Law v. Meiorin: Exploring the Governmental Responsibility to Promote Equality under Section 15 of the Charter

AuthorMelina Buckley
Pages179-206

ve
Law v. Meiorin:
    
       
Melina Buckley
A. INTRODUCTION
Canadian equal ity jurisprudence recognizes that section  of the Cha rter
and human rights legislation encompass both a duty to refra in from dis -
crimination and an obligation to promote equality. e Supreme Court
of Canada has consistently held that section () requires governments to
both refrain from discri mination and to ameliorate the position of groups
within Canadian society who have suered disadvantage by taking into
account their needs in formulating law and policy. In my view, the lat-
ter positive obligation to promote equality is underdeveloped and requires
further exploration at both the theoretical a nd practical levels. In particu-
lar, further theoretical development is necessary because the framework set
out in Law v. Canada does not adequately address how governments have
failed to ta ke into account women’s substantive inequality in legislative
and policy-making processes. By contrast, the Supreme Court of Canada’s
decision in Tawney Meiorin’s casean equality analysis developed under
a provincial human rights code — is an important breakthrough in provid-
ing a f ramework of analysis concerning an employer’s obligation to create
equality in the workplace pursuant to human rights legislation. In my view,
Meiorin provides an important foundation for the needed theoretical de-
velopment and can advance an alternative approach to section  analysis
that is better suited to judicial review of the governmental responsibility to
promote equality.
      
is paper underscores the transformative nature of the project of
achieving substantive equal ity for women. Cal ling th is project transfor-
mative highlig hts the degree, breadth, and number of changes that are re-
quired to achieve women’s substantive equality. It is not enough to accept
existing formal and social institutions as they are and only work toward
ensuring that opportunities within society are equa lly available to all.
e institutions themselves have to be transformed. Substantive equality
entails changes at all levels of society: individual behaviour, perceptions,
and attitudes; ideas a nd ideology; community and culture; institutions
and institutional practices; and, deeper structures of social and economic
power. inking about social transformation helps us to understand that
discrimination is not merely about isolated incidents but also about the
patterns of violations of the right to equality. e focus on transformation
is inextricably tied to an inquiry into positive government obligations since
the levels of change required clearly necessitate state action as an important
component of achieving women’s equality.
In setting up the disti nction between the duty of non-discrimination
and the responsibility to promote equal ity, I do not mean to incorporate
the “negative” versus “positive” rights dichotomy. e literature on human
rights, particu larly at the international level, is quite clear that there is no
persuasive dierence between a negative constraint on government to not
interfere with human rig hts and a positive requirement on government to
act to ensure human rights. ey are merely two sides of the same coin
of rights protection. However, there may be important dierences in the
way that rights inf ringements are analysed and remedied depending upon
whether the cause of action is rooted in a clai m of state action or inaction.
Similarly, even though discri mination is d iscrimination, conceptualizing
an equa lity rights i nfringement as di rect, adverse eects, or systemic dis -
crimination may be helpful in litigating and analysing the case to the extent
that it helps illuminate the dyna mics by which discrimination is imposed.
It is the issues related to equality analysis, and remedies in cases involving
the positive obligation to promote equality, that are explored here.
e rst section of this paper provides a brief overview of the limited
Charter jurisprudence that recognizes the government’s responsibility to
promote equality. Given t he underdevelopment of t his aspect of section 
to date and consequent doctrinal uncertainty, the paper provides an initial
inquiry into a principled basis for determining t he content of this p ositive
obligation. Toward this end, the second section assesses what lessons can be

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