Constitutional Coalescence: Substantive Equality as a Principle of Fundamental Justice

Abstract

In this article, the author posits that the principles of fundamental justice present tantalizing possibilities in the quest to use constitutional law to ameliorate the real conditions of disadvantage and subordination faced by women. As a way out of the stultified comparative analysis in equality cases and a section 7 analysis that has often been impervious to gendered relations of domination, she proposes a new use for the right to substantive equality represented in section 15(1) of the Canadian Charter of Rights and Freedoms: as a principle of fundamental justice. Using the examples of the 1988 decision in R v. Morgentaler, [1988] 1 SCR 30 and subsequent abortion litigation and proposed legislation as a case study, she addresses the questions of the difference it would make to have substantive equality recognized as a principle of fundamental justice in granting women equal access to Charter rights. Without recognition of substantive equality as a principle of fundamental justice, state regulation and coercion of women through their reproductive capacity is normalized and made invisible, reducing justice to procedural fairness, and accommodating perceived physical and mental frailties, individual needs and personal morality. Further, women's unique subordination through forced pregnancy defies ready comparison under a section 15 equality analysis. Incorporating substantive equality would mean an interpretation of "fundamental justice" based upon understandings of ethical social relations, self-determination and inclusion in community, conceptions that find support in the existing section 7 jurisprudence and would satisfy the test in Re BC Motor Vehicle Act, [1985] 2 SCR 486 to be recognized as a "basic tenet of our legal system." This legal recognition would constitute an acknowledgement of what is most fundamental to women.