Discrimination and Dignity

• Author: Denise G. Réaume
• Position: B.A., LL.B. (Queen s); B.C.L. (Oxon.), University of Toronto
• Pages: 645-695

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B.A., LL.B. (Queen's); B.C.L. (Oxon.), University of Toronto.

The development of this article has benefitted from many forms of support and many kinds of help. The opportunity to visit the College of Law at the University of Saskatchewan as the Law Foundation Chair gave me the luxury to carry out the research necessary, as well as a warm and collegial environment in which to do so. I have also benefitted from the chance to present earlier versions of this work both at the University of Saskatchewan and the University of Victoria, as well as at the conference at the Louisiana State University Law School which gave rise to this symposium issue. In addition, I am grateful for individual feedback from Donna Greschner, Ken Norman, and Hester Lessard and encouragement from Colleen Sheppard. Lastly, thanks must also go out to Zoe Oxäal for her meticulous research assistance.

Introduction

Canadian equality jurisprudence in the Charter¹ era has been marked from the beginning by its rejection of a formal equality approach in favor of the pursuit of substantive equality. However, it has turned out to be easier to avoid a pure formal equality approach than to articulate the substance of substantive equality. If the guarantee of equality is to go beyond the Dicean objective of ensuring that all those covered by the terms of a rule receive the benefit of inclusion, there must be criteria determining when statutory distinctions between persons are legitimate and when they are not. The development of these criteria presents not only significant conceptual difficulties but, perhaps more importantly, moral and political ones. Equality should not be an empty ideal, but if we expect the courts to supervise the various distributive tasks that occupy the modern state, how should they distribute benefits and burdens?

The right to equality² is not like other constitutional rights. With the right to vote, to free expression, to a fair trial, or to freedom from unreasonable search, we can readily identify a human interest or Page 646 cluster of interests that lies at the heart of the right which guides judicial interpretation of its contours. This is not to say that there is no controversy about the understanding and scope of these interests, but at least the participants in the debate are working from the same map. By contrast, it is not clear that we have any handle on what human interest underlies the right to equality. Without one, Dicey's pull is likely to be strong, and equality protections will do little more than correct glaring deviations from the terms of statutory rules themselves. Developing a conception of such an interest should help in formulating appropriate obligations to impose on government to secure that interest.

In this article, I examine the recent efforts of the Supreme Court of Canada to develop a substantive conception of equality through the invocation of the value of human dignity. The process of naming dignity as the touchstone of equality analysis has been laborious. The process of giving that concept some meaningful content stands as perhaps the most significant challenge facing the Court in the coming years. This turn toward dignity in Canadian equality jurisprudence has come in for a great deal of criticism.³ Dignity is said to be vague to the point of vacuous and, therefore, too easily useable to dress up decisions based on nothing more than conservative gut reaction or excessive deference to Parliament. Recent cases⁴ might be thought to bear out this criticism. There is no doubt that dignity can be used as an empty place-holder for other less presentable reasons for finding or refusing to find a violation of equality. But since I shall argue that some substantive interest or value must underpin s. 15 if it is to have any critical bite at all, the job of articulating that interest cannot be avoided.⁵ Although a great deal of work needs to be done in fleshing out a concept of dignity capable of filling this role, the Court is on the right track in latching onto dignity as the substantive concept informing equality rights. Rather than join the critics, I propose to work with what has already been said about what dignity means to see what constructive work it might do.⁶

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A Putting The 'Substance' In Substantive Equality

The disappointing results of adjudication under the equal rights clause of the Canadian Bill of Rights⁷ led to a concerted push after 1982 and the enactment of the Charter of Rights and Freedoms to convince the Supreme Court to abandon a formal equality approach in favor of "substantive equality."⁸ But what exactly is the substance in substantive equality? To get a handle on this we must go back to the basics. Equality rights are a means of challenging the existing distribution of some benefit or burden.⁹ The point of a claim is to make an argument that some other principle of entitlement, wider in at least some respect than that used by the legislature, is the appropriate criterion for distribution of the benefit at issue.¹⁰ Every distribution requires the setting of criteria that govern that distribution. Defining criteria in a rule automatically gives rise to a form of equality-anyone who has not received the benefit but Page 648 fulfills the criteria has not been treated equally.¹¹ In this sense, equality is a side-effect or by-product of the proper application of any rule, whatever that rule is. The disappointment in the Canadian Bill of Rights jurisprudence arose out of the Supreme Court's tendency fairly automatically to accept as justified the criteria provided by the legislation under challenge-equality was conceived of as a matter of treating likes alike and the legislation itself was allowed to determine what counted as alike for its purposes. This idea is what has been labeled 'formal equality'-it is received wisdom in Canada now that this is not good enough as an approach to s. 15.¹²

If the legislature's criteria for distribution are unsatisfactory, what should replace them? What would a vision of substantive equality require? Substantive equality pays attention to the actual conditions of life of members of disadvantaged groups-rules creating, or exacerbating, or perhaps simply not correcting background inequalities should be changed,¹³ even if they distribute some benefit equally within their own four corners. Such an approach requires a theory as to which background conditions of inequality require attention in our society, which in turn requires an account of the respects in which people should be equal. In other words, we need to know what underlying universal entitlements there are-what goods or benefits each person is entitled to share in. Once these are known, equality inheres in applying the principles that govern those entitlements. If every person is entitled to the satisfaction of her needs, then someone whose needs are not satisfied has not been treated equally; if every person is entitled to the means of subsistence, then someone who is lacking those means is not being treated equally, etc. More concrete rules providing access to pension benefits or medical attention, for instance, can be assessed according to whether they are conducive to the satisfaction of needs or the provision of the means of subsistence, etc. Thus, substantive equality appeals to some set of underlying principles specifying a range of benefits that are properly distributed universally.¹⁴ Its conception of Page 649 equality is just as formal as that which flows from accepting the legislature's criteria at face value; it simply relies on different criteria for allocation of specific benefits-criteria ultimately justified by reference to underlying universal entitlements.

Indeed, any approach to the adjudication of equality rights that does not simply insist on the application of the challenged legislation according to its own terms must ultimately rely on an argument that an alternative criterion of distribution is better than the one provided by the legislature. This is true even of approaches that focus exclusively on assessing the adequacy of the legislative distinction as a means of achieving legislative objectives.¹⁵ In the first instance, this approach hinges on determining the legislative objective, a matter that can itself be a matter of controversy and which is merely an oblique way of prescribing criteria for the distribution of the benefit in issue. An objective of alleviating poverty will carry different implications for the distribution of social assistance than an objective of encouraging self-sufficiency. Furthermore, if there is to be any room to challenge the legitimacy of the legislative objective (without which we are back to Dicey), these will hinge on some argument that there is some universal principle of entitlement, some respect in which people are entitled to be treated equally, which is not satisfied by the actual objective.

In other words, the truly substantive question in the context of how to distribute various goods is that of determining the proper criteria for each benefit likely to come up for distribution in a modern society, taking into account the need to redress existing inequalities. The task is a daunting one, considered comprehensively, quickly leading us into debates about whether it is the proper province of the judiciary. While dramatic redistribution in various ways is undoubtedly called for in our society, it remains intensely Page 650 controversial...