Three Models of (In)Equality

Three Models of (In)Equality

J. Donald C. Galloway*

The author explains how the Supreme Court
of Canada, in interpreting section 15 of the
Canadian Charter of Rights and Freedoms, is
developing simultaneously three distinct con-
ceptions or models of inequality. The Court is
attempting to come to grips with the problem
of identifying the holders of the rights recog-
nized in the section.

One model, which the author constructs
from passages in leading cases, ties the con-
cept of discrimination to membership in soci-
ety. According to this model, only members of
a society have a right to be recognized at law
as equals who deserve the state’s concern,
respect and consideration. A second approach
to discrimination and equality sees the purpose
of section 15 as being the eradication of en-
trenched and systemic forms of social disad-
vantagement. This model focuses on group
equalization rather than individual rights.
Since this suggests a redistributive purpose, it
may allocate to the judiciary a function for
which it is ill-equipped. The author’s third
model equates section 15 rights with human
dignity. While recognizing varying degrees of
membership in society, this model assumes
one can identify the interests that give rise to
self-respect and personhood. The author points
out, however, that these interests are deter-.
mined in reference to dominant conceptions of
what is integral to one’s dignity, creating a ten-
sion between those dominant views and views
that are self-defined by individuals.

The author concludes that the Supreme
Court has not yet determined which approach
it will take with respect to the definition of
equality. The Court has recognized the tension
between cultural diversity and uniformity, a
tension that has important consequences for
those seeking protection under the rights guar-
anteed by section 15, but whether this tension
can be resolved remains to be seen.

Dans son interprdtation de 1’article 15 de Ia
Charte canadienne des droits et libertos, la
Cour suprme du Canada, nous dit l’auteur, est
en train de dfvelopper trois mod~les distincts
de la notion d’in6galit6. La Cour s’efforce
d’identifier les d&enteurs des droits 6noncs
dans cet article.

A partir de passages tirds de ]a jurispru-
dence, l’auteur construit un premier module,
selon lequel la notion de discrimination est lie
A celle du statut de membre dans Ia socint6:
seuls les membres a part enti~re de la socid6t
araient droit A la reconnaissance et A l’6galit6
juridiques. Le second module que nous pro-
pose l’auteur voit dans l’article 15 de la Charte
l’instrument privil6gi6 pour l’6imination de’
toute forme de discrimination endfmique et
systfmique. Ce modle vise l’6galit6 dans la
collectivit6 plutt que les droits individuels.
Dans la mesure oi ce mod~le peut comporter
certaines redistributions, l’auteur explique
qu’il est peut-Etre mal adapt6 au contexte judi-
ciaire. Le troisi~me mod~le de l’article 15
s’appuie sur la notion de dignit6 humaine. Tout
en reconnaissant les divers degrfs dont le sta-
tut de membre est susceptible, ce modNe pr6-
sume qu’il est possible d’identifier les facteurs
qui sous-tendent l’estime de soi et les qualitfs
essentielles de l’8tre humain. L’auteur constate
que ces facteurs sont toutefois d~terminfs 4.
partir des idfes communfment reques sur la
dignit6, ce qui cr e une tension entre ces idles
et celles qui sont purement personnelles.

L’auteur conclut que la Cour supr6me du
Canada n’a pas encore opt6 pour l’un ou l’au-
tre de ces modNes de la d~finition de l’6galit6.
Elle a reconnu la tension qui existe entre la
diversit6 culturelle et l’uniformit6, une tension
qui est lourde de consequences pour ceux qui
esp~rent trouver dans l’article 15 une source
de protection. Mais on ne saurait dire si cette
tension peut 8tre rsolue.

* Visiting Professor, University of Victoria, Faculty of Law, Professor, Faculty of Law, Queen’s
University. I would like to acknowledge the comments and assistance of David Mullan and Hester
Lessard in the preparation of this article. The award of the Bora Laskin National Fellowship in
Human Rights Research afforded me the time to pursue this project. I am grateful to S.S.H.R.C.C.
for the award.
McGill Law Journal 1993.
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.L 64
Mode de rdf6rence: (1993) 38 R.D. McGill 64

19931

THREE MODELS OF (IN)EQUALITY

Synopsis

Introduction.
I.

The Supreme Court’s Analysis of Equality and Discrimination

II. The Three Models of (In)Equality

A. Equality, Discrimination and Social Membership
B. Discrimination, Equalization and the Eradication of Social

Disadvantage

C. Discrimination and Human Dignity

Conclusion

Introduction

In this paper, I argue that the Supreme Court of Canada, in its interpreta-
iions of subsection 15(1) of the Canadian Charter of Rights and Freedoms,1 has
been developing simultaneously three distinct and self-contained models of
equality and discrimination, I refer to these as the equal membership model, the
social disadvantagement model and the human dignity model. As yet, the Court
has neither stated definitively its opinion of which model best captures the ains
and underlying values of the section, nor confirmed whether it is going to com-
mit itself exclusively to one. While each model possesses elements which are
compatible with some of those found in the others, the models, when considered
as three separate packages, point the Court in different directions. This lends a
certain amount of ambiguity and lack of clarity to the opinions of the justices.
Moreover, as I shall show in this paper, each model, when considered in isola-
tion, commits the Court to principles for which justification is difficult to find.
Perhaps the best explanation for the coexistence of three separate models within
the Court’s judgements is that, in the absence ‘of a single unproblematic model,
the Court is more willing to live with the contradiction and inconsistency among
the models than to commit itself to the underlying values of any single one of
the three. The Court’s position is similar to that of modem scientists who, in the
absence of a single unifying theory, find themselves relying on both quantum

‘Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,

c. 11 [hereinafter Charter]. S. 15(1) of the Charter reads as follows:

Every individual is equal before and under the law and has the right to the equal pro-
tection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.

REVUE DE DROIT DE McGILL

[Vol. 38

theory and the theory of general relativity, despite the inconsistencies between
the two.2

This paper has developed out of a more theoretical project in which I have
been examining the obligations of the liberal state towards aliens. Part of that
project has involved asking whether there is an obligation to treat aliens as
equals and if so, what concrete commitments this could entail.’ The influence
of the more general and abstract work can be felt in this, its more doctrinal off-
spring. I believe that liberal political theorists and jurists have been lax in their
references to “citizens,”‘4 “members” or “Canadians”5 when identifying the
holders of constitutional rights. Moreover, neither group has given sufficiently
serious thought to the question of which constitutional rights apply to foreign-
ers.6 One effect of this laxity is that the interests of some marginalized groups
have been ignored or undervalued in the articulation of abstract theory and con-
stitutional doctrines. While members of disadvantaged groups within a society
have often been regarded as the beneficiaries of equality guarantees, those who
have no connection or tenuous links with a society are by and large forgotten.
It is concern for the interests of these individuals which is the propelling force
behind this paper, and which colours my reading of the legal texts. More spe-
cifically, it is because the different models of equality which 1 locate in the
judgements of the Supreme Court have a significantly different impact on these
individuals, that I draw attention to tieir existence and raise questions about
their acceptability.

I proceed as follows. First, I examine the texts of recent Supreme Court
decisions concerning discrimination and equality and highlight and scrutinize
the ambiguities therein. This necessitates the re-tilling of some well-worked
ground. The small number of cases which I examine have already been under
the microscope of several critically-minded legal scholars. Nevertheless, I
believe that I add an original and fruitful slant by examining the relationship
between discrimination and community membership and by taking into account
the situation of those who may not be regarded as full members. Subsequently,
in the course of identifying the different frameworks which the Court develops,
I make assessments of each.

Time (London: Bantam Press, 1988).

2The most popular, recent account of this tension is found in S.W. Hawking, A Brief History of
3See D. Galloway, “Strangers and Members: Equality in an Immigration Context” Can J. Law
4For example, in McKinney v.’University of Guelph, [1990] 3 S.C.R. 229 at 357-58, 76 D.L.R.
(4th) 545 [hereinafter McKinney cited to S.C.R.], Wilson J. states that “those who enacted the
Charter… [set] out basic constitutional norms rooted in a concern for individual dignity and auton-
omy which government should be compelled to respect when structuring important aspects of citi-
zens’ lives.” [emphasis added]
5For example, in Canadian Council of Churches v. Canada (M.E.L), [1992] 1 S.C.R. 236 at 250,
88 D.L.R. (4th) 193, Cory J. states that “[t]he Charter enshrines the rights and freedoms of Cana-
dians.” In the context of a case brought by an organization which pursues the interests of refugees,
the choice of the word “Canadians” appears significant.
6See D. Galloway, “The Extraterritorial Application of Charter Rights to Visa Applicants”

& Jur [forthcoming].

(1991) 23 Ottawa L. Rev. 335.

1993]

THREE MODELS OF (IN)EQUALITY

I. The Supreme Court’s Analysis of Equality and Discrimination

Perhaps the most troublesome aspect of the Supreme Court’s analysis of
subsection 15(1) of the Charter is its failure to make clear whether, in its view,
equality and discrimination are conceptually independent. Initially, the Court
sets up a three-part process7 for determining whether the rights recognized in the
section have been infringed, with equality issues being entertained at the first
stage and discrimination issues at the second! However, when all is said and
done, the Court may, in fact, be holding that equality and discrimination are not
conceptually separate. This is most clearly revealed in a statement by Wilson J.
in McKinney v. Universi of Guelph, in which she states: “[ilt is, I think, now
clearly established that what lies at the heart of s. 15(1) is the promise of equal-
ity in the sense of freedom from the burdens of stereotype and prejudice in all
their subtle and ugly manifestations.”9

Another statement by Wilson J. in R. v. Turpin makes a similar point. She
identifies the purposes of subsection 15(1) to be “remedying or preventing dis-
crimination against groups suffering social,- political and legal disadvantage in
our society.”‘”

In fact, the Court could justifiably be interpreted as holding that subsection
15(1) is propounding a single right –
the right not to suffer the negative effects
of discrimination. This is because, in the last instance, the concept of discrim-
ination operates as the single fulcrum which bears the full burden of the Court’s
argumentation, while the concept of equality is identified by the Court as a
woolly and unattainable ideal which takes on the appearance of a fifth wheel.
A close examination of the text of the opinion of McIntyre J. in Andrews con-
firms this critique and reveals the full extent of the Court’s conceptual tangle.
In Andrews, McIntyre J. admits that “it [equality] is an elusive concept ..
[which] lacks precise definition.”” He then goes on to say that it is a compar-
ative concept, “the condition of which may only be attained or discerned by

7See Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 182, 56 D.L.R. (4th)

1, McIntyre J. [hereinafter Andrews cited to S.C.R.]:

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 … [Alny consideration of factors which
could justify the discrimination and support the constitutionality of the impugned
enactment would take place under s. 1.

In R. v. Turpin, [1989] 1 S.C.R. 1296 at 1325-1335, 69 C.R. (3d) 97, 48 C.C.C. (3d) 8 [hereinafter
Turpin cited to S.C.R.], Wilson J. emphasizes with clarity and precision the tripartite nature of the
Court’s analysis, suggesting that one must first determine whether any of the four basic equality
rights have been denied, then decide whether there has been any discrimination, and then turn to
s. 1 considerations.

SThe third question is whether the discriminating infringement of an equality right is justifiable
under s. 1 of the Charter. The Court has made it clear that questions of “reasonableness” or “fair-
ness” are material only at the third stage, and ought not to be raised while the earlier questions are
being considered (Andrews, ibid. at 177-83).

9McKinney, supra note 4 at 387.
“Turpin, supra note 7 at 1333.
“Andrews, supra note 7 at 164.

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[Vol. 38

comparison with the condition of others in the social and political setting in
which the question arises.” 2

But although comparative in nature, McIntyre J. states unequivocally that
equality does not demand that all individuals be accorded the same treatment.”
One must take into account the consequences of the treatment to ensure that the
impact of a law on all individuals, each of whom will stand in unique social cir-
cumstances, will be equivalent:

To approach the ideal of full equality before and under the law –
and in human
affairs an approach is all that can be expected –
the main consideration must be
the impact of the law on the individual or the group concerned. Recognizing that
there will always be an infinite variety of personal characteristics, capacities, enti-
tlements and merits among those subject to a law, there must be accorded, as
nearly as may be possible, an equality of benefit and protection and no more of
the restrictions, penalties or burdens imposed upon one than another. In other
words, the admittedly unattainable ideal should be that a law expressed to bind all
should not because of irrelevant personal differences have a more burdensome or
less beneficial impact on one than another. [emphasis added] 14

McIntyre J. is pointing out that any balance or scale which is used to
adjudge whether social benefits and burdens are divided equitably will never be
sufficiently accurate to ensure that the impact of a law will be the same for
everyone. Even a seemingly neutral law, such as one which turns a thoroughfare
into a one way street, will have a differential impact on those who use the street.
(A person who approaches the street from one direction will have more driving
to do to reach a particular location than another person who approaches it from
the opposite direction.)

Nevertheless, the ideal of equality demands that the legislature use the
most accurate gauge available. McIntyre J. stresses that we must accord “as
nearly as may be possible” equal benefits and disadvantages. Our concern with’
gauging the impact of a law accurately is similar to our concern to have the most
accurate timepiece available in some circumstances. A clock which could not

121bid. In passing, it is worth noting that in this statement we have the first intimation that judge-
ments of equality and inequality are all made relative to other members of a social and political
group, with the implication that questions of equality cannot arise when one is considering the
treatment of those who do not belong within a particular social or political setting. In order to deter-
mine whether a person has been treated unequally, one must first specify the dimensions of the
social order within which she or he is being considered. The identification of the relevant social
and political setting is of paramount significance. For example, as far as the applicant for entry into
Canada is concerned, one could hold that she is not protected by the equality provisions, because
she does not belong within the relevant social and political group; or, one could make determina-
tions of equality of treatment by comparing her situation with that of other applicants, or with that
of people who are already members of Canadian society. In the following pages, I consider the
question whether membership in our society should be regarded as a prerequisite to possessing
equality rights.
‘3Mclntyre J. categorically rejects the “similarly situated” test as a test of equality. However, in
actuality he is merely making the point that two individuals will always be found in differing social
and economic situations. He is only rejecting the idea that two people who share a characteristic
or a number of characteristics will, for that reason, be similarly situated. See Andrews, ibid. at
165-68.

14lbid. at 165.

1993]

THREE MODELS OF (IN)EQUALITY

distinguish events which occurred one second apart should not be used as the
sole device by which to judge which athlete won a world class 100 metre race.
We would also criticize the use of a stopwatch which was calibrated in seconds
if one which measured in tenths of seconds were available; and likewise, this
latter device would be unacceptable if a watch calibrated to hundredths of a sec-
ond were available. If deterrlining who won the race is adjudged to be an
important goal, then the most accurate available timing device should be used.
Similarly, if ensuring that all individuals experienced the same impact of the law
is important, then the most accurate gauge of impact should be employed in any
distribution.

From this perspective, a person could justifiably claim unequal treatment
if a legislature had been inadequately precise in attempting to ensure that the
impact of the law on each person was equivalent to that on each other person.
A legislature which espoused equality as an ideal or aspiration could be called
to account if it did not make inquiries into the individual impact, or projected
impact of a law, much as an athletic association which promoted the need to
identify winners could be faulted for not investing in accurate chronometers.

Nevertheless, McIntyre J. makes it clear that a person cannot justify a chal-
lenge to a law under subsection 15(1) merely on the ground that there is a dif-
ferential impact effected by it, or merely because the legislature would have
been able to avoid a differential impact had it chosen to do so. As noted, it must
also be shown that the law in question discriminates against an individual or
group. The important question is whether a person or group has been singled out
by the law for discriminatory treatment which in fact causes relative disadvan-
tage to the litigant.

The introduction of the concept of discrimination at the second stage of the
inquiry gives a new shape to McIntyre J.’s train of thought. His early statement,
emphasized above, that “there must be accorded, as nearly as may be possible,
an equality of benefit and protection and no more of the restrictions, penalties
or burdens imposed upon one than another,”15 created the impression that he
was contending that the legislature engaged in presumptive wrongdoing every
time it did not use the most accurate mechanism to ensure that the impact of a
law be equal. But, at the second stage of his inquiry, this is seen not to be the
case. In those cases in which it does not discriminate against an individual or
group, the legislature will not have done wrong even where there is a clear dif-
ferential impact. It appears that McIntyre J. intends to distinguish between ide-
als or aspirations on the one hand, and duties on the other. A legislature’s failure
to meet an ideal (that of equal impact) does not entail that it has breached a duty
(the duty not to discriminate). However, this distinction is rendered opaque by
references to the denial of “equality rights” which are made before the issue of
discrimination is raised. If there exists only a duty not to cause disadvantage by
discrimination, then it is confusing to refer to rights to equality, rather than a
right not to suffer the negative impacts of discrimination. If the legislature does
not engage in presumptive wrongdoing when laws have a differential impact,

15Ibid.

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[Vol. 38

then one can question the prudence of contending that a person’s “equality
rights” are shaped by the different ways by which a person can be disadvan-
taged. 6 By locating the concept of equality within a morality of aspiration, and
the concept of discrimination within a morality of duty, McIntyre J. renders
redundant the former when allegations of rights violations are being examined.
For all practical purposes, the concept of discrimination will swallow up the
concept of equality, and a two-part analysis will replace the tripartite framework
articulated by the Court. Clarity is better served by referring to a right not to suf-
fer disadvantage through discrimination, a right which is subject to the consid-
erations mentioned in section 1 of the Charter.

However, McIntyre J.’s definition of discrimination is also problematic. He

contends that

discrimination may be described as a distinction, whether intentional or not but
based on grounds relating to personal characteristics of the individual or group,
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. 17
This definition is a fountainhead of confusion. Without doubt, it is pre-
sented as a definition of a concept which is wholly distinct from the concept of
equality, yet it seems to be doing no more than expressing the negation of the
“unattainable ideal” which McIntyre J. cited in his analysis of equality. If equal-
ity is a condition that, were it attainable, would obtain where laws do not have
a more burdensome impact because of irrelevant personal differences, then
eveiy law which prevents this condition from pertaining will also, according to
the definition, be discriminatory. McIntyre J. uses the phrase “irrelevant per-
sonal differences” when pointing to the factor which prevents an impossible
ideal of equality from being attained, but he also uses the phrase “personal char-
acteristics of the individual or group” when defining what counts as discrimina-
tion. Conceptual independence cannot be founded on these factors alone.

McIntyre J. attempts to circumvent the critique that his analysis is confus-
ing by pointing to a distinction which would allow us to identify those personal
characteristics the use of which would amount to discrimination. It becomes
very clear that he believes that not every distinction based on personal charac-
teristics will count as discrimination. He writes:

Distinctions based on personal characteristics attributed to an individual solely on
the basis of association with a group will rarely escape the charge of discrimina-
tion, while those based on an individual’s merits and capacities will rarely be so
classed. 18

1’Thus, one can question the wisdom of Wilson J. when, in Turpin, she states that “[i]n defining
the scope of the four basic equality rights it is important to ensure that each right be given its full
independent content …” (Turpin, supra note 7 at 1325). Once the point has been made that inequal-
ity is judged by the impact of a law on a person, rather than on the intent of the legislature or on
the failure to accord identical benefits or disadvantages, it becomes superfluous to distinguish the
ways in which the disadvantage is caused, and to suggest that it is important to delineate the bor-
ders which allow one to distinguish four independent equality rights.

1 Andrews, supra note 7 at 174.
181bid. at 174-75.

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THREE MODELS OF (IN)EQUALITY

He also reverts to the unhelpful and potentially misleading 9 idea articu-
lated by the U.S. Supreme Court that “discrete and insular minorities” are pro-
tected.by subsection 15(1) of the Charter,” thereby suggesting that the personal
characteristic of belonging to such a group is a sufficient (although, as will be
seen, not a necessary) condition for discrimination. However, these points do
little to relieve the general confusion since they fail to offer a set of specific con-
ditions or criteria from which one can construct a general principle.

The definition of “discrimination” is confusing on a second count because
it suggests, in its final words, that one can discriminate only amongst those who
are already members of a society, by dividing resources and advantages
amongst such members in an inequitable way. This seems to exclude categor-
ically the possibility of discriminating against non-members. Nevertheless,
immediately prior to the reference to members of society, the more general term
“others” is used, which does leave open the possibility that the term is intended
to have a wider ambit.2″ The appellant in Andrews was a person who was
unquestionably a member of Canadian society. This ensured that this point was
not raised and, as a result, was left open.

II. The Three Models of (In)Equality

A. Equality, Discrimination and Social Membership

At this point, I want to try to relieve the confusions in McIntyre J.’s judge-
ment by exploring the idea that he is attempting to articulate the view that the
concept of discrimination is tied to the concept of membership in society, and
that distinctions are discriminatory if they treat an individual as something less
than a full member.

From this perspective, the message is not that every individual in the world
has a right against the government to be treated as an equal. Instead, it is mem-
bers of society who have this right. Each person who is a member of a society
committed to equality has the same right to concern, respect and consideration
as each other member. Once we have identified a person as a member of society,
we are committed to the view that she should be accorded the respect that is fit-
ting of a person holding that status. It will be wrongful for the government to
treat any such individual as less than a full member. However, this view does
not lead ineluctably to the conclusion that every law which has a differential
impact upon members treats those affected negatively as less than full members.
Only in some circumstances can we infer that the individual or group in ques-
tion is being accorded an inferior status. Hence, McIntyre J. writes:

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-

19See D. Gibson, “Analogous Grounds of Discrimination Under the Canadian Charter: Too

Much Ado About Neit to Nothing” (1991) 29 Alta. L. Rev. 772.

2Andrews, supra note 7 at 183.
21See supra note 17 and accompanying text.

McGILL LAW JOURNAL

[Vol. 38

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. 22
This statement contains the seeds of an answer both to the criticism that
McIntyre J.’s judgement does not adequately specify which personal character-
istics can be the basis of discriminatory treatment, and to the criticism that his
judgement is unclear insofar as it does not specify those who can be the objects
of discrimination. In answer to the first of these, he can be interpreted to be sta-
ting that differentiation on the basis of those characteristics on which a person’s
equal status as member depends, will amount to discrimination; in answer to the
second, only those people who are already members of society can suffer dis-
crimination within the Charter definition, by being treated as inferior members.
One way to grasp the nub of this reading of McIntyre J.’s position is to conceive
it as a “swings and roundabouts” approach to equality. A particular law may
have a differential impact on different individuals but nevertheless, other differ-
ential laws may on other occasions negate this effect. What one person or group
loses on one occasion, he, she or it may regain on another occasion. This is the
key to understanding why the mere fact that a law has a differential impact does
not, by itself, entail that a person has had her status as equal member violated.
The person who suffers as a result of the creation of a one way road, may make
a comparative gain from another traffic or zoning regulation. In the last
instance, equality will be achieved not through uniformity of impact of each
law, but through systematic equalization by ineans of many differential impacts.
As long as one believes that “it will all come out in the wash,” one will not
regard differentiation as being an attack on an individual’s status.

McIntyre P’s conclusion that subsection 15(1) will be violated only if a law
which has a differential impact is discriminatory, can be interpreted to mean that
a particular disadvantageous impact (a loss on the swings) will, in most cases,
be held to be a violation of a right if the individual who suffers the loss belongs
to a group which is known to be already losing on the roundabouts. It is well
known that certain groups have suffered, and are still suffering such consistent
losses, which knowledge explains the list of grounds specified in subsection
15(1). Moreover, we may yet discover that other groups have suffered consist-
ent losses in the past, and hence the need to allow for the consideration of
grounds analogous to those identified explicitly in section 15.’

This analysis hangs on the claim that differentiation does notper se amount
to an attack on a person’s equal status, but differentiation which disadvantages
people who belong to an already disadvantaged group does. However, the fact
that the government has allowed the development and entrenchment of inferior
statuses within society is not, by itself, the reason for judicial interference; it
merely provides evidence that a particular individual is on a particular occasion
not being treated as an equal member of society. A court will only intervene
when an individual has shown, first, that she or he has suffered relative disad-

22Andrews, supra note 7 at 171.
23Compare the statement of Wilson J. in Andrews, that “it is important to note that the range of
discrete and insular minorities has changed and will continue to change with changing political and
social circumstances” (Andrews, supra note 7 at 152).

1993]

THREE MODELS OF (IN)EQUALITY

vantage on a particular occasion, and second, that the disadvantage can be
traced to government action. Where this individual is part of a group which has
suffered and continues to suffer disadvantage, this is regarded as probative evi-
dence which provides a reason to believe that the loss suffered will not be offset
by future gains; that “it will not all come out in the wash.” The suspicion that
the particular law is contributing to the individual’s subordination will be suf-
ficient to justify its invalidation.

In the recent case of R. v. Hess,24 Wilson J. has qualified this view by sug-
gesting that the inference from negative disadvantagement of an individual who
belongs to a subordinated group to proscribed discrimination will not be auto-
matic. A mere suspicion created by the entrenched subordination of a group will
be insufficient to invalidate a law. When tackling the problem of differential
criminal laws dealing with sexual attacks, she states:

In my view, it is not this Court’s role under s. 15(1) of the Charter to decide
whether a female who chooses to have intercourse with a boy under fourteen mer-
its the same societal disapprobation as a male who has intercourse with a girl
under fourteen. These issues go to the heart of a society’s code of sexual morality
and are, in my view, properly left for resolution to Parliament. … I think it impor-
tant to bear in mind that the legislature has chosen to punish a male who engages
in a form of penetration to which only a male and a female can be parties. The leg-
islature has concluded that sodomy or buggery are forms of penetration that should
be dealt with separately: see, for example, s. 155 of the Code. Once again we are
faced with distinctions aimed at biologically different acts that go to the heart of
society’s morality and involve considerations of policy. They are, in my view, best
left to the legislature.?5

While this discussion focuses on laws which single out men for special
treatment, Wilson J. makes it clear that she considers that a similar argument
would apply if women were singled out for negative treatment, by for example
a law which proscribed self-induced abortions. In the ensuing discussion of sex
discrimination, she contends that if a distinction can be traced to “ill-conceived
notions about a given sex’s strengths and weaknesses or abilities and disabili-
ties,”’26 it will be condemned as discriminatory. If, on the other hand, a provision
reflects a dominant moral judgement that is untainted by such considerations,
the court will deny that the distinction is discriminatory. The fact that a law dif-
ferentiates between members of a subordinated group and others does not entail
that the government has necessarily become an accessory to the subordination.
According to this view, the evidence can be ambiguous and the Court’s assess-
ment may be that an added loss suffered by a disadvantaged group is not an
attack on the status of those who are affected, but is rather the application of an
“untainted” moral judgement. The example offered in Hess of a hypothetical
criminal provision which proscribes self-induced abortion is particularly telling.
Wilson J. states categorically that it would be absurd to characterize this provi-
sion as discriminatory.27 It is most significant that Wilson J. does not hold that

24[1990] 2 S.C.R. 906, [1990] 6 W.W.R. 289 [hereinafter Hess cited to S.C.R.].
25lbid. at 930-31.
261bid. at 929.
27 Ibid.

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the provision would be discriminatory but justifiable under section 1 of the
Charter.

This analysis is consistent with the belief that it is not the judiciary’s task
to identify and implement ways of eradicating inferior statuses within society.
While it may be proper to leave such matters to democratically elected officials,
it is well within the judiciary’s power to prevent the government from enacting
a law when there is a good reason to believe that its direct effect will be to con-
demn a person to a subordinate social position, or to prevent a person from
removing herself from such. Judicial intervention is particularly apposite when
the government arouses the suspicion that it has a hidden agenda which involves
an individual being sacrificed for the social good or being-required to bear an
inordinate proportion of the society’s disadvantages. The evidence of
entrenched past disadvantage to those who share a characteristic with this indi-
vidual provides solid, although in the light of Hess not conclusive, grounding
for this suspicion.

The swings and roundabouts analogy is a useful device by which to get to
the heart of the Supreme Court’s understanding of equality and discrimination.
In particular, it offers a key by which to explain Wilson J.’s insistence that

it is only by examining the larger context that a court can determine whether dif-
ferential treatment results in inequality or whether, contrariwise, it would be iden-
tical treatment which would in the particular context result in inequality or foster
disadvantage. A finding that there is discrimination will, I think, in most but per-
haps not all cases, necessarily entail a search for disadvantage that exists apart
from and independent of the particular legal distinction being challenged. 28

It also allows us to understand which groups are covered by the vague Amer-
icanism “discrete and insular.” In the Andrews case.itself, the Court is able to
identify non-citizen residents of Canada as such a group. As Wilson J. explains:

Relative to citizens, non-citizens are a group lacking in political power and as such
vulnerable to having their interests overlooked and their rights to equal concern
and respect violated … Non-citizens, to take only the most obvious example, do
not have the right to vote … While legislatures must inevitably draw distinctions
among the governed, such distinctions should not bring about or reinforce the dis-
advantage of certain groups and individuals by denying them the rights freely
accorded to others.29
However, an account of discrimination which stresses that an individual
must belong to a disadvantaged or relatively poweriess group before she can
avail herself of subsection 15(1), would not capture all the intricacies of the
Supreme Court’s perspective. The opinions which have defined the current
Supreme Court position are all couched carefully in qualified and non-absolute
terms. For example, as quoted above, McIntyre J. in Andrews states that rarely
will distinctions attributed to a person by virtue of association with a group be
non-discriminatory, while rarely will a distinction based on merit be discrimi-
natory.” Likewise, in Turpin, Wilson J. states:

28Turpin, supra note 7 at 1331-32.
29Andrews, supra note 7 at 152.
30Supra note 18 and accompanying text.

1993]

THREE MODELS OF (IN)EQUALITY

I would not wish to suggest that a person’s province of residence or place of trial
could not in some circumstances be a personal characteristic of the individual or
group capable of constituting a ground of discrimination. I simply say that it is
not so here.31
These two examples show an unwillingness to rely on a simple unidimen-
sional test for determining what counts as discrimination. Nevertheless, they
should not be interpreted as revealing an unprincipled or haphazard approach to
the problem, inconsistent with the general approach previously outlined. As I
shall now try to show, they confirm rather than deny the belief that the analogy
of swings and roundabouts is useful.

One can elicit from the opinions of Wilson J. in particular, an account of
how to deal with these examples which fits snugly with the general idea that this
section of the Charter aims to ensure that each member of society is treated as
a full member. Wilson J. shows herself to be sensitive to the need to leave open
the option of declaring a law to be discriminatory solely on the ground that it
places an intolerable burden on an individual or group whether or not they have
suffered previous disadvantage. For example, in Hess, she suggests that a law
which defined first degree murder in such a way that only men could commit
it, would not escape the charge of being discriminatory, even though men are
not a group which has suffered consistent social disadvantage.32 A similar con-
clusion would be reached if the same law were defined so that only people from
Alberta could commit it. Underlying these examples is the premise that, in the
light of such a law, no one who fell into these groups could possibly regard him-
self or herself as still being a full member of the community, and therefore as
a person deserving respect and concern, no matter how many benefits were
accorded by other legislation. A sacrifice demanded of some groups or individ-
uals by a piece of legislation can be so onerous that it should be regarded as
being, in itself, an attack on the equal status of the individuals affected. Hence,
if men or residents of Alberta were being used as scapegoats and singled out for
severe penalty, when no rational grounds for such special treatment could be
identified, the fact that neither group had suffered inordinate burdens in the past
would not need to be raised. Underlying the equality provisions of the Charter
is a principle which demands that individual members of society be treated with
equal respect.

According to this account of the Supreme Court judgements, the important
idea underlying subsection 15(1), initially de-emphasized by the Court,33 is that
it accords to each person a particular status in a non-hierarchical social system
and attempts to ensure that no group or individual shall be accorded a lesser sta-
tus by the law. A law which places burdens on individuals who belong to groups
which already carry relatively heavy social burdens and which experience more
than their share of disadvantage, will fail to meet the demand. But so will a law

31Turpin, supra note 7 at 1333.
32Hess, supra note 24 at 928.
331n interpreting the phrase, “Every individual is equal before and under the law,” the Court has
declined the opportunity to hold that s. 15(1) recognizes that everyone has equal status, and instead,
reads the section to be granting four equality rights, of which one is the right to eqt
‘ity before
the law, and another is the right to equality under the law. See e.g., Turpin, supra note at 1325ff.

McGILL LAW JOURNAL

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which places a differential burden on individuals who do not belong to such
groups, when the burden is such that it cannot be adequately offset by future
benefit. Such burdens must be shared by everyone, or not imposed in the first
place. While it may be useful for some purposes to distinguish between these
two ways in which a law can fail, my point is that the same concern underlies
both –
a law should not condemn individuals to a subordinate social position
or reinforce any social disadvantage that some may be suffering.

I have presented the view that the Court, when articulating its theory of dis-
crimination, is developing the idea that it is because our society is interested in
creating and maintaining a community of equal members that subsection 15(1)
proscribes discriminatory treatment. This suggestion premises the status of
being an equal on actual membership of the community. It would follow from
such a view that non-members of our community would not be protected by
subsection 15(1). Because non-members do not have a social position, they can-
not be accorded an inferior position. A community of equal members need have
no respect for outsiders. Its primary concern may be that only its own members
not suffer the ignominy of discriminatory treatment from its government. It
need have no concern for those with no attachments to the community whose
self-respect is attacked by its government. Only as long as a person can be iden-
tified as “one of us” will she be protected by the Charter’s equality provisions.

While I have demonstrated that there is textual evidence to support the
view that the Supreme Court ties the harm of discrimination to social member-
ship, and while, as I have shown, an argument can be concocted to defend this
view, I believe that this linkage between membership and the harm of discrim-
ination is weak and impolitic. As I noted earlier, the Court has not identified any
criteria of membership. This omission renders problematic the whole enterprise
of linking the two concepts.

The assumption behind the equal membership model is that a hierarchical
society is improper per se, and that each person who is identified as a member
should hold the same status of full member. Thus, talk of illegitimate hierarchy
involves redundancy, since hierarchy is itself illegitimate. This view ignores the
reality to which I alluded at the beginning of the paper, that we do have a hier-
archical society in which people hold different degrees of membership. In
Andrews, the Court considers the relatively easy case of permanent residents.
Given the deep involvement and level of participation of such individuals in our
society, and the emphasis on the permanent nature of the status, it is easy to
understand why the Court would conclude that they are as much members as are
citizens, and that, as a consequence, differential impact of the law will amount
to discrimination and will have to be justified according to the terms of section
1 of the Charter.

However, it is by no means clear that the Court would regard visitors with
employment authorizations or recently arrived refugee claimants to be members
of society in the way that citizens or permanent residents are. It may be quite
proper to regard them as probationary or temporary members, or even as asso-
ciate members. While the citizen and the permanent resident may be immersed
in social life to a similar degree, thus raising the rebuttable presumption that the

1993]

THREE MODELS OF (lN)EQUALITY

law should have an equal impact on them, the situation of those who are not
similarly immersed need not raise the same inference. Their level of poverty rel-
ative to those who have more permanent links to the community does not raise
the same concerns about unfairness. In particular, it does .not raise the presump-
tion that reason must be given for laws which have a more severe impact upon
them. In other words, my contention is that we need not regard hierarchies of
membership as troublesome features of our social order which require special
justification under section 1 of the Charter. They may be regarded as an integral
part of a society which admits strangers. An equal membership model commits
us to the view that a person is either “one of us” or is not. This ignores the fact
that people may have varying degrees of connection to a community. Our com-
munity may not draw a hard and fast line between insiders and outsiders. It may
see mutual advantage in allowing strangers limited access to the labour market
and the halls of political power. The member/non-member dichotomy may be
a misleading way to conceive of the relations which an individual may have
with a community. It skates over a wide range of bonds which may have been
some of them quite tenuous, others permanent and deep-rooted. While
forged –
it may be true that a liberal democracy should be committed, prima facie, to
each of its members holding the same status, we ought to question whether it
should also be committed to a particular “all-or-nothing” definition of member-
ship.

Michael Walzer is one theorist who has promoted a political philosophy
which embraces the equal membership model of discrimination. He argues that
“guest workers” should be given the opportunity to become full citizens. 4 Wal-
zer claims that if this opportunity is not provided, the society will be creating
a permanent underclass which would bear a disproportionate level of disadvan-
tages and benefits and no political power and no representation in the legisla-
ture. He states:

the process of self-determination through which a democratic state shapes its inter-
nal life, must be open, and equally open, to all those men and women who live
within its territory, work in the local economy, and are subject to local law. … Men
and women are either subject to the state’s authority, or they are not; and if they
are subject, they must be given a say, and ultimately an equal say, in what that
authority does.35

Walzer’s position is not too convincing. He is not sufficiently attuned to the
fact that there can be different levels of participation in a community and its
economy, some of which may be quite tenuous.36 The temporary worker may
merely be spending a number of weeks in the society; a person who is spending
a lengthy period of time in a country may be employed sporadically. Further-
more, even outsiders who neither live nor work within a community may be
“subject to the state’s authority.”37 There is no necessary connection between
being subject to a state’s authority and membership. Ultimately, Walzer’s anal-

34M. Walzer, Spheres of Justic.e (New York: Basic Books, 1983).
351bid. at 60-61.
36Although he does admit that his argument takes on an implausible tone when applied to the
37See Galloway, supra note 6.

case of the visiting professor and other privileged guests (ibid. at 60).

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[Vol. 38

ysis fails because it is too hazy on the criteria by which to determine who should
have the opportunity to gain full rights of membership –
alternatively using life
within a community, working in its labour force and being subject to the state’s
authority as the proper test.

Any plausibility which Walzer’s views have rests on our sense that people
who have participated in community life, have formed attachments and bonds,
or have been led to expect a permanent status, deserve the chance to become full
members. This sense is bolstered by the fact that we have witnessed many
schemes wherein “guest workers” have been admitted into countries to fulfil
menial tasks. Governments have taken advantage of the willingness of these
individuals to accept relatively small economic rewards for their labour, and
have renewed and re-renewed their visas, or failed to enforce the time limits on
their entry, and have thereby created a permanent underclass without any polit-
ical powers. But in these cases, it is the permanence or semi-permanence of
each guest worker’s status which sparks our concern, rather than the mere fact
of admission in the first place, or the establishment of a “guest worker” pro-
gramme. A person who is admitted into a country to join the work force for a
short and clearly defined period, who is required to leave, and who is not
offered a permit renewal, will have little chance to become immersed in the life
of the society. The temporary nature of this person’s connection with the society
is a reason for not offering the opportunity of citizenship. An underclass of tem-
porary workers will not have been created, because the temporary nature of each
person’s stay will ensure that they do not collectively form a social class. Only
when the possibility of permanence is realized or promised should we become
concerned about entrenched inferiority. Where a government admits a person
for a short period and then cuts its ties with him or her, it cannot be plausibly
argued that, merely by so doing, it has unconscionably exploited the individual
by taking advantage of his or her position of economic need. Such a stranger,
who comes to a country for a temporary and clearly defined purpose, has no
cause to claim discrimination when the opportunity of citizenship, or of other
social and economic benefits enjoyed by citizens, is not made available, as long
as no expectations are created by the government, either explicitly or through
weak enforcement.

But this conclusion should not push us towards another position which is
also consistent with the equal membership model of discrimination, namely that
because some people who are admitted for a limited period of time into Canada
do not form established bonds with the community, they are not members, and
therefore subsection 15(1) of the Charter should not apply to them. It would be
unacceptable if such individuals could be treated with disdain by the govern-
ment, or if the government were able to distribute amongst them advantages and
disadvantages in such a way as to privilege some on the grounds identified in
subsection 15(1), or on analogous grounds.

We should reject the idea that people are either members of a community
or not, and that only the former are covered by the terms of the Charter. Our
community admits people on different bases. To hold that some people have not
formed sufficient ties with the community to justify making available the rights

19931

THREE MODELS OF (IN)EQUALITY

of citizenship, or all the fights enjoyed by citizens, does not entail that they do
not deserve to be considered members in some qualified sense. But once we
have accepted those qualified forms of membership, we have reason to reject a
conceptual linkage between equality and membership. We ought not to be dra-
gooned into believing that equality means equal membership in the community.

B. Discrimination, Equalization and the Eradication of Social

Disadvantage

There are strong intimations in the Supreme Court judgements that the
Court identifies the purpose behind subsection 15(1) of the Charter to be the
eradication of entrenched and systemic forms of social disadvantagement, and
that the Court will use the section to ameliorate the lot of those groups within
society which have been and continue to be its victims. Thus, Wilson J. in
Andrews states: “[g]iven that s. 15 is designed to protect those groups who suf-
fer social, political and legal disadvantage in our society, the burden resting on
government to justify the type of discrimination against such groups is appro-
priately an onerous one. ‘

Likewise in Turpin, she identifies the purposes of subsection 15(1) to be
“remedying or preventing discrimination against groups suffering social, polit-
ical and legal disadvantage in our society.”’39
In a Comment on Andrews,” Colleen Sheppard picks up this theme and suggests
that it is also implicit in McIntyre J.’s judgement:

It flows from his adoption of an effects-based approach that focuses on the real
social impact of law and policy, 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 pro-
vide a more complete delineation 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 remedying substantive inequalities and systemic discrimination
in a meaningful way.41
By identifying the intended beneficiaries of subsection 15(1) to be groups
who suffer systemic disadvantage within our society, one promotes the idea that
the subsection is promulgating a policy of group equalization rather than pro-
moting individual rights. It is the harm suffered by the group, rather than by any
one individual member of the group, which justifies proscribing discriminatory
action. Laws which single out individuals for disadvantageous treatment or con-
sequences on the basis of a particular characteristic contribute to a comparative
worsening of the lot of the whole group that is defined by that characteristic,
even when only a fraction of the group is identified in the laws themselves.
Thus, a law which discriminates against disabled teachers is an attack on all dis-

3SAndrews, supra note 7 at 154.
39Turpin, supra note 7 at 1333.
4N.C. Sheppard, “Recognition of the Disadvantaging of Women: The Promise of Andrews v.
411bid. at 228-29.

Law Society of British Columbia” (1989) 35 McGill L.J. 206.

McGILL LAW JOURNAL

[Vol. 38

abled people within society. It is but one measure which contributes to the posi-
tion of inferiority suffered by the group as a whole. From this perspective, the
individual who is challenging the validity of a law begins to disappear from
view and the group itself takes over centre stage. The individual is but an instru-
ment who brings the group’s concerns into the courtroom. Moreover, the
emphasis on equalization of the position of groups within our society ensures a
limited ambit to the section which excludes groups and individuals who are
attempting to gain entry into Canada. Within this model also, those who have
no connection to the society are not protected from government discrimination.

Richard Moon has emphasized the rough and ready nature of an approach
which regards the proscription against discrimination as a benefit provided by
section 15 to groups which have suffered social disadvantage:

The limited goal of review, then, is the rough equalization of the relative position
of different groups in the community rather than the equalization of individual
positions. The disadvantaged groups that are the focus of review may have some
members who are not disadvantaged in comparison with the general population …
At best, the goal of “equality among groups” represents an imperfect form of
equality of result.42

Moon also points out that it is the limitations of its institutional role which
prevent the judiciary from tackling head-on the problem of remedying the social
disadvantagement of groups, and which force it instead to promote such equal-
ization by recognition of a right not to suffer discrimination:

The pursuit of a full-blown equality of result is not a task the courts are well-suited
to perform. The realization of equality might well require a general restructuring
of our complex system of laws, and this would leave little scope for legislative
judgment. However, perhaps more importantly, the adjudicative model is designed
to deal with issues of corrective justice and limits the courts’ ability to engage in
the kind of systemic review and correction called for by this idea of equality. The
courts must pursue equality awkwardly and crudely through the review of partic-
ular laws, examined in isolation from the background of other laws in the sys-
tem.

43

Moon’s arrows hit their target. If the group disadvantagement model is
conceived to be founded on a mode of instrumental, goal-oriented rationality, it
contradicts well-entrenched principles of judicial reasoning.” The adjudicative
forum is not one which can accommodate well –
all those individ-
uals and groups who may be affected by particular distributions. The determi-
nation and evaluation of all available means of equalizing the social position of
a disadvantaged group and the implementation of the one determined to be the
best, are complicated political tasks for which the judiciary is ill-equipped, ill-
trained and not appointed to perform.

if at all –

42R. Moon, “A Discrete and Insular Right to Equality: Comment on Andrews v. Law Society of
43Ibid. at 574. See also R. Moon, “Discrimination and Its Justification: Coping with Equality

British Columbia” (1989) 21 Ottawa L. Rev. 563 at 577.

Rights Under the Charter” (1988) 26 Osgoode Hall L.J. 673, especially at 699-700.

44For arguments against instrumentalism in legal reasoning, see R. Dworkin, Lmv’s Empire

(Cambridge: Harvard University Press, 1986) c. 5.

1993]

THREE MODELS OF (N)EQUALITY

Furthermore, the belief that one can achieve this aim by making particular
determinations of discrimination in cases brought by single individuals, while
possibly true, is nevertheless misguided. Compare using a bucket to empty a
lake. Thus, we have the image of a judiciary attempting to achieve a goal –
group equalization – which it is institutionally incompetent to achieve, using,
as its tool, an individual right against discrimination on particular occasions, a
tool which is not particularly well forged for the task.

However, one can redefine this model to avoid these problems, although
in doing so, one threatens to stray quite far from the texts of the Supreme Court
judgements. Subsection 15(1) can be regarded as providing a group right against
discrimination, rather than aiming for social equalization.45 One could hypoth-
esize that the Supreme Court has not in fact jettisoned the logic of corrective
justice in favour of a redistributive aim, as Moon suggests, but instead, has
begun to develop the idea that subsection 15(1) recognizes that groups have the
right not to suffer the effects of discrimination. The right would be vested in
those groups which have suffered past and continuing social disadvantagement,
that is, those groups identified by the characteristics mentioned in subsection
15(1), and groups shown to have suffered similar oppression and disadvantage-
ment. In effect, this hypothesis suggests that it is the social oppression of the
group, impeding its development as a subculture within the whole, which
defines the group as a group, rather than as a motley aggregate of individuals.
The purpose of the group right is to allow for the flourishing of the group, as
a distinct cultural entity within the society. It is the failure to allow for the devel-
opment of such distinct entities and the attempted forced assimilation of the
group members into a culture defined by majority groups which amounts to dis-
crinination. When the Court talks of eradicating social disadvantagement, it is
talking about the need to recognize the relative autonomy of groups established
within a society which have been unable to flourish according to their own self-
definition.

There is some clear evidence in the Court’s judgements that it is not
adopting this view. As I argued above,46 the clearest is perhaps that found in the
statements of Wilson J. in Hess that suggest that the Court will defer to dom-
inant moral judgements (as long as they are not “ill-conceived”), when deciding
whether a law which differentiates between women and men will be considered
discriminatory, and that it will not examine issues which go to the.heart of a
society’s code of sexual morality. Her conclusion that it is not discriminatory
and her insistence that moral debates be located in the legislature indicate
clearly that she rejects the idea that the purpose of subsection 15(1) is to allow
minority perspectives and cultures to prosper.

Moreover, even if the comments in Hess are regarded as aberrations, and
the group right model can be attributed to the Court, this cannot be the whole
story. Social disadvantagement may take another form entirely. It may amount

(1991) 4 Can. J. Law & Jur. 217.

45See M. McDonald, “Should Communities Have Rights? Reflections on Liberal Individualism”
4 6See supra notes 25, 26 and accompanying text.

REVUE DE DROIT DE McGILL

[Vol. 38

to a form of enforced segregation, whereby the law ensures that an aggregation
of individuals, who do not subjectively recognize themselves as forming a cohe-
sive unity, except insofar as they are being oppressed, is treated differently from
the rest of society. Where this has happened, the aggregation may strive to erad-
icate its group identity and to ensure that its members are assimilated into soci-
ety. The experience of being regarded and defined as different is the experience
which the aggregation fights to eradicate. Where an aggregation does not regard
itself as a subculture, and does not promote its own continuation, nor stress the
need to make room for its difference, it is hard to see what the group interest
that would underlie a duty not to discriminate could be. Where assimilation is
sought by group members, it is more appropriate to conclude that individual
interests ground the duty not to discriminate. The group involved in Andrews –
permanent residents –
is a good example of a group which has no self-
conceived identity. The idea that permanent residents have a group right against
legal discrimination is highly unpersuasive. But without the recognition of a
group right, the eradication of discrimination against groups becomes a distrib-
utive goal and is covered by Moon’s critique.

A separate reason for not identifying disadvantaged groups as the sole
intended beneficiaries of subsection 15(1) is that this undercuts the recognition
of a form of discrimination to which I adverted earlier, that is, discrimination
against individuals who are not members of disadvantaged groups. Yet this pos-
sibility is canvassed and, as noted above, seemingly receives the approval of the
Court in Turpin.47 There is an obvious disjunction between acknowledging such
a form of discrimination, while claiming that the purpose of the section is to
remedy group disadvantage.

Hence, I would conclude that while there may be reason to interpret the
Supreme Court to be holding that subsection 15(1) provides a group right
against discrimination, it should not be read to be holding that this is the sec-
tion’s sole aim.

I have already adverted to the fact that the social disadvantagement model
applies to all groups within society. It does not tie equality to membership but
to presence within the community. However, part of the critique aimed at the
equal membership model applies here too. If its central aim is the equalization
of those groups which have suffered disadvantage, then the social disadvanta-
gement model would be committed to the view that, for example, one would
need to offer special justification for differentiating regulations which treated
temporary visitors relatively poorly. One must conclude that they are victims of
discrimination which is justifiable only on section 1 grounds. But their inferior
position need not be regarded as discriminatory if one assumes that a hierarchy
of membership which reflects degrees of immersion in the community is-in need
of no special justification; that is, if one accepts that it reflects a just way of
dealing with individuals, rather than an unjust way which can be defended only
on ulterior grounds. Just as the equal membership model fails because it
assumes that a person is either a member or not, and that only those who are

47See supra note 31 and accompanying text.

1993]

THREE MODELS OF (IN)EQUALITY

members have equality rights under subsection 15(1), the social disadvantage-
ment model fails by attaching the rights to all groups which are present within
the community. Such a view does not take sufficient account of the myriad ways
in which people can be connected to a community, nor of the widespread view
that the systemic disadvantagement of those whose connection is slight needs
no special justification.

C. Discrimination and Human Dignity

As already noted,4″ McIntyre J. in Andrews connects the concept of equal-
ity embraced in subsection 15(1) with the goal of “[promoting] a society in
which all are secure in the knowledge that they are recognized at law as human
beings equally deserving of concern, respect and consideration.”

In the first part of this paper, I developed an interpretation of this statement
which subordinated the concept of equal respect to that of equal membership.
According to that interpretation, the concern, respect and consideration that
must be shown to an individual is that which is owed to a full member of soci-
ety. Although there is, as I have already suggested, textual evidence which sup-
ports such a reading, there is also textual evidence to suggest that it is the
broader concept of human dignity, unconnected to membership, which is the
more basic concept, and that even the mention of membership is an unfortunate
and distracting red herring.49 For example, consider the blunt statement of Wil-
son J. in McKinney, that “[t]he purpose of the equality guarantee is the promo-
tion of human dignity.”5

If one places emphasis on dignity rather than on membership, one will
avoid the blatant problem created by the fact that our society is committed to
differing levels of membership, each with its own set of political, economic and
social rights. A newly-arrived refugee claimant who has been granted a limited
set of rights, a set much smaller than that granted to the citizen, may neverthe-
less not have suffered an attack on his or her self-respect or human dignity.
Likewise, the group of temporary workers may not be entitled to rights and
powers enjoyed by full members. Although they may be relatively socially dis-
advantaged, this does not in itself entail that a law which imposed burdens on
them alone would be discriminatory and would be invalid unless justified
according to section 1 of the Charter. As argued above, it is quite justifiable to
have a hierarchy of membership levels with different access to the fruits of soci-
ety. Hierarchy need not be inconsistent with human dignity.

According to the human dignity model, it is the individual self which is the
object of protection against discrimination, rather than the individual in society.
Personhood rather than membership is the salient concept. A dignity-based

48Supra note 22 and accompanying text.
4 90ne can account for the introduction of the term “member” by referring to the fact that in
Andrews itself, the criterion of membership was sufficient to decide the case, given that the appel-
lant was a permanent resident. The fact that the appellant’s connection to the community was not
more tenuous ensured that the applicability of this term was not raised.

50McKinney, supra note 4 at 391.

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approach is premised upon the idea that one can identify aspects of being on
which one’s self-respect or personhood hinge. By disregarding or neglecting
these aspects of being, a government will show disdain or lack of concern for
the person. Three examples can help concretize this abstract analysis.

One aspect of being which gives rise to a duty of concern is the fact that
people have needs.5 When developing, the distinction between treating people
as equals (a dignity-based approach) and treating people equally, Ronald Dwor-
kin makes the point that one would fail to show adequate concern for an indi-
vidual when distributing a benefit if one failed to take into account the urgency
and the basic nature of his need for it.52 If one ignored these factors and treated
people as mere want-satisfiers, each of whom is as entitled as each other to sat-
isfaction, one would reveal a callous disregard for the tragedy of the needy indi-
vidual’s predicament. 3 It is a sympathetic appreciation of another’s distress
which grounds this aspect of treating others as equals. As Michael Ignatieff
writes:

The language of human needs is a basic way of speaking about this idea of a nat-
ural human identity. We want to know what we have in common with each other
beneath the infinity of our differences. We want to know what it means to be
human, and we want to know what that knowledge commits us to in terms of duty.
What distinguishes the language of needs is its claim that human beings actually
feel a common and shared identity in the basic fraternity of hunger, thirst, cold,
exhaustion, loneliness or sexual passion. The possibility of human solidarity rests
on this idea of natural human identity. 4

A second example is also provided by Dworkin. He makes a case for the
claim that disappointing a person’s expectations can be a way of failing to take
the person seriously.5 Retroactive laws, for example, show a lack of respect for
an agent’s capacity of choice, and a willingness to exploit a person for possible
social gains. Similarly, a state which creates the impression that it will give per-
manent protection to an individual can be faulted when it fails to fulfil the
induced expectation.

A third example is where the government relies on stereotype in its treat-
ment of individuals. The reason for regarding discriminatory disadvantagement
as wrongful is not that it attacks the social status of the individual but that it
attacks the individual’s personal identity. The fact of past and continuing group
disadvantagement will be evidence that powerful groups and individuals within
society have not in the past regarded, and do not now regard the members of
the group as worthy of the same respect as others, that they regard them as a
lower class of person. If the government further disadvantages members of this
group, it participates in the process. The government becomes an accessory to

51For an analysis of claims of need, see D. Wiggins, Needs, Values, Truth, 2d ed. (Oxford: Basil
52R. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 227.
530n the difference between needs and wants, see L. Doyal & I. Gough, A Theory of Human
54See M. Ignatieff, The Needs of Strangers (London: Chatto and Windus – The Hogarth Press,
55R. Dworkin, Law’s Empire, supra note 44 at 141.

Need (London: MacMillan, 1991) at 35-45.

Blackwell, 1991).

1984) at 28.

19931

THREE MODELS OF (IN)EQUALITY

this stereotyping by defining a person in terms of the relevanf characteristic,
whether it be skin colour, physical disability, gender or some other factor which
can be associated with social disadvantage. It collaborates in the powerful
attacks perpetrated against those who are defined by a single feature. The pre-
existing social disadvantagement suffered by the group of people who share this
characteristic provides strong evidence that this single characteristic is operat-
ing as a barrier which is preventing the government from seeing the individual
as a full person when the law impacts negatively on those who possess it. The
government is reducing an individual’s humanity to a singlenon-essential char-
acteristic. Herein lies the affront.

This account explains McIntyre J.’s point in Andrews, when he states that
differentiation on the basis of capacity or merit has a different cultural meaning
than differentiation on the basis of groups with whom one associates. 56 Our con-
cept of personal identity is tied closely to an idea of agency and responsibility
for our talents and achievements.” Because of this connection the differentia-
tion is not in normal circumstances a way of expressing disdain and is not likely
to be regarded as such by the recipient.

Similarly, disadvantage suffered by those whose connection with the com-
munity is tenuous, such as visitors or refugee claimants, will not give rise to an
inference that a government which imposes the extra burden is discriminating.
In the same way that con’siderations of equality do not require a parent to extend
the same level of concern to a child who is a stranger as to his own child, they
do not require a government to extend the same level of concern to people with
differing links to the community. Our idea of what it means to treat a person as
an equal is qualified by considerations of partiality.5″ In fact, it would not be
inaccurate to say that one treats one’s own child and the stranger as equals by
showing preference to the former. To treat people as equals means to treat seri-
ously the nature of the moral bond which links a person to you. As a prerequi-
site to identifying the requirements of equality, one must probe the nature of the
relationships which one has formed with different people.

Conversely, although the links between temporary workers and the com-
munity are less solid and permanent than those between citizen and community,
a government is nevertheless constrained by considerations of equality from
always showing preference to the latter. For example, if the government failed
to provide for the needs of temporary workers while providing for the trivial
wants of others, a strong claim could be made that such a use of resources was
discriminatory. The relative powerlessness of a group such as temporary work-
ers may convince the judiciary that it is necessary to scrutinize a law which prej-
udices them, in order to ensure that their needs are being met, and that their
expectations are not being disappointed. And the deeper a person’s participation
in a community, the more expectations a person will have.

5 6See supra note 18 and accompanying text.
57Doyal and Gough suggest that needs are the preconditions for human action and interaction

(supra note 53 at 50-55).

58See T. Nagel, Equality and Partiality (Oxford: Oxford University Press, 1991).

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In making a determination that an act of differentiation amounts to a dis-

criminatory attack, there are two variables of which account must be taken –
the grounds for the differentiation, and the intensity of the impact on the indi-
vidual. The more serious the attack, the easier it is to see it as an attack on the
victim’s dignity. Thus, one can express disdain or hatred by prejudicing people
who are already experiencing social disadvantagement, or by subjecting a per-
son to egregiously disparate treatment which severely curtails her or his auton-
omy or capacity to lead a fruitful life. These two variables explain the Supreme
Court’s tentative remarks to the effect that it is not only members of disadvan-
taged groups who can suffer discrimination and its willingness to leave open the
possibility that individuals who do not belong to relatively powerless groups
can also be victims. The Court can be interpreted to be recognizing both these
variables when it identifies the relevance of group membership but also when
it shows an unwillingness to hold that only disadvantaged groups are protected
by subsection 15(1). Thus the human dignity model exhibits some of the same
explanatory strengths as the equal membership model without relying on a non-
hierarchical vision of social ordering.

As well as avoiding the problems faced by the equal membership model,
the human dignity model escapes the pitfalls to which the social disadvantage-
ment model falls prey. Unlike this latter model, the human dignity model is not
committed to equalizing the position of all groups which hold socially inferior
positions. It sidesteps Moon’s critique of judicial redistribution. Instead, its aim
is to ensure that the government does not treat an individual to a level of con-
cern and respect less than that which she or he deserves as a human being.

This analysis of subsection 15(1) is not unproblematic. Perhaps the greatest
difficulty is that it assumes that a court can readily identify when there is an
attack on a person’s self-respect or dignity. That is to say, it assumes that there
are objective indicia of advantage and disadvantage which can be discovered
and identified by a court when it is deciding whether a person’s dignity has been
subject to attack. This assumption is shaky in that subgroups within a culture
may adhere to nonconformist values, and different individuals may choose to
base their identity or self-worth on idiosyncratic factors. I made reference to this
in the earlier discussion of group rights, when I alluded to the possibility of sub-
groups within a society self-identifying as being apart from the social main-
stream on account of basic differences in outlook or in determinations of
value.59

The assumption of objective indicia of what is and is not advantageous to
an individual is clearly visible in the dissenting opinion of Dickson C.J. in Ref-
erence Re Public Service Employee Relations Act (Alta.), where he states:
“[w]ork is one of the most fundamental aspects in a person’s life … A person’s
employment is an essential component of his or her sense of identity, self-worth
and emotional well-being. ‘

59See text accompanying note 45.
60[1987] 1 S.C.R. 313 at 368, 38 D.L.R. (4th) 161.

1993]

THREE MODELS OF (IN)EQUALITY

The Chief Justice then goes on to quote a less essentialist passage from an
article by David Beatty, which states “[ilt is this institution through which most
of us secure much of our self-respect and self-esteem.” [emphasis added]61

What Beatty notices but Dickson C.J. seems to ignore is that the connec-
tion between self-worth and work is contingent. Not everyone chooses to see it
as a factor which is central to their very identity. The fact that large numbers of
people do make the connection may justify legislative protection but does not
entail that the connection is necessary or natural. On the other hand, there are
grave dangers in embracing a relativistic position according to which subjective
choice and preference are the sole hooks on which to hang a person’s self-worth
and identity. An admission that the concept of dignity is susceptible to being
realized (or attacked) in an infinite number of ways will not allow room for a
concept of discrimination. If dignity is self-defined by the individual, all legis-
lation will have the potential of discriminating merely by making a distinction
which a particular individual identifies as going to the very heart of her or his
personality. Likewise, a non-conforning minority may claim that it is discrim-
inated against because its conception of human dignity is not, and has never
been, recognized by the law. It may argue that its conceptions of what is impor-
tant in human relations and individual development cannot prosper in the cur-
rent social milieu, and that a court which was truly sensitive to individual self-
fulfilment or self-realization would recognize the play of hegemonic social
forces which prevent substantive equality from being attained. When such
claims are made by groups which are well entrenched in the community, they
produce difficult problems. The violence of the law becomes more visible.62 A
palpable tension is created when a political theory which is grounded on allow-
* ing individuals to define for themselves a conception of the good life, confronts
a theory of equality which presupposes a univocal account of human dignity and
the ways in which it can be violated. As Thomas Nagel notes,

6 3

the history of liberalism is a history of gradual growth in recognition of the
demands of impartiality as -a condition- on the legitimacy of social and political
institutions. As these impersonal demands achieve broader and broader scope,
they gradually come to seem overwheiming, and it becomes progressively harder
to imagine a system which does justice to them as well as to the demands of indi-
viduality.
I believe that this difficult issue has been addressed, albeit indirectly, by the
Supreme Court. It has attempted to cope with it in a familiar way –
by declar-
ing that this is not a proper matter for the Court to resolve. In the passage from
her judgement in Hess, quoted above,’ Wilson J. suggests that courts should not
question moral principles which are widely held within a community. The leg-
islature is the proper forum in which to examine and scrutinize the ethical norms
of a society. The sole job for the Court is to ensure that these norms are not
informed by “ill-conceived notions.” This position is based on the view that it

61Ibid., quoting from D.M. Beatty, “Labour is Not A Commodity” in B.L Reiter & J. Swan, eds.,

Studies in Contract Law (Toronto: Butterworths, 1980) 313 at 324.

62See R.M. Cover, “Violence and the Word” (1986) 95 Yale L.J. 1601.
63See Nagel, supra note 58 at 57-58.
64Supra note 25 and accompanying text.

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is appropriate for a court to recognize dominant conceptions of what interests
are central to a person’s self-respect, and to insist that the question of whether
these interests should continue to dominate be raised in another forum in which
competing voices can be heard and in which consensus and compromise canbe
formed. Wilson J. seems not to countenance the possibility of moral principles
themselves being a function of the social position of their adherents, such that
the moral beliefs of subordinated minority groups are ignored or considered
irrational by those in dominant positions. She rejects the radically relativistic
view that the definition of something as not “ill-conceived” may itself be tainted
by the entrenched relations of subordination outside of which the Court may not
be able to stand.

Wilson J. seems to assume that determinations of equality can only be
made against a background of common, but untainted, understandings of what
can amount to an attack on a person’s dignity. While the Court assumes for itself
the task of ensuring that individuals do not suffer attacks by the government on
their self-respect, it will identify what counts as such an attack by referring to
the dominant moral perspective. Any complaint that this perspective is discrim-
inatory in itself must be directed towards the legislature, whose determination
will not be subject to review. From this vantage point, the Court’s function is
to prevent the law from having an impact on individuals which, according to
currently dominant views, would be assessed as an attack on their very identity
and status as human, as opposed to social, equals. It is not its function to inquire
into the origin and underpinnings of these views.

As Doyal and Gough have argued at length, relativists of every variety
have problems discarding the notion of human needs.65 However, problems of
equality transcend issues of need and arise in situations where benefits and
advantages are being allocated, where wants are being satisfied and where
forms of life conflict with each other. What counts as a benefit will vary in dif-
ferent communities. Relativism does have solid roots in our culture, as evi-
denced by the differing forms of life in which local groups engage. As Nagel
has pointed out:

The world as a whole contains cultural and national communities representing
such radically diverse values that no conception of a legitimate political order can
a system of law backed by force
be constructed under which they could all live –
that was in its basic structure acceptable to them all. Unfortunately this can also
happen within the boundaries of a single state … 6

The social disadvantagement model attempts to address this problem of
social diversity. Its greatest strength is that it represents well our widespread
experience that in democratic societies, minority subcultures and value systems
conflict with those which define the social ethos and do not prosper and are not
well represented in institutions in which decisions are made by majority vote.
Wilson J.’s argument about limitations on the judicial function ignores these
experiences, and assumes that legislative institutions are adequate to settle

65Supra note 53 at 29-30.
6Nagel, supra note 58 at 170.

1993]

THREE MODELS OF (IN)EQUALITY

issues that “go to the heart of a society’s morality” and to allow meaningful
compromises to emerge. Whereas the group right model of social disadvantage-
ment recognizes the importance of maintaining cultural diversity within our
society, the human dignity model recognizes that the idea of equality is only
meaningful in a society in which there is a convergence in perspective on ques-
tions of value. The Court’s assumption that there is such a convergence is ques-
tionable.

The human dignity model also differs from the equal membership and the
social disadvantagement models in the way in which it deals with those seeking
admission into the country. From the point of view of a person seeking admis-
sion into Canada, the human dignity model offers benefits which are absent in
the other two models. The fact that such a person is neither a member nor even
present in the country is not a bar to raising questions of equality. If one can
show that the government has treated an applicant for admission as less than a
person, there is no reason for withholding the protection of the Charter. Further-
more, the applicant for admission is usually attempting to assimilate into the
Canadian mainstream. Such a person would rarely have grounds for complaint
against the dominant views of that society being applied when admissibility is
being assessed.

Conclusion

I have identified three models of discrimination which can be extracted
from recent judgements of the Supreme Court of Canada. None of them is
unproblematic. The equal membership model cannot take account of the indis-
tinct nature of the line which divides members and strangers. The social
disadvantagement model either commits the Court to the goal of redistribution
with inadequate tools, or to the recognition of a group right for subordinated
social groups whose culture, ethos and mode of self-definition are threatened by
oppressive social forces. Because some groups of disadvantaged individuals
seek assimilation into the larger group, the idea that subsection 15(1) recognizes
a group right is at most incomplete. The human dignity model is problematic for
complementary reasons. It vests the right not to suffer the negative effects of
discrimination in the individual, but appears to defer to dominant conceptions
of what counts as an interest which is integral to one’s dignity and which con-
sequently requires judicial protection.

I believe that there is evidence in the judgements to which I have referred
which reveals that the Court is attempting to come to terms with this tension
between cultural diversity and uniformity, but I have declined to address the
question whether the tension can be resolved. Instead, I have tried to show
merely that the meaning of subsection 15(1) is as fluid now as it was when the
section came into force. Within each model one can find a different explanation
for the Court’s emphasis on the evil of stereotyping, and a different account of
what it means to treat people as equals. One of the consequences of this fluidity
is that it pits potential litigants against each other. For example, members of
subcultures who are attempting to gain social recognition for their different
value systems will identify their cause to be incompatible with that of, say, ref-

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ugee claimants or visa applicants who will attempt to ground issues of equality
on universal principles of human dignity. While the human dignity model offers
the most effective critical tool for measuring the moral acceptability of the
government’s treatment of strangers, the social disadvantagement model aims to
preserve diversity and difference. The interests of the two groups directly con-
flict at this point. Those who are intent on promoting the interests of strangers
and those with little connection to Canada would do well to emphasize the
human dignity model and downplay the importance of the social disadvantage-
ment model. Contrariwise, those intent on promoting the interests of groups
which define themselves apart from the mainstream by adhering to different
systems of value and forms of life, will have reason to attack the human dignity
model and highlight its shortcomings, while advocating that subsection 15(1)
aims to protect groups within society which have lived in the shadow of the
majority and as a result have failed to prosper.

It would be ironic and unfortunate if subsection 15(1) served as a conduit
to increase tensions between groups which experience a significant proportion
of society’s ills. By allowing the different models to coexist, and by avoiding
a choice amongst them, the Supreme Court has so far succeeded in preventing
any such escalation.