{"id":3078,"date":"2019-02-04T03:23:01","date_gmt":"2019-02-04T03:23:01","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3078"},"modified":"2019-02-04T04:13:43","modified_gmt":"2019-02-04T04:13:43","slug":"in-defence-of-substantive-equality","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/in-defence-of-substantive-equality\/","title":{"rendered":"In Defence of Substantive Equality"},"content":{"rendered":"\n

In\na guest post<\/a>\non the Double Aspect Blog over the Christmas break, Professor Bruce Pardy\n(Queen\u2019s Law) picked the Supreme Court\u2019s decision in Andrews<\/a><\/em>\nas one of the worst decisions since 1967. While I believe Professor Pardy offered\nsome important criticisms of the Court in his post, I must respectfully\ndisagree with his attack on the Andrews <\/em>decision\nand substantive equality more generally. Without discussing the Trinity\nWestern<\/a><\/em>decision in\nthis piece, I am of the view that one can accept substantive equality without\nnecessarily agreeing with the result in that case. I propose to offer my\nobjection to Professor Pardy\u2019s approach by considering discrimination on the\nbasis of sexual orientation as an example. <\/p>\n\n\n\n

Subsection\n15(1) of the Charter<\/a><\/em>is a broad provision. It guarantees the\nright to equality without discrimination through: (1) equality before the law;\n(2) equality under the law; (3) equal protection of the law; and (4) equal benefit\nof the law. In that sense, Canada\u2019s equality provision is textually much\nbroader than the one found in the U.S. Constitution. The second and fourth guarantees\nof the equality provision are especially relevant when discussing substantive\nequality. <\/p>\n\n\n\n

As Dwight Newman explains in his contribution to Halsbury\u2019s Laws of Canada on this very issue: \u201cAs 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<\/u>\u201d (emphasis added). <\/p>\n\n\n\n

In fact, at the\ntime, Anne Bayefsky noted that Canada\u2019s equality guarantee was one of the most\nfar-reaching equality clauses of any modern bill of rights. Her masterful\nanalysis in Equality\nRights and the Canadian Charter of Rights and Freedoms<\/a><\/em> <\/em>is\nprobably the most in-depth explanation of the original public meaning of this\nprovision (see also Adam Dodek, The\nCharter Debates<\/a><\/em>). As she explains, the\nparliamentary committee debates and explanatory notes on the Charter<\/em> suggest that not only the scope\nof the equality provision was expanded, but also the type of equality sought.\nThe idea was to expand \u201cthe reach of equality of opportunity\u201d and to cover\n\u201cequality of results\u201d (see in particular the National Action Committee on the\nStatus of Women, Canadian Advisory Council on the Status of Women, National\nAssociation of Women and the Law-Nova Scotia, whose recommendations led to the\nadditions of \u201cequality under the law\u201d and \u201cequal benefit\u201d).<\/p>\n\n\n\n

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 Corbi\u00e8re<\/a><\/em>). As I explained in an earlier post<\/a>, the words \u201cin particular\u201d leave open the possibility of adding analogous grounds. If constituent legislators had intended to limit the grounds to those listed, they would <\/em>or should<\/em> have done so clearly. The words \u201cin particular\u201d allow the Court to enter the construction zone (on constitutional construction, see Lawrence Solum<\/a>). <\/p>\n\n\n\n

It is important to note that subsection 15(1) of the Charter<\/em> is also textually broader than\nits equivalent under the Canadian\nBill of Rights<\/a><\/em>. <\/em>Section\n1(b) provides the right \u201cto equality before the law and the protection of the\nlaw\u201d. In fact, the two guarantees mentioned above were explicitly added to the Charter<\/em> provision as a response to the\nemphasis on formal equality and a \u201cseparate but equal\u201d view of equality in\ndecisions under the Bill of Rights<\/em>.\nAs Peter Hogg explains, the first draft of the Charter<\/em>, published in October 1980, was worded differently. It only\nincluded \u201cequality before the law\u201d and \u201cequal protection of the law\u201d. <\/p>\n\n\n\n

The changes made and the reasons for their inclusion must\nbe reflected in the way courts adjudicate claims under s. 15 of the Charter<\/em>. As C\u00f4t\u00e9 and Brown JJ rightly noted\nin Frank<\/a><\/em>\n(the other Justices not\ndisagreeing with the statement), \u201c[t]he state of the law as it existed\nprior to . . . [a] provision coming into force can, in light of the subsequent\nlegislative provision under review, give insight into why the provision was\nenacted and what purpose it was designed to serve\u201d (citing Richard Ekins, The\nNature of Legislative Intent<\/a><\/em>). <\/p>\n\n\n\n

The added guarantees of \u201cequality under the law\u201d and \u201cequal benefit of the law\u201d were partly a response to the decisions in Attorney General of Canada v Lavell<\/a><\/em> and Bliss v Canada<\/a><\/em> (for a bit more on these cases, see Kerri Froc<\/a>). 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. \u201cEquality before the law\u201d, as a segment in A.V. Dicey\u2019s articulation of the rule of law, includes \u201cequality in the administration or application of the law by the law enforcement authorities and the ordinary courts of the land.\u201d This necessitated an explicit guarantee of \u201cequality under the law\u201d. In the second case, Ritchie J indicated that legal benefits need not be provided equally to all. This necessitated an explicit guarantee of \u201cequal benefit of the law\u201d (this was emphasized before the parliamentary committee, see Dodek and Bayefsky, supra<\/em>). <\/p>\n\n\n\n

Even if I concede that \u201cequality\u201d as understood in the Charter<\/em> is itself a vague and contested concept (however, see Lawrence Solum<\/a> on \u201ccontextual enrichment\u201d), 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<\/a>).<\/p>\n\n\n\n

Therefore, since Andrews<\/em>, the Court\u2019s approach to the\nequality provision has been to emphasize substantive equality. In that case,\nthe Court rejected an approach grounded in formal equality by acknowledging\n\u201cthat every difference in treatment between individuals under the law will not\nnecessarily result in inequality and, as well, that identical treatment may\nfrequently produce serious inequality\u201d. It bears reminding that McIntyre J is\nnot generally known for encouraging an atextual interpretation of the\nConstitution, having famously noted in Reference\nre Public Service Employee Relations Act<\/a><\/em>\nthat the Constitution \u201cshould not be regarded as an empty\nvessel to be filled with whatever meaning we might wish from time to time\u201d.<\/p>\n\n\n\n

After years of adjudication,\nthe Court finally settled on a two-step analysis in Kapp<\/a><\/em> <\/em>(which the Court has consolidated in Kahkewistahaw\nFirst Nation v Taypotat<\/a><\/em>): (1) does the law create a\ndistinction based on an enumerated or an analogous ground (whether direct or\nthrough adverse effects)?; and (2) is the distinction discriminatory? Its basic\nframework, however, is anchored in Andrews<\/em>.\n<\/p>\n\n\n\n

At a high level of generality, I do not see this\nframework as inherently problematic. On McIntyre J\u2019s point that not every\ndistinction in treatment between individuals will necessarily result in\ninequality, I find it sufficient to quote from former Justice Antonin Scalia\nwho, in response to Senator Dianne Feinstein on the interpretation of the\nFourteenth Amendment, exclaimed<\/a>:  \u201cDoes equal protection mean that you have to\nhave unisex toilets? I mean that\u2019s the kind of question you have to get into.\u201d The\nultimate question is not merely whether distinctions have been made, but\nwhether the choices made are rational or are made on the basis of arbitrary\nconsiderations. This explains why the second step of the test exists.   <\/p>\n\n\n\n

On McIntyre J\u2019s point that identical treatment may\nproduce inequality, the idea is that facially neutral laws may be profoundly\ndiscriminatory \u2013 that is, the legislature may adopt a norm couched in terms\nthat apply to everyone on its face, while its actual effect is to make a\ndistinction based on an enumerated or analogous ground. In other words, not\neveryone would be benefitting<\/em> equally\nor be equal under the law. In these circumstances, the form chosen by the\nlegislature should not shield it from judicial scrutiny at the first step. To\ndo otherwise is to transform this constitutional provision into a hollow\npromise. Finding an indirect distinction at the first step of the analysis therefore\nallows courts to then determine whether the norm in question is discriminatory\nat the second step of the analysis.<\/p>\n\n\n\n

In order to make my point, I will turn my attention to\nanti-sodomy laws and laws which provide a different age of consent for anal\nintercourse.  Evidently, a criminal prohibition that solely set its\nsights on criminalizing anal intercourse between individuals of the same sex\nwould be unconstitutional under the framework proposed by Professor Pardy. The\ndistinction and discrimination are direct in such a case, which a formal\nequality analysis would remedy. <\/p>\n\n\n\n

However,\ncould a provision criminalizing both homosexual and<\/em> heterosexual anal intercourse be upheld? It seems to me that\nProfessor Pardy\u2019s approach to the equality provision would lead him to answer\nin the affirmative. In my view, this is a result that does not give due regard\nto the guarantees of \u201cequal benefit of the law\u201d and \u201cequality under the law\u201d. Only\nan approach grounded in substantive equality can remedy this result in a manner\nfaithful to the constitutional text. <\/p>\n\n\n\n

In Lawrence\nv Texas<\/a><\/em>, this concern was raised by the majority of the Supreme\nCourt of the United States. O\u2019Connor J, concurring, would have struck down the\nprovision on formal equality grounds because the statute banned \u201chomosexual\nsodomy, but not heterosexual sodomy.\u201d The majority grounded its analysis in the\nEqual Protection and the Due Process Clauses by finding a protected zone of\nprivacy through the right to liberty, which effectively meant that no provision\ncriminalizing sodomy could be justified.<\/p>\n\n\n\n

I have always been of the view that substantive due\nprocess is a doctrine that has no textual anchor and has led to historical\nnightmares (I am still mulling over Justice Gorsuch\u2019s recent concurring opinion\nin Sessions v\nDimaya<\/a><\/em>; not to mention\nthe value of stare decisis<\/em> in our\nlegal system). As Chief Justice John Roberts once noted<\/a>,\nthis doctrine was first used by the Supreme Court of the United States to\njustify slavery, before being used to declare minimum wage laws\nunconstitutional during the Lochner <\/em>era.\nIn my view, turning to s. 7 of the Charter<\/em>,\nwhich the Supreme Court of Canada has transformed from a procedural guarantee\ninto a substantive guarantee, is not the answer. Instead, the equality rights\nprovision which provides \u201cequal benefit of the law\u201d and \u201cequality under the law\u201d\nis a sounder textual anchor. <\/p>\n\n\n\n

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

The\nbest example is the Criminal\nCode provision<\/a><\/em> creating a\ndifferent age of consent for anal intercourse, which is still on the statute\nbooks. In her concurring opinion in R\nv CM<\/a><\/em>, Abella JA (as she then was) noted: <\/p>\n\n\n\n

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.<\/p><\/blockquote>\n\n\n\n

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 \u2013 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. <\/p>\n\n\n\n

* * *<\/p>\n\n\n\n

For these reasons, I am of the view that Professor Pardy\u2019s criticism of Andrews<\/em> is unwarranted. This should not be understood as a defence of all the Supreme Court\u2019s 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. <\/p>\n","protected":false},"excerpt":{"rendered":"

In a guest post on the Double Aspect Blog over the Christmas break, Professor Bruce Pardy (Queen\u2019s Law) picked the Supreme Court\u2019s 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 …<\/p>\n","protected":false},"author":2804,"featured_media":1880,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36,34],"tags":[107,323,490,134,489,181,491,488],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3078"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/2804"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3078"}],"version-history":[{"count":4,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3078\/revisions"}],"predecessor-version":[{"id":3085,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3078\/revisions\/3085"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1880"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3078"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3078"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3078"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}