The Promise of Law v. Canada

The Promise of Law v. Canada

I Introduction

Justice Iacobucci's judgment in Law v. Canada was a turning point in equality-rights jurisprudence.¹ Prior to that decision, the Supreme Court had repeatedly emphasized that the equality rights in s. 15 of the Charter protected not just 'formal equality,' or the like treatment of those already acknowledged as likes, but 'substantive equality,' or the treatment of everyone as equal members of society. However, there had been no agreement on what 'substantive equality' involved. Was it enough for governments simply to avoid prejudice or demeaning stereotypes? Or was something more required, something by way of not denying adequate or important opportunities to those who lacked them? If so, which sorts of opportunities? Did any significant hardship imposed on a historically disadvantaged person or group amount to a violation of substantive equality? And was the right to substantive equality really, at bottom, an individual right, concerning the way in which individuals ought to be treated relative to each other; or was it ultimately aimed at equalizing opportunities between different social groups? Different members of the Court had given different answers to each of these questions, and the need to achieve some consensus on at least some aspects of equality-rights analysis was pressing.

Although Law did not end the Court's uncertainty or disagreement over the answers to the above questions, it did lay out a test that was able to unite the Court for a time, and also to steer it, even to the present day, in the direction of certain answers rather than others. Justice Iacobucci, echoing the remarks of Justice MacIntyre in Andrews v. Law Society (British Columbia) and of Justices L'Heureux-Dubé and Cory in Egan, proposed that 'the purpose of s. 15(1) is to prevent the violation of essential human dignity.'² And, correspondingly, he suggested that the central question that should be asked, in determining whether a particular government act amounts to a violation of someone's equality rights, is whether the action violates their essential human dignity: 'does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?'³ This central question formed the third of the steps in Justice Iacobucci's proposed test for violations of s. 15, which has since become known simply as the 'Law test': first, one must ask whether the claimant has been disadvantaged by the government action, relative to some other set of individuals; second, one must ascertain whether this disadvantage arose on the basis of the claimant's possession of some enumerated or analogous ground of discrimination; and, finally, one must assess whether a reasonable person in the claimant's position would perceive this way of being disadvantaged by the government as a violation of her dignity. Justice Iacobucci emphasized that this final inquiry into the claimant's dignity is an objective one: it is not an inquiry into how he happens to feel, but an inquiry into whether what has happened to him is just or fair.

This way of proceeding clearly steers us, with respect to the general questions I asked at the beginning of this essay, in the direction of certain answers rather than others. It implies that equality rights are primarily protections for individuals rather than groups, and that it is the individual's specific circumstances and interests that are at issue. Of course, it is often true that the traits we recognize as analogous grounds link the individual to a certain disadvantaged group; and it is also true that by forbidding certain ways of treating individuals with these traits, we will improve the status of the groups they belong to. But the Law analysis suggests that the unfairness to be rectified is not the lower status of these groups as groups but the disadvantage and stereotyping suffered by the individuals that...