A conversation about equality.

AuthorL'Heureux-Dube, Claire
PositionCanadian law
  1. INTRODUCTION

    Equality is a topic very near to my heart. Since I believe that you have to pose the right questions to get good answers, I will explore some of the who's, what's, when's, where's, and why's of equality, although not necessarily in that order. I sincerely hope that these questions will provide a basis for us to ask other questions, both of ourselves and of others. For posing questions, talking to each other, and thinking about what the concept of equality means and should mean will help all of us come to a better understanding of equality, how it applies, and what it means, both in our lives and in the law.

  2. WHY IS EQUALITY SO IMPORTANT?

    Why are we not prepared to accept that we can be treated with less dignity because of the groups to which we belong or with which we identify? In my opinion, our desire for equality stems from our desire for justice and, put simply, inequality is injustice. It is unjust to treat people as less worthy or less deserving because of inherent personal characteristics, circumstances in which they find themselves, or fundamental choices they have made. It is unjust for those who have historically held advantages and privileges in society to continue those privileges at the expense of others. When there is inequality, oppression is allowed, facilitated, and encouraged. In Canada, where we believe every member of society is a full member, it is contrary to our conception of justice to suggest that people can be treated as less worthy, less deserving, or less equal because of their personal characteristics or identity.

    I ask you: if you were given the opportunity to design a model society, not knowing a priori who you would be or into what role you would be born, knowing only that the odds were roughly even that you would be born into a position of relative empowerment or relative disempowerment, what would your society look like? I put it to you that almost anyone in such a position would design a society that treated each and every individual with dignity, and offered them equal opportunity to realize their goals and expectations. Of course, I am not talking only about you, but about your children, and your children's children. The call to arms of equality seekers today is really an investment in tomorrow.

  3. WHERE DO WE LOOK FOR INEQUALITY?

    John Stuart Mill, one of the first philosophers to recognize the interrelationship between individual human dignity and the good of the community, observed that the law assumes that existing relationships of domination and subordination are "natural".(1) He argued that the law plays an insidious role when it adopts the status quo and converts a relationship of inequality from a purely physical fact to a legal right.(2) Once inequality is clothed in the legitimising language of rights and law, it receives the sanction of society.(3) Mill asked whether there is ever domination that appears unnatural to those who wield it.(4)

    This observation is as true today as it was when he made it. Inequality permeates the social, legal, and political institutions that are central to the workings of our society. A renewed commitment to its eradication requires that we look deep into ourselves and into the reality experienced by those who have not historically dominated "by nature".

    While it is interesting to note that the Canadian Charter of Rights and Freedoms was proclaimed in force in 1982, thereby constitutionalizing certain human, civil and political rights in Canada, implementation of section 15, which guarantees "equality without discrimination" to all individuals, was delayed until 1985.(5) Equality without discrimination was not a very new or revolutionary concept in 1982 and yet implementation of section 15 was delayed for three years beyond any of the other newly constitutionalized fundamental human rights. In my view, this delay allowed for the profound re-examination of Canada's basic laws and institutions that the recognition of such a right required. I find it a somewhat disturbing indictment of our past that, in 1982, we felt that our laws might be so discriminatory that we would need several years of grace before permitting individuals to challenge them.

    A few brief comments on some of Canada's historical equality "benchmarks" demonstrates why our drafters' concerns may have been justified. For instance, it was not until 1929 that the British Privy Council, acting as Canada's final court of appeal, finally recognized that women were "persons", and thereby able to be appointed to the Senate.(6) Since that time, slowly but surely, other obstacles to equality have fallen under the relentless pressure of social change. However, many of these moves occurred much later than many people realize. Among the most blatant examples, women could not vote in Quebec elections until 1940.(7) Federally, Japanese Canadians could not vote until 1948, and status Indians gained the franchise only in 1960.(8) Thus, even glaring formal inequalities such as these permeated the very foundations of our democracy well into this century.

    Parliament did enact an equality guarantee in the Canadian Bill of Rights in 1960.(9) While this was a positive step, no great immediate strides toward substantive equality came about as a result. The Bill of Rights was simply a statute like any other. It was interpreted narrowly because it lacked the authority of a constitutional document and it did not apply to provincial laws. In one infamous Bill of Rights case, Bliss v. Attorney General of Canada, the Supreme Court held that denying benefits on the basis of pregnancy was not sex discrimination, since the distinction was based on the fact that the women were pregnant, rather than the fact that they were women.(10) In another case, Attorney General v. Lavell, a law which disqualified native women who married non-natives from receiving certain benefits related to Indian status, but did not similarly disqualify native men, was held not to be discriminatory, since all native women were treated equally with respect to each other.(11) These cases demonstrated that the Bill of Rights, as the Supreme Court interpreted it, only guaranteed equality to the extent that people were the same. Women, minorities, and the disabled were fully "equal" within their individual groups, but only to the extent that they were no different from the grouping of white, able-bodied men. For those who were disadvantaged because they were different from what society considered the `norm', this road to equality was a dead end.

  4. WHAT DOES IT MEAN IN CANADA TO SPEAK OF "EQUALITY" IN THIS DAY AND AGE?

    Unlike the American Bill of Rights, the Charter does not simply assert a right of "equal protection"; it speaks of "equality without discrimination".(12) My first observation about these two documents is that they grew out of two very different historical contexts. In order...

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