The pursuit of substantive equality is an ongoing struggle. I imagine the struggle for equality as a long journey, a road marked by forks, turning points and dead ends. I imagine many of us setting out on this journey, working in our own ways, alone and together; creating a dense network of pathways to our shared aspirational goals. This journey is to an unknown place, a land of full substantive equality for all, but there are numerous way stations en route where one can stop and assess the road travelled and the road ahead; to pause and perhaps to enjoy a small success, a reassurance that we are on a correct track.
These way stations can sometimes take the form of a deliberately created space and time to assess the journey's progress. These spaces can be well-planned and multi-faceted initiatives, such as the national forum entitled Transforming Women's Future: Equality Right in the New Century hosted by West Coast Legal Education and Action Fund in 1999 as part of its achieving equality in the new millennium initiative. (1) They can be stand alone publications containing multiple diverse perspectives such as this special volume of the University of New Brunswick Law Journal on the theme of the promise of substantive equality: are we there yet? They can also be generated at critical moments in the development of an equality-seeking legal strategy or triggered in a more impromptu fashion.
I experienced an unexpected way station during a recent appeal. A line of reflection about where we are was triggered for me by a comment made by Mr. Justice Donald of the British Columbia Court of Appeal in the course of a hearing on the constitutionality of hearing fees charged by the provincial government to the plaintiff for a day in court, fees that escalate substantially for longer trials. (2) Sharon Matthews Q.C. and I were representing the Canadian Bar Association--BC Branch as an intervenor in this matter. Our constitutional arguments were largely premised
on the constitutional norm of substantive equality and we had brought evidence regarding the adverse impact of the fees on certain groups, which amounted to, said we, a denial of equal access to justice.
The provincial Crown took the position that we could not argue equality rights because there was no pleading that the hearing day fees infringed s. 15 of the Canadian Charter of Rights and Freedoms. Mr. Justice Donald rejected this view and in clear and unguarded terms described his sympathy to the parties "just not wanting to go down that road." I paraphrase his comments here in a manner that I hope does them justice. He said something to the effect, that it came as no surprise to him that the Canadian Bar Association had stayed clear of framing a s. 15 argument given the "fog" that is s. 15 jurisprudence with its "countless ups and downs, twists and turns, and ins and outs." My jaw dropped (I hope not too noticeably) to hear such an apt description from the bench of the murky, gloomy miasma that characterizes the majority of s. 15 jurisprudence. Then I started to ponder the implications of foggy, impenetrable s. 15 analyses, and its impact on some of the equality work outside of the courtroom that has engaged me over the past few years.
THERE ARE NO SHADOWS IN THE FOG
All government institutions have the responsibility to respect, promote and fulfill constitutional rights and civil society institutions have an important role in encouraging and monitoring the full implementation of rights. Lawyers often focus on the role of courts in declaring rights and remedying rights violations. Courts, however, play a small, residual but still vital role in ensuring progress toward achieving substantive equality through legal means. Clear judicial pronouncements on the meaning and extent of equality rights norms not only regulate the specific matter before the court, these pronouncements cast strong shadows within which other legal change strategies can flourish, and where successful, can result in the actual enjoyment of equality extending well beyond the scope of the originating judgment.
My use of the term "shadow" in this context finds its origin in an oft-cited article by Robert Mnookin and Lewis Kornhauser "Bargaining in the Shadow of the Law: The Case of Divorce". (3) Mnookin and Kornhauser introduced an alternative way of conceptualizing divorce law: law operating not by imposing order from above in the courtroom but rather, by providing a framework within which parties to a marriage can gain the assistance required to negotiate post-dissolution rights and responsibilities. Similarly, substantive equality norms serve as legal shadowing, delineating the space within which equality-building work can take place. Legal shadows cast indirect light, shading rather than determining outcomes outside of the courtroom. The clarity of the legal norm correlates to its power to guide dialogue, negotiation and reform. I recognize that this definition of shadow does not comport with the laws of physics in a strict sense, but it is consistent with our understanding of what is meant by bargaining, or in this case equality-seeking, in the shadow of the law.
One example of clearly delineated substantive equality norms originates in the Supreme Court of Canada's decision on the extent of the duty to accommodate under human rights legislation in a case brought by Tawney Meiorin who challenged the validity of a mode of fitness testing required of forest firefighters. (4) The Court's decision in that case cast a long ultra-sharp legal shadow encouraging the proactive development of more inclusive, equal workplaces and the provision of public...