{"id":3087,"date":"2019-02-06T15:10:19","date_gmt":"2019-02-06T15:10:19","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3087"},"modified":"2019-02-13T19:15:49","modified_gmt":"2019-02-13T19:15:49","slug":"substantive-equality-some-people-are-more-equal-than-others","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/substantive-equality-some-people-are-more-equal-than-others\/","title":{"rendered":"Substantive Equality: Some People are More Equal Than Others"},"content":{"rendered":"\n

Double Aspect<\/em>, the law blog of Leonid Sirota and Mark Mancini, recently hosted The<\/em> 12 Days of Christmas<\/em>, in which contributors offered their picks for the five worst public law Supreme Court of Canada decisions between 1967 and 2017. My list<\/a> included Andrews<\/em>, which I criticized for starting the mess that the Supreme Court has made of section 15(1) of the Charter<\/em>. I took no issue with the result in Andrews<\/em> but suggested that its confused interpretation of s 15(1) has made possible the Court\u2019s assertion that it protects substantive equality. In a recent post here at ARL, Jesse Hartery takes issue with my criticism of <\/a>Andrews<\/a><\/em> <\/a>and defends the notion that substantive equality is the kind of equality that s 15(1) guarantees. <\/p>\n\n\n\n

I am\ndelighted that Mr. Hartery has taken up this issue and grateful to Asher\nHonickman and ARL for giving us an opportunity to debate it. The equality\nguarantee has become the elephant in the Canadian constitutional courtroom. In\nits recent TWU<\/em> decision, the Supreme\nCourt invoked equality as a \u201cCharter<\/em>\nvalue\u201d that justified the infringement of an explicitly enumerated fundamental\nfreedom. Yet 15(1) is just another section of the Charter<\/em>. It provides that every individual is \u201cequal before and\nunder the law and has the right to the equal protection and equal benefit of\nthe law without discrimination \u2026\u201d What does that mean? It is not a small\nquestion. In this article, I will identify the main alternatives and discuss implications\nof the interpretation that Mr. Hartery advocates. <\/p>\n\n\n\n

Formal versus substantive equality<\/strong><\/p>\n\n\n\n

Section 15(1)\nlists four variations of equality (\u201cbefore\u201d, \u201cunder\u201d, \u201cprotection\u201d and\n\u201cbenefit\u201d) but there are only two core competing ideas: equality means either that\nthe same rules should be applied to everyone or that different rules should be applied\nto different people so as to produce equal outcomes. <\/p>\n\n\n\n

The first\nconcept, often referred to as \u201cformal equality\u201d or \u201cequality of application\u201d,\nlies at the heart of Western legal culture: All individuals should be subject\nto the same rules and standards; like cases should be treated alike; justice should\nbe blind; the law should take no account of personal characteristics and should\ntreat people as individuals rather than as members of groups. The second notion,\ncommonly known as \u201csubstantive equality\u201d or \u201cequality of outcome\u201d, is the\nopposite of the first: equality does not mean treating people the same but\nrequires treating them differently so as to achieve equal or equivalent effects;\njustice should not be blind but should inquire into identities, capacities and\npractices; the law should make distinctions based upon group affiliation and\ntreat people in proportion to their group\u2019s advantages and disadvantages,\nstrengths and weaknesses. <\/p>\n\n\n\n

Formal\nequality and substantive equality are mutually exclusive and cannot co-exist.\nThe law cannot simultaneously apply the same rules to everyone and also apply\ndifferent rules to different people. One person\u2019s right to have the same rules\nand standards applied universally is inconsistent with another\u2019s right to have\na rule modified or waived because of its differentiated burdens. Under 15(1),\nit must be one thing or the other. The section may describe equality using a\nvariety of terms but it cannot guarantee both formal and substantive equality\nbecause they are incompatible. <\/p>\n\n\n\n

How formal and substantive equality work<\/strong><\/p>\n\n\n\n

The term\n\u201cformal equality\u201d does not denote merely that formal rules should be neutrally\napplied in adjudication. For example, a rule might state that \u201cMen must report\nfor military duty\u201d. If a court applied this rule according to its terms in a\nneutral manner to men and women, that adjudication would send only men to\ncompulsory military service. The rule is inconsistent with the requirements of\nformal equality because it imposes different obligations on men and women. <\/p>\n\n\n\n

If, instead\nof explicitly requiring men to report for military duty, the rule required\neveryone with an Adam\u2019s apple to do so, the substance of the rule is the same:\nthe requirement applies to men and not women. Under a regime of formal equality,\ncourts can examine substance to ensure that the same standards are being\napplied to all; whereas the premise of substantive equality is that the same\nstandards should not<\/em> apply to\neveryone. Where substantive equality is the objective, courts examine substance\nto measure whether the standards will be more difficult for some to meet than\nothers. A rule might require that all volunteers for military duty be able to\nrun a mile in under ten minutes wearing heavy boots. That rule establishes a\ncommon standard for all recruits. It meets the requirements for formal\nequality. However, if the average man runs faster than the average woman, the\nrule does not comply with the requirements for substantive equality because as\na group women will have a greater challenge meeting the standard than men. <\/p>\n\n\n\n

The case\nfor substantive equality<\/strong><\/p>\n\n\n\n

According\nto Mr. Hartery and the Supreme Court of Canada, 15(1) should protect\nsubstantive equality. In Andrews<\/em>, McIntyre\nJ. stated:<\/p>\n\n\n\n

\u2026 a law which treats all identically and which provides equality of treatment between “A” and “B” might well cause inequality for “C”, depending on differences in personal characteristics and situations. To approach the ideal of full equality before and under the law \u2026 the main consideration must be the impact of the law on the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.<\/p><\/blockquote>\n\n\n\n

Mr. Hartery\nconcurs. He uses anti-sodomy laws to illustrate. He says, and I agree, that a\nlaw that prohibits homosexual but not heterosexual sodomy would fail to meet\nthe requirements of formal equality, since it does not prescribe the same rule\nfor all. However, he goes on to argue that a rule universally prohibiting anal\nintercourse is contrary to the 15(1) equality guarantee because it has\ndifferent effects upon gay people than straight people. He writes:<\/p>\n\n\n\n

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

Substantive\nequality: Rights for some but not for others<\/strong><\/p>\n\n\n\n

A rule\nprohibits hunting. The rule applies to everyone. Under the rule, no one may\nhunt. However, the rule impacts only people who hunt. People who do not hunt\nare not burdened by the rule because it prohibits something that they do not\ndo. The rule applies equally to all but its burdens are not equal. Does the\nrule infringe section 15(1)? If 15(1) protects formal equality, then the answer\nis \u201cno\u201d because the prohibition applies to everyone. If 15(1) provides\nsubstantive equality, then following Mr. Hartery\u2019s logic, the hunters would\nseem to have a case. The rule burdens them and no one else. The problem is that\n15(1) reserves substantive equality to select populations. Hunters are not\namong them because hunters are not the right kind of group. <\/p>\n\n\n\n

Mr. Hartery\nsays that if sodomy is prohibited, 15(1) is infringed because the prohibition\naffects gay people more than straight people. However, a rule that prohibits sodomy\nis abstractly the same as a rule that prohibits hunting. Both rules apply to\nall without exemption and comply with the requirements for formal equality. Both\nprohibit activities in which any adult could otherwise engage. Gay and straight\npeople practice sodomy; anyone can hunt. Each rule affects only those people\nwho participate in the activity. They apply equally to all but their burdens\nare not equal. Mr. Hartery says gay people should be protected from the prohibition\nagainst sodomy because 15(1) protects substantive equality. Yet hunters have no\nclaim for relief from a ban on hunting \u2013 except perhaps if they are Aboriginal.\nThe right to substantive equality is available only in select circumstances to a\nprivileged few. <\/p>\n\n\n\n

Mr. Hartery\nsuggests that a ban on sodomy is unequal because sodomy is an inherent part of\nhomosexuality. However, it is not an innate feature like having an Adam\u2019s\napple. Homosexuality itself may be innate but sodomy is an activity in which,\nlike hunting, both gay and straight people may choose to engage. A ban on\nvaginal intercourse would meet the requirements of formal equality since the\nprohibition is universally applicable. The fact that only straight people\nchoose to participate is irrelevant. Gay people simply do not wish to partake \u2013\njust like people who opt not to hunt. If prohibiting vaginal intercourse is\nvalid under 15(1), so too is banning sodomy. The law should not care who you\nare.<\/p>\n\n\n\n

Equality is not liberty. I agree that people – gay, straight\nor otherwise – should not be prevented from engaging in whatever kind of sexual\nactivity they wish. Governments have no business imposing rules on sexual\nconduct between consenting adults. However, that is an argument for liberty,\nnot equality. Liberty is the right to be free from state interference. Equality\nis the right not to be subject to different oppressive rules than anybody else.\nThe notion of substantive equality is apt to be pursued as a route to liberty\nfor aggrieved groups, but that is riding the wrong horse to the wrong pasture. <\/p>\n\n\n\n

The words of section 15 of the Charter<\/em><\/strong><\/p>\n\n\n\n

I am not\nsuggesting that hunters should have a right to substantive equality. They\nshould not. Nor should gay people, Aboriginal hunters or female military\nrecruits because that is not what the words of 15(1) prescribe. The text of\n15(1) precludes substantive equality: \u201cEvery individual is equal \u2026 without\ndiscrimination\u2026\u201d The section applies to individuals, not to groups. (The word\n\u201cgroup\u201d appears in 15(2) but not in (1).) To which individuals does the\nguarantee in 15(1) apply? Every single one, without regard to whatever group\naffiliations they might claim: gay or straight, black or white, male or female,\nrich or poor, hunters or vegetarians. The words of 15(1) describe a universal\nright to formal equality.<\/p>\n\n\n\n

In the\nEnglish language, \u201cto discriminate\u201d means to distinguish or to tell apart. To\napply different standards to different people is to discriminate. The very idea\nof substantive equality discriminates because it distinguishes between people\nbased upon their group identities. The text of 15(1) prohibits it: \u201c\u2026without discrimination and, in\nparticular, without discrimination based on race, national or ethnic origin,\ncolour, religion, sex, age or mental or physical disability.\u201d The words of the\nsection say that the law should not<\/em>\ndistinguish between people on the basis of identity. Do not inquire into who\nthey are, it says. Make and apply rules without recognizing distinctions\nbetween them.<\/p>\n\n\n\n

The text of 15(2) demands this\ninterpretation also. Section 15(2) is a specific and narrow exception to 15(1).\nThe opening words of 15(2) say \u201cSubsection (1) does not preclude \u2026\u201d Section\n15(2) provides for specific programs that seek to achieve substantive equality.\nIt conflicts with the principle of formal equality in 15(1). If it did not, there\nwould be no need for the words \u201cSubsection (1) does not preclude \u2026\u201d. Indeed,\nthere would be no need for 15(2) at all. If 15(1) and 15(2) both protect\nsubstantive equality, then 15(2) is redundant.<\/p>\n\n\n\n

All\nindividuals are equal but some are more equal than others<\/strong><\/p>\n\n\n\n

Substantive\nequality is a licence to discriminate. Non-Aboriginals may be prohibited from hunting\nand fishing when Aboriginals are free to do so but not the other way around. Female\nmilitary recruits may get longer to run a mile than male recruits even if some\nare better runners than some of the men. What of the slow white male who wants\nto join the military, hunt and fish? He has the worst of all constitutional worlds.\nHe can neither insist that the same rules be applied to everybody nor claim to\nbelong to the right kind of group to have the rules adjusted in his favour. The\nwords of 15(1) say that every individual is equal but he is not one of them. Substantive\nequality makes some more equal than others.<\/p>\n\n\n\n

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

Bruce Pardy is Professor of Law at Queen\u2019s University. E-mail him at pardyb@queensu.ca. Follow him on Twitte @PardyBruce<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Double Aspect, the law blog of Leonid Sirota and Mark Mancini, recently hosted The 12 Days of Christmas, in which contributors offered their picks for the five worst public law Supreme Court of Canada decisions between 1967 and 2017. My list included Andrews, which I criticized for starting the mess that the Supreme Court has …<\/p>\n","protected":false},"author":1257,"featured_media":3092,"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":[107,255,134,489,234,106,488],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3087"}],"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\/1257"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3087"}],"version-history":[{"count":4,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3087\/revisions"}],"predecessor-version":[{"id":3093,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3087\/revisions\/3093"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/3092"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3087"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3087"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3087"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}