Equality as a Comparative Concept: Mirror, Mirror, on the Wall, What's the Fairest of Them All?

Abstract

In Law Society of British Columbia v. Andrews, its first decision interpreting section 15 of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada characterized equality as follows: It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises. It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.

The Court did not significantly elaborate on the comparative nature of equality, but it is noteworthy that in the above passage, this comparative notion was immediately linked to the inadequacies of a formal equality analysis. In rejecting a "similarly situate" test as "deficient", the Supreme Court of Canada began its section 15 interpretation by embracing substantive equality.

In this article, I explore two themes arising from the notion of equality as a comparative concept. The first is that equality concerns relative, rather than absolute, claims. The second is that the difference between formal and substantive equality is crucial to the nature of the comparisons which an equality analysis demands. In my assessment, Canadian equality jurisprudence is sometimes, and increasingly, wanting because of its inattention to both of these foundational precepts. The early promise of Andrews has not been realized.

Keywords: Law Society of British Columbia, Canadian Charter of Rights and Freedoms, section 15, equality, Supreme Court of Canada, Andrews