Discrimination and Dignity
| Author | Denise G. Réaume |
| Pages | 123-177 |
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Discrimination and Dignity
Denise G. Réaume
A. INTRODUCTION
Canadian equality jurisprudence in the Charter era has been marked from
the beginning by its rejection of a formal equality approach in favour of the
pursuit of substantive equality. However, it has turned out to be easier to
avoid a pure forma l equality approach tha n to articulate the substance of
substantive equality. If the guarantee of equality is to go beyond the Dicean
objective of ensur ing that a ll those covered by the terms of a rule receive
the benet of inclusion, there must be criteria determining when statutory
distinctions between persons are leg itimate and when they are not. e
development of these criteria presents not only sig nicant conceptual dif-
culties 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
distributebenetsandburdens?
e right to equality is not like other constitutional ri ghts. With the
right to vote, to free expression, to a fair trial, or to freedom from unreason-
able search, we can read ily identify a human interest or cluster of interests
that lies at the heart of t he right which guides judicial interpretation of its
contours. is is not to say that there is no controversy about the under-
standing and scope of these interests, but at least the participants in the
debate are working from the s ame map. By contrast, it is not clear that we
have any handle on what human interest underlies t he right to equality.
Without one, Dicey’s pu ll is l ikely to be strong, and e quality protections
will do little more than correct glar ing deviations from the terms of statu-
tory rules themselves. Developing a conception of such an interest should
help in formulating appropriate obligations to impose on government to
secure that interest.
In t his art icle , I ex am ine t he re cent e ort s of t he Su preme Cour t of Can-
ada to develop a substantive conception of equality through the invocation of
the valu e of hu man dig nit y. e proce ss o f nam ing dig nit y as the t ouch stone
of equality analysis has been laborious. e process of giving that concept
some meaningf ul content stands as perhaps the most signica nt challenge
facing the Court in the coming years. is turn toward dignity in Canadian
equality jurisprudence has come in for a g reat deal of criticism. 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 ca ses might be thought to bear
out this criticism. ere is no doubt that dig nity can be used as an empty
place-holder for other less presentable reasons for nding or refusing to nd
a violation of equality. But since I shal l argue that some substantive interest
or value must underpin section if it is to have any critical bite at a ll, the
job of articulating that interest cannot be avoided. Although a great deal
of work needs to be done in eshing out a concept of dignity capable of ll-
ing this role, t he Court is on the right track in latching onto dignity a s 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.
B. PUTTING THE “SUBSTANCE” IN SUBSTANTIVE EQUALITY
e disappointing resu lts of adjudication under the equa l rights clause of
the Canadian Bill of Rights led to a concerted push aer and the enact-
ment of the Charter of Rights and Freedoms to convince the Supreme Court
to abandon a formal equality approach in favour of “substantive equality.”
Butwhatexactlyisthesubstanceinsubstantiveequality?Togetahandle
on this we must go back to the basics. Equalit y rights are a means of chal-
lenging the existi ng distribution of some benet or burden. e point of
a claim is to make an argument t hat some other principle of entitlement,
wider in at least some respect than that used by the leg islature, is the ap-
propriate criterion for distribution of the benet at issue. Every distribu-
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tion requires the setting of criteria that govern that distribution. Dening
criteria i n a rule automatically gives r ise to a form of equalit y — anyone
who has not received the benet but fulll s the criteria has not been treated
equally. In this sense, equality is a side-eect or by-product of the proper
application of a ny rule, whatever that rule is. e disappointment in the
Canadian Bill of Rights jur isprudence arose out of the Supreme Court’s
tendency fairly automatically to accept as justied the criteria provided by
the legislation under challenge — equality was conceived of a s a matter of
treating likes alike and the legislation itself was al lowed to determine what
counted as alike for its purposes. is idea is what has been labeled “for-
mal equality” — it is received wisdom in Canada now that this is not good
enough as an approach to section .
If the legislatu re’s criteria for distribution are unsati sfactory, what
shouldreplacethem?Whatwouldavisionofsubstantiveequalityrequire?
Substantive equality pays attention to the actual conditions of life of mem-
bers of disadvantaged groups — rules creating, or exacerbating, or perhaps
simply not correcting background inequalities should be changed, even if
they distribute some benet equally within their own four corners. Such an
approach requires a theory as to wh ich background conditions of inequal-
ity 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 benets
each person is entitled to share in. Once these are known, equa lity inheres
in applying the principles that govern those entitlements. If every person
is entitled to the satisfaction of her need s, then someone whose needs are
not satised has not been treated equally; if every person is entitled to the
means of subsistence, then someone who is lacking those means is not be-
ing treated equally, etc. More concrete rules providing access to pension
benets 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. us, substantive equality appea ls to some
set of underlying principles specifyi ng a range of benets that are properly
distributed universally. Its conception of equality is just as formal as that
which ows from accepting the legi slature’s criteria at face value; it simply
relies on dierent criteria for allocation of specic benets — criteria ul-
timately justied by reference to underlying universal entitlements.
Indeed, a ny approach to the adjudication of equalit y rights t hat does
not simply insist on the application of the challenged legislation according
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