In Pursuit of Substantive Equality

• Author: Fay Faraday, Margaret Denike, & M. Kate Stephenson
• Pages: 9-28

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introduction

In Pursuit of Substantive Equality

Fay Faraday, Margaret Denike, & M. Kate Stephenson

A. INTRODUCTION

Every individual is equal before and under the law and has the right to the

equal protection and equal benet of the law without discrimination and,

in particular, without discrim ination based on ra ce, national or et hnic

origin, colour, religion, sex, ag e or mental or physical disability.

With these words, the right to equality is guaranteed to a ll individuals as

a constitutional right in section  of the Canadian Charter of Rights and

Freedoms. Section  of the Charter came into eect in April . In the

two decades since then, the right to equality has been one of the most hotly

contested Charter rig hts, being disputed in over  reported court cases

across Canada. It is a right that i n very short order has become deeply en-

grained in Canadian legal, political, and social discourse. It has b ecome a

bedrock value, fundamental ly reecting and shaping how Canadians view

themselves and their society.

e Charter right to equa lity is at once one of the most cheri shed and

most controversial rights. And this is as it should be because the goa l of

equality is tra nsformative. As Sheila McIntyre writes, “[w]hen equality

claims are rea lly substantive, they should challenge privi leged under-

standings of the world and privileged players’ understandings of them-

selves.” More than any other constitutional right, the right to equality is

a redistributive right. It calls into scrutiny the qual ity of the relationships

      

we forge with others in society. It questions the justice of the distribu-

tion of rights, privileges, burdens, power, and material resources in society

and the basis for that di stribution. It requires us to articulate and critic-

ally exa mine previously unspoken assu mptions and norms and how these

norms are embedded in the laws that st ructure our relationships. Most

signicantly, it requi res us to transform those legal s tructures to secure

substantive equalit y.

Not surprising ly, this is not a n uncontroversial undertak ing. Justices

Cory and Iacobucci addressed thi s tension bet ween the goal of equality

and the persistent reality of inequality in Vriend v. Alberta as follows:

e rights enshrined in s. () of the Charter are fundamental to Canada.

ey reect t he fondest dreams, the highest hopes a nd nest aspirations

of Canadian society. . . .

. . . It is easy to praise these concepts as providing the foundation for

a just society which permits ever y individual to live in dignit y and in har-

mony with all. e dicu lty lies in giving real eect to equa lity. Dicult

as the goal of equ ality may be it is wort h the arduous st ruggle to attain.

It is only when equality is a real ity that fraternity and harmony wil l be

achieved. It is then that individua ls will truly live in d ignity.

Similarly, in Law v. Canada, Justice Iacobucci wrote that section  “is

perhaps the Charter’s most conceptually dicu lt provision.” W hile t he

“quest for equality expresses some of humanit y’s highest ideals a nd aspira-

tions,” the challenge is “to transform these ideals and aspirations into prac-

tice in a manner which is meaningf ul for Canadians.”

is is the terrain examined in t his collection of essays. In the chapters

that follow, the authors critically a ssess the state of equality jurisprudence

from many angles and seek to build bridges from the aspirations to the real-

ity of substantive e quality. Collectively, the essays attempt to cra a more

secure footing for substantive equality as section  of the Charter move s

into its second generation. e essays in this book are divided into three

parts, which examine fundamental aspects of the project to secure substan-

tive equality:

• PartOneaddressesthethemeof“WhatDoesEqualityMean?”e

ve essays in this section add ress the substantive content and goa ls

of equality rights, and the extent to which jurisprudence under the

Charter either facilitates or restricts the achievement of these goals .