Recognition of the Disadvantaging of Women: The Promise of Andrews v. Law Society of British Columbia

COMMENT
CHRONIQUE DE JURISPRUDENCE

Andrews v. Law Society of British Columbia

The equality provisions of the Canadian Charter of
Rights and Freedoms, enacted in section 15(1), came
into effect in 1985 and proclaim the right of every
individual to equal protection and equal benefit of
the law. Andrews v. Law Society of British Columbia
is the Supreme Court of Canada’s first interpretation
of these provisions. The Supreme Court held that
section 42 of the Barristers and Solicitors Act,
R.S.B.C., c. 26, which made Canadian citizenship a
prerequisite for admission to the B.C. Bar, violated s.
15(1) and was not justified under section 1 of the
Charter.
Although Andrews does not involve sex discrimina-
tion, Colleen Sheppard, in “Recognition of the
Disadvantaging of Women: The Promise of Andrews
v. Law Society of British Columbia”, contends that
the decision signals the potential for law to facilitate
gender equality. The author is encouraged by the
Court’s rejection of traditional notions of equality
such as the similarly situated test and equality as
sameness of treatment. She finds that the most prom-
ising aspect of Andrews is its adoption of a con-
textualized, purposive approach to s.15, which
requires the redress of disadvantaging and prejudice.
The author concludes that Andrews is but a starting
point to the elaboration of a concept of constitutional
equality, which must continually be informed by
those who experience inequality. Only in this way
can substantive equality be achieved.
David Elliott, in “Comment on Andrews v. Law
Society of British Columbia and Section 15(1) of the
Charter: the Emperor’s New Clothes” questions
whether we can litigate our way to a more equal soci-
ety. The author contends that in moving from equal-
ity of oppurtunity to equality of condition, and
emphasizing the effect rather than the intention of
the law, the Court is taking an activist route to equal-
ity. He believes that this broad approach is not sur-
prising in a society which is showing increasing
interest in equality after having done little to advance
it in the past. He contends, however, that a non-
elected judiciary, with limited access to information
and operating in an adversarial context, may not be
the most appropriate body to define equality.

L’article 15(1) de la Charte canadienne des droits et
libertds entra en vigueur en 1985 et gamntit a tout
individu le droit a l’Ydgalit aux yeux de la loi, tant au
niveau de la protection que des bdndfices. Dans
Andrews c. Law Society of British Columbia, la Cour
supreme du Canada se prononga pour la premiere
fois sur la nature et la portte de e droit. En cause
6tait Particle 42 du Barristers and Solicitors Act,
R.S.B.C., c.26 au terme duquel l’admission au bar-
reau de la Colombie-Britannique 6tait rservde aux
citoyens canadiens. La cour jugea que cc prerequis
6tait une violation du principe d’6galit6 de l’art.
15(1) qui ne pouvait sejustifier sous l’article I de la
Charte.
Dans “Recognition of the Disadvantaging of
Women: The Promise of Andrews v. Law Society of
British Columbia”, Colleen Sheppard soutient que
mime si Andrews ne touche pas As Ia discrimination
basde sur le sexe, cette d~eision peut promouvoir
l’6galit6 entre les sexes. L’auteur se rdjouit du rejet,
par Ia Cour, des normes traditionnelles qui ddfi-
nissent l’6galit6 en tant que traitement identique ct
qui accorderaient le meme traitement As toUs les indi-
vidus qui se trouvent dans une mme situation.
L’auteur soutient que l’aspect le plus prometteur de
la decision est la reconnaissance de l’art. 15(l)
comme instrument contextuel dont l’application doit
servir li redresser les “ddsavantagements” ct prdjugs
prdsents et passes. L’auteur souligne qu’Andrews,
toutefois, n’est qu’un point de depart dans l’6labora-
tion d’un nouveau concept d’6galit6 constitutionnelle
et conclut que l’expdrience des victimes d’ingalit6
doit constamment informer cc concept.
Dans “Comment on Andrews v. Law Society of
British Columbia and Section 15(1) of the Charter:
the Emperor’s New Clothes”, David Elliott soulre
la question is savoir si les tribunaux ont la compd-
tence pour paver le chemin sur lequel l’6galit6 s’cn-
gage. Dans Andrews, la Cour rejette l’6galit
de
chance au profit de l’6galit6 de condition ct s’attarde
S1’effet de la loi, plut6t qu’iI l’intention du k~gisla-
teur. L’auteur qualifie cette approche de g6ndreuse ct
d’activiste. Notre soci~t6 a du retard h mttraper vis-
a-vis Ia promotion de I’6galit6 et on ne devrait pas se
surprendre de l’int&rt qu’elle y porte maintenant.
Toutefois, il souligne que les tribunaux, compose de
membres non-6lus, opdrant dans un contexte adver-
satif avec un minimum d’information ne sont pas les
mieux placds pour ddfinir et mettre en application les
principes d’6galit6.

1989]

COMMENTS

Recognition of the Disadvantaging of Women:

The Promise of Andrews v. Law Society of British Columbia

N. Colleen Sheppard*

Synopsis

I.

Introduction

II. The Andrews Case
M. An Approach to Constitutional Equality
A. A Purposive Approach To Equality
B. Rejection of “Equality as Sameness of Treatment” and Acceptance

of an “Effects-Based Approach”

C. Rejection of the “Similarly Situated” Test
D. Discrimination and Disadvantaging
E. Adoption of an “Enumerated or Analogous Grounds” Limitation
F. A Return to the Question of Purpose

IV.

Implications for Women

I.

Introduction

Women experience inequality. Women are disproportionately poor, especi-
ally if we are elderly, single mothers, of colour, lesbians or divorced. Women
are beaten and raped at home and in the streets. Women are harassed as sex
objects in the workplace, in universities, at home and in the streets. The vast
majority of women in the labour force work in low pay, low status jobs. In the
home, women continue to do most of the housework and childcare. Our skills
and our strengths are not recognized. Our work is not noticed unless it is left

*Faculty of Law, McGill University. I wish to thank Donna Greschner, Derek Jones, Susannah
Rowley, Stephen Toope, Anjali Choksi and Wade MacLauchlan for their insights on an earlier draft
of this comment.
McGill Law Journal 1989
Revue de droit de McGill

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undone, our childrearing not acknowledged unless our children have troubles.,
We have been told for centuries that we are not fully human, that we are not
rational’ or as intelligent. Women have been judged”‘non-persons”;3 we are
labelled “other”. 4

‘Numerous studies and reports have documented and analysed the inequalities women confront
in society. See, for example, Report of the Royal Commission on the Status of Women in Canada
(Ottawa: 1970); Women in Canada: A Statistical Report (Ottawa: Ministry of Supply & Services,
1985); Poverty Profile 1988: A Report by the National Council of Welfare by K. Battle (Ottawa:
1988); M. Boyd,”‘The Social Demography of Divorce in Canada” in K. Ishwaran, ed., Marriage
and Divorce in Canada (Toronto: Methuen, 1983); Report of the Royal Commission on Equality
in Employment by Judge Rosalie Silberman Abella (Ottawa: Supply and Services Canada, 1984)
[hereinafter Equality in Employment]; C. Guberman & M. Wolfe, eds, No Safe Place: Violence
Against Women & Children (Toronto: Women’s Press, 1985); L. MacLeod, Battered But not Beaten
… Preventing Wife Battering in Canada (Ottawa: Canadian Advisory Council on the Status of
Women, 1987); C. Backhouse & L. Cohen, The Secret Oppression: Sexual Harassment of Working
Women (Toronto: Macmillan, 1978); K. Jamieson, Indian Women and the Law in Canada: Citizens
Minus (Ottawa: Ministry of Supply & Services, 1978); G. Ferguson Matthews, Voices from the
Shadows: Women with Disabilities Speak Out (Toronto: Women’s Press, 1983) S. Worth Rowley,
“Women, Pensions and Equality” in C. Boyle et al., eds, Charterwatch: Reflections on Equality
(Toronto: Carswell, 1986) 283; M. Fitzgerald, C. Guberman & M. Wolfe, eds, Still Ain’t Satisfied:
Canadian Feminism Today (Toronto: Women’s Press, 1982); S. Burt, L. Code & L. Domey, eds,
Changing Patterns: Women in Canada (Toronto: McClelland & Stewart, 1988).

2As Ann Scales notes:

Patriarchal psychology sees value as differently distributed between men and women:
Men are rational, women are not. Feminist psychology suggests different conceptions
of value: Women are entirely rational but society cannot accommodate them because
the male standard has defined into oblivion ary version of rationality but its own.

See A. Scales, “The Emergence of Feminist Jurisprudence: An Essay” (1986) 95 Yale L.J. 1373
at 1383. Alison Jaggar discusses how the liberal conception of human nature places particular value
on the capacity for rationality defined as an individual mental capacity, in contrast to a physical
or bodily capacity, or a collective conception of rationality. See A. Jaggar, Feminist Politics and
Human Nature (Totawa, N.J.: Rowman & Allanheld, 1983) c. 3. Thus, it is important to challenge
not only the denial of the rationality of women, but as well to critique the meaning of rationality
in dominant discourse and the mind/body dichotomy upon which the preeminence of male-defined
rationality is based.
3In 1928, the Supreme Court of Canada decided unanimously that the word “persons” in the
British North America Act, 1867 did not include women: Reference Re the Meaning of the
Word”‘Persons” in Section 24 of the British North America Act, 1867, [1928] S.C.R. 276,4 D.L.R.
98, reversed on appeal; see Edwards et al. v. A.G. Canada [1930] A.C. 124. See also, K. Busby,
“The maleness of legal language” (1989) Manitoba L.J. 191 at 199-200 for a discussion of how
apparently generic terminology often conceals an implicit male norm. Busby also suggests at 195
that to use “they” or “them” instead of “we” or “us” in referring to women conveys a false objec-
tivity in women’s scholarship by distancing the author from the women she is discussing.

4In discussing the idea of women as “Other”, Simone de Beauvoir writes:

…humanity is male and man defines woman not in herself but as relative to him; she
is not regarded as an autonomous being. … She is defined and differentiated with ref-
erence to man and not he with reference to her; she is the incidental, the inessential as
opposed to the essential. He is the Subject, he is the Absolute –

she is the Other.

The Second Sex (New York: Vintage Books, 1974) at xviii-xix.

1989]

CHRONIQUE DE JURISPRUDENCE

In 1985, the equality provisions of the Canadian Charter of Rights and
Freedoms came into effect, proclaiming the right of every individual to equal
protection and equal benefit of the law without discrimination.5 Can the legal
concept of equality help to change the pervasive inequalities facing women in
Canadian society?6 Andrews v. Law Society of British Columbia7 constitutes the
first major decision on the interpretation of the s. 15 equality provisions by the
Supreme Court of Canada. Though not involving sex discrimination, the general
principles and themes articulated in Andrews are promising for women and
reveal a potential role for law in promoting gender equality.

In this case comment I explore the implications of Andrews for women’s
equality rights. In so doing, I canvass both the strengths and weaknesses of the
Supreme Court’s initial articulation of an “approach”8 to constitutional equality.
Perhaps the clearest conclusion to be drawn from Andrews is that it is but a start-
ing point to the elaboration of a legal concept that must continually be informed
by concrete life experiences of inequality.

5Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982 (U.K.), 1982, c. 11. The equality guarantees are contained in s. 15, which
provides:

15(1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, with-
out discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object
the amelioration of conditions of disadvantaged individuals or groups including those
that are disadvantaged because of race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.

Section 28 of the Charter is also particularly relevant. It provides:

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it
are guaranteed equally to’male and female persons.

6To date, the equality provisions of the Charter have not been effective in promoting equality
for women. Instead, they have been used primarily by men. Moreover, in a number of cases, men
have challenged protective legislation that benefits women. For a review of the case law and this
disconcerting trend in Charter litigation, see S. Day & G. Brodsky, Canadian Charter Equality
Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council
on the Status of Women, 1989).

7[1989I 1 S.C.R. 143, 56 D.L.R. (4th) 1, 10 C.H.R.R. D/5719 [hereinafter Andrews cited to

S.C.R.].

8As McIntyre J. states:

Ibid. at 165.

To approach the ideal of full equality before and under the law –
an approach is all that can be expected –
of the law on the individual or the group concerned.

and in human affairs
the main consideration must be the impact

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II. The Andrews Case

The case arose as a result of the British Columbia Law Society’s refusal
to admit Mark Andrews to the practice of law because he was not a Canadian
citizen. At the time, he was a British subject residing permanently in Canada.
He had law degrees from Oxford University and, except for the citizenship
requirement, had completed the requirements for admission to the British
Columbia Bar. Ironically, Andrews, the individual plaintiff in the first major
constitutional equality case, is a well-educated, white male – not the kind of
person one immediately associates with the protections afforded under the
equality provisions of the Charter. Yet, as a non-citizen, he was denied certain
entitlements granted citizens. Moreover, as pockets of jurisprudence reveal,
non-citizens in Canada have historically been the targets of invidious discrim-
ination on the basis of race, colour and national origin.’ The Supreme Court of
Canada struck down the citizenship requirement as a violation of s. 15(1) of the
Charter, although two justices would have upheld the provision on the basis of
s. 1.10 This comment focuses on the Court’s discussion of the interpretation of
the equality provision of the Charter, s. 15.

IIM. An Approach to Constitutional Equality

McIntyre J. dissented in the outcome of the case. His discussion of equality
and discrimination, however, was adopted by the Court.” In reviewing his judg-
ment, five important themes emerge, each of which has important implications
for the protection of equality for women under the Constitution. The themes
include the following: (A) acceptance of a purposive approach to the interpre-
tation of s. 15; (B) rejection of the equation of equality with sameness of treat-
ment and acceptance of an effects-based approach; (C) rejection of the “simi-
larly situated” test; (D) articulation of a definition of discrimination that requires
harm, prejudice or disadvantaging, not just distinction; and (E) adoption of an
“enumerated or analogous grounds” limitation. Although each of these develop-
ments is positive for advancing equality for women, the judgment leaves ambi-

9E.g., for example, Union Colliery of British Columbia v. Bryden, [1899] A.C. 580 (P.C.),
Quong-Wing v. R., [1914] 49 S.C.R. 440. See also T.R. Berger, Fragile Freedoms: Human Rights
and Dissent in Canada (Toronto: Clark Irwin, 1981) c. 4. La Forest J. discusses the relationship
between non-citizenship and racism, prejudice and exclusion, at 195, writing: “Discrimination on
the basis of nationality has from early times been an inseparable companion of discrimination on
the basis of race and national or ethnic origin…”.

‘0Wilson J. (Dickson C.J. and L’Heureux-Dub6 J. concurring) struck down the citizenship
requirement; La Forest J. concurred in separate reasons. McIntyre J. (Lamer J. concurring) dis-
sented and would have upheld the citizenship requirement under s. 1.

“Both Wilson and La Forest JJ. begin their judgments by affirming their substantial agreement
with McIntyre J.’s interpretation of s. 15. Although I flag points of divergence or elaboration in
their judgments, the focus of this comment is McIntyre J.’s opinion.

1989]

COMMENTS

guities and unanswered questions. The full implications of the above themes,
therefore, remain to be resolved in future cases.

A. A Purposive Approach to Equality

The most significant and promising aspect of the Andrews decision is the
Supreme Court’s embrace of a purposive approach to s. 15. McIntyre J. rejects
formulaic approaches to the equality guarantees in which constitutional viola-
tions are determined with reference to abstract or formal rules. Instead, he
insists that the interpretation of s. 15 must be informed by an appreciation and
understanding of its social and historical purpose. He recalls the words of
Dickson C.J. that “[t]he meaning of a right or freedom guaranteed by the
Charter was to be ascertained by an analysis of the purpose of such a guarantee;
it was to be understood, in other words, in light of the interests it was meant to
protect.”‘2

In articulating the purpose of s. 15, however, McIntyre J.’s words are gen-
eral and abstract. His answer to the question of s. 15’s purpose seems to restate
the question:

It is clear that the purpose of s. 15 is to ensure equality in the formulation and
application of the law. The promotion of equality entails the promotion of a soci-
ety in which all are secure in the knowledge that they are recognized at law as
human beings equally deserving of concern, respect and consideration.1 3

McIntyre J. elaborates the point by referring to an earlier Ontario Court of
Appeal decision which considered the equality protections to be based on the
“moral and ethical principle fundamental to a truly free and democratic society
that all persons should be treated by the law on a footing of equality with equal
concern and respect”. 4 Again, this statement of purpose does not appear to go
far beyond what the words of s. 15 already tell us.

Despite his adoption of a purposive approach, therefore, McIntyre J. does
not articulate his understanding of the actual content and concrete implications
of s. 15’s purpose. This failure to address fully the question of purpose helps to
explain some of the ambiguities in his judgment. We are left having to piece
together a more complete picture of the purpose of s. 15 ourselves, by consid-
ering the logical implications of McIntyre J.’s discussion of effects-based dis-
crimination, disadvantage and prejudice, and the enumerated or analogous
grounds. Since a clear articulation of the purpose of s. 15 is central to the coher-

12Supra, note 7 at 169, citing from R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344, 18

D.L.R. (4th) 321 [hereinafter Big M Drug Mart cited to S.C.R.].

131bid. at 171.
4Reference re an Act to Amend the Education Act (1986) 53 O.R. (2d) 513 at 554, 25 D.L.R.

(4th) 1 at 42 (C.A.).

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ent development and just application of the principle of constitutional equality
in future cases, I return to it after exploring the remaining themes.

B. Rejection of “Equality as Sameness of Treatment” and Acceptance of an

“Effects-Based Approach”

At the outset of his discussion of equality, McIntyre J. rejects the notion

that equality means “sameness of treatment”:

It must be recognized at once.., that every difference in treatment between individ-
uals under the law will not necessarily result in inequality and, as well that iden-
tical treatment may frequently produce serious inequality.’ 5

The rejection of the equation of equality with sameness of treatment and ine-
quality with differential treatment marks a major departure from traditional
notions of equality. Two fundamental problems with a sameness vision of equal-
ity make its demise important.

First, it is premised on a false and unfair assumption about social reality.
To maintain that equality will be secured by treating all individuals the same
requires that everyone be the same. Underlying this conception is an assumption
that society is a conglomeration of undifferentiated, autonomous individuals.
But no such illusory world exists. Moreover, the undifferentiated, autonomous
individuals contemplated by the theory, upon closer scrutiny, have the charac-
teristics of individuals in the dominant groups in society. Thus, the sameness of
treatment accorded women is informed by the standards set by men in response
to male interests and needs. To be equal, therefore, women must adopt the ways
of being and acting of the men who dominate. Group diversity is anathema to
such an approach. To challenge structures, institutions and male-defined ways
of being and acting, instead of changing oneself to fit in, is also excluded by the
sameness model. In short, in a diverse society, a sameness of treatment approach
demands and rewards conformity to a norm defined in accordance with the
characteristics of the members of dominant groups in society. 6

This raises the second fundamental problem with a definition of equality
that is limited to sameness of treatment. In a diverse society and in a world of
pervasive and severe inequalities, sameness of treatment, by not acknowledging
disparate disadvantaging effects, can accentuate inequality. Discrimination must
embrace what has been termed “adverse effect” discrimination. In referring to
the first Canadian human rights case in which the Supreme Court recognized
“adverse effect” discrimination, McIntyre J. explains:

15Supra, note 7 at 164.
16E.g., C. Dalton, “Remarks on Personhood”, American Association of Law Schools Panel,
January 5, 1985; M. Minow, “Foreward: Justice Engendered, The Supreme Court 1986 Term”
(1987) 10 Harv. L.R. 10 at 13-16.

1989]

CHRONIQUE DE JURISPRUDENCE

… discrimination (in that case adverse effect discrimination) was described in
these terms: “It arises where an employer.., adopts a rule or standard… which has
a discriminatory effect upon a prohibited ground on one employee or group of
employees in that it imposes, because of some special characteristic of the
employee or group, obligations, penalties, or restrictive conditions not imposed on
other members of the work force”. It was held in that case, as well, that no intent
was required as an element of discrimination, for it is in essence the impact of the
discriminatory act or provision upon the person affected which is decisive in con-
sidering any complaint.1 7

Thus the Court recognizes in Andrews that a law or policy, that is neutral on its
face and treats everyone in the same way, can still be discriminatory and violate
the equality guarantees, if it has a disparate disadvantaging impact on certain
individuals or groups. Such discrimination is institutionalized in the policies,
procedures, organizations and structures of society, contributing to what is often
referred to as “systemic discrimination”.”

The Court’s willingness to acknowledge discriminatory effects and to draw
on the jurisprudence of human rights legislation stands in stark contrast to the
constitutional interpretation of equality in the United States. The U.S. Supreme
Court has rejected an effects-based approach, and has therefore limited viola-
tions of the equal protection clause to intentional or purposive discrimination:

A rule that a statute designed to serve neutral ends is nevertheless invalid,
absent compelling justification, if in practice it benefits or burdens one race more
than another would be far-reaching and would raise serious questions about, and
perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and

17Supra, note 7 at 173, citing from Ontario Human Rights Commission and O’Malley v.
Simpson’s Sears Ltd [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321 in which the Court held that a
facially neutral policy requiring store employees to work on Saturdays had a discriminatory impact
on the complainant who was a Seventh Day Adventist. Accordingly, despite the absence of any
intent to discriminate on religious grounds against individuals whose Sabbath is Saturday, the pol-
icy was nevertheless found to constitute adverse effect discrimination.

18While “systemic discrimination” can be both intentional or unintentional, increasingly those
concerned with human rights are uncovering its unintentional manifestations. As Judge Rosalie
Silberman Abella explained in Equality in Employment, supra, note 1 at 9:

The impact of behavior is the essence of “systemic discrimination”. It suggests that the
inexorable, cumulative effect on individuals or groups of behavior that has an arbitrar-
ily negative impact on them is more significant than whether the behavior flows from
insensitivity or intentional discrimination….
Systemic discrimination requires systemic remedies. Rather than approaching discrim-
ination from the perspective of the single perpetrator and the single victim, the sys-
temic approach acknowledges that by and large the systems and practices we custom-
arily and often unwittingly adopt may have an unjustifiably negative effect on certain
groups in society. The effect of the system on the individual or group, rather than its
attitudinal sources, governs whether or not a remedy is justified.

The Abella Report was relied on and cited with approval in the Supreme Court’s unanimous deci-
sion in Action travail desfemmes v. C.N.R. Co., [1987) 1 S.C.R. 1114 at 1138-39,40 D.L.R. (4th)
193 at 209-2 10 [hereinafter Action travail des femmes cited to S.C.R.].

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licensing statutes that may be more burdensome to the poor and to the average
black than to the affluent white… 19

Such a view severely limits equal protection doctrine. It is heartening that the
Canadian Supreme Court has rejected this narrow and limited approach.

Several important implications flow from the rejection of a sameness
standard and adoption of an effects-based approach. To begin, the problems
identified above are avoided. Instead of adhering to an individualistic vision of
society, the Court reveals a heightened sensitivity to group diversity and human
differences. As McIntyre J. puts it “the accomodation of differences…is the
essence of true equality…”.2 For women, this means that our differences from
men must be accomodated to secure equality of outcomes.2′ Nor are concerns
that touch women’s lives exclusively or predominantly excluded from the reach
of equality because of the absence of a male reference point.22 By recognizing
effects-based discrimination, the Court also acknowledges the inequities inher-
ent in the sameness standard of formal equality. Four additional implications are
not as apparent, but deserve mention.

First, once we acknowledge that an apparently neutral law or policy can
have a disparate and damaging impact on certain groups, it becomes clear that

19Washington v. Davis, 426 U.S. 229 (1976). This perspective has been re-affirmed in subse-
quent cases; E.g., Personnel Administrator v. Feeney, 442 U.S. 256 (1979); McCleskey v. Kemp,
481 U.S. 279 (1987). In contrast, under the federal human rights legislation, Title VII of the Civil
Rights Act of 1964,42 U.S.C. s. 2000e et seq., the concept of effects-based or disparate impact dis-
crimination has been acknowledged: see Griggs v. Duke Power Co., 401 U.S. 424 (1971). It is
ironic in the constitutional context that the possibility of identifying pervasive and systemic ine-
qualities is overtly presented as a justification for a narrow interpretation of the equal protection
clause in the United States.

In Andrews, the Court held that “the principles which have been applied under Human Rights
Acts are equally applicable in considering questions of discrimination under s. 15(1)”, supra, note
7 at 174.

20Supra, note 7 at 169.
21Christine Littleton elaborates this idea by developing a theory of equality as acceptance:

The theory of equality as acceptance requires social institutions to adjust to the fact that
people come in two sexes, not one, or one and a half. Even if –
perhaps especially
if – male and female are wholly social constructions, a society embracing equality as
an ideal cannot fulfill that ideal by elevating one social category (male) to the level of
public norm, and subordinating the other (female) to it.

“Equality and Feminist Legal Theory” (1987) 48 U. Pitt. L. Rev. 1043 at 1056.

2Catharine MacKinnon has clarified that it is precisely when there is no male equivalent to
women’s experience of disadvantage that some of the most severe problems of inequality arise (e.g.
pregnancy discrimination). See Sexual Harassment of Working Women: A Case of Sex
Discrimination (New Haven: Yale University Press, 1979) c. 5; “Difference and Dominance: On
Sex Discrimination” in C.A. MacKinnon, ed., Feminism Unmodified: Discourses on Life and Law
(Cambridge: Harvard University Press, 1987) 32. One can, of course, still understand such forms
of discrimination in comparative terms. But, the picture of discrimination requires the use of a
wider lens to understand how certain laws or practices socially disadvantage women vis-a-vis men.

1989]

COMMENTS

affirmative or positive action is needed to redress systemic and institutionalized
discriminatory policies and practices. By “affirmative action”, or “equity pro-
grammes”,’
I mean proactive measures aimed at identifying and remedying
systemic discrimination. An essential first step in affirmative action is the iden-
tification of past, existing, and potential problems of adverse effect discrimina-
tion and systemic discrimination.24 Once identified, a variety of affirmative
action strategies exist for remedying systemic discrimination. One strategy is
the abolition of laws or policies that cause adverse effect discrimination.’
Alternatively, a discriminatory law or policy could be reformed to alleviate its
disparate impact on particular socially disadvantaged groups and secure equality
of outcomes. This may entail differential treatment on a long term basis to
accommodate group differences.26 Finally, the discriminatory impact of a law or
policy could be eradicated by providing a socially disadvantaged group with
facilitated access to resources, skills learning or educational and employment
opportunities denied to them in the past.2 This would entail the development
and implementation of special temporary measures designed “to break a contin-
uing cycle of systemic discrimination”‘2 . Underlying this aspect of affirmative

‘Judge Abella chose to replace the term “affirmative action” with “employment equity pro-
grams” in Equality in Employment, supra, note 1, given the widespread confusion and/or negative
reaction to the concept of affirmative action. I use the terms “affirmative action” and “equity pro-
gramme” interchangeably.

2No longer is it fair or sufficient to rely only on retroactive individual human rights complaints
or legal suits as the means of identifying discrimination. See S. Day, “Impediments to Achieving
Equality” in S.L. Martin and K.E. Mahoney, eds, Equality and Judicial Neutrality (Toronto:
Carswell, 1987) 402 for a discussion of the inadequacies of the individual complaint as a mech-
anism for redressing systemic discrimination. I do not mean to suggest that individual cases are
not important. They are critical and often very effective in providing a concrete example of the
impact of law on individual lives. Nevertheless, they must be supplemented by proactive efforts
to remedy inequality. Recent legislative developments, including the federal Employment Equity
Act, S.C. 1986, c. 31 and pay equity legislation in Ontario and Manitoba (See Pay Equity Act, 1987,
S.O. 1987, c. 34 and Pay Equity Act, S.M. 1985, c. 21), reflect a shift away from reliance on indi-
vidual complaints of discrimination.

25It is essential that the necessity of the law or policy itself be the first target of scrutiny since
this allows excluded groups to challenge the standards, rules, laws and policies of the status quo,
rather than changing themselves to comply with them. See also, discussion in my earlier article,
“Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms”
in Boyle et al., eds, supra, note 1, 195 at 218-20.

26An example might be a policy of paid maternity leave for childbearing purposes.
27This third strategy is often considered to constitute the sole affirmative action strategy. In some
contexts, it is legitimate and important provided the legitimacy of the standards and required skills
have been scrutinized.

28per Dickson C.J. in Action travail desfemmes, supra, note 18 at 1143. The Court approved
special temporary measures requiring the company to hire one woman for every four non-
traditional positions filled until women constituted 13 percent of those in non-traditional occupa-
tions in the company. Dickson C.J. outlined the rationale of such an employment equity programme
as follows at 1143-43:

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action is a belief that special temporary measures are essential to the effective
redress of years of institutionalized discrimination.

Secondly, recognition of effects-based discrimination may lead us towards
a more “positive” rights approach to s. 15.29 For central to the acknowledgement
of effects-based discrimination is the requirement of positive remedial action.
When one is considering legislation or government policy, the remedy may
entail ordering the government to do something to redress the disparate impact
of its current legislation or policy. Indeed, McIntyre J. emphasizes the “large
remedial component” of s. 15.” Courts appear to be having difficulties deter-
mining the appropriate scope of Charter remedies. Should courts extend legis-
lative benefits to excluded groups in the face of a finding of inequality, or inval-
idate the impugned statute altogether, thereby denying everyone the benefit
equally?3′ Though reluctant to engage in legislative redrafting, when the exclu-
sion is due to a specific exemption in a statute, courts can effectively extend the
reach of the legislation simply by striking down the exemption.32 Even if courts
do not order the extension or creation of government benefits, legislatures will
feel considerable pressure to reform legislation in the face of judicial findings
of inequality. The remedial dimension of equality rights, therefore, may contain
the seeds of a more positive rights orientation.

An employment equity programme thus is designed to work in three ways. Firstly, by
countering the cumulative effects of systemic discrimination, such a programme rend-
ers future discrimination pointless…Secondly, by placing members of that group that
had previously been excluded into the heart of the work-place and by allowing them
to prove ability on the job, the employment equity scheme addresses the attitudinal
problem of stereotyping…Thirdly, an employment equity programme helps to create
what has been termed a “critical mass” of the previously excluded group in the work
place…. The presence of a significant number of individuals from the targeted group
eliminates the problems of “tokenism”; …

See also Equality in Employment, supra, note 1 at 9-10.

29Positive rights impose a duty on the government to act to ensure the effective enjoyment of
rights. Negative rights are concerned with non-interference by government. See discussion, C.
Boyle, Sexual Assault (Toronto: Carswell, 1984) at 33-42.

30Supra, note 7 at 171.
31The explicit protection of the right to “equal benefit of the law” in s. 15 appears to support
the equal extension rather than equal denial approach. See Schacter v. Canada [1988] 3 F.C. 515
at 531, 9 C.H.R.R. D/5320 (F.C.T.D.).
32E.g., Re Blainey and Ontario Hockey Ass’n. (1986), 54 O.R. (2d) 513, 26 D.L.R. (4th) 728
(C.A.) (leave to appeal denied). A similar situation would arise if a provincial government
excluded funding for abortions from its health insurance scheme. Arguably, such a policy would
constitute an overt form of discrimination against women. (See discussion of Brooks v. Canada
Safeway, infra, note 93, and accompanying text.) A discriminatory financial burden would be
imposed on women wishing to terminate an unwanted pregnancy. The remedy would be to strike
down the exclusion of abortions from the general health insurance provisions. In effect, this secures
positive rights.

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Intimately related to the positive versus negative rights debate is the ques-
tion of the delineation of the public and private spheres. In Andrews, the Court
formally adheres to the notion of a delineation between the public and private
sphere, maintaining that s. 15:

…is not a general guarantee of equality; it does not provide for equality between
individuals or groups within society in a general or abstract sense, nor does it
impose on individuals or groups an obligation to accord equal treatment to others.
It is concerned with the application of law.33

On one level, this appears straightforward. Individuals cannot make Charter
claims about discriminatory treatment accorded them by “private” individuals
or institutions. On another level, however, as so-called “private” activity
becomes increasingly regulated by government, we may witness an increasing
number of instances where the government is implicated in what initially
appears to be “private” discrimination. Moreover, recognizing the disparate
effects of laws and government policies would appear to extend the reach of
what is considered “public” to areas formerly defined as “private”. A positive
remedy to redress such effects-based discrimination makes clear that the
socially constructed line between the public and the private sphere has shifted.
For women, the public/private dichotomy has been used to deny redress for
abuses of “private” power.’ Legal developments which promote recognition of
the ways in which government affects, through action and inaction, the scope
and nature of “private” power, are helpful for women.

A final implication of the rejection of the equality as sameness approach
is the necessary abandonment of a straightforward rule-based approach (i.e.
equality as sameness of treatment) to constitutional equality. One cannot simply
conclude that inequality exists where individuals from disadvantaged groups are
being treated differently. It depends on the circumstances. It thus becomes clear
that interpreting the constitutional mandate of equality is complicated.
Differential treatment does not necessarily produce inequality. Sameness of
treatment does not necessarily generate equality. When, then, is it permissible
to treat people differently and when is it not? To resolve this dilemma, Justice

33Supra, note 7 at 163-64. McIntyre J. may be concerned with retaining a sense of consistency
between his judgment in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin
Delivery, [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174 and the scope of s. 15. For a compelling critique
of the Court’s attempt to draw a line between the public and the private in that case, see A. Petter
& A. Hutchinson, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988) 38
U.T.L.J. 278.

34For a discussion of the public/private split and women’s inequality, see H. Lessard, “The Idea
of the ‘Private’: A Discussion of State Action Doctrine and Separate Sphere Ideology” in C. Boyle
et al., eds, Charterwatch-Reflections on Equality, supra, note 1 at 107 and J. Fudge, “The Public/
Private Distinction: The Possibilities of and the Limits to the Use of Charter Litigation to Further
Feminist Struggles” (1987) 25 Osgoode Hall L.J. 485.

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McIntyre adopts the purposive approach, forcefully rejecting the “similarly sit-
uated” test.

C. Rejection of the “Similarly Situated” Test

In the United States, reliance on the similarly situated test emerged as a
mechanism to allow some degree of differential treatment to pass constitutional
scrutiny, as an exception to a general understanding of equality as sameness of
treatment. Pursuant to the test, equality requires that all those who are similarly
situated be similarly treated.” Justice McIntyre rejects this test as seriously
flawed:

…the test cannot be accepted as a fixed rule or formula for the resolution of equal-
ity questions arising under the Charter. Consideration must be given to the content
of the law, to its purpose, and its impact upon those to whom it applies, and also
upon those to whom it excludes from its application. 36

According to Justice McIntyre, the similarly situated test is a mechanism for
defining away rather than addressing problems of inequality. One need simply
define two groups as not similarly situated to justify treating them differently
and unequally. To illustrate this problem, he points to the refusal to understand
pregnancy discrimination as sex discrimination by finding pregnant persons to
be differently situated from non-pregnant persons. 7 Thus, equal application of
the law within the targeted group satisfies the similarly situated test.

Although I agree with the rejection of the similarly situated test, my rea-
sons for doing so go beyond those articulated by the Court. Justice McIntyre

35See J.S. Tussman & J. tenBroek, “The Equal Protection of the Laws” (1949) 37 Calif. L. Rev.
341 for a clear articulation of the American similarly situated test. McIntyre J. discusses the adop-
tion and application of this test in Canadian constitutional adjudication and also refers to its parallel
with the Aristotelian principle of equality that “things that are alike should be treated alike, while
things that are unalike should be treated unalike in proportion with their unalikeness”, Andrews,
supra, note 7 at 166.

361bid. at 168.
37Bliss v. A.G. Canada, [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417 [hereinafter Bliss cited to
S.C.R.]. Another example is the Ontario Court of Appeal decision in R. v. Morgentaler, Snoling
and Scott (1985) 52 O.R. (2d) 353, 14 D.L.R. (4th) 184 (C.A.). (reversed on other grounds on
appeal) The Court was incapable of understanding the abortion issue in terms of equality.
According to the Court, because men do not have abortions, gender discrimination is not involved.

It is true that abortion, as a matter of biological fact, relates only to women. However,
that fact does not make the section discriminatory on the basis of sex. It would not
apply to men and the argument would be without any substance to say that the legis-
lation is discriminatory or causes inequality because it does not require men seeking
an abortion to comply with s. 251. (p. 395).

Since women and men were not similarly situated vis-d-vis the abortion dilemma, there was no
interference with equality rights. Such an approach is no longer tenable after Andrews. McIntyre
J. approved of the above reasoning in his dissenting judgment in R. v. Morgentaler [1988] 1 S.C.R.
30 at 156, 44 D.L.R. (4th) 385. He appears to have changed his position in Andrews, critiquing

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COMMENTS

appears to limit the similarly situated test to Dicey’s formal notion of equality
that demands equality merely in the application as opposed to the substance of
the law.38 While he is right to critique this narrow and tautological notion of
consitutional equality reminiscent of the Canadian Bill of Rights jurisprudence
on sex discrimination,39 the conceptual shortcomings of the similarly situated
test go even deeper.

The similarly situated test, at least as developed by some of its most influ-
ential proponents, has included an analysis of the content and purpose of the
law. In their classic and oft-cited article, “The Equal Protection of the Laws”,
Tussman and tenBroek elaborate the similarly situated test that has been the
lynchpin of equal protection jurisprudence in the United States40 They suggest
that laws will satisfy the constitutional requirement of equal protection if the
classifications inherent in legislation are reasonable. For Tussman and
tenBroek:

A reasonable classification is one which includes all persons who are similarly sit-
uated with respect to the purpose of the law.
The purpose of a law may be either the elimination of a public’mischief’ or the
achievement of some positive public good.41

To constitute a reasonable classification pursuant to the similarly situated test,
therefore, the legislative classification must include all those similarly situated
with respect to the purpose of the law. 2 Contrary to McIntyre J.’s concern that

the Bliss line of reasoning as seriously deficient. The Court may well acknowledge in future cases
that the abortion issue deeply implicates questions of women’s equality. It is my position that the
equality of women is undermined when they do not have control of their reproductive lives. See
supra, note 32, and discussion of Brooks, infra, note 93.
3sA.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London:

MacMillan & Co., 1959), at 183-205.

39For particularly vivid examples, see Bliss, supra, note 32; A.G. Canada v. Lavell (1973),
[1974] S.C.R. 1349, 38 D.L.R. (3d) 481; Isaac v. Bedard (1973), [1974] S.C.R. 1349, 38 D.L.R.
(3d) 417.

4Tussman & tenBroek, supra, note 35.
41Supra, note 35 at 346.
42Tussman and tenBroek also clarify two errors that courts sometimes make in applying the sim-
ilarly situated test. The first error is to define similarly situated as all those possessing the classi-
fying trait. As Tussman and tenBroek point out, supra, note 35 at 345, “[a]ll members of any class
are similarly situated in this respect and consequently, any classification whatsoever would be rea-
sonable by this test”. The result of such an approach is “the easy dismissal of the equal protection
issue on the grounds that the law applies equally to all to whom it applies”. This potential danger
in the application of the similarly situated test corresponds to McIntyre J.’s critique. However,
according to Tussman and tenBroek, it constitutes a misapplication of the test. The second error
is a tendency to equate reasonableness with societal definitions of “natural” differences. Tussman
and tenBroek write at 346:

The issue is not whether, in defining a class, the legislature has carved the universe at
a natural joint. If we want to know if such classifications are reasonable, it is fruitless

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the similarly situated test does not include analysis of a law’s purpose or con-
tent, it appears that it sometimes does. And yet, this does not render the simi-
larly situated test unproblematic.

The most problematic aspect of this “reasonable classification” elaboration
of the similarly situated test is its conceptual transformation of problems of ine-
quality, domination and subordination into problems of irrational classification.
When applied to cases involving historically disadvantaged groups, such a doc-
trine solidifies a legal ideology that masks the inequalities of power between
dominant and subordinate groups. Equal protection law thereby concerns itself
with irrational differential treatment, not with subordinating treatment. 3

A further problem with the similarly situated test developed by Tussman
and tenBroek is its inherent malleability. In particular, the defimition of a law’s
purpose can always be formulated so as to correspond rationally to the legisla-
tive classification.’ While appearing to infuse equal protection doctrine with
objective rationality, certainty and fairness, the similarly situated test provides
a doctrinal mask for what ultimately depends on the values and biases of judges.
Finally, the similarly situated test, even as elaborated by Tussman and ten-
Broek, still conceptualizes equality in terms of a sameness standard. Its objec-
tive is to develop guidelines for deviating from sameness of treatment.
Differential treatment is still understood as a violation of equality; it is simply
justified as reasonable in certain circumstances.

In the Canadian context, the language of reasonable classification has
arisen in discussions by appellate level courts regarding the interpretation of s.
15. Most notable in this regard is the decision of the British Columbia Court of
Appeal in the Andrews case itself. Justice McLachlin held:

…the question to be answered under s. 15 should be whether the impugned distinc-
tion is reasonable or fair, having regard to the purposes and aims and its effect on
persons adversely affected.45

to consider whether or not they correspond to some “natural” grouping or separate
those who naturally belong together.

Such an approach would allow the social inequalities of women to be rationalized as “natural” and
consistent with the equal protection clause. To avoid these conceptual errors, Tussman and ten-
Broek incorporate an analysis of the purpose of the law into the similarly situated test.

43Catharine MacKinnon has made this critique most forcefully: supra, note 22.
“4See “Note – Legislative Purpose, Rationality and Equal Protection” (1972) 82 Yale L.J. 123.
See also M.D. Lepofsky & H. Schwartz, “Constitutional Law – Charter Rights and Freedoms,
Section 15 – An Erroneous Approach to the Charter’s Equality Guarantee: R. v. Ertel” (1988) 67
Can. Bar Rev. 115.
45Re Andrews and Law Society, B.C. (1986), 27 D.L.R. (4th) 600 at 609,,[1986] 4 W.W.R. 242

at 252, 2 B.C.L.R. 305 at 315 (C.A.).

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CHRONIQUE DE JURISPRUDENCE

This inquiry into the reasonableness of a law under s. 15 was rejected by the
Supreme Court. Instead, according to McIntyre J., such an analysis properly
belongs under s. 1.

The test developed by the Court to address s. 1 issues, however, appears
to parallel in some ways the similarly situated test as elaborated by Tussman and
tenBroek. By definition, s. 1 is a “reasonable limits” provision, an idea that may
embody a concept such as “reasonable classification”. In fact, the similarities
between the test outlined by Tussman and tenBroek and the test articulated for
interpreting s. 1 in R. v Oakes46 are striking. According to Dickson C.J.:

To establish that a limit is reasonable and demonstrably justified in a free and
democratic society, two central criteria must be satisfied. First, the objective…
must be “of sufficient importance to warrant overriding a constitutionally pro-
tected right or freedom”, …

Secondly, … the party invoking s. 1 must show that the means chosen are rea-
sonable and demonstrably justified. This involves “a form of proportionality test”
… There are, in my view, three important components of a proportionality test.
First, the measures adopted must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on irrational considerations.
In short, they must be rationally connected to the objective. Secondly, the means,
… should impair “as little as possible” the right or freedom in question. … Thirdly,
there must be a proportionality between the effects of the measures … and the
objective …47

In Andrews, Justice McIntyre articulates a test which appears somewhat less,
stringent, although it retains the same basic structure of identifying the purpose
and assessing the rationality of the means in achieving the purpose.48 It will be
important to ensure that s. 1 is not reduced to a mere reasonable classification
test with similar problems to those outlined above vis-d-vis the similarly situ-
ated test.49 In light of the inclusion of the third prong in the Oakes proportion-
ality test, the Court can insist on an approach to s. 1 that goes beyond the ratio-

461[19861 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter cited to S.C.R.].
47Ibid. at 138-39.
4SMcIntyre J. outlines a revised test for s. 1 in his Andrews judgment, supra, note 7 at 84. His

s. I views were in the dissent.

In my opinion, in approaching a case such as the one before us, the first question the
Court should ask must relate to the nature and the purpose of the enactment, with a
view to deciding whether the limitation represents a legitimate exercise of the legisla-
tive power for the attainment of a desirable social objective which would warant over-
riding constitutionally protected rights. The second step in a s. 1 inquiry involves a pro-
portionality test whereby the Court must attempt to balance a number of factors.

49The problem of indeterminacy and the malleability of the test pursuant to the Oakes criteria
is discussed in J.C. Bakan,”‘Constitutional Arguments: Interpretation and Legitimacy in Canadian
Constitutional Thought” (1989) 27 Osgoode Hall L.J. 123.

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nality of the provision to require the weighing of the harm caused by a
violation of s. 15 with the benefit to society of allowing the inequality.”2

D. Discrimination and Disadvantaging

There is a tendency to overlook the human agency of the dominant mem-
bers of society in creating disadvantage and a potential to view “disadvantaged”
groups as naturally disadvantaged or responsible for their socially disadvan-
taged position.52 Accordingly, I use the term “disadvantaging” to emphasize that
more powerful groups in society actively disadvantage less powerful groups.
This causes their disadvantaged status. The terminology of disadvantage may
actually reinforce the values and standards of dominant groups in society, if the
group differences from which disadvantage flows are labelled undesirable rather
than recognizing the social construction that renders these differences problem-
atic.53

With these caveats in mind, the requirement in Andrews that disadvantage
be a necessary component of a s. 15 violation is important and positive.’
McIntyre J. derives this requirement from his interpretation of the concept of
discrimination and from his understanding of the enumerated grounds. 5
Consistent with his acknowledgement that not all distinctions in treatment gen-
erate inequality, he adopts the view that:

[t/he words “without discrimination” require more than a mere finding of distinc-
tion between the treatment of groups or individuals. Those words are a form of
qualifier built into s. 15 itself and limit those distinctions which are forbidden by
the section to those which involve prejudice or disadvantage. 56

cems with disadvantage, prejudice, group harms.

5 The meaning of what is reasonable or rational could also be revised to take into account con-
51See 0. Fiss, “Groups and the Equal Protection Clause” (1976) 5 Phil. & Pub. Affairs 107 at
167-68.
52j. McCalla Vickers, “Memoirs of an Ontological Exile: The Methodological Rebellions of
Feminist Research” in A. Miles & G. Finn, eds, Feminism: From Pressure to Politics, 2d ed.
(Montreal: Black Rose Books, 1989) 37 at 47-49.
53As Audre Lorde has pointed out, we tend to filter differences through a hierarchical lens of
“dominant/subordinate, good/bad, up/down, superior/inferior”. “Age, Race, Class, and Sex:
Women Redefining Difference” in A. Lorde, Sister Outsider (Trumansburg, N.Y.: The Crossing
Press, 1984) 114. See also, M. Minow,”‘Leaming to Live with the Dilemma of Difference:
Bilingual and Special Education” (1985) 48 Law and Contemp. Probs. 157.

54Mclntyre J. labels his requirement of disadvantage the”‘enumerated or analogous grounds”
approach, supra, note 7 at 179-80. I think a term such as the “anti-subordination” approach or the
“social disadvantaging” approach would be preferable. (See, for example, R. Colker, “Anti-
Subordination Above All: Sex, Race, and Equal Protection” (1986), 61 N.Y. Univ. L.R. 1003).
55See discussion of the enumerated or analogous grounds limitation, infra, note 71 and accom-
56Supra, note 7 at 180-81.

panying text.

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COMMENTS

Thus, as McIntyre J. makes clear:

A complainant under s. 15(1) must show not only that he or she is not receiving
equal treatment before and under the law or that the law has a differential impact
on him or her in the protection or benefit accorded by law but, in addition, must
show that the legislative impact of the law is discriminatory.57

Discrimination does not just mean differentiation; it involves a law or policy
“which has the effect of imposing burdens, obligations, or disadvantages on
such individual or group not imposed upon others, or which withholds or limits
access to opportunities, benefits, and advantages available to other members of
society.””s

McIntyre J. links the requirement for disadvantage to s. 15’s explicit pro-
tection against discrimination, rather than its general affirmation of the principle
of equality. In so doing, he unduly, and perhaps inadvertently, narrows the con-
cept of equality. To my mind, the concept of equality itself requires considera-
tion of disadvantage and prejudice for its cogency. The realities of domination,
subordination and social disadvantage should be the focal point of the constitu-
tional principle of equality itself and not be considered solely at the stage of
identifying the existence or non-existence of discrimination. Otherwise, we fall
back into the trap of looking simply to differential treatment or impact as the
measure of inequality. Though the practical implications of deriving the require-
ment of disadvantage from “discrimination” rather than “equality” may be
insignificant in the context of the Charter, it would be preferable in terms of
conceptual clarity to derive the need for disadvantage from both. 9

To make sense of an approach based on disadvantage, it is also necessary
to conceptualize problems of discrimination and inequality in group as opposed

57Ibid. at 182.
58Ibid. at 174.
59McIntyre J.’s emphasis on discrimination may lessen the scope of the first clause of s. 15
(“Every individual is equal before and under the law”), which would be inconsistent with the
requirement of giving Charter rights a large and generous interpretation (Big M Drug Mart, supra,
note 12 at 344). Deriving the requirement of group disadvantage from the concepts of equality and
discrimination would ensure the continued relevance of this first clause. Wilson J., in a subsequent
judgment (see Turpin, infra, note 73), gives meaning to the first clause by suggesting that s. 15
provides four kinds of protection against discrimination (i.e. before the law, under the law, in the
protection of the law and in the benefit of the law). In his judgment in Andrews, La Forest J. avoids
a narrowing of the meaning of the first clause by leaving open the possibility that”‘there is room
under s. 15 for judicial intervention beyond the traditionally established and analogous policies
against discrimination”, ibid. at 194. Emphasizing that the role of the courts is “to protect against
incursions on fundamental values”, he writes:

…there may well be legislative or governmental differentiation between individuals or
groups that is so grossly unfair to an individual or group and so devoid of any rational
relationship to a legitimate state purpose as to offend against the principle of equality
before and under the law as to merit intervention pursuant to s. 15.

Ibid. at 194.

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to individual terms. We are concerned with remedying the historical and ongo-
ing harm that has been and is being done to particular groups in society.
Individual members of those groups may be the ones who actually bring cases
into the courtroom, but the cogency of the analysis depends on an understanding
of discrimination against and the social disadvantaging of groups, not individ-
uals.60

Although McIntyre J. appears to acknowledge such a group-based perspec-
tive, his discussion of the definition of discrimination is ambiguous and still
wedded to an individualist focus. He repeatedly refers to “individuals and
groups” rather than just”‘groups”. Such a reluctance to abandon individuals per-
haps reflects conventional societal regard for human rights as individual rights.
This perspective is reflected in the wording of s. 15 itself.6 Section 15(2), for
example, speaks of disadvantaged individuals and groups, when it would be
more analytically accurate to speak of individuals from disadvantaged groups.
I do not think we would sanction affirmative action for purely individual
disadvantages.

To develop a coherent and effective approach to constitutional equality, we
must focus on group disadvantage and locate the individual within her or his
social group. In doing so, we can identify two major types of disadvantage
experienced by an individual by virtue of membership in a particular social
group. First, an individual may be discriminated against because she is judged
according to stereotypes about the capabilities and abilities of the group to
which she belongs. McIntyre J. recognizes this form of discrimination, writing,
“Distinctions based on personal characteristics attributed to an individual solely
on the basis of association with a group will rarely escape the charge of discrim-
ination…”.6 2 The individual is being treated differently on the basis of percep-
tions of and discriminatory attitudes towards her group.

Secondly, an individual may be discriminated against because she exhibits
certain characteristics specific to her group. She experiences disadvantages that

6As Dickson C.J. emphasized in his discussion of employment equity in Action travail des

femmes, supra, note 18 at 1142-43:

The benefit is always designed to improve the situation for the group in the future, so
that a successful employment equity programme will render itself otiose….The goal is
not to compensate past victims or even provide new opportunities for specific individ-
uals who have been unfairly refused jobs or promotions in the past, although some such
individuals may be beneficiaries of an employment equity scheme. Rather, an employ-
ment equity programme is an attempt to ensure that future applicants and workers from
the affected group will not face the same insidious barriers that blocked their forebears.

See also, Fiss, supra, note 51 for a discussion of what he terms the “group disadvantaging prin-
ciple” and infr-a, note 104 and accompanying text.

61See supra, note 5.
62Supra, note 7 at 174 [emphasis added]. While this aspect of discrimination deserves to be rem-
edied, it is somewhat limited. Such an approach does not secure equality even in the face of stereo-

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CHRONIQUE DE JURISPRUDENCE

flow from her differences from individuals in the dominant groups in society.63
This type of discrimination has too often been overlooked in legal approaches
to equality.’ McIntyre J. recognizes this as discrimination by including, in his
definition of discrimination, intentional and unintentional distinctions “based on
grounds relating to personal characteristics of the individual or group…”.6 By
retaining the phraseology of “individual or group” instead of “individuals from
disadvantaged groups”, he has created the potential for some confusion on this
point. Nevertheless, it is critical that the constitutional protection of equality
address this second dimension of discrimination since it contains the potential
to affect the vast majority of individuals from socially disadvantaged groups.
Whereas the first component of discrimination provides relief primarily to those
members of disadvantaged groups who can emulate the standards of the dom-
inant groups in society, the second component provides relief despite difference.

One further aspect of McIntyre J.’s discussion of disadvantage concerns its
interplay with his s. 1 analysis. Curiously, his discussion of the Oakes66 test
under s. 1 reflects an unnecessary concern about the potential invalidation of
important social and economic regulatory legislation under s. 15.

In Oakes, it was held that to override a Charter guaranteed right the objective must
relate to concerns which are “pressing and substantial” in a free and democratic
society. However, given the broad ambit of legislation which must be enacted to
cover various aspects of the civil law dealing largely with administrative and reg-
ulatory matters and the necessity for the legislature to make many distinctions
between individuals and groups for such purposes, the standard of “pressing and
substantial” may be too stringent for application in all cases. To hold otherwise
would frequently deny the community-at-large the benefits associated with sound
social and economic legislation. 67

McIntyre J. appears to have forgotten that his limitation of the applicability of
s. 15 to situations relating to prejudice and disadvantaging precludes the prob-
lem of widespread challenges to regulatory legislative classifications.68 Though
perhaps motivated by a desire to cast doubt on the Oakes test generally,

types. In other words, it does not ensure equality when the individual does display the character-
istics associated with the disadvantaged group. Nor does this approach question why stereotypes
exist, how or whether to eradicate stereotypes, or whether stereotypes labelled negative are in fact
positive human attributes. Often it has implicitly required that the individual from the disadvan-
taged social group emulate the characteristics of individuals in the dominant groups in society.
63She is being treated differently and unequally and she is infact different or she is being treated

the same when she is in fact different.

64The similarly situated test was a major mechanism for avoiding this second aspect of

discrimination.

65Supra, note 7 at 174.
66Supra, note 46, and supra, note 47 and accompanying text.
67Supra, note 7 at 184.
68His limitation of the scope of s. 15 to enumerated or analogous grounds further decreases this

problem; see discussion, infra, note 72 and accompanying text.

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McIntyre J.’s words contain unfortunate echoes of the U.S. Supreme Court’s
rejection of effects-based discrimination.69 As Wilson J. clarifies, in discussing
the Oakes test:

If every distinction between individuals and groups gave rise to a violation of s.
15, then this standard might well be too stringent for application in all cases and
might deny the community at large the benefits associated with sound and desir-
able social and economic legislation. This is not a concern, however, once the
position that every distinction drawn by law constitutes discrimination is rejected
as indeed it is in the judgment of my colleague, McIntyre j.70

E. Adoption of an “Enumerated or Analogous Grounds” Limitation

The Court’s final step in Andrews is to limit the scope of s. 15 to protection
against discrimination on the basis of “enumerated or analogous grounds”.7
According to McIntyre J., the enumerated grounds correspond to the “most
common and probably the most socially destructive and historically practised
bases of discrimination…”. 72 Integral to the Court’s insistence on the presence
of disadvantaging and not just differential treatment, therefore, is the limitation
of the scope of s. 15’s protection to enumerated or analogous grounds.
Moreover, the enumerated grounds provide guidance as to which additional
grounds of discrimination should be accorded protection under s. 15. 71 Non-

69See supra, note 19 and accompanying text.
70Supra, note 7 at 154.
71 The majority of the Court both in Andrews and in a subsequent unanimous judgment, R. v.
Turpin, [1989] 1 S.C.R. 1296,96 N.R. 115 [hereinafter Turpin cited to S.C.R.], concludes that there
must be discrimination on an enumerated or analogous ground to obtain protection under s. 15. (La
Forest J. in Andrews is the only judge to have left open a larger role for s. 15 beyond protection
against discrimination on enumerated or analogous grounds. See supra, note 59.

One could envision non-enumerated or non-analogous classifications that create inequalities in
the effective enjoyment of fundamental rights and freedoms. Section 15 could protect equality in
the exercise of fundamental rights and freedoms even if the inequality did not correspond to an
enumerated or analogous ground. The Turpin case is a good example. The Court held that a clas-
sification between individuals accused of criminal offences in one province versus another was not
analogous to the enumerated grounds in s. 15; the claimant was denied relief under s. 15. The Court
did suggest that the case raised equality concerns; however, it held that the question of equality
in the administration of the criminal justice system should have been argued in terms of “funda-
mental justice” and s. 7 of the Charter.
72Supra, note 7 at 175. Arguably, discrimination against the poor and against homosexual men
and lesbians has been just as pervasive and damaging as some of the enumerated grounds. While
these grounds of discrimination may well be recognized as analogous in future cases, one wonders
whether their exclusion reflects the extent to which they were perceived to pose threats to two cen-
tral societal institutions –

the heterosexual family and the capitalist market.

73See, for example, application in Turpin, ibid. See also Reference re Workers’ Compensation
Act, 1983 (Nfld.), ss. 32, 34, [1989] 1 S.C.R. 922, 56 D.L.R. (4th) 765, 96 N.R. 227, where
LaForest J. followed the majority approach to enumerated or analogous grounds; and
Mirhadizadeh v. Ontario (1989) 60 D.L.R. (4th) 597 at 600-602 (Ont. C.A.), denying s. 15(1) claim

1989]

COMMENTS

enumerated grounds of discrimination must be analogous to the enumerated
grounds in the sense that they must be a source of disadvantaging and prejudice.
This approach appears to constitute a further significant limitation on the
number of potential claimants under s. 15, protecting the courts from a plethora
of claims by privileged groups who are the targets of legislative classification.74

In Andrews, the Court held that non-citizenship constitutes an analogous
ground. Although McIntyre J. does not provide much elaboration as to why
non-citizens should be accorded protection under s. 15, he does note that they
are “a good example of a ‘discrete and insular minority”‘. 5 Justice Wilson fur-
ther elaborates the significance of this description by explaining that non-
citizens, because of their lack of political power, are “vulnerable to having their
interests overlooked and their rights to equal concern and respect violated”. 6 Of
particular significance is Justice Wilson’s further comment that a determination
as to whether a group falls into an analogous category “is not to be made only
in the context of the law which is subject to challenge but rather in the context
of the place of the group in the entire social, political and legal fabric of our
society”.’ Justice La Forest agrees that non-citizenship should be considered an
analogous ground. He points out that citizenship is an “immutable” character-
istic in the sense that it is “one typically not within the control of the individ-
ual… Citizenship is, at least temporarily, a characteristic of personhood not alter-
able except on the basis of unacceptable costs.”’78 La Forest J. then proceeds to
document the historical legal discrimination against non-citizens in Canada.79

A further question that arises concerning both enumerated and non-
enumerated analogous grounds is the interpretive impact of the requirement that
the intentional or unintentional distinction result in disadvantage or prejudice.
The Women’s Legal Education and Action Fund (LEAF)”0 argued in its inter-
venor factum:

Some of the terms in section 15 indicate clearly the type of disadvantge
which is meant to be addressed by the equality guarantees: e.g., mental and phys-
ical disability. Others are all encompassing on their face: e.g., race, sex. These lat-
ter grounds appear to place on the same footing the equality claims of those who

since appelant (individual attempting to sue public authorities) was not a member of an enumerated
or analogous group.

members of privileged groups in society, see Day & G. Brodsky, supra, note 6.

74For an examination of equality cases and a review of the large number of cases initiated by
75Supra, note 7 at 183.
76Ibid. at 152.
771bid.
781bid. at 195.
79La Forest J.’s emphasis on legal disadvantage contrasts with Wilson J.’s emphasis on the

social, political and legal context.

80LEAF is an organization established to bring test cases on behalf of women and to intervene

in cases affecting women’s rights in an effort to improve the condition of women in Canada.

REVUE DE DROIT DE McGILL

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have been historically disadvantaged (like women and people of colour) and those
who, traditionally, have been members of the dominant group (men, whites). In
assessing claims to substantive equality brought under section 15, it is submitted
that a Court should bear in mind that the purpose of the section is to promote the
equality of those who have been disadvantaged. While not categorically ruling out
the equality claims of members of a dominant group, a purposive approach would
lead a Court to interpret secion 15 in such a way that these claims would be viewed
with caution.

8
1

A fuller discussion of the purpose of s. 15 by the Court might have clarified the
logic of LEAF’s approach.

Despite the significant advances made in Andrews to counter an abstractly
neutral approach to s. 15, the idea of symmetrical treatment of gender or racial
groups in terms of constitutional equality appears deeply embedded in the legal
psyche. I suspect we will not be immune from arguments about “reverse dis-
crimination” in Canada despite the specific endorsement of affirmative action in
s. 15(2).12 And yet, the rationale McIntyre J. articulates for adopting an “enu-
merated or analogous grounds” approach makes the historical, current and sys-
temic experience of group disadvantage the central criterion for protection
under s. 15. This should render a concept like’reverse discrimination” a con-
tradiction in terms. An individual from a privileged group will be unable to
show that he is part of a disadvantaged group in society.” This is the touchstone
of discrimination. Further development of the group disadvantaging principle,84
therefore, to refine our understanding of the enumerated and analogous grounds
of discrimination, will be needed to ascertain the constitutionality of particular
affirmative action programmes in future cases.

F. A Return to the Question of Purpose

Having explored the various components of the Court’s discussion of
equality and discrimination, it is important to re-consider the purpose of s. 15.
When we pull the various threads of McIntyre J.’s analysis together, we begin
to see a pattern in the weave. That pattern reveals a repeated concern with his-
torical and current subordination of socially disadvantaged groups in society.
The remedying of that disadvantage should constitute the central purpose of s.
15. Although McIntyre J. does not articulate the purpose of s. 15 so directly, it
is implicit in his logic and judgment as a whole. It flows from his adoption of

81Factum of the Women’s Legal Education and Action Fund (LEAF), submitted to the Supreme
Court of Canada in Law Society of British Columbia v. Andrews, September 22, 1987 at 14, para.
33.

Discrimination (Buffalo, N.Y.: Prometheus Books, 1977).

82The concept of “reverse discrimination”
is discussed in B.R. Gross, ed., Reverse
83Provided standing is granted, an individual from a privileged group may also argue that the

legislation affecting him actually undermines the equality of a socially disadvantaged group.

84See Fiss, supra, note 51.

19891

CHRONIQUE DE JURISPRUDENCE

an effects-based approach that focuses on the real social impact of law and pol-
icy, from his insistence on evidence of disadvantage and prejudice, and from his
understanding of the enumerated and analogous grounds. McIntyre J.’s failure
to weave together the strands of his analysis to provide a more complete delin-
eation of s. 15’s purpose accounts for some of the ambiguities and hesitations
apparent in his judgment. But the threads are there, ready to be woven together
into a constitutional approach to equality that focuses on identifying and rem-
edying substantive inequalities and systemic discrimination in a meaningful
way. For that, we must applaud McIntyre J.’s work.

In contrast, Justice Wilson is more forceful in articulating her view of the
purpose of s. 15 which she envisages as a provision'”designed to protect those
groups who suffer social, political and legal disadvantage in our society…”85 To
identify these groups, Wilson J. would look to “stereotyping, historical disad-
vantage or vulnerability to political and social prejudice…” ’86 She thus appears
to adopt or share the purposive analysis advocated by LEAF in the following
passage from its factum:

The history of the Charter’s guarantees of substantive equality clearly shows
that they were intended to benefit individuals and groups which historically have
had unequal access to social and economic resources, either because of overt dis-
crimination or because of the adverse effects of apparently.’neutral” forms of
social organization premised on the subordination of certain groups and the dom-
inance of others.

It is submitted that this purpose of promoting the equality of the powerless,
excluded and disadvantaged should animate interpretation of the guarantees of
substantive equality in s. 15.87

IV. Implications for Women

Integral to improving the lives of women is the need to fight racism, hete-
rosexism, ageism, poverty, the mistreatment of women with disabilities, the
dominance of white culture. I do not think we can separate out a simple strand
of hope for some women from the larger fabric of all women whose diverse
needs and concerns require different responses and fundamental institutional
and social change.8″ Where does the Andrews case take us?

At a minimum, Andrews signals the possibility that courts will listen to the
various voices of women. The Court has not adopted an approach to equality

85Supra, note 7 at 154; Wilson J.’s understanding of the purpose of s. 15 is also articulated in
S6Turpin, ibid.
87LEAF Factum, supra, note 81 at 10, paras 23 and 24.
88For example, Esmeralda Thornhill, supra, note 1, at 157 states, “real Sisterhood should mean
to assume respon-

collectively and individually –

Turpin, supra, note 73 at 1333.

a willingness, a political and a personal will –
sibility for the elimination of racism”.

McGILL LAW JOURNAL

[Vol. 35

that confines women’s future arguments to a fixed doctrinal box. Women do not
have to fit their individual, cultural or group experiences of inequality into awk-
ward, wooden categories. Women can try to speak their truths in the adjudica-
tive forum, though such truths are neither singular nor cohesive. Women just
might not have to speak another language or pretend not to know things they
really know. 9 But going to court remains risky. It is risky because women still
bear the legal and practical burden of educating the judiciary about the subor-
dination of women. It may also prove risky to raise false hopes that the courts
will solve the problem of gender oppression with the help of s. 15 and s. 28.9″
Finally, it is risky because the application of the constitutional principle of
equality by the courts is a deeply indeterminant and value-laden exercise. What
Andrews does require is that s. 15 redress disadvantaging and prejudice. This is
the essence of s. 15’s purpose. Moreover, a purposive approach grounded in the
identification of historical and current disadvantaging constitutionalizes a con-
textual approach to the equality guarantees.9′ Rejection of formalistic, abstract
legal reasoning has been an important dimension of feminist critiques of law.92

89For example, a divergence between women’s experiences and the legal representation of the

abortion dilemma was identified by Carol Gilligan in her research:

The way women were talking about the moral problem in abortion did not fit the public
discussion of abortion in this country. In other words, it was not construed as an adver-
sary fight between the mother and the fetus. In fact the dilemma arose from the very
connection between them…Women realized that to say that they thought pregnancy
meant a life, developing through time –
into a child, meant that you could not bring the issue into the legal system. To enter
the legal system, therefore, women had to act as though they did not know things that
they felt they knew, and that they did not in a sense understand issues of connection
which could not be represented within the adversarial-rights model which pitted one
life against the other.

if nothing intervened, accident or biology –

E. DuBois et al., “Feminist Discourse, Moral Values, and the Law – A Conversation” (1985) 34
Buffalo L. Rev. 11 at 38-39. Gilligan also uses the concept of bilingualism to convey the idea that
women learn to speak in a second voice that they think will be listened to when they speak in male-
dominated contexts. Ibid. at 40, 59, 63. See also K. O’Donovan,”‘Engendering Justice: Women’s
Perspectives and the Rule of Law” (1989) 39 U.T.L.J. 127 at 140-46 for a discussion of women,
language and law. For a feminist reconceptualization of reproductive rights that integrates issues
of relationships and human connection, see H. Lessard, “Rethinking Liberty: Reproductive Rights
and Section 7 of the Charter” (Address to the Canadian Association of Law and Society, Quebec,
June 1989) [unpublished].

9Despite the historical struggle by women in Canada to include s. 28 in the Charter, to date it
has not figured prominantly in sex discrimination cases. See R Kome, The Taking of Twenty-Eight
– Women Challenge the Constitution (Toronto: Women’s Press, 1983).

91As Madame Justice Wilson commented in Turpin, supra, note 73 at 1331-32: “Accordingly
it is only by examining the larger context that a court can determine whether differential treatment
results in inequality or whether, contrariwise, it would be identical treatment which would in the
particular context result in inequality or foster disadvantage.”

92E.g., K.Lahey, “…Until Women Themselves Have Told All They Have to Tell…” (1985) 23
Osgoode Hall L.J. 519; Ann Scales, supra, note 2; R. West, “The Difference in Women’s Hedonic
Lives: A Phenomenological Critique of Feminist Legal Theory” (1987) 3 Wis. Women’s L.J. 81.

19891

COMMENTS

Coupled with a commitment to equality for women, a contextualized, purposive
approach holds promise for women. Two recent cases involving the interpreta-
tion of provincial human rights legislation exemplify the possibilities of the
approach to equality and discrimination initiated in Andrews.

The first case, Brooks v. Canada Safeway,93 overturned the Court’s decision
eleven years earlier under the Canadian Bill of Rights that discrimination on the
basis of pregnancy did not constitute sex discrimination.” The Supreme Court
found that pregnancy discrimination is sex discrimination because only women
get pregnant.95 It was not necessary to find a male equivalent to the condition
of pregnancy or to find that women were being treated as though they were
pregnant when they were not in fact pregnant. The complainants were all preg-
nant women who received disfavoured treatment because of their condition –
because of their difference. In recognizing such discrimination as sex discrim-
ination, Dickson C.J. stated:

Combining paid work with motherhood and accommodating the childbearing
needs of working women are ever-increasing imperatives. That those who bear
children and benefit society as a whole thereby should not be economically or
socially disadvantaged seems to bespeak the obvious. It is only women who bear
children; no man can become pregnant. As I argued earlier, it is unfair to impose
all of the costs of pregnancy upon one half of the population. It is difficult to con-
ceive that distinctions or discriminations based upon pregnancy could ever be
regarded as other than discrimination based upon sex, or that restrictive statutory
conditions applicable only to pregnant women did not discriminate against them
as women.9

This reasoning is a far cry from the language of the earlier Bliss case, where
Ritchie J. concluded, in an oft-cited passage, that “[a]ny inequality between the
sexes in this area is not created by legislation but by nature.”97 Women have
lived and continue to live the experience of the double day of labour. While we
still need to rethink and revise the structuring of employment and domestic
work, Brooks takes us a step in the right direction by acknowledging the impor-

91[1989] 1 S.C.R. 1219, 59 D.L.R. (4th) 321, 10 C.H.R.R. D/6183 [hereinafter Brooks cited to
S.C.R.]. Both cases involved the interpretation of s. 6(1) of the Manitoba Human Rights Act, S.M.
1974, c. 65, which provides protection against sex discrimination.

94Bliss, supra, note 37.
95As Dickson C.J. put it, “Discrimination on the basis of pregnancy is a form of sex discrim-
ination because of the basic biological fact that only women have the capacity to become preg-
nant”, supra, note 94 at 1242 [emphasis added]. Although I agree with the Court’s conclusion on
this point, I am concerned about the suggestion that there is such a thing as a “basic biological
fact”. It seems to me that we must be vigilant in insisting that our understanding of biology is
always socially constructed. See M. Minow, “Feminist Reason: Getting It and Losing It” (1988),
38 J. of Leg. Ed. 47 at 54.

96Supra, note 93 at 1243-44.
97Supra, note 37 at 190.

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tance of not being financially penalized if we need to take time off work for
childbearing.

The second case, rendered concurrently with Brooks, is Janzen and
Govereau v. Platy Enterprises,98 in which the Court unanimously concluded that
sexual harassment constitutes sex discrimination. As in Brooks, to understand
the conduct in question as sex discrimination required the Court to shed formal-
istic, sameness reasoning and a narrow similarly situated approach. Instead, the
Court defined sex discrimination in language similar to the Andrews
formulation.

…[D]iscrimination on the basis of sex may be defined as practices or attitudes
which have the effect of limiting the conditions of employment, or the employ-
ment opportunities available to, employees on the basis of a characteristic related
to gender.

99

Sexual harassment was defined as “unwelcome conduct of a sexual nature that
detrimentally affects the work environment or leads to adverse job-related con-
sequences for the victims of the harassment”.’ To conclude that sexual harass-
ment constitutes sex discrimination, the Court adopted the contextualized,
effects-based approach adopted in Andrews.

The Court began by acknowledging the disparate impact of sexual harass-
ment on women, given the gender hierarchy of the labour force and the “abuse
of both economic and sexual power’ ‘”0’ that sexual harassment entails.

Perpetrators of sexual harassment and victims of the conduct may be either male
or female. However, in the present sex stratified labour market, those with the
power to harass sexually will predominantly be male and those facing the greatest
risk of harassment will tend to be female. 1

0

2

Relying on the concept of adverse effect discrimination alone, therefore, one
could conclude that sexual harassment is a kind of sex discrimination in
employment. The Court could also have limited its analysis in Brooks to dispar-
ate impact reasoning by concluding that a provision relating to pregnancy has
a disproportionate impact on women. And yet, as in Brooks, where the Court
went on to make a conceptual link between gender and pregnancy, the Court in
Janzen developed a conceptual relation between the phenomenon of sexual
harassment and gender.

In the case of Janzen, to develop this conceptual connection, a further com-
the sexual attractive-

plicating or obscuring notion needed to be addressed –

91[1989] 1 S.C.R. 1252, 59 D.L.R. (4th) 352, 10 C.H.R.R. D/6205 [hereinafter cited to S.C.R.].
“9Ibid. at 1279.
‘0OIbid. at 1284.
‘0lIbid.
’21bid. at 1284.

1989]

CHRONIQUE DE JURISPRUDENCE

ness of the victim. The Manitoba Court of Appeal had concluded that sexual
harassment involved discrimination on the basis of the sexual attractiveness of
the victim, not discrimination based on sex. It was, therefore, treatment accord-
ing to an individual not a group characteristic. 3

The Supreme Court rejected this view as fallacious for three interrelated
reasons. First, it made clear that discrimination does not require that everyone
in a targeted group be subjected to discriminatory treatment.

While the concept of discrimination is rooted in the notion of treating an individ-
ual as part of a group rather than on the basis of the individual’s personal charac-
teristics, discrimination does not require uniform treatment of all members of a
particular group. It is sufficient that ascribing to an individual a group character-
istic is one factor in the treatment of that individual.1 4
Secondly, in the context of the sexual harassment complained of in the par-
ticular case, “it was only female employees who ran the risk of sexual harass-
ment.” 0 In elaborating this point, Dickson C.J. demonstrated an appreciation of
a contextualized approach and sensitivity to a women’s perspective.

To argue that the sole factor underlying the discriminatory action was the sex-
ual attractiveness of the appellants and to say that their gender was irrelevant
strains credulity. Sexual attractiveness cannot be separated from gender. The sim-
ilar gender of both appellants is not a mere coincidence, it is fundamental to under-
standing what they experienced. All female employees were potentially subject to
sexual harassment by the respondent Grammas. … Any female considering
employment at the Pharos restaurant was a potential victim of Grammas and as
such was disadvantaged because of her sex. A potential female employee would
recognize that if she were a male employee she would not have to run the same
risks of sexual harassment. 10 6
Thirdly, therefore, just as pregnancy cannot be separated from gender even
though not all women are pregnant, so too must the notion of sexual attractive-
ness be understood in the context of a deeply sexist society that objectifies
women’s bodies and perpetuates a male-defined image of sexual attractive-
ness.0 7 The practice of sexual harassment, in turn, cannot be separated from the
unequal relations of sexual interaction that disadvantage women.’0 8

Both these decisions are positive and important legal victories for women.
They further develop and apply the approach to discrimination articulated in

’03Ibid. at 1287. The parallel with the Bliss line of thinking is clear. Pregnancy involves discrim-

ination against pregnant persons, not women; See discussion per Dickson C.J. at 1289.

141bid. at 1288.
1051bid. at 1290.
1I6bid.
107S. Brownmiller, Femininity (New York: Ballantine Books, 1984).
’08See MacKinnon, The Sexual Harassment of Working Women, supra, note 22; see also “Sexual
Harassment: Its First Decade in Court (1986)”, in MacKinnon, Feminism Unmodified: Discourses
on Life and Law, supra, note 22 at 103-116.

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Andrews, thereby creating an important legal trilogy on equality. Thus, Andrews
appears to have laid the groundwork for innovative legal developments sensitive
to the realities of the various inequalities women face. Although the values, atti-
tudes and biases of judges will continue to determine the outcome of future
cases, the requirement in Andrews that judges identify prejudice and disadvan-
tage ensures a more open articulation of the values upon which judicial deci-
sions are made.

Not only is Andrews innovative in its approach to identifying inequality
and discrimination, it is also significant for its emphasis on remedies for
redressing inequalities. We need to think carefully about how courts can and
should structure remedies to discrimination. In particular, we need to advocate
remedies that will empower women to take an active role in creating the insti-
tutional structures that will secure substantive equality instead of promoting or
relying on substantive remedial solutions devised predominantly by courts. For
I am convinced that the best solutions will come, not from the bench, but from
the people who live and feel the experience of inequality in our society.

Comment on Andrews v. Law Society of British Columbia and

Section 15(1) of the Charter: the Emperor’s New Clothes?

David W. Elliott*

Synopsis

Test for Equality

Introduction
I.
II. Relationship between Section 15(1) Equality and Discrimination
III. Discrimination

A. Force of Law
B. Equal Treatment, Differential Impact, and Relative Disadvantage
C. Enumerated or Analogous Grounds
Justification
A.
B. Section 1
Judicial Activism

Section 15(1)

IV.

V.
Conclusion

Introduction

Shortly after the Supreme Court’s decision in Andrews v. Law Society of
British Columbia,’ the Ontario Court of Appeal remarked that section 15(1) of
the Charter2 “has just put on a new set of clothes.”3 This comment considers

*Department of Law, Carleton University.
I Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 [herein-
after Andrews cited to S.C.R.], aff’g (1986), 27 D.L.R. (4th) 600, [1986]4 W.W.R. 242,2 B.C.L.R.
(2d) 305 (C.A.), McLachlin J.A., rev’g (1985), 22 D.L.R. (4th) 9, [1986] 1 W.W.R. 252, 66
B.C.L.R. 363 (S.C.), Taylor J.
2Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the

Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].

3Energy Probe v. A.G. Canada (1989), 58 D.L.R. (4th) 513 (Ont. C.A.).

McGill Law Journal 1989
Revue de droit de McGill