The Supreme Court, the Law Decision, and Social Programs: The Substantive Equality Deficit

• Author: Judith Keene
• Pages: 345-370

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e Supreme Court, the Law Decision,

and Social Programs:

   

Judith Keene1

A. INTRODUCTION

Recently, there has been a growing concern among many advocates about

the frequency with which t he Supreme Court has used the langua ge of

equality to deny the claims of equality-seekers, producing a body of deci-

sions that narrows the scope of section , imports into it issues that should

arise only under section , and seems to limit its application to situations in

which formal inequality can be demonstrated. In large pa rt, this result has

been associated with the eect of the Law decision on the development of

section  of the Charter.

Prior to the Law decision, the Supreme Court’s section  decisions had

been proceeding cautiously in the di rection indicated by substantive equal-

ity, with the high point being the decision in E ldridge v. Br itish Columbia

(Attorney G eneral). In Eldridge, the Court found that t he denial of inter-

preter serv ices by a provincia l health care s ystem breached the e quality ri ghts

of deaf use rs of the system a nd was not saved by sect ion . e Court rejec ted

an argument that government inaction was not constitutionally reviewable.

While the Eldridge decision was unanimous, a number of the Court’s

other section  decisions clearly demonstrated that a minority of the Court

was a larmed by the implications in t he Canadian context of the right to

equality “without discrimination.” e Law decision was an attempt to

create an approach to sec tion  that all members of the Supreme C ourt

could live with. Unfortunately, that anxiety about section ’s implications

      

is obviously still felt, at present by a majority of the Court. Because the util-

ity of the Law analysis as a vehicle to promote substantive equality depends

entirely on the individual judge’s understanding of the concept and com-

mitment to it, Law can and has been used by all members of the Court as a

rationale for decisions that are philosophically poles apart.

e most chal lenging test of judicial rea soning and commitment to

substantive equality arises in the context of the redistributive i mplica-

tions of section . e Court’s discomfort and divisions are nowhere more

evident than in cases brought by the most disadvantaged equality cla im-

ants; those who have been excluded, despite personal cha racteristics and

circumstances that should qua lify them for assistance, from government

programs desig ned to ameliorate poverty and disability. e decisions of

the Court, in these a reas in particular, feature few statements of principle.

Principles that are expressed a re not applied, or are claimed as the basis of

both majority and dissenting opinions, so that we are le to guess what un-

stated principles might be at play. e Court is obviously struggli ng with

section , and at this point, it has g iven us only a list of things to consider

when trying to predict what will be considered discriminatory. At present,

the only certainty i s that a section  cla im is not likely to be successful ,

particularly one in respect of government benet programs.

Using a broad denition of “government benet programs” the impor-

tant cases to date in addition to Law itself are Granosky v. Canada (Minis-

ter of Employ ment a nd Immig ration), Gosselin v. Quebec (Attorney General),

Hodge v. Canada (Minister of Human Resources Development), Auton

(Guardian ad lite m of) v. British Columbia (Attorney General), and New-

foundland (Treasury Board) v. N. A.P.E. Because it di splays most of the cur-

rent problems, I have chosen the Gosselin decision for detailed examination.

is paper will

• discussthedecisioninGosselin v. Quebec (Attorney General),

• brieyoutline themoregenerous andliberalapproachused bythe

Supreme Court in dealing with the concept of discrimination in hu-

man rig hts legislation, and illustrate the eect of that approach in

Hutchinson and Gwinner, cases involving complaints of discrimina-

tion in respect of government benets, and

• su mmarize some of the currentd iculties, making some sug ges-

tions as to arg uments that may be made in section  government

benet cases in the future.