Substantive equality revisited: A reply to Sandra Fredman

Abstract

The first time substantive equality was argued to a court of law was by the Women’s Legal Education and Action Fund (LEAF) before the Supreme Court of Canada in Andrews v. The Law Society of British Columbia , decided in 1989. 1 There, the Aristotelian formal equality approach revolving around sameness and difference was explicitly rejected for the first time in a legal argument. 2 Substantive equality—predicated on and illustrated by but not limited to the situation of women—was expressly argued as an alternate paradigm, its substantive content turning on change in the lived inequalities of the historically disadvantaged. 3 Toward this end, equality claims under § 15 of the Charter of Rights and Freedoms were to be subjected to “the purposive approach,” meaning assessed “bearing in mind that the purpose of the section is to promote the equality of those who have been disadvantaged” 4 —in other words, concretely, change-oriented, and asymmetrically. 5 “Factual inquiry into the concerns of substantive inequality” 6 was to be guided by the relation of the claim to an enumerated ground, the institutionalization of the ground or practice throughout society “so as to affect, in a systematic and cumulative way, dignity, respect, access to resources, physical security, credibility, membership in community, or power,” and whether the group making the claim has “a social history of disempowerment, exploitation, and subordination to and by dominant interests.” 7 In its decision in Andrews , 8 the first Supreme Court decision rendered under § 15 of the newly entrenched Charter of Rights and Freedoms, the Supreme Court of Canada adopted the distinctive features of LEAF’s substantive equality approach. Scholarly notice taken of the distinct departure that substantive equality provides constitutional and international law is welcome and overdue. 9 Bringing together a list of factors traditional in equality thinking as adjudicated and theorized with current themes and developments in existing scholarship, as Fredman descriptively does in “Substantive Equality Revisited,” is useful as well. Her treatment is more substantive at points than the typical abstractions, but not always and not by much. Curiously, the entry point of substantive equality into the legal canon is reduced to its facts, and its reinstatement after a considerable interregnum period of wandering in the Canadian wilderness is cited only for another point. 10 The “single principle” argued to “resist capture” in the “substantive conception” of inequality that eludes her 11 can be discerned in developing substantive equality jurisprudence, if one looks in the right places. Actually, it may not be recognizable as a principle in the philosophical sense, because it is not an abstraction but the social content specific to each “pre-existing disadvantage” 12 based on concrete grounds. Social hierarchy is its identifying principle. 13 Fredman’s first of four proffered “dimensions” of substantive inequality, disadvantage, while promising and core to the Canadian constitutional approach as well as the Charter’s language, does not necessarily come with identifying instructions. Social hierarchy—above and below, more and less, higher and lower, dominant and subordinate, superior and inferior—does. Disadvantage is intrinsically a comparative hier archy. Her second dimension—countering prejudice, stigma, stereotyping, humiliation, and violence based on protected characteristics—is not a separate dimension, but rather a list of some of the forms social disadvantage takes. Third, she would enhance voice and participation as against exclusion. This could easily be reduced to “equal opportunity” (wrongly claimed by Fredman to be a substantive theory 14 ) or go awry if not guided by a pre-existing grounded hierarchy test. By itself it does not lead to the identification of whose voice needs to be enhanced or who is being excluded. Asserting that the dimensions interact does not fully solve this problem. Historical hierarchy fills both lacunae. Moreover, while these two are positive equality values, failing to further them does not necessarily make a law discriminatory. Accommodating difference, part of her fourth dimension, without a substantive guide, could readily become the excuse for unequal treatment, aka “special treatment,” and the badge of stigma and worse than it often has been. It also reifies existing hierarchies. Similarly, no law will likely be found discriminatory for failing to achieve structural change, leaving the legal status of this dimension unclear in operation, the practical use of these standards analytically foggy. Most of Fredman’s purportedly substantive factors can equally well be, and often have been, abstractions—meaning they can as readily be filled by advantaged as by disadvantaged content, hence are as formal as they are substantive. If a factor can be flipped, if its dimensions can as readily be filled by dominant as by subordinate groups, it