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Legitimizing Sexual Inequality: Three Early Charter Cases
Andrew Petter*
The author maintains that the Canadian
Charter ofRights and Freedoms draws its co-
herence and legitimacy from nineteenth cen-
tury liberal ideology. Nowhere is this more
apparent than in the early section 15 cases,
in which courts have embraced a formal
rather than a substantive vision of equality.
As a consequence, men have been able to rely
upon section 15 to challenge programmes
providing special benefits for women. More-
over, those representing women in equality
litigation have felt compelled to advance ar-
guments that accept and reinforce liberal as-
sumptions. The result is that the Charter,
rather than promoting social equality, is more
likely to legitimize the prevailing inequality
of women and other disadvantaged groups.
Selon l’auteur, la Charte canadienne des
droits et liberts tire sa 16gitimit6 et sa co-
h6rence de l’id~ologie du sicle demier. Les
litiges portant sur l’article 15 font particuli6-
rement ressortir ce fait, car les cours visent
l’galit6 formelle et non substantive. Cela a
permis aux hommes d’utiliser l’article 15
pour contester ]a validit6 de programmes qui
conflerent des avantages aux femmes. De
plus, dans les litiges sur l’galit6 des sexes,
les groupes de femmes se sont vues forc~es
de soutenir des arguments qui acceptent et
m~me renforcent l’id~ologie lib~rale. II en r6-
suite que la Charte, au lieu de contribuer At
l’6galit6 sociale, servira probablement A 16-
gitimer les in6galit6s existantes, qui ddfavo-
risent les femmes et certains autres groupes.
*
*
*
The purpose of this paper is to build upon a thesis that I have developed
elsewhere.1 That thesis, simply put, is that the Canadian Charter of Rights
and Freedoms2 is a regressive instrument whose coherence and legitimacy
depend upon the values and assumptions of nineteenth century liberalism.
Like other liberal rights documents, the Charter equips individuals with a
*Associate Professor, Faculty of Law, University of Victoria. This is the revised version of
a paper presented to a workshop on feminism, critical theory and the Canadian legal system
held at the Faculty of Law, University of Windsor, on June 4-7, 1988. I am grateful to John
Kilcoyne, Maureen Maloney, Rod Macdonald and to many who attended the workshop for
their comments and suggestions, and to Mary Audley (Victoria, 1989) for her research assist-
ance. I also wish to acknowledge the special debt I owe to Harry Glasbeek who has served as
an ongoing source of inspiration and support.
‘See A. Petter, “The Politics of the Charter” (1986) 8 Sup. Ct L.Rev. 473; A. Petter, “Im-
maculate Deception: The Charters Hidden Agenda” (1987) 45 The Advocate 857; A.C. Hutch-
inson & A. Petter, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38
U.T.L.J. 278.
2Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11.
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formal set of negative rights enabling them to repel interference by the
regulatory and redistributive arms of the state. At the same time, it provides
no opportunity for challenging the major source of inequality in our society:
unequal distributions of property. On the contrary, such distributions form
the base line or “natural foundation” upon which Charter rights are
grounded and against which the constitutionality of state action is judged. 3
Nowhere has the liberal character of the Charter revealed itself more
clearly than in the context of the early equality cases. In virtually all such
spawned. Six years of Charter litigation have established the following:
3The regressive nature of the Charter is evidenced by the judicial decisions that it has
* The Charter applies to legislative measures that seek to alter or displace common law
property entitlements, but does not apply to those entitlements themselves: Retail, Wholesale
and Department Store Union, Local 580 v. Dolphin Delivery Ltd, [1986] 2 S.C.R. 573,33 D.L.R.
(4th) 174, [1987] 1 W.W.R. 577, 9 B.C.L.R. (2d) 273, 71 N.R. 83, 38 C.C.L.T 184.
* The purpose of the Charter is to curtail the regulatory and redistributive activities of modern
government, not to repair or enhance them: Hunter, Director of Investigation and Research of
the Combines Investigation Branch v. Southam Inc., [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641,
[1984] 6 W.W.R. 577, 14 C.C.C. (3d) 97 (sub nom. Hunter v. Southam Inc.), 41 C.R. (3d) 97,
55 N.R. 241, 27 B.L.R. 297 [hereinafter Hunter v. Southamn Inc.].
*Individual rights are primary and principled while collective rights are secondary and po-
litical: Socit6 des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness
in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549, 69 N.B.R. (2d) 271, 27
D.L.R. (4th) 406, 177 A.RR. 271, 66 N.R. 173 (sub nom. Socit6 des Acadiens du Nouveau-
Brunswick Inc. v. Minority Language School Board Number 50), per Beetz J.(distinguishing
between provisions of the Charter protecting the rights of minority language groups and those
protecting the rights of individuals). See also Reference Re Public Service Employee Relations
Act, Labour Relations Act and Police Officers Collective Bargaining Act, [1987] 1 S.C.R. 313,
38 D.L.R.(4th) 161, 51 Alta L.R. (2d) 97, 78 A.R. 1, 74 N.R. 99 [hereinafter Reference Re
Public Service Employer Relations Act], per McIntyre J. (concerning the individualist nature
of the Charter right to freedom of association).
* Corporations are private persons that may invoke Charter rights beyond those enjoyed by
their individual shareholders (Hunter v. Southam Inc., supra), including rights (such as freedom
of religion) that have no direct relevance to economic entities: R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 3 W.W.R. 481, 18 C.C.C. (3d) 385, 13 C.R.R. 64,
37 Alta L.R. (2d) 97, 58 N.R. 81 [hereinafter Big M].
* Trade unions are statutory entities that may not invoke Charter rights beyond those enjoyed
by their individual members, not even rights (such as the right to bargain collectively and to
strike) that are central to union activities: Reference Re Public Service Employee Relations Act,
supra.
* Charter rights to freedom of religion, expression and association and to privacy serve as
proxies for protecting economic activities such as store openings [R. v. Big M Drug Mart Ltd.,
supra], commercial advertising [Irvin Toy Ltd. v. A.G. Quebec, 32 D.L.R. (4th) 641, [1986]
R.J.Q. 2441, 3 Q.A.C. 285, 26 C.R.R. 193 (C.A.) (leave to appeal to the S.C.C. granted (1986),
2 Q.A.C. 160n, 73 N.R. 400n); Re Grier andAlberta Optometric Association (1987), 42 D.L.R.
(4th) 327, 53 Alta L.R. (2d) 289 (C.A.); Royal College of Dental Surgeons (Ontario) v. Rocket
and Price (1988), 27 O.A.C. 52 (C.A.)], the formation of business partnerships [Black v. Law
Society ofAlberta, 27 D.L.R. (4th) 527, [1986] 3 W.W.R. 590, 44 Alta L.R. (2d) 1, 68 A.R. 259
(sub nom. Black & Company v. Law Society ofAlberta) (C.A.)] and the protection of corporate
records from government scrutiny [Hunter v. Southam Inc., supra].
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cases, the shared assumption ofjudges and most litigators has been that the
equality guarantee in section 15 represents a wholly formal right to equal
treatment, one that may occasionally take account of, but does not directly
address or seek to rectify, real disparities in social condition. For this reason,
among others, 4 section 15 litigation has been dominated by established
groups and interests to the exclusion, and often to the detriment, of the
socially disadvantaged. Consider the following:
* The majority of equality claims have been based upon grounds of
discrimination not enumerated in section 15 (such as province of
residence), which have little or nothing to do with underlying social
disadvantage.5 The equality seekers in such cases have tended not to
be the disadvantaged, but rather professionals, business people and
those charged with drunk driving;
* Although the Charter right to equality is restricted on its face to “in-
dividuals”, the Supreme Court of Canada in R. v. Big M has paved
the way for its use by corporations. 6 Indeed corporate access to section
15 has already been permitted by at least one provincial appellate
court7 and confirmed by another;8
” Even in cases involving grounds of discrimination enumerated in
section 15, equality seekers have tended to represent socially domi-
nant groups or interests. Age discrimination cases, for example, have
been dominated by professionals who are opposed to mandatory re-
tirement. The voices of blue collar workers and the unemployed –
those who have the most to lose from the abolition of mandatory
retirement 9 –
have been absent from such cases. Similarly, of the
first thirty-five sex discrimination claims brought under the Charter,
4Another important reason is the prohibitive cost of Charter litigation. Of course, the fact
that Charter rights, including equality rights, are exercisable only by those who command
substantial economic resources is itself a powerful example of the centrality of formal equality
to the operation and legitimacy of the Canadian legal system. Everyone formally possesses
Charter rights, but only the rich can actually make use of them.
5See EL. Morton & M.J. Whithey, Charting the Charter, 1982-1985: A Statistical Analysis
(Occasional Paper Series, Research Study 2.1, Research Unit for Socio-Legal Studies, University
of Calgary, Sept. 1986).
6Supra, note 3. In Big M, the Court held that a corporation did not have to enjoy the right
to freedom of religion in order to invoke that right to challenge a law that subjected it to
penalties and threatened its economic interests.
7Zutphen Brothers Construction Ltd v. Dywidag Systems International, Canada Ltd (1987),
76 N.S.R. (2d) 398, 35 D.L.R. (4th) 433, 17 C.P.C. (2d) 149 (C.A.); leave to appeal to S.C.C.
granted July 29, 1987.
8R. v. CLP Canmarket Lifestyle Products Corp., [1988] 2 W.W.R. 170, 50 Man. R. (2d) 113
(C.A.).
9See A. Hutchinson & A. Petter, “Many Pay for Privilege of Few” (1986) 9 Perception, no.
4, 17 [Canadian Council for Social Development].
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over 70 percent –
twenty-five –
have been raised by male litigants.
Of the eleven cases in which sexual equality claims have succeeded,
seven –
over 65 per cent – have involved male claimants.’0
In this paper, I will look beyond these basic observations and statistics,
and test my Charter thesis in a slightly different way. I intend to examine
three early sexual equality cases in which women’s organizations have had
a voice. These cases are significant for two reasons. First, they are among
the few in which there has been a concerted and sophisticated effort to
mobilize Charter rights for progressive ends. Second, women, more than
any other disadvantaged group, fought to include within the Charter mech-
anisms to redress long-standing discrimination and social disadvantage.
Thus, if there were any hope of liberating Charter rights from the shackles
of legal liberalism, one would expect to witness it in cases such as these.
Yet, as I shall try to demonstrate, these cases have actually done more
to reinforce and legitimize the Charters liberal precepts than to undermine
them. The arguments that have succeeded are arguments that have endorsed
a formal vision of equality or have embraced an orthodox liberal dichotomy
between public and private realms. Thus, far from challenging the liberal
thematic structure that underlies the Charter, these cases provide compelling
proof of just how powerful and pervasive a structure it is. They show that
even those who enter the arena of Charter litigation with a conscious desire
to resist or undermine that structure inevitably fall prey to its underlying
values and assumptions.
I. Shewchuk v. Ricard
Much has been written by feminist theorists showing how liberalism’s
adherence to a formal vision of equality (i.e., equality of treatment) serves
to perpetuate and legitimize women’s substantive inequality (i.e., inequality
of condition). Compelling evidence of this process has been provided by a
number of section 15 cases in which men have invoked guarantees of sexual
equality to attack legislative protections for women. Perhaps the most
graphic example is Phillips v. Social Assistance Appeal Board (N.S.), a case
in which a single father challenged a provision in welfare legislation that
provided special benefits to single mothers. Counsel argued that such leg-
islation violated the Charter guarantee of sexual equality. The Nova Scotia
Supreme Court’ I and the Court of Appeal’ 2 agreed. However, rather than
I0These statistics are based upon the author’s own survey of section 15 cases to date; similar
statistics are reported in other studies (see Morton & Withey, supra, note 5).
“Phillipsv. Social AssistanceAppeal Board (N.S.) (1986), 73 N.S.R. (2d) 415,27 D.L.R. (4th)
156, 26 C.R.R. 109 (S.C.).
inafter Phillips].
12Phillips v. Social Assistance Appeal Board (N.S.) (1986), 76 N.S.R. (2d) 240 (C.A.) [here-
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extending the benefits to men, they struck the provision down. Formal
equality was achieved: equality of nothing.
The spectre of decisions like Phillips prompted the Women’s Legal Ed-
ucation and Action Fund (LEAF) to intervene in a similar case before the
British Columbia Court of Appeal. In Re Shewchuk and Ricard,13 a man
challenged legislation permitting affiliation and child support orders against
fathers, but not mothers, of illegitimate children. Ricard’s lawyer argued
that the statute violated section 15 and sought to have it struck down.
It might be thought that LEAFs response to such an argument would
be to attack the assumption of formal equality on which it was based. If
maleness is a characteristic of demonstrable social advantage, why should
the Charter’s guarantee of sexual equality be available to males at all? If
one’s goal is to promote equality of condition, formal differences in legis-
lative treatment should be amenable to Charter challenge only if they rein-
force or exacerbate real social disadvantage. Thus, from the perspective of
those seeking substantive equality, claims alleging discrimination based on
“maleness” should command even less attention than claims based on such
innocuous characteristics as the colour of one’s car or the kind of material
used in the manufacture of beer cans.14
Yet LEAF decided against this approach. Instead, the LEAF factum
voiced unqualified support for the view that all sexual distinctions in leg-
islation should be treated alike:
Reference to the legislative history of ss. 15(1) and 28 confirms that their purpose
is to put into effect strong and positive equality rights between the sexes rendering
primafacie unconstitutional all distinctions based on sex. Thus all such distinctions
should be unconstitutional unless justified according to the rigorous standards
whether under s. 1 or otherwise. 5
What prompted LEAF to embrace this formal vision of equality? Cer-
tainly it was not oversight or na’vetM. The reason, it seems, is that the
litigators representing LEAF felt that it would weaken their credibility to
argue that sexual equality rights should not be available to males. Since
1328 D.L.R. (4th) 429, [1986] 4 W.W.R. 289,2 B.C.L.R. (2d) 324, 1 R.EL. (3d) 337 [hereinafter
Shewchuk].
“aSee Re Aluminum Company of Canada Ltd and Ontario (Ministry of Environment) (1986),
55 O.R. (2d) 522, 29 D.L.R. (4th) 583, 19 Admin. L.R. 192 (Div. Ct.). Of course, a substantive
interpretation of section 15 would not preclude a man from invoking another ground of dis-
crimination that pertains to some real social disadvantage on his part. It would, however,
prevent him from using the guarantee of sexual equality as a proxy for that other ground.
Besides, in this instance, there was no evidence that Ricard was in any way socially
disadvantaged.
15Paragraph 19. The factum was submitted jointly on behalf of the West Coast LEAF As-
sociation and a number of other intervenors in the case, including the Vancouver Status of
Women and the Federated Anti-Poverty Groups of B.C.
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such an argument was bound to fail, they were better off conceding the point
and devoting their energies to the question of remedies. This they did,
arguing that in male equality cases the appropriate remedy was not to strike
down benefits for women (as was done in Phillips), but rather to extend
benefits to men. 16
In other words, there were sound strategic reasons for LEAF to adopt
the position it did. But that, of course, is precisely the point. In the Charter
scheme of things, arguments that challenge liberal assumptions concerning
the formal nature of equality rights are likely to be viewed as marginal or
perverse. Moreover, the availability of alternative approaches to formal
equality rights, some of which will be less damaging to women’s interests
than others, provides a strong inducement to groups such as LEAF to play
the Charter game on its own terms-even if doing so legitimizes a view of
equality that disregards women’s real social disadvantage and supports the
ability of men to claim an even greater share of scarce social resources.
Indeed, it is a telling irony that one of LEAFs major initiatives in its first
few years of operation has been to argue in favour of better legislative
protections for men, for fear of losing the inadequate protections currently
enjoyed exclusively by women. 17
II. Re Blainey and Ontario Hockey Association
One of the dangers identified by critics of formal equality rights is that
such rights, in addition to benefiting men at the expense of women, could
serve to benefit extraordinary or elite women at the expense of ordinary
women. The danger is a real one. While the guarantee of “equal treatment”
serves to entrench the subordination of the majority of women who languish
at the bottom of the social ladder, it promises tangible benefits for those
few women who have ascended to higher rungs.
Under the Charter, this danger is exacerbated by two variables. The
first is that the formal claims of extraordinary or elite women are much
easier to litigate and more likely to attract judicial sympathy than the sub-
161ronically, the Court of Appeal rejected Ricard’s claim. Two judges held that the legislation,
when read in light of other statutory provisions, could be justified under section 1 ofthe Charter.
A third held that the scheme could be upheld under section 15(2) as an affirmative action
program.
171t is worth noting, however, that LEAF has recently modified the position that it adopted
in Shewchuk, supra, note 13. In Andrews v. Law Society of British Columbia, 27 D.L.R. (4th)
600, [1986] 4 W.W.R. 242,2 B.C.L.R. (2d) 305 (B.C.C.A.) (affirmed, February 2, 1989 (S.C.C.)),
LEAF argued before the Supreme Court of Canada that the Court should adopt a definition
of equality that was responsive to the substantive inequality of women and other disadvantaged
groups. At the same time, the LEAF factum fell short of denying altogether the legitimacy of
male sexual equality claims.
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stantive claims of most women. This makes it tempting for women’s rights
activists to seize upon such claims, assuming them to be opportunities for
advancing the interests of women generally. The legal system restricts those
representing Charter litigants in court to persons who, by virtue of their
training and professional status, occupy a privileged position within society.
Thus, there may be a proclivity on the part of those arguing equality cases
on behalf of women to identify with the claims of extraordinary or elite
women, and to discount the possibility that such claims might actually be
detrimental to the majority of women.
These variables appear to have been at work in Re Blainey and Ontario
Hockey Association.1 8 In that case, Justine Blainey, a twelve year old girl,
wished to play hockey in a league that was restricted to boys by a regulation
of the Ontario Hockey Association. Evidence led by the Association sug-
gested that most girls twelve years and older would have difficulty competing
successfully in a boys hockey league. 19 Blainey, however, was an exceptional
athlete. The evidence showed that she would have qualified for the league
were it not for the regulation prohibiting girls from competing.
LEAF brought a Charter claim on behalf of Blainey, arguing that the
“boys only” regulation, and the provision of the Ontario Human Rights
Code, 198120 that permitted it, violated Blainey’s right to sexual equality
under section 15 of the Charter. The argument was based largely upon the
principle of formal equality and, not surprisingly, it succeeded (at least with
respect to the attack on the Human Rights Code, 1981).
Yet what was the impact of this ruling? While it may have benefited a
few extraordinary female athletes, the ruling did nothing to address the
underlying, substantive inequalities experienced by a majority of female
athletes-inequalities that stem from lack of funding, training and equip-
ment (not to mention more deeply rooted social and political causes of
sexual subordination). More importantly, by endorsing a formal vision of
sexual equality, the decision in Blainey may actually have served to reinforce
and legitimize the substantive inequality experienced by the majority of
women athletes and of women generally. As Kathleen Lahey has remarked,
judicial adherence to a formal concept of equality makes it “virtually im-
possible to argue that the Charter is designed to eliminate the social, eco-
18(1986), 26 D.LR. (4th) 728, 54 O.R (2d) 513, 14 O.A.C. 194 (C.A.) [hereinafter Blainey]; leave
to appeal to S.C.C. refused, 10 C.RR. (3d) 450n.
19The extent to which this is due to physiological differences between males and females or
to lack of training and other sociological factors is a contentious issue that is beyond the scope
of this paper.
20S.O. 1981, c. 53.
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nomic or legal causes of actual inequality”. 21 At the same time, she observes,
“[e]ach and every victory for women on this basis makes it easier for men
to win equality claims than it is for women. ’22
III. Re Tomen and EW.TA.O.
The authenticity of these concerns was driven home in Re Tomen and
Federation of Women Teachers’ Associations of Ontario.23 In Tomen, the
arguments that LEAF had successfully put forward in Blainey were appro-
priated by the Ontario Public School Teachers Federation (OPSTF), an or-
ganization dominated by males, to front an attack by Margaret Tomen, a
woman principal, against the Federation of Women Teachers Associations
of Ontario (FWTAO).
FWTAO had fought long and hard on behalf of the interests of women
teachers and, in doing so, had become quite a thorn in the side of the male
organization. As part of an ongoing campaign to weaken the women’s fed-
eration, OPSTF challenged a regulation of the Ontario Teacher’s Federation
requiring Tomen and all other women teaching in public schools at the
elementary level to belong to FWTAO. The regulation was key to preserving
the strength of FWTAO, yet OPSTF argued that it discriminated against
Tomen on the basis of sex and therefore violated section 15 of the Charter.24
What is especially significant about the case are the parallels between
the argument that OPSTF put forward on behalf of Tomen and the argument
that LEAF had put forward on behalf of Blainey. Just as LEAF had argued
that it was a denial of sexual equality to forbid Blainey access to the boys’
hockey league on the basis of her sex, OPSTF argued that it was a denial
of sexual equality to compel Tomen to belong to the women teachers’ fed-
eration on the basis of her sex. Just as Blainey, an extraordinary athlete, felt
that it was discriminatory to compel her to compete in a girls’ league which
was underfunded and did not cater to persons of her ability, Tomen, a
principal, thought that it was discriminatory to force her to belong to a
women’s organization whose primary concern was the plight of ordinary
women teachers.
These parallels were hardly coincidental. OPSTF drew heavily on Blai-
ney to bolster its case. Moreover the same lawyer who represented OPSTF
in Tomen had in Blainey represented the Canadian Association for Ad-
21K.A. Lahey, “Feminist Theories of Equality” in K.E. Mahoney & S. Martin, eds, Equality
and Judicial Neutrality (Toronto: Carswell, 1987) 71 at 82.
22Ibid.
23(1987), 61 O.R. (2d) 489, 43 D.L.R. (4th) 255 (H.C.) [hereinafter Tomen].
24For a summary of the factual background to the case, see M. Lansberg, “The Charter:
herald of fairness or weapon against women?”, Globe and Mail (30 May 1987) A2.
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vancement of Women and Sport, an intervenor supporting LEAFs position
in that case.
Thus, while the lawyers representing FWTAO struggled to persuade the
court that recognition of Tomen’s formal equality rights would weaken the
majority of women teachers’ hopes of attaining substantive equality, the
arguments that LEAF had put forward and the court had adopted in Blainey
stood in their way. Of course, it is true that these same arguments would
have been advanced in Tomen with or without the earlier case. At the same
time, there can be no doubt that the Blainey decision substantially enhanced
their credibility and legitimacy.
As a consequence, the lawyers for FWTAO felt compelled to seek a
more secure line of defence. Fearing that they would lose the equality ar-
gument, they took the position that section 15 of the Charter did not apply
to the by-law in question because the Ontario Teacher’s Federation, although
regulated by statute, was a private rather than a governmental agency. This
position was accepted by the judge at trial and now forms FWTAO’s main
argument before the Court of Appeal.
The irony of a woman’s group invoking the public/private distinction
to prevent application of the Charter is almost too obvious to require com-
ment. However, three brief observations are in order. First, the position is
one that is completely at odds with LEAFs argument in Blainey that the
Charter ought to apply to the Ontario Hockey Association. Second, it is a
position that seeks to prevent the application of the Charter to all nongov-
ernmental agencies, even those extensively regulated by government; yet,
it is these agencies that proponents of women’s rights have traditionally
maintained are most in need of Charter scrutiny. Third, it is a position that
embraces the greatest liberal myth of all: the belief in a natural separation
between public and private spheres of activity-a myth that has consistently
been attacked by both feminist and critical theorists as being a means for
perpetuating patriarchy and reinforcing “private” power at the expense of
“public” good.25
IV. Conclusion
What are we to make of these three cases? When combined with the
observations and statistics offered at the beginning of this paper, I suggest
that they provide compelling evidence of the strength of liberal ideology
that underlies the Charter. More particularly, they show that attempts by
25For a discussion of the feminist literature on point, see H. Lessard, “The Idea of the
‘Private’: A Discussion of State Action and Separate Sphere Ideology” (1986) 10 Dalhousie
L.J., no. 2, 107 at 120. See also A. Hutchinson & A. Petter, “Private Rights/Public Wrongs:
The Liberal Lie of the Charter”, supra, note 1.
1989]
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disadvantaged groups to reshape the Charter in some other ideological image
are destined to fail. In the world of Charter litigation, such groups are
permitted to succeed only if they play the game according to liberal rules-
rules that are calculated to create divisions between elite and ordinary
women and to translate short-term gains into long-term losses. As we have
seen, even when women’s groups win under section 15, they lose. For every
step that women take forward, they are subsequently required to take two
backward.
This does not mean that it is never worthwhile for women and other
disadvantaged groups to engage in Charter litigation. Appropriate interven-
tions by these groups may help limit the damage that unbridled liberal rights
might otherwise inflict. In addition, there may be cases in which the forces
of liberalism can be harnessed to a beneficial end.26 Such cases, however,
will be exceptional. For the most part, the Charter will serve to channel and
neutralize discontent, thereby reinforcing and legitimizing the existing social
order.
In sum, if Marx was right in characterizing religion as the opium of
the people in the last century, then the Charter ofRights and Freedoms may
yet qualify as the cocaine of Canadians in the next. From “high” priests to
“high” courts. With religious worship in decline, the advent of the Charter
may have come not a moment too soon.
26An obvious example is R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 [here-
inafter Morgentaler] in which the Supreme Court of Canada struck down criminal restrictions
on abortion. Yet Morgentaler also illustrates the limits of liberal rights theory. In striking down
government-imposed barriers to abortion services, the majority strongly endorsed a negative
conception of liberty (i.e., one that equates liberty with an absence of governmental interfer-
ence). While this conception worked to the advantage of women in Morgentaler, it will have
the opposite effect in future cases. In particular, it will serve to undermine arguments that seek
to impose positive obligations on governments to enhance women’s liberty. With respect to
abortion services, for example, the decision cuts against claims that governments have a positive
obligation to ensure that such services are actually provided and to guarantee women access
to them.
