Equality, Comparison, Discrimination, Status
MAKING EQUALITY RIGHTS REAL: SECURING SUBSTANTIVE EQUALITY UNDER THE CHARTER, pp. 73-98, Fay Faraday, Margaret Denike & M. Kate Stephenson, eds., Irwin Law, 2006
27 Pages Posted: 15 Jan 2007 Last revised: 30 Apr 2015
Date Written: 2006
The Supreme Court of Canada describes the equality guarantee in section 15 (1) of the Canadian Charter of Rights and Freedoms as a substantive right. Attributing two defining features to substantive equality, the Court maintains it is a comparative concept that must be interpreted by the discrimination principle. The Court's approach troubles feminists who associate comparison with formal equality.
However, comparison can have more than one meaning. Elisa Holmes identifies two approaches - instrumental and constitutive - to comparison, explaining they offer a basis for distinguishing discrimination analysis from equality analysis. Since instrumental comparison serves the discrimination principle (and yields formal equality), constitutive comparison must inform some other legal principle that could yield substantive equality.
The search for another legal principle reveals two possibilities. One is the dignity principle and the other, the principle of status. The former should be dismissed because its structural features are indistinguishable from those of the discrimination principle. In other words, dignity and discrimination both yield formal, not substantive, equality. On the other hand, Owen Fiss identified the principle of status which is more promising, provided that the sociological concept of status is distinguished from the legal concept. Only the sociological concept is consistent with constitutive comparison because it requires the leveling down of privileged groups, hence making substantive equality more feasible.
As three recent cases - Symes, Trociuk, and Law - illustrate, the Supreme Court of Canada is not willing to countenance the leveling down of privileged groups. Although the Court could have invoked the principle of status to guarantee substantive equality to women, the judges opted instead to apply instrumental comparison and the discrimination principle. In effect, the Court relied on formal equality to uphold men's privileges. What remains, therefore, is the larger question: why does the unjust status hierarchy organized around gender continue in the face of the constitutional demand for equality?
Keywords: equality, comparison, discrimination, status, women's rights, Canadian Charter of Rights and Freedoms
JEL Classification: J7
Suggested Citation: Suggested Citation