MSM Blood Donation Ban: (In)equality, Gay Rights and Discrimination under the Charter
| Author | Rachael Lake |
| Position | Many thanks to Professor Gillian Calder for her feedback on this and earlier versions of this paper |
| Pages | 136-149 |
136 wAPPEAL VOLUME 15
ARTICLE
MSM BLOOD DONATION BAN:
(IN)EQUALITY, GAY RIGHTS AND
DISCRIMINATION UNDER THE CHARTER
By Rachael Lake*
CITED: (2010) 15 APPEAL 136-149
INTRODUCTION
“Blood. It’s in you to give,” proclaims Canadian Blood Services (“CBS”), on their ocial
website and in their advertising campaigns; that is, unless you are a man who has ever had
sex with another man, even once, since .1If you are a sexually active gay or bisexual
man, or a male who has ever engaged in sexual acts with another man (regardless of your
sexual orientation) then you are banned for life from donating blood.2CBS states that the
reason for this ban is that men who have sex with men (“MSM”) are at a greater risk for
being infected with HIV.3e organization does not identify risky sexual behaviours that
actually increase the chances of HIV infection; rather, it creates a policy that makes a sweep-
ing generalization about a group of people (gay men) based upon a perceived characteris-
tic of that group (engaging in non-monogamous or promiscuous sexual behaviour). In
short, CBS discriminates on the basis of sexual orientation, one of the acts against which
the equality provision in s. () of the Canadian Charter of Rights and Freedoms4(“Char-
ter”) is intended to guard.
* Many thanks to Professor Gillian Calder for her feedback on this and earlier versions of this paper. I am grateful
for her encouragement, guidance and support for my engagement with this issue, and for constantly challeng-
ing me to think more deeply about it. I would also like to thank Chris Tait for offering direction in the research
process, and Chloe Hamza, Heather Cruickshank, Christy Guthrie, Anne Stebbins, Sacha Ivy and the Appeal Ed-
itorial Board for their editing assistance. A final thank you is owed to the anonymous faculty reviewer for his or
her feedback that challenged me to strengthen my arguments throughout this piece.
1. Canadian Blood Services, Record of Donation, online: Canadian Blood Services – Société Canadienne du sang –
Donor Questionnaire
I-Donate/$file/01127-F020831-E.pdf > (last accessed 12 January 2010) [Record of Donation].
2. Canadian Standards Association Criteria, reprinted in Adrian Lomaga, “Are Men Who Have Sex With Men Safe
Blood Donors?” (2007) 12 Appeal 73 at 78.
3. Canadian Blood Services, “Media Questions and Answers –Why do you not allow gay men to donate blood?”,
online: Canadian Blood Services - Société Canadienne du sang – Questions and Answers
swers?OpenDocument&CloseMenu#HT3> (last accessed 12 January 2010).
4. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c. 11, s. 15(1) [Charter].
APPEAL VOLUME 15 w137
Despite the claims of some scholars that a Charter challenge to Question of the Record
of Donation5would succeed,6I argue that if brought before the courts today, CBS’s dis-
criminatory blood donation policy would likely withstand Charter scrutiny. e courts’
approach to equality under s .(), combined with the reication of monogamy through
institutionalized homophobia, enables and perpetuates discrimination on the basis of sex-
ual orientation that is informed by fears of non-monogamy or promiscuity. To make this
argument, I will rst examine gay and lesbian rights claims that have been successfully lit-
igated under s. () of the Charter to show that cases are most successful when courts are
asked to engage in formal rather than substantive equality reasoning and when the claim
asks for recognition of a right instead of redistribution of public funds. I will then turn to
s. () jurisprudence and scholarship to argue that the current framework is inadequate to
capture a substantive understanding of discrimination that would be necessary to nd that
CBS’s policy violates s. (). I will conclude by considering the ways in which advocates
may begin to break out of the formal equality gridlock by speaking the language of sub-
stantive equality.
I. LITIGATING SEXUAL ORIENTATION
In order to understand why this particular s. () claim would not be successful, it is nec-
essary to understand the limitations of the success that gay and lesbian rights claims have
had in the past. Although not originally enumerated in the prohibited grounds of dis-
crimination when the equality provision came into force on April , , the Supreme
Court of Canada (“SCC”) established sexual orientation as an analogous ground in in
Egan v. Canada7(“Egan”). Since then, litigation of gay and lesbian rights claims under s.
() of the Charter has been seemingly successful. Gays and lesbians have sought and won
inclusion of sexual orientation as a prohibited ground of discrimination in provincial
human rights codes,8status as spouses for the purposes of spousal support,9and the right
to marry,10 among other seeming victories. An examination of these cases, however, re-
veals that courts are only willing to accept certain arguments related to homosexuality. I will
argue that courts reify monogamy and exclude arguments that require recognition of the
validity of non-monogamous behaviour. To make this argument I will examine the courts’
reasoning in M. v. H., Egan and EGALE Canada Inc. v. Canada (Attorney General)11
(“EGALE”). I will also show that litigation of a gay and lesbian rights claim under s. ()
is most successful when it asks the court to engage in formal rather than substantive equal-
ity reasoning, and in particular when the values in the claim overlap with those of the ma-
jority and do not challenge deeply held social norms and institutions.12 A further
5. The question on the Record of Donation asks, “Male donors: Have you ever had sex with a man, even one
time since 1977?” A positive answer results in a lifetime deferral from giving blood. See Canadian Standards
Association Criteria, as cited in Lomaga, supra note 2 at 78.
6. See, for example, Lomaga, ibid.
10. See for example EGALE Canada Inc. v. Canada (Attorney General), 2003 CarswellBC 1006 (C.A.) (WeC)
[EGALE].
11. Ibid.
12. Andrée Lajoie, “When Silence Is no Longer Acquiescence: Gays and Lesbians under Canadian Law” (1999) 14
Can J.L. & Soc. 101 at 120.
requirement of success is that the claimant seeks recognition of a right rather than redis-
tribution of public funds.13
e Court in M. v. H. was asked to consider whether M and H (a lesbian couple) were
spouses for the purposes of the spousal support provisions of Ontario’s Family Law Act.14
e majority found that the denition of spouse was in violation of s. () and could not
be justied under s. . Canadian legal scholar Judy Fudge reasons that the case was suc-
cessful because “M. v. H. neither involved the expenditure of public funds nor challenged
the hegemony of heterosexual marriage.”15e majority justices were very clear that their
decision was intended only for the purposes of spousal support and did not apply to any
other denition of spouse in the Act.16 ey also claried that they were not being asked
to determine whether or not same-sex partners could marry, nor whether the Act must
treat same-sex partners the same as unmarried opposite-sex partners for all purposes.17
ey insisted that their decision had no impact on “marriage per se.”18 e justices were
quick to engage in formal equality reasoning and acknowledged that same-sex couples
(like opposite-sex couples) oen form “long, lasting, loving, intimate relationships” which
are able to be “conjugal” and may give rise to nancial interdependence.19 If not for the op-
posite-sex requirement in the legislation then same-sex relationships like M and H’s satis-
ed the denition of “spouse” in the impugned provisions. As a result, the opposite-sex
requirement was declared to be of no force and eect and was suspended for six months
to allow the Ontario government to change the legislation. e Court reiterated “twenty-
one times in as many paragraphs that the remedy favour[s] reducing the expenditure of
public money.”20 e majority was comfortably able to nd discrimination in M. v. H. be-
cause it merely required comparing this monogamous dyadic lesbian relationship to a
monogamous dyadic heterosexual relationship and nding them to be the same. Marriage
as a heterosexual monogamous institution was not threatened by the claim in M. v. H.,
since the Court was able to limit the application of its decision to spousal support.
e judgment in M. v. H. stands in stark contrast to Egan, wherein the majority held that
excluding same-sex couples from old age pensions violated s. () but was justied under
s. . As Judy Fudge demonstrates, Egan ultimately failed because it involved both the ex-
penditure of public funds and challenged the hegemony of heterosexual marriage.21 e
majority reasons delivered by LaForest J. in Egan emphatically rejected the notion that
same-sex couples could qualify as spouses. ey stated that because procreation is central
to the institution of marriage, same-sex couples cannot marry and are therefore rightfully
denied the old age security pensions that are designed to support and provide security for
13. Nancy Fraser, “From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-Socialist’ Age”, (1995) 212
New Left Review 68.
14. R.S.O. 1990, c. F. 3, s. 29.
15. Judy Fudge, “The Canadian Charter of Rights: Recognition, Redistribution, and the Imperialism of the Courts”
in Tom Campbell, K.D. Ewing & Adam Tomkins, eds., Skeptical Essays on Human Rights (New York: Oxford
University Press, 2001) at 342.
16. M. v. H., supra note 9 at para. 55.
17. Ibid.
18. Ibid. at para. 52.
19. Ibid. at para. 58.
20. Fudge, supra note 15 at 342.
21. Ibid.
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married couples into old age. In the majority’s strong defense of the institution of marriage
as heterosexual, one can sense an aront to this deeply valued social institution:
[M]arriage has from time immemorial been rmly grounded in our legal
tradition, one that is itself a reection of long-standing philosophical and
religious traditions. But its ultimate raison d’être transcends all of these
and is rmly anchored in the biological and social realities that hetero-
sexual couples have the unique ability to procreate, that most children
are the product of these relationships, and that they are generally cared
for and nurtured by those who live in that relationship. In this sense, mar-
riage is by nature heterosexual. It would be possible to legally dene mar-
riage to include homosexual couples, but this would not change the
biological and social realities that underlie the traditional marriage.
22
Unli ke M. v. H., the claim in Egan clearly challenged the heteronormativity of marriage
and sought the redistribution of public pension funds; as such, it did not succeed.
Eight years later, however, social values had shied suciently to allow for the inclusion of
gays and lesbians in the deeply valued social institution of marriage, but success still required
using formal equality arguments. e path to same-sex marriage began with various s. ()
challenges at the provincial court level to the common law denition of marriage. e de-
nition comes from Hyde v. Hyde and Woodmansee,23 in which Lord Penzance stated, “I con-
ceive that marriage, as understood in Christendom, may for this purpose be dened as the
voluntary union for life of one man and one woman, to the exclusion of all others.”24 In the
British Columbia challenge in EGALE,25 Prowse J.A. endorsed a substantive approach to
equality while nding a s. () violation through formal equality reasoning. Prowse J.A.
agreed with the reasons of Mr. Justice Blair in Halpern v. Canada26 that “[i]f heterosexual
procreation is not essential to the nature of the institution, then the same-sex couples’ sex-
ual orientation is the only distinction differentiating heterosexual couples from homosexual
couples in terms of access to the institution of marriage.”27Since the rules of formal equality
dictate that like persons should be treated the same to the extent that they are alike, then all
couples were allowed to marry regardless of their ability to procreate. The success of the case
can again be attributed to the fact that it sought recognition of a right rather than the redis-
tribution of public funds and because it was argued in a formal equality manner.
e EGALE case in particular oers a clear picture of the limitations of gay and lesbian
rights claims based upon formal equality reasoning. Importantly, the case also reveals the
court’s fear of non-monogamous behaviour. e Court in EGALE was willing to accept ar-
guments that procreation was no longer at the heart of the institution of marriage. As such,
the inclusion of gays and lesbians in the institution of marriage reveals that its essential re-
quirement is not heterosexuality, but rather exclusivity.28 In other words, marriage is an
inherently monogamous institution.
22. Egan, supra note 7 at para. 21.
23. (1866), L.R. 1 P & D. 130 (H.L.).
24. Ibid. at 133.
25. EGALE, supra note 10.
26. 2002 CarswellOnt 2309 (Sup. Ct J) (WeC) [Halpern].
27. EGALE, supra note 10 at para. 90.
28. Gillian Calder, “Penguins and Polyamory: Using Law and Film to Explore the Essence of Marriage” (2009) 21:1
C.J.W.L 55 at 74.
The formal equality manner in which EGALE was argued reveals fears that challenging
the monogamous norm of marriage would likely have resulted in failure. The EGALE fac-
tum for the trial decision29 stressed monogamy, its success was founded on comparing
same-sex relationships to opposite-sex relationships and finding them to be the same.30
The factum stated that same-sex couples’ reasons for wanting to marry were the same as
heterosexual couples’ reasons: romance, social recognition, financial and emotional secu-
rity, legal protection, and strengthening their commitment to their relationship.31 It spoke
briefly to the diversity of the couples seeking the right to marry in terms of age, ethnicity,
religion, occupation, regional location, length of relationship and family form,32 but quoted
only individuals who were all involved in monogamous relationships.33 Avoiding the “taint
of polygamy and other more ‘deviant’ forms of non-monogamy” was critical to the success
of this case.34 e SC C has conrmed that monogamy is now the essence of marriage, stat-
ing in Reference re Same-Sex Marriage35that “[m]arriage is the lawful union of two persons
to the exclusion of all others.”36Indeed, EGALE was successful because it used formal equal-
ity reasoning that avoided challenging the inherent monogamy of marriage.
I have argued that a gay and lesbian rights claim will more likely be successful when it asks
the court to engage in formal rather than substantive equality reasoning. The more the val-
ues in the claim overlap with dominant opinion and do not challenge deeply held social
norms the more likely the claim is to succeed. Finally, a claim is more likely to be success-
ful when it seeks the recognition of a right rather than the redistribution of public funds.
At first glance the application of this framework to the MSM blood donation ban might
seem optimistic. The claim seeks the recognition of a right rather than the redistribution
of public funds. Furthermore, framing the claim in a formal equality manner premised on
treating like risks alike might be successful. An affirmative response to Question 18 on the
Record of Donation currently results in a lifetime deferral from giving blood. If all indi-
viduals who were at an increased risk for HIV infection were treated the same, then men
who have sex with men would be deferred for six months or one year. Six months is the
time period of deferral for anyone who has had sex with a person whose sexual history
they do not know.37 One year is the time period of deferral for women who have had sex
with men who have had sex with men and for persons who have had sex with a sex trade
worker.38 Regardless, success using a formal equality approach in this context would un-
dermine the ultimate goal of the claim because it would still result in sexually active gay
men being excluded from donating blood.
29. EGALE Canada Inc. v. Canada (Attorney General), 2001 BCSC 1365 (Factum of the Appellant), online: Equal
Marriage for Same-Sex Couples
(last accessed 12 January 2009) [EGALE Factum].
30. Calder, supra note 28 at 75.
31. EGALE Factum, supra note 29 at para. 3.
32. Ibid. at para. 2.
33. Ibid. at para. 3.
34. Calder, supra note 28 at 76.
36. Ibid. at para. 1.
37. Canadian Standards Association Criteria, as cited in Lomaga, supra note 2 at 78.
38. Ibid.
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A formal equality approach does not serve to question the underlying power structures
that oppress sexual minorities and perpetuate social stigmas (such as non-monogamy being
deviant or dangerous) that result in discrimination. Formal equality is a valuable tool for
dismantling “the legal architecture of (formal) distinctions that so oen map over socially
entrenched, materially patterned and culturally normalized substantive inequalities.”39In-
deed, formal equality is an eective tool for remedying formal inequalities. But because
formal equality merely attempts to organize the world into things that are the same and
things that are dierent, it makes invisible the complexity of social relations.40 As a result,
oppressive social structures are subverted to the equality claim and become invisible.41
us, formal equality erases the very structures that equality claimants seek to transform.
In M. v. H. and EGALE, formal equality functioned to accord public recognition to gay
and lesbian relationships that conformed to the dominant monogamous dyadic conjugal
relationship structure. Engaging in formal equality strategies in these cases, however, was
a fundamentally assimilative endeavour. e line between legitimate and illegitimate rela-
tionship structures merely shied, “implicitly authoriz[ing] the exclusion of a recong-
ured group of outsiders.”42 Gays and lesbians whose relationships do not conform to the
publically recognized, socially valued, legally reied monogamous dyadic conjugal form are
beyond formal legal protection. e dierence between monogamy and non-monogamy
remains a relevant social distinction that justies formal legal exclusion. Under the rubric
of formal equality, gays and lesbians who engage in non-monogamy are considered to be
dierently situated based upon this “relevant” characteristic, justifying the application of
dierent formal legal regimes.
What is required to achieve actual equality in this claim is a truly substantive approach that
contextualizes the position of gay men in society by recognizing and accommodating the di-
verse sexual identities and dierent approaches to relationships that exist within the gay
community. Despite the court’s insistence that it guarantees substantive equality, its ap-
proach to equality both historically and presently allows an easy slip back into formalism,
which defeats the ultimate goal of this claim. e next part of my paper seeks to examine
the deciencies of the court’s approach to equality that would serve to defeat a claim of this
nature. I will argue that the court must identify and articulate the substantive values that s.
() seeks to protect in order to allow for a truly substantive approach to equality.
II. CANADIAN COURTS’ APPROACH TO EQUALITY UNDER
SECTION 15(1)
Equality is valued nearly everywhere but practiced almost nowhere. As
an idea, it can be ercely loved, passionately sought, widely valued, legally
guaranteed, sentimentally assumed, or complacently taken for granted.
As a reality, in lives lived or institutions run, it hardly exists anywhere.
43
39. Hester Lessard, “Charter Gridlock: Equality Formalism and Marriage Fundamentalism” in Sheila McIntyre &
Sandra Rodgers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Lex-
isNexis: Butterworths, 2006) at 295.
40. Ibid.
41. Ibid.
42. Ibid. at 296.
43. Catharine A. MacKinnon, Women’s Lives, Men’s Laws(Cambridge, Mass.: Belknap Press of Harvard University
Press, 2005) at 44. Many thanks to Chris Tait for directing me towards this apt quotation.
In the same chapter of Women’s Lives, Men’s Lawsfrom which the above quotation is taken,
Catharine MacKinnon lauds Canada’s promise of a substantive approach to equality. Cana-
dian courts’ commitment to substantive rather than formal equality, however, has been
rhetorical.44 In its rst s. () decision, Law Society of British Columbia v. Andrews45 (“An-
drews”), the SCC laid a foundation for the pursuit of substantive equality; the test, however,
was inherently decient because it failed to articulate what substantive equality was meant
to protect. Andrews’ conception of equality as a comparative concept additionally served to
undermine the court’s commitment to substantive equality. e new equality framework
articulated in Law v. Canada (Minister of Employment and Immigration)46 (“Law”) exacer-
bated the existing problems with the court’s approach to s. () by articulating a singular,
abstract notion of what equality is meant to protect: human dignity. Further, the SCC main-
tained that equality is a comparative concept. Finally, the framework articulated in R v.
Kapp47 (“Kapp”) le us with problematic aspects of the Andrews and Law tests and failed to
articulate the full range of wrongs caused by unequal treatment. We remain with a concep-
tually problematic framework that is unlikely to be applied substantively in a manner that
will recognize discrimination of the type that is at play in MSM blood donation ban.
In other places and other times equality has been understood in a formal manner. Since
Aristotle’s Ethica Nichomachea, equality has been understood to mean that likes should be
treated alike to the extent that they are alike and dierently to the extent that they are dif-
ferent.48 Formal equality (based upon this “similarly situated test”) is prevalent in Ameri-
can equality jurisprudence surrounding the interpretation of the th Amendment,49 and
it disappointingly informed the interpretation of the equality guarantee in the Canadian Bill
of Rights.50 In Bliss v. Attorney General of Canada51 (“Bliss”), the similarly situated test was
used to deny a pregnant woman unemployment benets that she would have received had
she not been pregnant. According to Bliss, the legislation treated all pregnant persons
equally, and any inequality was created by nature rather than the legislation.52
In , the SCC sat poised to interpret what equality would mean for Canada, and its
words were encouragingly distant from the reasoning in Bliss. In Andrews, the Court re-
jected a formalist approach and the similarly situated test.53 McIntyre J. acknowledged that
sometimes treating people the same may exacerbate inequalities, whereas accommodation
of dierence is “the essence of true equality.”54 He acknowledged that in order to achieve
44. Fay Faraday, Margaret Denike & Kate M. Stevenson, “In Pursuit of Substantive Equality” in Fay Faraday, Mar-
garet Denike & Kate M. Stevenson, eds., Making Equality Rights Real: Securing Equality Rights Under the
Charter (Toronto: Irwin Law, 2006) at 17 [Making Equality Rights Real]. In this introductory chapter the authors
state that the “project of this book, then, is to re-examine the gap between the aspirations for substantive
equality enshrined in our Charter and the failure to implement them in practice.”
46. [1999] 1 S.C.R. 497 [Law].
48. MacKinnon, supra note 43 at 45.
49. Ibid.
50. S.C. 1960, c-44, s. 1(b).
51. [1979] 1 S.C.R. 183.
52. Ibid. at 190.
53. Andrews, supra note 45 at para. 30.
54. Ibid. at para. 31.
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“full equality,” one must consider the impact of the law.55 Furthermore, McIntyre, J. stated
that not every distinction or dierentiation in the law will amount to a breach of the equal-
ity guarantee — only those that discriminate. e Court subscribed to a concrete and con-
textual (rather than abstract and blind) approach to applying s. (), which is consistent
with a substantive approach to equality. Justice Wilson is the most explicit in her call for a
contextual approach,56although McIntyre, J. implicitly calls for such an approach, stating
that “[c]onsideration must be given to the content of the law, to its purpose, and its impact
upon those to whom it applies and also upon those whom it excludes.”57 In Andre ws, the
Court distanced itself from a formal equality interpretation and called for a contextual,
purposive approach to interpreting the Charter equality guarantee.
A truly substantive approach to equality has incredible potential to change past patterns of
oppression. It allows, encourages, and requires law-makers to redress past oppressive re-
lationships in society. Sheila McIntyre (a prominent scholar in Canadian equality ju-
risprudence) maintains that Andrews’ strengths are its rejection of formalism, its embrace
of a purposive and contextual analysis and its focus on the eects of the impugned law
“that bear some relation to social, political, or legal disadvantage.”58 MacKinnon, too, is
most encouraged by the Court’s purposive approach to interpreting s. () as intending to
promote and actually produce social equality.59 She states:
is does not sound like much, but it is everything: given social in-
equality, it requires that law has to move the world to be legal. It no
longer leaves equality law standing neutrally in the face of an unequal
world, sorting sameness from dierence, reinforcing social inequalities
by law.60
I agree that Andrews oers direction for securing substantive equality, but I maintain that
the decision was inherently decient. Although McIntyre, J. stated that not every legal dis-
tinction will constitute discrimination, he nevertheless oers little direction for determin-
ing what does. Denise Réaume (another prominent Canadian equality scholar) notes that
“some implicit grasp of the need for a substantive foundation for equality rights is only
dimly apparent [in the judgment].”61 e second part of the two-part Andrews test asks
whether or not the distinction creates a disadvantage through the perpetuation of preju-
dice or stereotyping,62 but tells us nothing about how or why distinctions based on stereo-
types violate the principle of equality.63 A broader articulation of the harms that ow from
unequal treatment (that is unfair for reasons other than the perpetuation of prejudice or
stereotyping)64 are absent in the judgment. Without an understanding of what precisely is
55. Ibid. at para. 26.
56. Ibid. at para. 5.
57. Ibid. at para. 30.
58. Sheila McIntyre, “Answering the Siren Call of Abstract Formalism with the Subjects and Verbs of Domination”
in Faraday, Denike & Stevenson, Making Equality Rights Real, supra note 44 at 102.
59. MacKinnon, supra note 43 at 55.
60. Ibid. at 54-55.
61. Denise G. Réaume, “Discrimination and Dignity” in Faraday, Denike & Stevenson, Making Equality Rights Real,
supra note 44 at 127.
62. Andrews, supra note 45 at para. 43.
63. Réaume, supra note 61 at 130.
64. Sophia Moreau, “The Wrongs of Unequal Treatment” (2004) 54:3 U. T. L. J. 291 at 294 [Moreau, “Wrongs”].
harmed by unequal treatment, the Court’s commitment to substantive equality was vul-
nerable to slipping into familiar formal equality reasoning.
A further critique of Andrews that contributes to understanding the Court’s propensity to
use formal equality reasoning lies in Justice McIntyre’s assertion that equality is a com-
parative concept. e condition of equality, he states, “may only be attained or discerned
by comparison with the condition of others in the social and political setting in which the
question arises.”65 is assertion requires an equality claimant to choose a comparator
group, which shis the focus away from patterns of systemic inequality to a formal-equal-
ity-inspired analysis of sameness and dierence with the comparator group.66Sheila McIn-
tyre notes the Court’s use of passive language, nding that it,
speaks generically of groups lacking political power, “disadvantaged
groups”, groups subject to “stereotyping” or “stigmatization”, groups “ex-
cluded from the mainstream.” …ere is no indication of who does the
disempowering, stigmatizing, or marginalizing, of who enjoys en-
trenched political power, of how disadvantage and the inferiorizing
stereotypes that legitimate second class status come about and whose
hold on privileged entitlement such stereotypes shore up.67
e comparator group requirement allows courts to avoid recognizing relationships of
dominance and subordination, as well as active roles of oppressor vs. oppressed and of
stigmatizers vs. the stigmatized. Regressing to a formal equality reasoning that is based
upon comparing xto yis easy, since the underlying systems producing inequalities remain
hidden.
e original deciencies of Andrews were added to in Law. e SCC in Law attempted to
pinpoint the substantive value underlying the right to equality that had been missing from
the Andrews judgment. Speaking for the Court, Justice Iacobucci identied that the pur-
pose of s. () is to prevent the violation of human dignity.68 Iacobucci J. rearmed that
equality is a comparative concept that requires the claimant to establish a comparator
group.69He established a new three-stage test that focused on nding harm to the claimant’s
feeling of human dignity and articulated four contextual factors that may be taken into ac-
count at the third stage of this test to determine whether the law is discriminatory within
the meaning of s. (). e factors include: the existence of pre-existing disadvantage of the
claimant group; correspondence between the grounds of the claim and the claimant’s ac-
tual need, capacity, or circumstances; the ameliorative purpose or eect of the impugned
law upon a more disadvantaged person or group; and the nature of the interest aected.70
e Court problematically maintained that equality is a comparative concept and articu-
lated only one substantive value to ground constitutional equality (harm to the claimant’s
feelings of human dignity).
Although the Court articulated this substantive reason for why unequal treatment is wrong,
Sophia Moreau argues that there are three additional wrongs of unequal treatment that the
65. Andrews, supra note 45 at para. 26.
66. McIntyre, supra note 58 at 103.
67. Ibid.
68. Law, supra note 46 at para. 51.
69. Ibid. at para. 55.
70. Ibid. at para. 88.
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Law test fails to separately recognize. Its failure to do so, she states, makes the test “con-
ceptually problematic and less able to recognize as discriminatory certain instances in
which the claimant has indeed suered one or more wrongs.”71 Moreau argues that the Law
test rightly begins with the abstract ideal that the state should treat each individual with
equal concern and respect and value every person’s inherent worth and dignity.72 e test,
however, relies upon a subjective concept of dignity when it asks how a person feels when
confronted with the impugned law, and it restricts ndings of violation under s. () to in-
stances when those feelings are caused by unfair unequal treatment. Moreau states that
this is problematic because “although the test purports to be about the feelings of the
claimant, the question on which it really turns is whether or not the treatment received by
the claimant was unfair.”73 Whether or not the unequal treatment in question is wrong (and
should therefore be found to violate s. ()) is only fully determined having regard to the
three additional wrongs Moreau identies: unequal treatment wrongs people when it is
based upon prejudice or stereotyping, when it perpetuates oppressive power relations,
when it leaves people without access to necessary basic goods, and when it diminishes an
individual’s feelings of self-worth.74 e Lawtest conates these dierent conceptions of the
wrong75 and ultimately fails to oer “a comprehensive and explicit analysis of the kinds of
treatment that amount to a violation of dignity”;76 the test, therefore, is unlikely to recog-
nize certain types of discrimination when they do exist.
A gay man who attempts to donate blood and is rejected because he is gay would most cer-
tainly feel as though his dignity had been harmed. To establish whether or not this treat-
ment is in fact discriminatory, however, a court would likely justify the policy based upon
the broader social objective of ensuring the safety of the blood supply under the second and
fourth contextual factors of the Law test. e burden on the claimant to nd a link be-
tween his treatment and his actual needs (the second contextual Law factor) has been iden-
tied as problematic because it shis the analysis of the purpose of the legislation from s.
to s. (). e government (unlike the claimant) has unlimited resources and is in the
unique position to be able to know what the purpose of the legislation is since it enacted
the law or policy. Furthermore, incorporating the broad objective of the legislation into
the equality analysis shis the focus of the inquiry away from the claimant’s lived experi-
ence of discrimination.77
e previously-mentioned example is illustrative of the ease with which an equality claim
can be defeated without a proper understanding of what s. () is meant to address. What
then, does substantive equality aim to address? How does unequal treatment wrong people
beyond the fact that it is unfair? Moreau nds that unequal treatment is arbitrary when it
is motivated by or publicly justied in terms of prejudice or stereotypes. A stereotype does
not correspond to an individual’s actual circumstances or abilities and serves to lessen an
individual’s autonomy to dene his abilities for himself.78 Arbitrarily unequal treatment lim-
71. Moreau, “Wrongs”, supra note 64 at 294.
72. Ibid. at 319.
73. Ibid.
74. Ibid. at 297-314.
75. Ibid. at 318.
76. Ibid. at 319.
77. Fiona Sampson, “The Law Test for Discrimination” in Faraday, Denike & Stevenson, Making Equality Rights
Real, supra note 44 at 256.
78. Moreau, “Wrongs”, supra note 64 at 298.
its an individual’s “power to dene and direct his life in important ways - to shape his own
identity and to determine for himself which groups he belongs to and how these groups are
to be characterized in public.”79 us, injury to dignity can be part of the explanation for why
unequal treatment is wrong when based upon stereotypes or prejudice, but it does not oer
the full explanation of the harm that is caused by this type of discrimination.80
e stereotype that gay men practice sex in a manner that increases their risk of HIV in-
fection is arbitrary. e ban is an antiquated policy implemented in ,81when little was
known about HIV and AIDS. At that time, gay men represented percent of all new cases
of AIDS and Haitian immigrants represented percent.82 Since there was no test available
to detect HIV and the safety of the blood supply was their paramount concern, the Cana-
dian Red Cross Society (the predecessor of CBS) asked gay and bisexual men as well as
Haitian immigrants to abstain from donating blood.83 Categorical exclusion of these groups
was the only way to maintain the safety of the blood supply.84 CBS now uses three dier-
ent tests for HIV that are between and percent eective.85 e window period for
infection has dropped from six to eight weeks to eleven days.86e risk of transfusion in-
fection from HIV-infected blood is estimated to be one unit per . million donations.87 Ad-
ditionally, although MSM remain the group with the highest number of new cases of HIV
infection at . percent, their rate of infection has dropped every year since .88 Tes ts
that virtually guarantee that HIV-infected blood will be detected and will not enter the
blood supply expose the arbitrariness of categorical exclusion of donations from gay men.
is arbitrary distinction harms gay men by limiting their power to shape their own iden-
tity and to decide how the group to which they belong is to be characterized in public. e
stereotype that gay men practice unsafe sex that puts them at a higher risk of HIV infec-
tion results in gay men being publicly dened by another group’s image of them. A gay
man is less able to shape his sexual identity based upon his own sexual practices. His abil-
ity to publicly characterize the group to which he belongs as safe and responsible is
thwarted. Ultimately, t he public proclamation of the worthlessness of this very personal
part of himself serves to weaken his sense of what is possible for himself.
e second reason Moreau identies as why unequal treatment is wrong is because it per-
petuates oppressive power relations, which deny individuals such “goods” as “the oppor-
tunity to participate as equals in public political argument [and] equal inuence in certain
79. Ibid. at 299.
80. Ibid.
81. Lomaga, supra note 2 at 75.
82. Ibid.
83. André Picard, The Gift of Death: Confronting Canada’s Tainted-BloodTragedy (Toronto: Harper Collins Publish-
ers, 1995) at 73 as cited in Lomaga, ibid.
84. Lomaga, supra note 2 at 75.
85. Ibid. at 79.
86. Canadian Blood Services, “Nucleic Acid Amplification Testing for HIV”, online:
eral_Document.pdf> at 3 (last accessed 12 January 2010).
87. Lomaga, supra note 2 at 79.
88. Public Health Agency of Canada & Centre for Infectious Disease Prevention and Control, HIV and AIDS in
Canada: Selected Surveillance Tables to June 30, 2007 (Ottawa: Surveillance and Risk Assessment division,
2007), online: < http://www.phac-aspc.gc.ca/aids-sida/publication/survreport/pdf/tables0607.pdf> at 13 (last
accessed 12 January 2010).
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APPEAL VOLUME 15 w147
social contexts.”89 She notes that these goods have value in and of themselves; denying them
to someone harms that individual separately from whether or not that individual’s auton-
omy has also been lessened by this wrong.90
By further entrenching heterosexist views about sexuality and relationships, the blood do-
nation ban accords with this wrong. e ban premises heterosexual sex as safe and normal
and stigmatizes gay sex as dangerous and deviant. is stigmatization leaves gay men with-
out sucient social inuence, since it generates fear about their suitability for certain po-
sitions. Canada’s report on HIV/AIDS in revealed that percent of adults in Canada
would be uncomfortable working in an oce with a person with HIV and percent do
not think that people with HIV should be allowed to serve in such public positions as den-
tists or cooks.91
As I have illustrated, these two conceptions of the wrong owing from unequal treatment
are precisely those that are at play in CBS’s MSM blood donation ban. e Law test fails to
recognize these wrongs as discriminatory because injury to dignity is the singular con-
ception of the harm caused by unequal treatment. e SCC further fails to address Law’s
lack of a substantive underpinning in its most recent reformulation of the equality frame-
work in Kapp.92
In Kapp , the SCC addressed some of the problematic aspects of the Law test but le us
with a framework that insists on equality as a comparative concept, one which is unlikely
to recognize the wider range of discriminatory actions identied by Moreau. e decision
acknowledged that the comparator group requirement had allowed formal equality rea-
soning to resurface in the post-Law period.93 e Court’s comments, however, were lim-
ited to this acknowledgement and failed to address any of the comparator group concerns
raised by academics in the literature the Court cited.94 e Court seems to continue to re-
quire equality claimants to establish comparator groups, leaving us with an equality analy-
sis that is vulnerable to a regression towards formal equality reasoning.
Encouragingly, the majority did recognize that the human dignity requirement established
in Law was — as a legal test — burdensome on claimants, abstract, subjective and “con-
fusing and dicult to apply.”95 e C ourt seems to have removed this requirement from the
test. In its place, however, the Court failed to articulate what their vision of substantive
equality entails. e reasons merely state that s. () and () “work together to promote
the vision of substantive equality that underlies s. as a whole.”96 Kapp implied that the Law
test was never meant to stray from the approach established in Andrews,97 but, as I argue
89. Moreau, “Wrongs”, supra note 64 at 305.
90. Ibid.
91. A. Anne McLellan, Looking Forward: Focusing the Response (Ottawa: Minister of Public Works and Govern-
ment Services Canada, 2003) at 3.
92. Kapp, supra note 47.
93. Ibid. at para. 22.
94. Jonette Watson Hamilton and Jennifer Koshan, “The End of Law: A New Framework for Analyzing Section
15(1) Charter Challenges” The Court (15 April 2009), online: The Court
challenges/> (last accessed 12 January 2009).
95. Kapp, supra note 47 at para. 22.
96. Ibid. at para. 16.
97. Ibid. at para. 24.
above, Andrew s is inherently problematic because it, too, failed to fully articulate the sub-
stantive wrongs that the equality provision is intended to protect.
Kapp encouragingly removed the harm to dignity requirement, shied the analysis back to
considerations of prejudice and stereotyping, and added disadvantage as a separate indi-
cator of discrimination. e decision, however, must be interpreted broadly in order to
recognize the additional wrongs of unequal treatment previously identied by Moreau.98
In two SCC decisions that have interpreted Kapp,99 the Court has “simply dropped all ref-
erence to disadvantage as an independent element.”100 Moreau cautions: “[s]uch a narrow
interpretation will likely have the unfortunate eect of blinding us to other ways in which
individuals and groups, that have suered serious and long-standing disadvantage, can be
discriminated against.”101 In order to recognize discrimination based upon oppression or
dominance of one group over the other (or based upon the denial of basic or necessary
goods), Moreau insists that courts “must be careful to treat the three ideas in Andrews, ‘dis-
advantage,’ ‘prejudice’ and ‘stereotyping,’ as related but distinct ideas, rather than collaps-
ing disadvantage into prejudice and stereotyping.”102 A careful and broad interpretation of
the three conceptions of discrimination articulated in Kapp is required to substantively
ground s. (). Disadvantage in particular must be interpreted broadly and purposively to
recognize the wider wrongs (perpetuation of oppressive power relations and denial of basic
or necessary goods) caused by unequal treatment.
Under the Kapp framework, a challenge to the MSM blood donation ban would likely not
succeed for the same reasons that it would likely not succeed under the Law framework:
the Court insists that equality is a comparative concept and it has not separately recog-
nized the wider wrongs caused by unequal treatment. While it is possible that a court may
recognize the ban as discriminatory because it is based upon stereotype, it is more likely
that Law’s second and fourth contextual factors (which all lurk within the Kapp decision
as “relevant to the Andrews question of whether the claimant has suered the right sort of
disadvantage, prejudice or stereotyping, rather than to the Law question of whether the
claimant’s dignity has be en demeaned”)103 would undermine a nding of discrimination.
e court would likely not recognize the ways in which the ban perpetuates oppressive
power relations, since this type of unequal treatment remains absent from its understand-
ing of the equality guarantee. If the court continues to gloss over disadvantage as a sepa-
rate wrong caused by unequal treatment then it will remain blind to discrimination that is
based upon the unfair dominance of one group over another.104Additionally, the court’s in-
sistence that equality is a comparative concept reintroduces the temptation to understand
and apply equality in a formal manner. Non-monogamy will therefore continue to be a rel-
evant dierence that justies dierential treatment.
98. Sophia Moreau, “R. v. Kapp: New Directions for s. 15”, (2009) 40:2 Ottawa L. Rev. 283 at 292 [Moreau,
“New Directions”].
99. Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, 302 D.L.R. (4th) 577, [2009] 2 C.N.L.R. 102; A.C.
v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] W.D.F.L. 2957.
100. Moreau, “New Directions”, supra note 98 at 292.
101 Ibid.
102 Ibid.
103. Ibid.
104. Ibid.
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CONCLUSION
As I have argued, a s. () challenge to CBS’s discriminatory MSM blood donation ban
would likely not succeed if brought before the Court. Because Andre ws, Law and Kapp
failed to establish a comprehensive conception of the substantive values that underlie the
equality provision in the Charter, the Court’s approach to equality remains without a sub-
stantive underpinning that will recognize all forms of discrimination where they exist.
ese cases, in combination with the Court’s insistence that equality is a comparative con-
cept, indicate that facial judicial rearmation of substantive equality approaches is un-
dermined by a tendency towards formal equality reasoning. Previous gay rights claims
litigated under s. () were successful only when they asked courts to engage in formal
equality reasoning and when they sought recognition of a right. M. v. H., Egan and EGALE
show that formal equality strategies have reied monogamy as the dominant relationship
form; EGALE in particular reveals the Court’s fear of non-monogamous behaviour. Formal
equality cannot transform the social structures that equality claimants seek to change be-
cause the structures are subverted and are made invisible by formal equality’s concern with
sameness and dierence. In this case, a formal equality approach will not be successful be-
cause it would nevertheless result in the banning of gay men from donating blood. Con-
fronting this fear of non-monogamy and contextualizing the position of gay men in society
would be necessary to achieve success in a s. () challenge to the blood donation ban. A
successful challenge to the MSM blood donation ban requires the Court to adopt a truly
substantive equality approach that accommodates the dierent relationship structures and
diversity of sexual expression within the gay community.
Sheila McIntyre urges advocates to “speak substantively” to overcome these barriers.105For-
mer Justice L’Heureux-Dubé suggests that substantive equality is “a language like every
other; an embodiment of the norms, attitudes and culture that are expressed through equal-
ity’s rules of grammar and syntax, nuances, exceptions and dialects.”106 Advocates should
therefore make explicit the links between inequalities and the homophobic laws and poli-
cies which produce those inequalities. McIntyre argues that using active descriptor words
such as disenfranchised and disempowered “invites questions of authorship,” and “dis-
rupt[s] the privileged innocence and unreectively supremacist habits that formalism au-
thorizes.”107e Court will b e more likely to nd discrimination where it sees the claimant
as oppressed or subordinated rather than simply having been disadvantaged in some way
that remains unlinked to the wrongs of unequal treatment. Explicit recognition of the links
between gay oppression, judgments that reify monogamy and discriminatory government
policies may eventually lead to the elimination of the blood donation ban and the future
of a more equitable society.
105. McIntyre, supra note 58 at 110.
106. Claire L’Heureux-Dubé, “Conversations on Equality” (1999) 26 Man. L. J. 273 at para. 23.
107. McIntyre, supra note 58 at 112.
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