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In Defence of Substantive Equality

In a guest post on the Double Aspect Blog over the Christmas break, Professor Bruce Pardy (Queen’s Law) picked the Supreme Court’s decision in Andrews as one of the worst decisions since 1967. While I believe Professor Pardy offered some important criticisms of the Court in his post, I must respectfully disagree with his attack on the Andrews decision and substantive equality more generally. Without discussing the Trinity Westerndecision in this piece, I am of the view that one can accept substantive equality without necessarily agreeing with the result in that case. I propose to offer my objection to Professor Pardy’s approach by considering discrimination on the basis of sexual orientation as an example.

Subsection 15(1) of the Charteris a broad provision. It guarantees the right to equality without discrimination through: (1) equality before the law; (2) equality under the law; (3) equal protection of the law; and (4) equal benefit of the law. In that sense, Canada’s equality provision is textually much broader than the one found in the U.S. Constitution. The second and fourth guarantees of the equality provision are especially relevant when discussing substantive equality.

As Dwight Newman explains in his contribution to Halsbury’s Laws of Canada on this very issue: “As per the text of this provision, an equality rights violation can arise from any one of a violation of equality before the law, equality under the law, equal protection of the law, or equal benefit of the law, with s. 15 thus constitutionally protecting equality in both content and application of the law” (emphasis added).

In fact, at the time, Anne Bayefsky noted that Canada’s equality guarantee was one of the most far-reaching equality clauses of any modern bill of rights. Her masterful analysis in Equality Rights and the Canadian Charter of Rights and Freedoms is probably the most in-depth explanation of the original public meaning of this provision (see also Adam Dodek, The Charter Debates). As she explains, the parliamentary committee debates and explanatory notes on the Charter suggest that not only the scope of the equality provision was expanded, but also the type of equality sought. The idea was to expand “the reach of equality of opportunity” and to cover “equality of results” (see in particular the National Action Committee on the Status of Women, Canadian Advisory Council on the Status of Women, National Association of Women and the Law-Nova Scotia, whose recommendations led to the additions of “equality under the law” and “equal benefit”).

In addition, the section at issue provides a list of grounds which anchor the constitutional analysis. The open-ended nature of the provision has allowed the Supreme Court to recognize analogous grounds of discrimination (see also Corbière). As I explained in an earlier post, the words “in particular” leave open the possibility of adding analogous grounds. If constituent legislators had intended to limit the grounds to those listed, they would or should have done so clearly. The words “in particular” allow the Court to enter the construction zone (on constitutional construction, see Lawrence Solum).

It is important to note that subsection 15(1) of the Charter is also textually broader than its equivalent under the Canadian Bill of Rights. Section 1(b) provides the right “to equality before the law and the protection of the law”. In fact, the two guarantees mentioned above were explicitly added to the Charter provision as a response to the emphasis on formal equality and a “separate but equal” view of equality in decisions under the Bill of Rights. As Peter Hogg explains, the first draft of the Charter, published in October 1980, was worded differently. It only included “equality before the law” and “equal protection of the law”.

The changes made and the reasons for their inclusion must be reflected in the way courts adjudicate claims under s. 15 of the Charter. As Côté and Brown JJ rightly noted in Frank (the other Justices not disagreeing with the statement), “[t]he state of the law as it existed prior to . . . [a] provision coming into force can, in light of the subsequent legislative provision under review, give insight into why the provision was enacted and what purpose it was designed to serve” (citing Richard Ekins, The Nature of Legislative Intent).

The added guarantees of “equality under the law” and “equal benefit of the law” were partly a response to the decisions in Attorney General of Canada v Lavell and Bliss v Canada (for a bit more on these cases, see Kerri Froc). In the first case, Ritchie J determined that the equality guarantee only covered the application of laws to similarly situated groups. Put simply, it did not target the substance of the law. “Equality before the law”, as a segment in A.V. Dicey’s articulation of the rule of law, includes “equality in the administration or application of the law by the law enforcement authorities and the ordinary courts of the land.” This necessitated an explicit guarantee of “equality under the law”. In the second case, Ritchie J indicated that legal benefits need not be provided equally to all. This necessitated an explicit guarantee of “equal benefit of the law” (this was emphasized before the parliamentary committee, see Dodek and Bayefsky, supra).

Even if I concede that “equality” as understood in the Charter is itself a vague and contested concept (however, see Lawrence Solum on “contextual enrichment”), this would simply be an interpretation problem, not a constitutional construction problem. While subjective intent should never be dispositive, it can certainly inform the public meaning of a provision and provide necessary historical context and purpose when undertaking constitutional construction (absent textual indicators rejecting such an intent of course; for more on good faith constitutional construction, see Randy Barnett and Evan Bernick).

Therefore, since Andrews, the Court’s approach to the equality provision has been to emphasize substantive equality. In that case, the Court rejected an approach grounded in formal equality by acknowledging “that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality”. It bears reminding that McIntyre J is not generally known for encouraging an atextual interpretation of the Constitution, having famously noted in Reference re Public Service Employee Relations Act that the Constitution “should not be regarded as an empty vessel to be filled with whatever meaning we might wish from time to time”.

After years of adjudication, the Court finally settled on a two-step analysis in Kapp (which the Court has consolidated in Kahkewistahaw First Nation v Taypotat): (1) does the law create a distinction based on an enumerated or an analogous ground (whether direct or through adverse effects)?; and (2) is the distinction discriminatory? Its basic framework, however, is anchored in Andrews.

At a high level of generality, I do not see this framework as inherently problematic. On McIntyre J’s point that not every distinction in treatment between individuals will necessarily result in inequality, I find it sufficient to quote from former Justice Antonin Scalia who, in response to Senator Dianne Feinstein on the interpretation of the Fourteenth Amendment, exclaimed:  “Does equal protection mean that you have to have unisex toilets? I mean that’s the kind of question you have to get into.” The ultimate question is not merely whether distinctions have been made, but whether the choices made are rational or are made on the basis of arbitrary considerations. This explains why the second step of the test exists.   

On McIntyre J’s point that identical treatment may produce inequality, the idea is that facially neutral laws may be profoundly discriminatory – that is, the legislature may adopt a norm couched in terms that apply to everyone on its face, while its actual effect is to make a distinction based on an enumerated or analogous ground. In other words, not everyone would be benefitting equally or be equal under the law. In these circumstances, the form chosen by the legislature should not shield it from judicial scrutiny at the first step. To do otherwise is to transform this constitutional provision into a hollow promise. Finding an indirect distinction at the first step of the analysis therefore allows courts to then determine whether the norm in question is discriminatory at the second step of the analysis.

In order to make my point, I will turn my attention to anti-sodomy laws and laws which provide a different age of consent for anal intercourse.  Evidently, a criminal prohibition that solely set its sights on criminalizing anal intercourse between individuals of the same sex would be unconstitutional under the framework proposed by Professor Pardy. The distinction and discrimination are direct in such a case, which a formal equality analysis would remedy.

However, could a provision criminalizing both homosexual and heterosexual anal intercourse be upheld? It seems to me that Professor Pardy’s approach to the equality provision would lead him to answer in the affirmative. In my view, this is a result that does not give due regard to the guarantees of “equal benefit of the law” and “equality under the law”. Only an approach grounded in substantive equality can remedy this result in a manner faithful to the constitutional text.

In Lawrence v Texas, this concern was raised by the majority of the Supreme Court of the United States. O’Connor J, concurring, would have struck down the provision on formal equality grounds because the statute banned “homosexual sodomy, but not heterosexual sodomy.” The majority grounded its analysis in the Equal Protection and the Due Process Clauses by finding a protected zone of privacy through the right to liberty, which effectively meant that no provision criminalizing sodomy could be justified.

I have always been of the view that substantive due process is a doctrine that has no textual anchor and has led to historical nightmares (I am still mulling over Justice Gorsuch’s recent concurring opinion in Sessions v Dimaya; not to mention the value of stare decisis in our legal system). As Chief Justice John Roberts once noted, this doctrine was first used by the Supreme Court of the United States to justify slavery, before being used to declare minimum wage laws unconstitutional during the Lochner era. In my view, turning to s. 7 of the Charter, which the Supreme Court of Canada has transformed from a procedural guarantee into a substantive guarantee, is not the answer. Instead, the equality rights provision which provides “equal benefit of the law” and “equality under the law” is a sounder textual anchor.

While the Court has not considered this question as a result of a legislative change in 1969, an approach to the equality provision that embraces substantive equality would have led to declaring as unconstitutional a provision criminalizing anal intercourse. Such a provision would be an indirect invitation by the legislature to subject gay people to discrimination in the enforcement of legal rules. While heterosexuals would not be deprived of the ability to engage in consensual sexual intercourse with another human being, gays would effectively be barred from engaging in such intercourse based solely on their sexual orientation. Put differently, it would deny gay people a choice which the legislature has given to heterosexual peoples. This would deny them equality under the law and equal benefit of the law. Therefore, as McIntyre J suggests, identical treatment on its face may produce serious inequality.

The best example is the Criminal Code provision creating a different age of consent for anal intercourse, which is still on the statute books. In her concurring opinion in R v CM, Abella JA (as she then was) noted:

Anal intercourse is a basic form of sexual expression for gay men. The prohibition of this form of sexual conduct found in s. 159 accordingly has an adverse impact on them. Unmarried, heterosexual adolescents 14 or over can participate in consensual intercourse without criminal penalties; gay adolescents cannot. It perpetuates rather than narrows the gap for an historically disadvantaged group — gay men — it does so arbitrarily and stereotypically, and is, therefore, a discriminatory provision which infringes the guarantee of equality.

An approach grounded in formal equality would not remedy such blatant inequality. This is because it would be impossible to move to the second step of the inquiry. Because the provision applies equally to both gay and heterosexual individuals on its face, it draws no distinction on the ground of sexual orientation – individuals of either sexual orientation are formally equal before the law. In contrast, an approach grounded in equality under the law and especially equal benefit of the law has the advantage of shining a light on distinctions that may not appear on their face, thus allowing the equality provision to remedy truly discriminatory treatment by the state.

* * *

For these reasons, I am of the view that Professor Pardy’s criticism of Andrews is unwarranted. This should not be understood as a defence of all the Supreme Court’s decisions in this area of law. They sometimes get it wrong. Instead, I have tried to demonstrate that recognizing substantive equality is not itself the problem. In fact, I am of the view that the text of the provision requires it.

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