole wrong of discrimination. I will
consider and criticize these two contentions in what follows.
1. HUMAN
DIGNITY-BASED THEORIES It is well known that in Law, Justice Iacobucci
identified the purpose of section 15(1) of the Charter as the protection of
human dignity.149 Despite acknowledging the indeterminacy and abstractness of
the concept of human dignity,150 he defined it in terms of the values of
individual self-worth, self-respect, and physical and psychological integrity
and empowerment.
In a manner
that tellingly mirrors the importance of subordinate social groups’ recognition
under the theory of Substantive Equality as Equal Recognition, Justice
Iacobucci wrote that human dignity is infringed “when individuals and groups
are marginalized, ignored, or devalued,” and is enhanced “when laws recognize
the full place of all individuals and groups within Canadian society.”151 As we
shall see momentarily, this parallel is far from coincidental. It is also well
known that the human dignity approach to section 15(1) was repudiated in
Kapp.
In that case,
Chief Justice McLachlin and Justice Abella, relying on voluminous academic
criticism, offered three reasons for this repudiation. First, human dignity is
an “abstract and subjective notion” that makes it “confusing and difficult to
apply.”152 Second, its adoption as a legal test in Law imposed an additional
burden of proof on equality claimants instead of providing enhanced protection
against discrimination. Third, the legal test from Law permitted a formalistic
approach to analyzing equality claims resembling the similarly situated test
when used to identify relevant comparator groups.153 T he view that the
violation of human dignity explains the wrong of discrimination under section
15(1) has survived notwithstanding its repudiation in 149. See Law, supra note
6 at para 51. 150. Ibid at para 52. 151.
Ibid at
para 53. 152. Kapp, supra note 6 at para 22. 153. Ibid.636 (2015) 52 OSGOODE
HALL LAW JOURNAL Kapp. Justice LeBel adopted it in his dissenting judgment on
how to interpret section 15(1) in Quebec v A. He wrote that “[the] value of
substantive equality at the heart of s. 15 is closely tied to the concept of
human dignity,” and that the purpose of section 15(1) is “to eliminate any
possibility of a person being treated in substance as ‘less worthy’ than
others.”154 However, I contend that the view cannot ground a plausible
juridical conception of the wrong of discrimination under section 15(1).
This is partly
because the protection of human dignity underlies all the rights within the
Charter as a whole. Chief Justice Dickson first stated that the protection of
human dignity underlies all Charter rights in R v Oakes.155 Chief Justice
McLachlin and Justice Abella adopted his reasoning when they rejected a human
dignity-based account of the wrong of discrimination in Kapp.156 Indeed, the
Court has held that a violation of human dignity explains the wrong of being
deprived of life, liberty, and security of the person in a manner that does not
accord with the principles of fundamental justice, contrary to section 7 of the
Charter157 and the wrong of unreasonable search and seizure under section 8 of
the Charter.158 Furthermore, in Health Services and Support—Facilities
Subsector Bargaining Assn v British Columbia,159 the Court held that collective
bargaining is constitutionally protected as an incident of the fundamental
freedom of association guaranteed by section 2(d) of the Charter.
The majority
judgment in that case argued that the protection of collective bargaining
promotes the constellation 154. Quebec v A, supra note 7 at para 138, citing
Gosselin, supra note 31 at para 138. 155. [1986] 1 SCR 103 at para 64, 26 DLR
(4th) 200. 156. McLachlin CJ and Abella J wrote: “the protection of all of the
rights guaranteed by the Charter has as its lodestar the promotion of human
dignity.” See Kapp, supra note 6 at para 21. 157. See e.g. R v Morgentaler,
[1988] 1 SCR 30, 44 DLR (4th) 385, Wilson J; Rodriguez v British Columbia
(Attorney General), [1993] 3 SCR 519 at para 21, 107 DLR (4th) 342. For
discussion of the general point made in this sentence, see Donna Greschner,
“The Purpose of Canadian Equality Rights” (2002) 6:1 Rev Const Stud 291 at
302.
It has even
been claimed that the protection of human dignity is a principle that has been
adopted to explain the underlying values of constitutional rights in other
jurisdictions, such as Germany and South Africa. See e.g. Lorraine E Wienrib,
“Human Dignity as a Rights-Protecting Principle” (2004/2005) 17 NJCL 325; Cathi
Albertyn & Beth Goldblatt, “Facing the Challenge of Transformation:
Difficulties in the Development of an Indigenous Jurisprudence of Equality”
(1998) 14:2 SAJHR 248 at 249; Dennis M Davis, “The Underlying Theory that
Informs the Wording of Our Bill of Rights” (1996) 113:3 SALJ 385 at 385. See
also Baines, supra note 29 at 74. 158. See e.g. R v Edwards, [1996] 1 SCR 128
at para 50, 132 DLR (4th) 31; R v Godoy, [1999] 1 SCR 311 at para 19, 168 DLR
(4th) 257. 159. 2007 SCC 27, [2007] 2 SCR 391.SANGIULIANO, SUBSTANTIVE EQUALITY
637 of values underlying the Charter as a whole, which includes first and
foremost human dignity.160 T he value of human dignity therefore cannot explain
the wrong of discrimination under section 15(1) in a way that is unique to and
characteristic of the Charter’s guarantee of equality.161 By contrast,
Substantive Equality as Equal Recognition’s explanation, which appeals to the
negation of recognition, can do so because, as I have argued, it is disclosed
by the foundational legal principles of equality outlined by Justice McIntyre
in Andrews.
The inability
of human dignity to uniquely demarcate the territory of section 15(1) evinces a
second difficulty with using the concept to explain the wrong of
discrimination. As was pointed out in Kapp—and, as mentioned earlier, even to
some extent by Justice Iacobucci in Law—human dignity is too vague, malleable,
abstract, and indeterminate a value to ground a conceptually rigorous
understanding of the wrong of discrimination.162 While specifying the meaning
of human dignity is a subject of controversy, a common starting point is the
notion that for the state to treat all its citizens with equal dignity is to
treat them with equal concern, respect, and consideration.163 Since a human
being has incomparable worth, she may be treated only as an end in herself,
rather than a means for achieving some other desirable end. Now, to be sure,
this definition of human dignity might also be seen as underlying Charter
rights other than section 15(1), such as the right against self-incrimination
guaranteed by section 13.164 Setting this difficulty aside, it is not
surprising that agreement should coalesce around what is still an overly
abstract definition of human dignity.165 The problem is that, even if this
definition 160. Ibid at paras 81-82. 161. Greschner, supra note 157 at 317.
162. For authors who argue along these lines, see Sonia Lawrence, “Harsh,
Perhaps Even Misguided: Developments in Law, 2002” (2002) 20 Sup Ct L Rev (2d)
93 at 96-100 [Lawrence, “Developments in Law”]; Moreau, “Wrongs of Unequal
Treatment,” supra note 40 at 296; McIntyre, supra note 32 at 102. 163. For the
classic statement of this notion, see Ronald Dworkin, Taking Rights Seriously
(Cambridge, Mass: Harvard University Press, 1977) at 272-73. It was adopted by
Iacobucci J in Law as a definition of when the state treats all citizens with
equal dignity. See Law, supra note 6 at para 51.
For discussion
of how the theory of Substantive Equality as Equal Recognition would interpret
this abstract notion of human dignity that runs through the equality
jurisprudence, see supra note 67 and accompanying text. 164. The idea is that
requiring an individual to furnish evidence herself is to treat her as a mere
means for achieving the end of crime control.
See Hamish
Stewart, “The Confessions Rule and the Charter” (2009) 54:3 McGill LJ 517 at
520-21. 165. Greschner, supra note 157 at 317, n 99.638 (2015) 52 OSGOODE HALL
LAW JOURNAL is accepted, the notion that the state should treat all citizens as
ends does not have sufficient explanatory content to tell us what kinds of
state treatment fail to show respect for a human being’s incomparable worth.
One would therefore expect that any attempt to clarify the abstract notion
would collapse it into a more determinate ideal that can better explain the
nature of state action that treats citizens as means. The upshot would be that
any appeal to human dignity itself is redundant.166
To take an
illustrative example, Denise Réaume’s sustained attempt to elucidate a human
dignity-based conception of the wrong of discrimination succumbs to precisely
this problem. Réaume highlights two reasons why human beings have inherent
dignity. First, we are capable of having a conception of the self, which makes
respect for our identity essential to our dignity. Second, we are capable of
choosing and pursuing a conception of the good, which makes respect for our
plans and projects essential to our dignity.167
However, the
link between human dignity and identity makes Réaume’s human dignity-based
account collapse into an account premised on the negation of recognition,
which, as I have argued, is wrong because of how it obscures the authentic
identity of members of subordinate groups in horizontal status
hierarchies.
Furthermore,
the link between human dignity and the ability to choose and pursue a
conception of the good collapses Réaume’s account into one premised on the
values of self-determination and individual autonomy.
This latter
conflation is shared by the definition of human dignity espoused by Justice
LeBel in Quebec v A: T he principle of personal autonomy or self-determination,
to which self-worth, selfconfidence and self-respect are tied, is an integral
part of the values of dignity and freedom that underlie the [Charter’s]
equality guarantee … Safeguarding personal autonomy implies the recognition of
each individual’s right to make decisions regarding his or her own person, to
control his or her bodily integrity and to pursue his or her own conception of
a full and rewarding life free from government interference with fundamental
personal choices.168 Because a human dignity-based conception of the wrong of
discrimination is liable to collapse into competing accounts when one tries to
define human dignity, it is preferable to discard that value and adopt one of
the competing accounts. T his approach is more likely to yield a conceptually
rigorous understanding of the wrong of discrimination. 166. Moreau, “Wrongs of
Unequal Treatment,” supra note 40 at 296. 167.
Réaume,
“Dignity and Discrimination,” supra note 139 at 677. 168. Quebec v A, supra
note 7 at para 139.SANGIULIANO, SUBSTANTIVE EQUALITY 639 In summary, I maintain
that the concept of human dignity is, under closer inspection, an empty vessel
that must be filled with the values countenanced by competing theories of the
wrong of discrimination, in particular the value of authentic identity
countenanced by recognition theory.
Human dignity
is “a jurisprudential Legoland—to be used in whatever form and shape is
required by the demands of the judicial designer.”169 The position I maintain
is, however, compatible with regarding human dignity, which is after all one of
the organizing principles of the Charter as a whole, as an abstract regulative
ideal in which more precise theories of the wrong of discrimination ought to
participate.
170 Indeed,
when elucidating the theory of recognition that he defends, Taylor himself
seems to suggest that this is the proper way to situate the value of
recognition in relation to the concept of human dignity.171 2. AUTONOMY-BASED
THEORIES I have touched on the autonomy-based conception of the wrong of
discrimination several times. Justice LeBel appeared to have this conception in
mind in Quebec v A when he advanced the view that human dignity is the
animating norm of section 15(1) of the Charter.
Here, I shall
criticize the autonomy-based account and, in the process, defend the account of
the wrong of discrimination as the negation of recognition. What does it mean
to say that discrimination is wrong because of the wrong of violating
individual autonomy? To be autonomous is to be self-determining, and to be
self-determining is to be able to choose and pursue a conception of the good
life free from interference by others, particularly the state.
The importance
of free and independent choice therefore lies at the heart of the protection of
autonomy.172 Autonomy is violated by the state if the state treats citizens in
a way that does not accord with the choices they have made. Treatment of this
sort is wrong because it violates the general moral principle that the state’s
treatment of citizens should not be based on factors that are “arbitrary from a
moral point of view,”173 such as the personal characteristics, attributes, and
circumstances of individuals that are not chosen. 169. DM Davis, “Equality: The
Majesty of Legoland Jurisprudence” (1999) 116:1 SALJ 398 at 413. See also
Lawrence, “Developments in Law,” supra note 162 at 96-100. 170. Moreau, “Wrongs
of Unequal Treatment,” supra note 40 at 296. 171.
Taylor, supra
note 43 at 37-41. See also Réaume, “Dignity and Discrimination,” supra note 139
at 677, n 106. 172. Mackenzie & Stoljar, supra note 127 at 5. 173. This
phrase of course is borrowed from John Rawls. See John Rawls, A Theory of
Justice (Cambridge, Mass: Harvard University Press, 1971) at 15.640 (2015) 52
OSGOODE HALL LAW JOURNAL T he view that the violation of autonomy is what makes
discrimination wrong under section 15(1) of the Charter receives support from
the Supreme Court of Canada’s decision in Corbiere v Canada (Minister of Indian
and Northern Affairs).
The majority
in that case stated that the prohibited grounds of discrimination under section
15(1) are immutable or constructively immutable personal characteristics; that
is, either they are unchosen or to choose to change them is unfeasible because
of the severe damage to individuality that such a choice would cause.174
Following Corbiere, one might argue that to be discriminated against on the
basis of a prohibited ground by the state is to have one’s autonomy violated,
since it is to be treated arbitrarily in a way that does not reflect one’s
choices.175 On this argument, the prohibited grounds represent instances of
personal characteristics that are likely to be arbitrary.176 The wrong of
discrimination therefore stems from the wrong of arbitrary state treatment that
violates autonomy.
It might
appear that, on the understanding of individual autonomy employed by this
argument, the value of recognition collapses into that of autonomy. I hold that
a person’s self-understanding of her authentic identity as a worthy starting
point from which to pursue a conception of the good depends on its recognition
as similarly worthy simply because of its particularity to herself. The
importance of recognition of a person’s identity is, however, not identical to
the importance of her ability to choose a conception of the good. Recognition
is conceptually prior to autonomy. Our authentic identity is the “background
against which our tastes and desires and opinions and aspirations make
sense.”177
Choosing
a conception of the good requires a person to have a background set of values
and preferences in terms of which a conception of the good seems attractive or
worthwhile to her. My authentic identity constitutes the dialogically
constructed framework that I bring to bear on choosing between different
conceptions of the good. From the perspective of this framework, I can regard a
particular life project as worth choosing, given my life style and cultural
context. Or, indeed, if the project is marked by high social prestige but I
cannot regard my identity with similar esteem due to its denial of social
recognition as worthy of the project, I may regard it as something that I am
not worthy of pursuing. For recognition 174. Corbiere, supra note 22 at para
13. 175. But see Moon, supra note 126 at 113. 176. Choudhry, supra note 143 at
154 [emphasis in original]. Choudhry does not necessarily endorse the
autonomy-based account of the wrong of discrimination. In his article he simply
describes the account. 177. Taylor, supra note 43 at 33-34.SANGIULIANO,
SUBSTANTIVE EQUALITY 641 theory, a person strives not only for an autonomously
chosen life but also for an individuated life that makes sense to her given her
socially-situated identity.178 T his distinction between recognition and
autonomy is significant when we consider a first problem for autonomy-based
conceptions of the wrong of discrimination.
The problem is
that there can be situations where a person is denied autonomy but is not
intuitively suffering discrimination and, conversely, situations where a person
is intuitively suffering discrimination but is not denied autonomy. Paralleling
the deficiency in an access-to-basic-goods approach to the wrong of
discrimination, autonomy and discrimination seem to come apart too easily for
the denial of the former to be a plausible explanation for the wrong of the
latter.
To appreciate
this problem, we must note that the protection and promotion of autonomy within
a society requires the state to establish what Joseph Raz refers to as the
“conditions of autonomy.”179 Among these conditions is the provision of an
adequate range of options from which citizens can choose and pursue a
conception of the good. Without adequate options, an individual may be forced
by circumstance or the acts of others to adopt a particular life plan. If that
occurs, she does not genuinely choose that life plan but is rather coerced into
it.180 Now, the state can deny a person’s autonomy by revoking the adequate
range of options necessary for her to exercise her free choice without
intuitively discriminating against her in the process. For example, the state
might imprison a citizen who has been convicted of a criminal offence.
The imprisoned
criminal does not suffer discrimination due to the simple fact of having been
deprived of the range of options from which to choose a conception of the good.
To consider a more fanciful example, the state might close all institutions of
post-secondary education within its jurisdiction. In this situation, an
individual citizen loses the option of acquiring post-secondary education, and
therefore has her autonomy is diminished, but she is not intuitively
discriminated against.
Conversely,
the state might successfully provide a citizen with an adequate range of
options to choose a conception of the good, but the citizen could still suffer
from discrimination. Consider a patriarchal society where women have
historically experienced oppression and subordination in the form of being
legally denied access to certain high-prestige and high-paying occupations and
positions of political power. Over time, the male-dominated controlling powers
of the state in this society realize the error of their ways and formally open
all 178. Honneth, supra note 63 at 195. 179. Joseph Raz, The Morality of
Freedom (Oxford, UK: Clarendon Press, 1986) at 425. 180. Ibid at 425, 155-56,
369.642 (2015) 52 OSGOODE HALL LAW JOURNAL careers and positions to women.
In this
society, despite the removal of barriers that have historically diminished the
range of options and life projects open to women, women may have internalized a
self-understanding of inferiority relative to men. If so, as Taylor writes,
“even when some of the objective obstacles to their advancement fall away, they
may be incapable of taking advantage of the new opportunities.”181 By
hypothesis, in the society just described there is an adequate range of options
for women to choose a conception of the good.
The autonomy
of women is therefore protected. Nevertheless, the women’s internalization of
their inferiority, stemming from the society’s history, intuitively moves us to
view the society as deeply discriminatory. Discrimination against a particular
woman in this society would then not be explicable by violations of her
autonomy. T he story told of this society need not be restricted to the
predicament of women. It could be applied to different racial or cultural
groups. Such groups may be historically denied the range of options needed to
possess autonomy.
However, if
they have internalized their historical inferiority, they may be unable to take
advantage of the opportunities opened to them when adequate options are finally
provided by the state. This self-deprecation then becomes “one of the most
potent instruments of their own oppression.”182 We intuitively think that there
is discrimination in such societies. This is so even though the groups who are
discriminated against do not lack adequate options and, hence, have not been
denied autonomy. T he account of discrimination as the negation of recognition
can explain the wrong of discrimination occurring in the societies described
above.
There are
status hierarchies existing horizontally within these societies. The life
styles of subordinate groups—whether such groups are comprised of women,
indigenous peoples or other groups of minority status—are interpreted as
deviant or Other relative to the life styles of dominant groups. Subordinate
groups are denied recognition of their authentic identities because their
identities are constructed in juxtaposition to those of dominant groups.
Historically, this situation has made subordinate groups internalize a negative
self-understanding of their identities, cultural values, and life styles that
persists even when the state in their society enhances their autonomy by
creating an apparently adequate range of options for them.
Members of
subordinate groups do not see options that were once highly prestigious and
exclusive to dominant groups as representing genuine life plans for 181.
Taylor, supra note 43 at 25. 182. Ibid at 26.SANGIULIANO, SUBSTANTIVE EQUALITY
643 them to choose. This is because the historical negation of the subordinate
group’s recognition has made them see themselves as unworthy to choose these
options. T here is a second problem for the autonomy-based account of the wrong
of discrimination. In emphasizing the centrality of choice and
self-determination, the account presupposes what I earlier referred to as an
individualistic conception of the self.
This
supposition contrasts with the negation of recognition account, which assumes a
relational conception of the self. There are, however, strong reasons to doubt
the philosophical tenability and jurisprudential acceptability of an
individualistic conception of the self. At the philosophical level, the
autonomy-based account’s notion that the state should treat citizens only in
accordance with their choices, and not arbitrarily on the basis of unchosen
factors, presumes that we can easily separate out what is chosen in a person’s
identity from what is not. But such a task might be prohibitively difficult. As
Samuel Scheffler writes: In any sense of identity that actually matters to
people, unchosen personal traits and the social circumstances into which one is
born are importantly, albeit not exclusively, constitutive of one’s distinctive
identity. And, in any ordinary sense of “voluntary,” people’s voluntary choices
are routinely influenced by unchosen features of their personalities,
temperaments, and the social contexts in which they f ind themselves.183
Similarly, the choices a person has made sometimes seem morally irrelevant to
whether that person should receive certain benefits or shoulder certain
burdens. For example, we do not withhold medical treatment from persons in
desperate need of attention if they have an unchosen illness caused by
congenital disease.
Nor do
we do so if they have sustained an injury from a foolhardy risk they have
chosen to take.184 On the jurisprudential point, I have mentioned above that
the Supreme Court of Canada has recently rejected an individualistic conception
of the self in Quebec v A185 and, more recently still, in Canada (Attorney
General) v Bedford. Quebec v A established the (near) irrelevance of individual
choice in section 15(1) cases.186 Bedford was not an equality case. It
concerned the constitutional validity of Criminal Code prohibitions on
communicating in public for the purposes of prostitution, operating a common
bawdyhouse, and living on the avails of prostitution. A unanimous Court held
that these prohibitions violated 183. Supra note 66 at 18. 184. Ibid at 19. 185.
Quebec v A, supra note 7 at para 342. 186. Ibid at paras 333, 335, 343.
See also
Miron, supra note 6 at para 153.644 (2015) 52 OSGOODE HALL LAW JOURNAL
prostitutes’ section 7 Charter right to life, liberty, and security of the
person in a manner that did not accord with the principles of fundamental
justice. Chief Justice McLachlin rejected the government’s argument that it was
prostitutes’ free choice, not the impugned provisions, that posed the risks to
prostitutes’ life, liberty, and security of the person complained of in the
case. She wrote that “while some prostitutes may fit the description of persons
who freely choose (or at one time chose) to engage in the risky economic
activity of prostitution, many prostitutes have no meaningful choice but to do
so.”187 She added: “Whether because of financial desperation, drug addictions,
mental illness, or compulsion from pimps, they often have little choice but to
sell their bodies for money.”188 In this way, the Court in Bedford ostensibly
confirmed Scheffler’s claim that unchosen features of individuals’
personalities, temperaments, and the social contexts in which they find
themselves routinely influence their choices.
T here is
therefore good reason to doubt whether an autonomy-based account of the wrong
of discrimination can effectively ground a juridical conception of substantive
equality and the wrong of discrimination. V. CONCLUSION: THE IMPLICATIONS OF
SUBSTANTIVE EQUALITY AS EQUAL RECOGNITION FOR THE TENSION BETWEEN CERTAINTY AND
FLEXIBILITY IN QUEBEC V A Where does Substantive Equality as Equal Recognition
leave us as regards the tension between certainty and flexibility that divided
the judges in the recent Supreme Court of Canada case of Quebec v A? Recall
that Justice LeBel’s dissenting judgment in the case attempted to secure a
measure of certainty for section 15(1) of the Charter. He offered a thorough
articulation of the provision’s underlying values and insisted that prejudice
and stereotyping are crucial factors that make a law discriminatory. Justice
Abella, in her majority judgment, held simply that the purpose of section 15(1)
is to protect the norm of substantive equality.
A law’s
inconsistency with that norm is what makes it discriminatory, no matter how
that inconsistency is identified. I began this article by discussing Quebec v A
to suggest that clarifying the concept of substantive equality would be a
significant contribution to the scholarship on the constitutional right to
equality in Canada. I will conclude by discussing briefly how Substantive
Equality as Equal Recognition might provide 187. Bedford, supra note 130 at
para 86. 188. Ibid.SANGIULIANO, SUBSTANTIVE EQUALITY 645 a way to navigate the
judges’ disagreement in Quebec v A. I suggest that the theory presents a
thorough articulation of the underlying value of section 15(1) and that it does
so in a way that directs adjudicators to examine the impact or effects of a
law’s formal application within the social context in which the law is applied.
Substantive Equality as Equal Recognition clarifies what the state of affairs
of substantive equality is supposed to be by describing what the world and the
law should look like when the ideal is instantiated. In doing so, this approach
clarifies what kind of value adjudicators ought to be sensitive to when they
determine whether legislation is discriminatory within the meaning of section
15(1).
It maintains
that the state of affairs of substantive equality is a condition in which a law
does not transmit through its vertical impact horizontal inequalities that take
the form of status hierarchies. Moreover, the wrong of discrimination consists
in the negation of the value of recognition for members of subordinate social
groups in society.
Hence, the
theory advances beyond an impoverished construction of substantive equality as
a mere methodological principle. It aspires to achieve the certainty for the
Court’s equality jurisprudence that Justice LeBel tried to secure by
articulating in considerable detail the values of human dignity and personal
autonomy that underlie section 15(1). Nonetheless, the theory is consistent
with the flexible approach to section 15(1) that won over a majority of the
judges in Quebec v A. It maintains that a law is discriminatory not because of
its form, i.e., its equal vertical application to all those who it catches
within its ambit, but because of its context, i.e., how it transmits patterns
of horizontal inequality existing in the social structure within which it
formally applies. The manner in which a law could reflect status hierarchies is
diverse and multifaceted, as we have seen inter alia in the pre-Charter Bill of
Rights cases.
Hence, there
can be no definitive rule, no “doctrinal formulation or carefully enumerated
series of steps and questions,”189 to dictate how such reflection must be
identified. Rather, what is required is a contextual approach that, following
the prevalent methodological construction of substantive equality, draws on a
non-exhaustive190 set of indicia of this reflection, such as prejudice,
stereotyping, and the Law contextual factors, to examine the outcomes or
effects of a law’s vertical application on horizontal social relations.
On the view of
substantive equality defended in this article, what makes a law discriminatory
is, above all else, its transmission of unequal status hierarchies, no matter
how this transmission is identified. 189. Young, supra note 21 at 198. 190. For
examples of other potential factors, see Sheppard, supra note 20 at 51-52.646
(2015) 52 OSGOODE HALL LAW JOURNAL T he approach recommended by Substantive
Equality as Equal Recognition does not, however, disregard Sheppard’s caution
that a proposal to use any relevant factors to identify a law’s discriminatory
effects fails to provide adequate guidance to adjudicators and litigants in
equality cases. To come full circle, this is because the theory thoroughly
articulates the state of affairs of substantive equality that the Charter
requires a law to instantiate and the value of recognition that is infringed by
state-perpetrated discrimination. Together, these ideas constitute the norm
towards which adjudicators and litigants are to be guided when they employ multiple
indicia to identify a law’s discriminatory impact in the context in which the
law applies.
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