Constitutional coalescence: substantive equality as a principle of fundamental justice.

• Author: Froc, Kerri A.
• Position: Canada

In this article, the author posits that the principles of fundamental justice present tantalizing possibilities in the quest to use constitutional law to ameliorate the real conditions of disadvantage and subordination faced by women. As a way out of the stultified comparative analysis in equality cases and a section 7 analysis that has often been impervious to gendered relations of domination, she proposes a new use for the right to substantive equality represented in section 15(1) of the Canadian Charter of Rights and Freedoms: as a principle of fundamental justice. Using the examples of the 1988 decision in R v Morgentaler, [1988] 1 SCR 30 and subsequent abortion litigation and proposed legislation as a case study, she addresses the questions of the difference it would make to have substantive equality recognized as a principle of fundamental justice in granting women equal access to Charter rights, without recognition of substantive equality as a principle of fundamental justice, state regulation and coercion of women through their reproductive capacity is normalized and made invisible, reducing justice to procedural fairness, and accommodating perceived physical and mental frailties, individual needs and personal morality. Further, women's unique subordination through forced pregnancy defies ready comparison under a section 15 equality analysis. Incorporating substantive equality would mean an interpretation of "fundamental justice" based upon understandings of ethical social relations, self-determination and inclusion in community, conceptions that find support in the existing section 7 jurisprudence and would satisfy the test in Re BC Motor Vehicle Act, [1985] 2 8CR 486 to be recognized as a "basic tenet of our legal system." This legal recognition would constitute an acknowledgement of what is most fundamental to women.

Dans cet article, l'auteure soutient que les principes de justice fondamentale presentent des possibilites tentantes dans le cadre de la quete visant a se servir du droit constitutionnel pour ameliorer la condition sociale de desavantage et de subordination des femmes. A titre de solution pour s'ecarter de l'analyse comparee, figee, des causes en matiere d'egalite et d'une analyse de l'article 7 souvent impermeable aux relations de domination fondees sur le genre, elle propose un nouvel usage pour le droit a l'egalite reelle garanti par le paragraphe 15(1) de la Charte canadienne des droits et libertes : soit en tant que principe de justice fondamentale. A l'aide d'exemples comme la decision de 1988 dans l'affaire R c Morgentaler, [1988] 1 RCS 30, les litiges subsequents concernant la questien de l'avortement et les projets de lois afferents prises comme etudes de cas, elle explore la difference qu'entrainerait la reconnaissance de l'egalite reelle comme principe de justice fondamentale en octroyant aux femmes un acces egal aux droits garantis par la Charte. En l'absence d'une telle reconnaissance, la reglementation et la coercition exercees par l'Etat sur les femmes par le truchement de leur capacite de reproduction sont normalisees et occultees, reduisant ainsi la justice a une simple equite procedurale et accommodant leurs pretendues fragilites physiques et mentales, besoins individuels et moralite personnelle et l'unique subordination des femmes par le biais de d'une grossesse imposee defie toute comparaison en vertu de l'article 15. Integrer l'egalite reelle donnerait lieu a une interpretation de la > fondee sur la comprehension des relations sociales edaiques, de l'autodetermination et de l'inclusion dans la communaute, des conceptions qui sont etayees par la jurisprudence existante entourant l'article 7 et satisferaient le critere degage par l'arret Renvoi sur la Motor Vehicle Act (C-B), [19851 2 RCS 486, reconnu comme etant l'un des >. Ce constat juridique constituerait une reconnaissance de ce qui est reellement fondamental pour les femmes.

Table of Contents I. INTRODUCTION II. MORGENTALER AND THE AUTONOMOUS PREGNANCY III. POSSIBILITIES OF FUNDAMENTAL JUSTICE IV. CONCLUSION Equality is the common bond which runs through our world idea of justice. It represents everything that is noble in a nation and it brings out the best in its people--respect, tolerance, fair play and a willingness to accommodate differences. (1) I. INTRODUCTION

As a feminist, I find that the principles of fundamental justice referenced in section 7 of the Canadian Charter of Rights and Freedoms (2) present a conundrum. On the one hand, they have been used to deny equal space for sexually assaulted women in the Supreme Court of Canada's section 7 landscape. In these cases, concerning the constitutionality of restrictions on past sexual history evidence, cross- examination and third-party record production, women have had their rights reduced to a quasi-constitutional privacy interest or an equality backdrop in the analysis of the principles of fundamental justice, whereas the historically venerated rights of the accused to cross-examine and to receive a fair trial are perceived as critical. As Margaret Denike has commented, justice in these cases has been firmly "embroiled in a tradition of liberalism that thinks of power reductivity in terms of a singular, 'dyadic' relation between the individual and the state." (3)

What fundamental justice has meant for women in sexual assault cases, therefore, is that even when statutory protections for sexual assault complainants are upheld: restrictions will be interpreted narrowly; relevance broadly construed; women's Charter rights given only cursory consideration under the notion of prejudice; rape myths presented as historical remnants rather than part of contemporary social narratives regarding women's sexuality; the fallacy that judicial discretion and direction can cleanse proceedings from discriminatory beliefs upheld; and full answer and defence used as a trump. (4) With the downplaying of equality, power relations are reversed--without justification, women are clothed with the power of the state and males accused of sexual assault are constructed as oppressed. The actual context of what happened to whom and the social relations of power are lost in the abstract competition of rights and interests.

On the other hand, the principles of fundamental justice present tantalizing possibilities in the quest to use constitutional law to ameliorate the real conditions of disadvantage and subordination faced by women. Radha Jhappan suggests the pronouncement in Reference re Section 94(2) of the Motor Vehicles Act (5) that the principles reflect not only procedural safeguards, but substantive justice (expressed as the "basic tenets of our legal system" (6)), is a way out of the stultified comparative analysis in equality cases (7) that has stymied previous attempts to ensure the full social and political participation of women through progressive Charter litigation. (8) She states that, "[g]iven the myriad problems with the concept both theoretically and practically, it seems that women who aspire to equality with men lack ambition. In my view, we should aim higher: for justice." (9)

Others, such as me, are unwilling to give up on equality, and, in fact, cannot fathom justice without substantive equality. Substantive equality refers to a conception of equality that is an "affirmation" of difference, rather than dismissing its significance or negating it entirely as in formal equality. (10) In Diana Majury's words:

Substantive equality recognizes that in order to further equality, policies and practices need to respond to historically and socially based differences. Substantive equality looks to the effects of a practice or policy to determine its equality impact, recognizing that in order to be treated equally, dominant and subordinated groups may need to be treated differently. (11) In the first case concerning section 15, Andrews, equality was described in relational terms, guaranteeing against the evil of oppression. (12) The majority exhorted courts to focus on "the impact of the law on the individual or the group concerned" and to ensure "equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another." (13) This substantive equality approach to section 15 was recently reaffirmed in Kapp as "a template which subsequent decisions have enriched but never abandoned." (14) Further, as the Court reminded us in Eldridge v British Columbia (Attorney General), the purpose of the right is not only to prevent discrimination, but is also to "ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society...." (15) While one may debate the value of the enrichments the Court has provided in the years subsequent to Andrews, the more recent jurisprudence now invites us to go back to these first principles in examining substantive equality. This right is "inherently about change," a rectification of group wrongs or, in other words, "a direct assault on the status quo." (16)

Even theorists who do not identify as feminists appear to accept that justice and equality are inextricably linked. For example, Luc Tremblay (17) indicates that the fundamental underpinnings of law are that it is formally just (roughly conforming to the notion of formal equality in which the law consistently and coherently treats likes alike), materially just (adhering to a substantive notion of justice that conforms to fundamental moral values of the law) and equitable (the notion of individualized justice, by which he means looking at the real circumstances of the affected group to see if the effect of the law is inequitable--reminiscent of the sensitivity to context required in the substantive equality analysis under section 15 of the Charter). (18) If one accepts, therefore, a connection between fundamental justice and equality, the following questions arise in the context of...