Beyond Andrews: Substantive Equality and Positive Obligations after Eldridge and Vriend

9:3 Constitutional Forum

12 Pages Posted: 18 Aug 2014

See all articles by Bruce Porter

Bruce Porter

Social Rights Advocacy Centre

Date Written: 1998

Abstract

In R v Andrews the Supreme Court of Canada rejected a formal equality model of “same treatment” and affirmed that the purpose of the equality guarantee was to remedy disadvantage. However, the rejection of the same treatment model did not, in itself, create a framework that would ensure that section 15 could achieve the purpose of ameliorating or remedying systemic patterns of disadvantage affecting enumerated and analogous groups. A significant further step was needed to accept that section 15 imposes a positive duty to address needs arising from the distinctive or pressing needs of disadvantaged groups. In Eldridge v British Columbia and Vriend v Alberta, the Supreme Court squarely considered whether equality rights created a positive duty on governments to act to remedy disadvantage that was not itself the result of discriminatory action or exclusion. In both cases, the Supreme Court considered the courts' role to be the protection of groups “whose needs and wishes elected officials have no apparent interest in attending.”

In Eldridge and Vriend the Court vigorously rejected arguments from governments against finding positive obligations under section 15, describing them as a “thin and impoverished vision of equality”. These cases clearly establish that failing to act to protect the interests of disadvantaged groups to ensure substantive equality is a violation of s. 15. Nevertheless, at the same time as affirming positive obligations, the Court retreats from them, attempting to avoid the obvious conclusion of it substantive equality logic. The Court is retreats from a clear affirmation that section 15 imposes positive obligations to ensure access to healthcare or protections from discrimination for disadvantaged groups, leaving these questions, formally, to be answered another day. The Court’s reluctance to stand by the substantive equality logic, however, entertaining the possibility that human rights protections could be revoked entirely, allowing racism, homophobia and invidious discrimination to be rampant, in order to comply with the obligation of “substantive equality” under s.15, is shocking. The reluctance to stand by its own logic should be understood as the sign of a dying negative rights paradigm that must be rejected as being entirely inconsistent with Canada's obligations under international human rights law and with the underlying values of the Canadian Charter.

Keywords: Andrews, Canada, equality, section 15, Charter, Vriend, Eldridge, discrimination, positive, duty, obligations, substantive equality, human rights

Suggested Citation

Porter, Bruce, Beyond Andrews: Substantive Equality and Positive Obligations after Eldridge and Vriend (1998). 9:3 Constitutional Forum, Available at SSRN: https://ssrn.com/abstract=2481715

Bruce Porter (Contact Author)

Social Rights Advocacy Centre ( email )

Canada

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