The Wrongs of Unequal Treatment

I Introduction

Over the past twenty years, analytic philosophers in the United States and the United Kingdom have devoted extensive thought to the different reasons we have for valuing equality - and, relatedly, to the different ways in which we can conceptualize the wrong or wrongs done to individuals when the state does not treat them as equals.¹ However, neither Canadian legal academics nor Canadian courts have made extensive use of this literature in interpreting the equality provisions of the Canadian Charter of Rights and Freedoms.² There are a number of good reasons why one might expect this philosophical literature to remain somewhat remote from Canadian legal debates. One reason is that philosophers have tended to approach the question of what kind of equality matters as an inquiry into whichsystem of general principles for the distribution of resources should guide legislatures in the design of particular policies. Since a court cannot unproblematically assume that it is either institutionally competent to make judgments about the most appropriate general distributive principles or possessed of the institutional mandate to do so, these philosophical discussions can seem of little relevance to a court's task of interpreting constitutionalized equality rights. Furthermore, philosophers have tended to focus on the distribution of goods that can be privately owned, such as income and real property. Although this is usually done only for ease of illustration, the result has been that their work often lacks explicit discussion of claims for the equal availability of goods that are not privately appropriable - for instance, access to public spaces that have been designed in such a way that everyone can move easily through them, or the freedom to present one's relationship in public as involving the most extensive kind of commitment that our society recognizes. Yet very often it is these sorts of goods that claimants in equality rights cases have been denied. Finally, and most importantly, philosophical discussions have tended to assume - either implicitly or, as in the case of Ronald Dworkin, quite explicitly - that questions concerning the just distribution of resources can be pursued without broaching questions about the just distribution of political and social power.³ Consequently, prior to the work of Elizabeth Anderson and, more recently, Samuel Scheffler, most philosophers did not concern themselves directly with inequalities in the distribution of political or social power, or with how to conceptualize the wrong that is done by institutional structures and policies that stigmatize individuals, marginalize them, or perpetuate their domination by others.⁴

The latter question is, of course, of particular relevance to Canadian equality jurisprudence, given that the Supreme Court of Canada has construed the protection offered by s. 15 of the Charter as limited to those forms of unequal treatment that involve 'discrimination.'⁵ Indeed, for this reason, it might be thought that any more general discussion of inequality could have only limited relevance, if any, to Canadian equality jurisprudence. However, if we are to define discrimination broadly enough to include not only intentional discrimination⁶ but also what has come to be called 'adverse effects discrimination' - that is, discrimination that merits the name not because some have deliberately been denied a benefit out of malice or prejudice but because, under the circumstances, even the unintended effect of depriving these people of this particular benefit is unfair to them - then it seems we must understand discrimination, quite generally, as 'depriving some of a benefit available to others, in circumstances where this treatment is unfair to them.'⁷ But, of course, this is just the most general characterization that philosophers defending some form of equality would give of the kind of unequal treatment that they hold to be objectionable.⁸ No plausible theory of equality maintains that what is objectionable about unequal treatment is the mere fact that some individuals end up with more or less than others. Rather, such theories hold...