Answering the Siren Call of Abstract Formalism with the Subjects and Verbs of Domination

AuthorSheila McIntyre
Pages99-121

three
Answering the Siren Call of Abstract
Formalism with the Subjects and Verbs
of Domination
Sheila McIntyre
A. INTRODUCTION
Recent Charter equa lity jurisprudence reveals a steady shi away from the
substantive equality analysis the Supreme Court purports to have embraced
with Andrews. Because I am not persuaded that the Supreme Court’s pur-
chase on substantive ana lysis was ever rm, I do not believe that this shi
ows from the test set by the Supreme Court of Canada in the case of Law
v. Canada. A lthough the Law test does create additional hurdles beyond
those previously understood as the Andrews test, I favour the new third leg
in par ticular, and a high threshold to make out a section  claim gener-
al ly. I think narrowing t he coverage of section () should make it much
more dicult for governments to urge, or for courts to adopt, a deferen-
tial approach to section  or to remedies, and it may disrupt the tendency
of governments, timid courts, and the R ight to reconstruct (in)equality
claims a s policy debates a bout line-drawing best le to legislatures rather
than to “activist” judges.
In t his paper, I review what most equality-seeking groups considered
the strengt hs of Andrews (and what Charter critics from the R ight have
most deplored) to high light both what I believe is worth preserving and
what has le openings congenial to formalist habits of thinking ever since.
I argue that to the extent members of the Supreme Court understand what
it means to have adopted a substantive approach to the equality guaran-
tees, and to the ex tent they are sincere in rejecting formalism, the Court
      
has consistently shown failure of nerve in articu lating and applying the
substantivism they have repeatedly endorsed. In the resu lt, the Court has
produced an inconsistent and incoherent jurisprudence that supplies too
little guidance to lower courts, too much scope for the re-emergence of for-
malism in section  determinations, and too much ammunition to formal-
ists who seek to discredit outcomes consistent with Andrews as i llegitimate
“judicial activism.” I then oer some ideas on why the grip of formalism
remains so enduring. I a rgue that formal ism’s idealization of blindfolded
justice encourages and legitimates in members of dominant groups studied
ignorance and priv ileged innocence of their (our) personal implication in
maintaining and b eneting from systemic inequalit y. It also renders su-
premacist thinking and habits invisible, or merely normal, to advocates and
judges. I suggest why and how equality advocates like LEAF might disrupt
judicial embrace of substantive rhetoric and formalist practice by speaking
substantivism boldly enough to confront the dominant with the hard facts
of their (our) stake in oppression.
B. ANDREWS
Read as a whole, Andrews oered signicant direction, and laid indispens-
able foundations for a substantive approach to application of section . e
Court explicitly rejected a purely formalist approach to section  that would
require the same treatment of those deemed by the legislature or the court
and/or the dominant to be the same, and allowing dierential treatment
of those accordingly deemed “dierent.” e Court also rejected the soer,
“similarly situated” test. It acknowledged that identical treatment of formally
equal citizens may exacerbate the inequality of social, political, or economic
unequals; and that recognition and accommodation of social, political, a nd
economic dierences among citizens a re “the essence” of equality. Consist-
ent with endorsing a substantive approach to equality rights, the majority
also called for a contextual approach to applying section , rather than the
abstract, blindfolded justice approach that is seen to be the virtue of formal-
ism. Wilson’s short judgment is most explicit in calling for an examina-
tion of “the context of the impugned law as well as the context of the place
of the [complainant] group in the entire social, political and legal fabric of
our s oci ety.” e Court followed human rights jurisprudence in making
clear that proof of discriminatory intent would not be required to make out
an i nfringement of section . In the result, the Court decisively rejected

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT