International Law

The Women?s Court of Canada: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497

By Denise Reaume

TheCourt.ca is very pleased to reproduce the decisions of the Women’s Court of Canada. In 2004 this group of feminist / equality Charter activists, lawyers, and academics, decided to do something about what they saw as the sorry state of equality jurisprudence under s. 15. The solution, rewrite the key decisions of the Supreme Court of Canada in this important area. The first six judgments of the Women’s Court of Canada have now been published in Volume 18 of the Canadian Journal of Women and the Law.

Over the coming months TheCourt.ca will have the honour of reproducing these judgments and providing them with a permanent online home. If you scroll down, on the right you will find the logo of the Women’s Court of Canada. It is hyperlinked. In future, by clicking on that link, readers will be able to view each of the Women’s Court judgments previously published at TheCourt.ca.

Author’s Note

Initially, I saw the exercise of writing a judgment in Law v. Canada (Minister of Employment and Immigration) merely as an opportunity to convert some previous academic work into a more ??practical?? form, partly to test how well my theoretical ideas about equality worked in dealing with the intricacies of a concrete case. Unlike many others involved in this enterprise, I have no prior involvement with the case, and I had no strong views about the correct outcome when I started. If anything, I thought that the Supreme Court of Canada had probably gotten the right answer. I was mainly concerned that the abstract test devised was not particularly illuminating and, for this reason, was open to abuse and obfuscation. I was also concerned that the widespread condemnation of the dignity element of the test laid out in Law has been too hasty and leaves us with no constructive avenue for engagement with the jurisprudence. I wanted to take a stab at giving more content to the idea of human dignity in a manner consistent with the art of judicial decision making. (I am not sure I was entirely successful at this latter objective?I fear that you may be able to take the girl out of the academy, but you cannot entirely take the academy out of the girl.)

In a word, I thought this was going to be a breeze. It was anything but, and I have both gained greater appreciation for the judicial enterprise and, I think, made my own views about equality more precise in the effort to grapple with Law. Writing the judgment has been a profound learning experience?both my understanding of the issues in the case and aspects of my general account of equality changed in the process. Bringing together theory and application deepened my understanding of each. Above all, writing this judgment has illustrated to me once again the truth of the feminist claim that taking gender into account makes a difference in the analysis of legal issues. I initially did not have much sympathy for Nancy Law?s claim. Yet, this being the Women?s Court of Canada, it seemed appropriate to consider the equality
claim not only through the lens of age but also in light of the gender dynamics operating behind the scenes. For me, this transformed almost everything about the analysis of the concrete facts. I hope the demonstration of this transformation is evident to others.

The desire to deal with the gender implications of the age limitation on eligibility for the Canada Pension Plan survivor benefit introduces what some might think is an element of artificiality into the judgment. It means dealing with an argument that was never put to the lower courts and requires introducing new empirical material that was not before the courts. I have tried to mitigate the artificiality by drawing only on material that is publicly available through sources such as Statistics Canada. This raises a more profound issue, however. I do not know why counsel decided to argue the case exclusively on age grounds?perhaps way back in the early nineties they thought that the explicit use of an enumerated ground of discrimination was bound to be struck down. As it turned out, equality doctrine was a moving target all through the period during which the case moved through the system. Under these circumstances, it strikes me as unfair and unwise to stick closely to the original arguments when so much has changed in the interim. It also struck me as something of an abdication of responsibility not to go into the sex discrimination dimension of the case simply because the claim had not been seen in that light when the design of the survivor pension is so much bound up with the gendered conditions that govern women?s financial security. So I have taken some license to allow the Women?s Court of Canada to look more broadly at the issues raised by the case.

Given the symbolic status that Law has, both because the Supreme Court of Canada was intending to impose order on the doctrine and because of the influence of ??the Law test?? since 1999, many may read this Women?s Court of Canada decision looking for either a critique or endorsement of this test. I did not approach the case either as an opportunity to lay down the law or as a vehicle for addressing all of the concerns and criticisms that have been voiced about the Supreme Court of Canada?s decision. While I acknowledge the value of predictability in the law, I doubt that we are yet in a position to lay out a test for equality violations that is capable of dealing adequately with the range and complexity of the issues likely to arise. If this is true, the attempt to formulate a test risks unduly constraining the development of the law. So I have not framed my analysis as a direct response to the Supreme Court of Canada?s approach but, rather, “decided” the case as I would have done in the Supreme Court of Canada?s place.

Le jugement du Tribunal des Femmes du Canada dans l?arrê t Law c. Canada (Ministre de l?emploi et de l?immigration) retrace l?émergence de la notion de dignité humaine comme pierre angulaire de l?article 15 et passe en revue les facteurs pertinents pour conclure à une violation de cette dignité, énonceés dans la décision Law de 1999 de la Cour suprême du Canada. Ces facteurs sont réinterpreétés pour indiquer trois formes d?indignités que peuvent infliger une loi ou une politique: d?abord, fonder la loi ou la politique sur des préjugés; ensuite, utiliser des stéréotypes et enfin, exclure de l?accès à des bénéfices constitutifs de dignité. En analysant la disposition du Regime de pensions du Canada (RPC) limitant aux personnes a ?gées de plus de 35 ans, l?admissibilité à la pension de la survivante ou du survivant à la suite du décè s d?un conjoint ayant contribué à ce régime, le Tribunal des Femmes est d?avis que les tribunaux inférieurs ont erré en traitant exclusivement des différences relatives à l?âge et que leurs jugements peignent, en conséquence, un tableau incomplet du programme et de sa raison d?être. En effet, la vaste majorité des récipiendaires de ces pensions sont des femmes. Cette partie du RPC ne peut se comprendre ni s?évaluer en occultant cette réalité de genre. Refuser toute aide aux personnes qui ont moins que l?âge prescrit a un impact disproportionné à l?égard des femmes de ce groupe d?âge.

The judgment of the Women?s Court of Canada in Law v. Canada (Minister of Employment and Immigration) traces the emergence of dignity as the touchstone of section 15 equality rights, and reviews the factors relevant to finding a violation of dignity from the Supreme Court of Canada?s 1999 decision in Law. These factors are reinterpreted as pointing to three forms of indignity that may be inflicted by law or policy: grounding law or policy in prejudice, the use of, or reliance on, stereotype, and exclusion from dignity-constituting benefits. In analyzing the Canada Pension Plan (CPP) limitation on eligibility for a spousal survivor?s pension to those over age thirty-five, the Women?s Court finds that the exclusive focus on the age-related differential treatment in the courts below provides an incomplete picture of the program and its rationale.

The vast majority of survivor pension recipients are women, and this part of the CPP cannot be properly understood or evaluated absent this gendered context. Denying any assistance to those under a certain age differentially affects mainly women in that age group. Further, the assumption that losing a spouse causes no financial hardship to younger survivors, even in the short term, adopts a male norm by treating as typical of younger spouses those who are employed and fully self-sufficient. Given the roadblocks women typically encounter in their efforts to be self-sufficient, the financial dislocation due to a spouse?s death may easily be severe enough to impair women?s ability to live lives of dignity and be full participants in society. Accordingly, the Women?s Court reverses the Supreme Court decision, and holds that the CPP survivor pension scheme is discriminatory on the combined basis of age and sex. Based on the arguments put forward in the courts below, the legislation cannot be saved under section 1.

Reconsideration of Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 (judgment of the Supreme Court of Canada reversed).

The decision of the Women?s Court of Canada was delivered by:
DENISE REAUME

I. Introduction

1. This case concerns the constitutionality of sections 44(1)(d) and 58 of the Canada Pension Plan, R.S.C., 1985, c. C-8 (CPP), which uses age as a criterion of entitlement to the survivor?s pension. The issue is whether the provisions infringe section 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, and, if so, whether the infringement is justified under section 1 of the Charter.

2. This case came before the Supreme Court of Canada at a time of great turmoil in the development of section 15 jurisprudence. In three important cases in 1995, the Court had failed to achieve consensus about the central ingredients of the section 15 analysis. (Miron v. Trudel, [1995] 2 S.C.R. 418, Egan v. A-G. Canada, [1995] 2 S.C.R. 513, and Thibaudeau v. Canada, [1995] 2 S.C.R. 627.) In dealing with Ms. Law?s challenge to the CPP, the Supreme Court of Canada sought to rectify this situation and apparently succeeded in uniting the Court around a general approach to section 15 cases. Central to this endeavour is the identification of human dignity as an underlying value of section 15. An inquiry into whether a distinction violates human dignity, whether explicit or de facto, forms the third step of the test outlined by the Supreme Court of Canada.

3. While it has become increasingly evident in the case law that some substantive foundation is necessary for section 15, the concept of human dignity as invoked by the Supreme Court of Canada in its decision in Law lacks precision. It is in danger of being used as a cover for judicial timidity or incomprehension of the social and legal mechanisms that impose and reinforce disadvantage. When this happens, the result is to reinforce and entrench the derogatory and demeaning attitudes or effects imposed by the challenged legislation or policy instead of eradicating them. For this reason, the concept itself has attracted much criticism (see, for example, Sheilah Martin, “Balancing Individual Rights to Equality and Social Goods” (2001) 80 Canadian Bar Review 299 at 328-30; June Ross, “A Flawed Synthesis of the Law” (2000) 11 Constitutional Forum 74 at 83; and R. Gibbins, “How in the World Can You Contest Equal Human Dignity” (2000) 12 National Journal of Constitutional Law 25).

4. This reconsideration provides the Women?s Court of Canada an opportunity to re-frame the role of human dignity in the section 15 analysis so that it may help, rather than hinder, the articulation of a meaningful conception of substantive equality. The Supreme Court of Canada has attempted to organize a range of factors that play a role in finding discrimination in past cases and has loosely tied them to the concept of dignity. It has failed, however, to really grapple with the underlying value of human dignity.

5. In particular, the Supreme Court of Canada has not fully grasped the range of ways in which legislation or policy is capable of violating human dignity. For this reason, its test comes across as a mechanical checklist of factors to be looked for in any given case without an adequate understanding of why and when they are significant. This makes it easy for courts to pick and choose among the factors and deny equality claims without providing a clear and satisfactory justification. In the process, the constitutional guarantee of equality is in danger of being watered down.

6. Despite the gendered social circumstances to which the survivor benefit responds, this case was not argued as a sex discrimination case but rather was argued exclusively on the basis of age. A very important dimension of the constitutionality of these provisions was therefore not examined. Given the claimant?s failure to raise sex discrimination, and the absence of intervenors before the Court, the Supreme Court of Canada would have been wise to have appointed amicus curiae to present arguments about the gender implications of the progressive denial of benefits to those below age forty-five.

7. This decision seeks to make up for that oversight, drawing on publicly available data about women?s position in the workforce and the family. Indeed, attention to gender transforms the understanding of the equality issue in this case ? the focus should not be primarily on the effects on surviving spouses under forty-five but also on the effects on younger women who survive their spouses. The grounds of age and sex are intricately intertwined, but the significance of the negative effects of exclusion from the survivor benefit flow largely from women?s subordinate status in the labour market. The failure of the legislature to take account of the specific conditions that women face in the workforce amounts to imposing a male norm on women under the age of forty-five. Expecting younger women to “bounce back” after the death of a spouse just as a man could, despite the greater obstacles that women face in the workforce, can have serious, long-term consequences for women?s ultimate financial security. The interests threatened are sufficiently vital to implicate human dignity.

II. Factual Context

8. The CPP is a compulsory social insurance scheme enacted in 1965 to provide contributors and their families with reasonable minimum levels of income upon the retirement, disability, or death of the wage earner (see House of Commons Debates, 26th Parl., 2nd Sess., vol. 6, 10 August 1964, at p. 6636). One aspect of the scheme is the survivor?s pension. This monthly benefit is paid to a surviving spouse whose deceased partner has made sufficient contributions to the CPP and who meets the eligibility criteria specified in section 44(1)(d), namely an age threshold, responsibility for dependent children, or disability.

9. A claimant who is over the age of forty-five at the time of the contributor?s death, or is maintaining dependent children of the deceased contributor, or is (or becomes) disabled is entitled to receive a full survivor?s pension. However, section 58 gradually reduces this pension for able-bodied surviving spouses without dependent children who are between the ages of thirty-five and forty-five. Able-bodied surviving spouses without dependent children who are under thirty-five at the time of the death of the contributor are precluded from receiving a survivor?s pension until they reach the age of sixty-five.

10. The appellant, Nancy Law, married Jason Law in 1980. Mr. Law died in 1990 at the age of fifty, having contributed to the CPP for twenty-two years. Ms. Law was only thirty years old. The couple had no children. They worked together in a family business. According to the Pension Appeals Board?s rendition of the facts, Ms. Law carried on the business after her husband?s death, but it was not as successful as it had been.

11. The appellant?s application to receive survivor?s benefits was denied because she was under thirty-five, not disabled, and had no dependent children. She unsuccessfully appealed to the Minister of National Health and Welfare, then took her case to the Pension Plan Review Tribunal, arguing that the age criterion violates section 15. The tribunal agreed, but a majority upheld the distinction under section 1. It is the appeal of this decision to the Pension Appeals Board, thence to the Federal Court, and ultimately to the Supreme Court of Canada that is before us for reconsideration.

III. Relevant Statutory and Constitutional Provisions

12. Canada Pension Plan, R.S.C., 1985, c. C-8

44. (1) Subject to this Part,
. . .
(d) a survivor?s pension shall be paid to the surviving spouse, as determined pursuant to this Act, of a deceased contributor who hasmade contributions for not less than the minimum qualifying period, if the surviving spouse

(i) has reached sixty-five years of age, or
(ii) in the case of a surviving spouse who has not reached sixty-five years of age,
(A) had at the time of the death of the contributor reached thirty-five years of age,
(B) was at the time of the death of the contributor a surviving spouse with dependent children, or
(C) is disabled;

…

58. (1) Subject to this section, a survivor?s pension payable to the surviving spouse of a contributor is a basic monthly amount as follows:
(a) in the case of a surviving spouse who has not reached sixty-five years of age and to whom no retirement pension is payable under this Act or a provincial pension plan, a basic monthly amount consisting of
(i) a flat rate benefit, calculated as provided in subsection (1.1), and
(ii) 37.5 per cent of the amount of the contributor?s retirement pension, calculated as provided in
subsection (3), reduced, unless the surviving spouse was at the time of the death of the contributor a surviving spouse with dependent children or unless he is disabled, by 1/120 for each month by which the age of the surviving spouse at the time of the death of the contributor is less than forty-five years, and reduced, if at any time after the death of the contributor the surviving spouse ceases to be
(iii) a surviving spouse with dependent children and is not at that time disabled, or
(iv) disabled and is not at that time a surviving spouse with dependent children, by 1/120 for
each month by which the age of the surviving spouse at that time is less than forty-five
years…

13. Canadian Charter of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

IV. Judicial History

A. Pension Appeals Board (1995), C.E.B. & P.G.R. 8574
(1) Justice Douglas Rutherford (Justice Armand Dureault concurring)

14. Rutherford J. held that the denial of the survivor?s pension did not constitute discrimination on the basis of age under the Charter. Although many laws create legal distinctions, not all amount to discrimination within the meaning of section 15(1). He began by noting that age is not the sole criterion in determining eligibility for survivor?s benefits under the CPP, but, rather, is only one factor. It is a combination of age, healthful employability, and freedom from responsibility for dependent children that may lead to the exclusion of benefits. He held that, to the extent that age is a factor in the denial of benefits, sections 44(1)(d)(ii)(A) and 58 do not create the kind of distinction that has been characterized as “discrimination” in the constitutional sense.

15. Rutherford J. noted section 15(1)?s use as a means of protecting discrete and insular minorities and of shielding vulnerable groups against stigmatization, stereotyping, and prejudice. He found that none of the evidence suggested the appellant is a member of a group that suffers “discrimination” in these terms. Nor did he find that those excluded are treated differently from those who do receive survivor?s pension benefits on the basis of an irrelevant personal characteristic. Rather, Rutherford J. found that age is a relevant characteristic in determining relative need for survivor?s benefits. Accordingly, he concluded that, even though the impugned provisions draw a distinction based on age, this does not constitute discrimination within the meaning of section 15(1) of the Charter.

16. Although unnecessary in order to dispose of the appeal, Rutherford J. went on to find that if there was an infringement of section 15(1) of the Charter, it would be justified under section 1. He acknowledged that the extension of benefits to widowers and the elimination of remarriage as a bar to continuing survivor?s benefits had diluted the original legislative objective, making it difficult for sections 44(1)(d)(ii)(A) and 58 to pass the justificatory test under section 1 of the Charter without being found vulnerable on one point or another. However, in his view, the complexity of the CPP, its status as an over-arching federal-provincial benefits system and its onerous amendment requirements justify deference to Parliament?s choice of measures.

(2) Justice of Appeal Francois Angers

17. Angers J.A. agreed with his colleagues? reasons regarding discrimination on the basis of age but preferred not to comment on the effect of section 1 of the Charter.

B. Federal Court of Appeal (1996), 135 D.L.R. (4th) 293

18. Chief Justice Julius Isaac, delivering judgment on behalf of a unanimous court, was unconvinced that the Pension Appeals Board had committed a reviewable error. The court substantially agreed with the reasons of the board that neither section 44(1)(d) nor section 58 of the CPP infringes upon the appellant?s equality rights guaranteed by section 15(1) of the Charter. The Court of Appeal was also in substantial agreement with the majority opinion that, even if those provisions do infringe section 15(1) of the Charter, they constitute a reasonable limit under section 1. Accordingly, the appeal was dismissed.

C. Supreme Court of Canada, [1999] 1 S.C.R. 497

19. Justice Frank Iacobucci, delivering judgment for a unanimous court, dismissed the appeal and used the present case to provide a set of guidelines for courts in analyzing a discrimination claim under the Charter. He warned against confining analysis under section 15(1) to a fixed and rigid formula. A purposive and contextual approach to discrimination is preferable in order to realize the strong remedial purpose of the equality guarantee. He outlined three broad inquiries that a court should make in determining a discrimination claim under section 15(1), the first focusing on the search for differential treatment between the claimant and others in purpose or effect and the second looking for a connection to one or more enumerated or analogous grounds. The third inquiry asks whether the differential treatment discriminates by imposing a burden upon or withholding a benefit from the claimant in a manner that reflects the stereotypical application of presumed group or
personal characteristics.

20. In discussing the purpose of section 15, Iacobucci J. held that the general purpose is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect, and consideration. He noted that the equality guarantee is a comparative concept, which ultimately requires a court to establish one or more relevant comparators. A variety of factors may be relevant in order to demonstrate that legislation demeans a claimant?s dignity. Iacobucci J. outlined four such contextual factors: (1) pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue; (2) the correspondence, or lack thereof, between the ground or grounds on which the claim is based and the
actual need, capacity, or circumstances of the claimant or others; (3) the ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society; and (4) the nature and scope of the interest affected by the impugned law.

21. Applying these factors, Iacobucci J. found that although a clear distinction is drawn between the appellant and others on the basis of age, adults under the age of forty-five have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canada?s discrete and insular minorities. Consequently, this distinction does not violate the human dignity of the appellant. The purpose of the impugned CPP provisions is not to remedy the immediate financial need experienced by widows and widowers but, rather, to enable older surviving spouses to meet their basic needs during the longer term. Although the law imposes a disadvantage on younger spouses, it is unlikely to be a substantive disadvantage, viewed in the longer term. Iacobucci J. also stated that the clear ameliorative purpose of the pension scheme for older surviving spouses is another factor supporting the view that the impugned CPP provisions do not violate essential human dignity.

22. Finally, Iacobucci J. held that legislation need not always correspond perfectly with social reality in order to comply with section 15(1) of the Charter. The fact that legislation is premised upon informed statistical generalizations that may not correspond perfectly with the long-term financial need of all surviving spouses does not affect the ultimate conclusion that the legislation is consonant with the human dignity and freedom of the appellant. Parliament is entitled, under these limited circumstances at least, to premise remedial legislation upon informed generalizations without running afoul of section 15(1) of the Charter and being required to justify its position under section 1.

23. Finding no violation of section 15, Iacobucci J. held that it was unnecessary to consider whether the provisions could be justified under section 1.

V. Analysis

A. Constitutional Equality

24. Canadian equality jurisprudence in the Charter era has been marked from the beginning by its rejection of a formal equality approach such as that of Albert Venn Dicey (Introduction to the Study of the Law of the Constitution, 8th edition (Holmes Beach, FL: Gaunt, 1996)), in favour of the pursuit of substantive equality (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143).

25. Equality rights are the constitutional means of challenging the existing allocation of some benefit or burden, understood in the everyday sense of those terms. The challenge may be to the explicit basis for allocation or the de facto result of legislation or policy. Every allocation requires criteria that govern it. The criteria in a rule or policy provide a purely formal basis on which equality and inequality can be assessed?anyone who has not received the benefit but fulfils the criteria has not been treated equally. However, this conception of equality cannot exhaust the constitutional right to equal treatment and equal benefit of the law. To stop here would mean automatically accepting the criteria provided by the legislation or policy under challenge. This would treat equality as simply a matter of treating likes alike, while allowing the legislation?s own terms to determine what counts as alike. This narrow conception of equality would also provide no basis for going behind the formal criteria to evaluate the actual effects of a rule or policy. We agree with the Supreme Court of Canada that a formal conception of equality does not go far enough.

26. The jurisprudence under the Canadian Bill of Rights, S.C. 1960, c. 44, amply illustrates the shortcomings of a Dicean conception of constitutional equality. Treating like cases alike as defined by the legislature enabled the Supreme Court of Canada to find no inequality in depriving Indian women of their status upon marriage to a non-Indian provided that all Indian women who married out were equally deprived (A.G. Canada v. Lavell, [1974] S.C.R. 1349). Similarly, this approach justified restricting women whose paid employment was interrupted by childbirth to inferior unemployment benefits or none at all because all women in similar circumstances were treated the same (Bliss v. A.G. Canada, [1979] 1 S.C.R. 183).

27. At its most formal, the Dicean approach gave members of disadvantaged groups no protection against legislation that manufactured, reinforced, or exacerbated that very disadvantage. The desire to transcend this past was a major rallying point in the debates surrounding the introduction of
the Charter. We must not betray the hope with which Canadians in general, and disadvantaged groups in particular, embraced section 15.

28. A claim that substantive equality has been denied is a claim that some principle of entitlement wider in some respect than that used in the challenged law or policy is the appropriate criterion for allocation of the benefit in issue. In response, courts must determine, in a principled way, when state policy has adopted the wrong criteria of entitlement for some benefit and if and why the criteria should be widened and by how much. Although some caution may be wise in assessing existing criteria for distribution of benefits, as individual cases arise the courts must develop principles according to which legislative allocations can be assessed.

29. The pursuit of substantive equality requires attention to the actual conditions of life of the disadvantaged. Rules or policies creating or exacerbating inequalities, or perhaps simply not correcting background inequalities, should be changed. Allocative criteria should be altered when necessary to address these realities (see Kathy Lahey, “Feminist Theories of (In)Equality,” in Sheilah L. Martin and Kathleen Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987), 83).

30. The equality jurisprudence of the Supreme Court of Canada to date has forced the realization that if legislative criteria cannot be accepted at face value?as they cannot?there must be some substantive value telling us which criteria are illegitimate and why. This will in turn guide the search for alternatives. This Court has settled on the interest in dignity as this underlying value. The process of naming dignity as the touchstone of equality has been laborious. The challenge of giving the concept meaningful content stands as perhaps the most significant one facing the courts in the coming years. Since some substantive interest or value must underpin section 15 if it is to do any work, the task of articulating that interest must be tackled.

31. The concept of dignity reminds us that all human beings have inherent worth deserving of respect. Yet our history has frequently included laws and practices denying the equal worth of some. Women, for example, have traditionally been treated as less valuable than men in virtually every domain of life?their needs neglected, their aspirations denied, their interests subordinated to those of men. These laws and practices have often been inflected with racism, ableism, and heterosexism to create exacerbated or new forms of hardship and disadvantage for some women. As a result, women as a group labour under inferior standards of living by most significant measures of quality of life (for the most recent survey of women?s position in Canadian society, see Women in Canada: A Gender-based Statistical Report, Catalogue no. 89-503-XPE, 5th edition (Ottawa: Statistics Canada, 2006)). Section 15 calls us to root out such practices and ensure that new forms of subordination do not arise. Respect for human dignity requires it.

32. The affirmation of human dignity grounds a universal entitlement to respect for dignity. The distribution of concrete benefits is therefore to be judged according to whether they are consistent with the respect each is owed equally. A concept of dignity must develop organically, as a product of grappling with the specific issues raised by the cases in accordance with our best critically reflective judgments about what is most important to people, as individuals, members of communities, and participants in the larger society. If protection of these fundamental interests is unequally distributed, human dignity is not equally respected. This process of developing the concept of dignity must attend to the lived experience of women and other disadvantaged groups to understand how their dignity has been, and continues to be, undermined and must be oriented to the policy initiatives necessary to uphold their equal worth.

B. The Emergence of Protecting Dignity as the Purpose of Section 15

33. The search for a substantive foundation for section 15 goes back to Andrews, supra, in which Justice William McIntyre pointed out (at 168) that not every legislative distinction is discriminatory. This insight gestures towards the need for criteria to distinguish discriminatory distinctions from non-discriminatory ones. He recognized the importance of the impact of legislation on those affected in identifying discrimination. However, since every piece of legislation has some impact that leaves some better off than others (just as all legislation distinguishes between classes of persons), we must still ask what kind of impact discriminates or inflicts a “real” disadvantage, and what kind does not?

34. Decisions in the section 15 analysis turn on two points ? which personal characteristics are illegitimate bases for legislative distinctions and what kinds of disadvantaging effects constitute discrimination. The former requires an account of why the grounds enumerated in section 15 are potentially problematic bases for legislative distinctions or effects, which, in turn, will guide the addition of new analogous grounds. The latter requires an analysis of what harm we think discrimination does beyond mere differentiation itself. A dignity-based analysis has emerged from the case law to answer these questions.

Vol. 18 2006 15735. Justice Bertha Wilson first treated the protection of human dignity as part of the purpose of section 15 in McKinney v. The University of Guelph, [1990] 3 S.C.R. 229. However, the centrality of the concept of dignity began to emerge only in Miron v. Trudel [1995] 2 S.C.R. 418, and Egan v. A-G. Canada, [1995] 2 S.C.R. 513.

36. In Miron, the majority decision of Justice Beverley McLachlin illustrates how the type of distinction implicates dignity. The grounds listed in section 15 are often connected to stereotypes that falsely attribute negative attributes to groups. This violates dignity. To expand the list, we should look for other personal characteristics that are used to stereotype (at para. 147). McLachlin J. linked four factors identified in the case law as bases for recognizing a new ground to the “unifying principle” of preventing the violation of dignity: the historically disadvantaged status of a group, its minority status, the personal nature of the characteristic relied on by the legislature, and its immutable nature (at para. 149).

37. Justice Peter Cory, writing for the majority in Egan, invokes dignity differently, using it to identify a form of harm attracting section 15 attention. Denying recognition to same-sex relationships, he held, ??may have a serious detrimental impact upon the sense of self-worth and dignity of members of a group because it stigmatizes them?? (at paras 160-1). The corollary of this insight, drawn out in the Supreme Court of Canada decision before us, is that differentiation tied to an enumerated or analogous ground may not be discriminatory if it does not cause the kind of harm that implicates dignity.

38. Justice Claire L?Heureux-Dube has made most explicit the connection between dignity and equality (Egan, at para. 36). Her suggested two-part framework for section 15 examines both the nature of the group affected by the legislation and the particular interests affected. The various factors flagged throughout the case law?minority status, history of bias against a group, vulnerability, constructive immutability?are relevant to deciding whether a group was at risk of having its dignity violated. The nature of the concrete disadvantage imposed by the legislation determines whether it is significant enough to constitute a violation of dignity.

39. In Vriend v. Alberta, [1998] 1 S.C.R. 493, Cory J. identified section 15 as “essential to achieving the magnificent goal of equal dignity for all” (at para. 67). Cory J. treats dignity itself as the “good” or “benefit” that must be protected equally to satisfy section 15. This explains why formal equality, in the sense of faithfully following the rules as prescribed or applying uniform criteria to everyone, is insufficient. The criteria within the rule or policy may themselves fail to respect the dignity of all, and a uniform rule may exclude the needs or interests of some groups in a way that denies equal dignity. In either case, we must identify some deeper respect in which people must be treated equally in order to test the criteria for allocation. In the Supreme Court of Canada decision under reconsideration here, Iacobucci J. collected these previous efforts to connect equality and dignity, and attempted to elaborate.

[T]he purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration,,,

(Law, at para. 51).

On the meaning of dignity, Iacobucci J. had this to say:

There can be different conceptions of what human dignity means … [T]he equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

(at para. 53).

41. Iacobucci J. then reformulated the section 15 test into three steps: first, whether the law draws a formal distinction or fails to take into account the claimant?s already disadvantaged position; second, whether the differential treatment identified in the first step is tied to one or more enumerated or analogous grounds; third, whether that differential treatment constitutes discrimination “by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration” (at para. 88).

42. Iacobucci J. collected from the past cases four categories of “contextual factors” helpful in identifying discrimination. These are said to demonstrate whether a legislative distinction or impact has the effect of demeaning dignity. The first of these is “pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the group” (at para. 63). Pre-existing disadvantage is linked to stereotyping ? the use of inaccurate assumptions about the merits, capabilities, and worth of an individual or group that stigmatize members of a group (at para. 64). The second contextual factor capable of indicating a violation of dignity asks whether the egislative distinction properly reflects the actual needs, merits, and circumstances of the members of the group affected by it (at para. 69). The third factor identified by Iacobucci J. is that of whether the legislation seeks to ameliorate the situation of a more disadvantaged group. In such circumstances, the distinction used is unlikely to be found to violate dignity (at para. 72). Finally, Iacobucci J. adopted L?Heureux-Dube J.?s suggestion in Egan, supra, that a crucial factor in finding harm to dignity is the nature of the interest affected by the legislation. It is not the actual, concrete effect of the legislation that matters?the dollars and cents or the specific opportunity, benefit, or service denied ? but rather whether imposing such a cost on the individual or group implicates dignity (at para. 75). The social and constitutional significance of the effects on the individual must be taken into account. Does the law or policy affect membership in a basic way, deny participation, or constitute a complete failure to recognize members of a particular group?
(at para. 74).

43. These factors are all presented as indicators of whether a legislative distinction violates human dignity, yet just how each is related to dignity remains unclear. Similarly, Iacobucci J. denies that the four factors are either necessary or sufficient conditions for the violation of dignity, yet there is a danger of their being used exactly this way. Without the relationship between the factors and dignity being more fully explained, it is the factors themselves that courts may tend to rely upon to decide cases.

44. Without a vibrant conception of dignity at their core, these factors are in danger of being used to reinvent old mistakes. For example, although the second factor in the Law test reaffirms the need to take difference into account in the design of rules, and thereby counsels against “one size fits all” rules that unfairly exclude or disadvantage vulnerable groups, it can collapse into the discredited “relevance” argument offered by Justices Gerard La Forest and Charles Gonthier in Egan, supra, and Miron, supra, which is, in turn, traceable back to Bliss, supra, and, ultimately, to Dicey. Similarly, the fourth factor requires that we develop a conception of what sorts of interests are sufficiently important that their impairment implicates dignity.

45. It is time to take this analysis a step further by articulating more carefully what dignity is as a constitutional value and how it has informed past cases and should inform the future development of equality law.

C. Defining Dignity

(1) Human Dignity as a Value

46. The concept of dignity has been part of the foundation of modern political and moral theories since the Enlightenment (see Herbert Spielberg, “Human Dignity: A Challenge to Contemporary Philosophy” (1971) 9 Philosophy Forum 39). Martha Nussbaum, for example, claims for dignity “broad cultural resonance and intuitive power” and universal relevance (Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000) at 72).

47. Dignity refers to a somewhat ineffable quality that we ascribe equally to all human beings in virtue of which we accord them a special kind of worth. Nussbaum speaks of the “awe-inspiring something” that human beings have (at 73). As Nussbaum says, “[t]he core idea is that of the human being as a dignified free being who shapes his or her own life in cooperation and reciprocity with others, rather than being passively shaped or pushed around by the world in the manner of a ?flock? or ?herd? animal” (at 72). Human beings have intrinsic, incomparable, and indelible worth, simply as human beings (see Immanuel Kant, Groundwork of the Metaphysics of Moral, translated by H.L. Paton (New York: Harper and Row, 1964) at 96; Thomas E. Hill, Jr., Dignity and Practical Reason in Kant?s Moral Theory, Chapter 2, “Humanity as an End in Itself” (Ithaca: Cornell University Press, 1992) at 38-57; and Nussbaum, supra, at 73-4). This sense of moral worth is simply part of our conception of the person.

48. What grounds the attribution of inherent worth associated with the concept of dignity is, of course, an issue of enormous philosophical dispute. We can, however, identify some themes in the common currency of thought about dignity to develop a concept that finds significant resonance in the key elements of the section 15 jurisprudence and which can help push this jurisprudence forward.

49. Two aspects of human personality in virtue of which human beings are valued and worthy of respect should be highlighted because they illuminate the equality jurisprudence so far and form the starting point for further reflection. First, human beings are capable of a conception of the self. Thus, respect for identity is crucial to respect for dignity, and demeaning the identity of members of particular groups is a key form of indignity. Second, humans are engaged, in large and small ways, in a continuous enterprise of crafting a path or direction for their life. This can sometimes be an intensely personal undertaking, sometimes a matter of participation with others in collective endeavours. Either way, the importance to people of controlling the shape of their lives makes respect for the ability to participate in this shaping, and support for its flourishing, relevant to protecting dignity. These two aspects of personality are connected since one develops an identity partly through the life one participates in creating and a conception of the good partly in the context of one?s sense of the kind of person one is. Similarly, one?s sense of worth flows from others? recognition of how significant aspects of identity and particular plans and ambitions combine to create a life.

50. The attribution of dignity calls for a particular moral response ? respect for the intrinsic worth it signifies. The dignity inherent in human personality is dishonoured through a failure to show respect, through treating others as less than creatures of inherent worth. To enjoy the sense of worth connoted by the concept of dignity requires that a person be secure in her identity as an individual, including as a member of those communities with which she identifies. Dignity may be an inherent quality, but a subjective sense of self-worth is an empirical psychological and emotional state that has enormous implications for the quality of life. A person?s subjective sense of self as someone of worth is crucially tied to how she is treated by others (see John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1972) at 62; and Charles Taylor, “The Politics of Recognition,” in Amy Gutman, ed., Multiculturalism and “The Politics of Recognition” (Princeton, NJ: Princeton University Press: 1992) at 25-6).

51. The law cannot guarantee that people actually feel the sense of worth to which they are entitled, but we can aspire to a state in which empirical realities strive to match inherent moral entitlements, in which at least state policy is not an obstacle to enjoying the subjective sense of self that is characteristic of those whose dignity is respected. At the same time, harm to dignity does not depend on the causing of actual psychological harm. Internalizing others? lack of respect
is a common, but contingent, consequence of the violation of dignity. The core violation lies in the want of respect for the intrinsic worth of others, even if it fails to bring its targets down in their own estimation.

52. Security in one?s identity includes a sense of belonging in one?s society and of entitlement to participate in its institutions, opportunities, and endeavours (see Donna Greschner, “The Purpose of Canadian Equality Rights” (2002) 6 Review of Constitutional Studies 291). Exclusion from the kinds of practices and activities that constitute a social concept of citizenship in a given society marks the excluded as outsiders, as unworthy to share the forms of life that make our lives meaningful. Such exclusion also impairs people?s ability to craft the life of their choosing.

53. Exclusion can happen directly through criteria for participation in certain activities or institutions, but it can also happen through the denial of forms of support that make participation possible. Participation in social life in a complex modern society often has material and social pre-conditions. Without a decent education, or stable housing, or adequate income, other forms of participation are beyond imagining let alone realizing. For this reason, as Nussbaum argues, internal capabilities for distinctively human forms of functioning must be combined with “suitable external conditions for the exercise of the function” (Nussbaum, supra, at 84-5).

54. For most of our history, it has been those men who enjoy privilege along a variety of dimensions (race, religion, sexual orientation, able-bodiedness, for example) who have been the most able to aspire to the ideal of a dignified life. Their self-worth has been affirmed; their dreams and mbitions fostered by legal structures and social practices; their interests made the focal point of social planning; and their participation in social institutions facilitated. They shape and have been supported by the society to which they belong. Yet the concept of human dignity claims equal worth for all, calling legislatures to examine old attitudes and practices for partiality and requiring vigilance by courts to ensure that legal policy is remade in the image of all members of society.

55. By contrast with the ways in which privileged men?s dignity has been cherished, women have been subjected to derogatory stereotypes (and the gendered barriers they create), constrained opportunity, gendered violence, control over their reproduction, and disrespect for their role as mothers ? all violations of human dignity because they impinge upon women?s self-respect and self-realization. Respect for the human dignity of women means state policies must not only refuse to tolerate but also work to counteract the kinds of conditions that have resulted in women?s relegation to inferior status in the past.

56. The confining and demoralizing effects of policies controlling women?s opportunities, relationships, and bodies are now widely acknowledged. It does not follow that all vestiges of these attitudes, and, in particular, their long-term effects, have been swept away. Wherever they linger, they undermine women?s dignity.

57. Equality claims deal with an unending array of goods and benefits to which there may be no specific entitlement as a matter of human rights. The task ahead is that of showing how the concept of dignity can help bridge the gap between a concrete benefit claimed and the human right to equality.

(2) Three Forms of Indignity

58. As noted earlier, the Supreme Court of Canada has elaborated a list of apparently independent, though overlapping, contextual factors said to reveal violations of dignity. These factors suggest three forms of indignity or denial of worth, which, if inflicted by a statute or state policy, violate section 15. Further forms may be identified over time. We can have no confidence so early in our constitutional history of rights adjudication that we understand all facets of equality and all forms of inequality. Two of these forms of indignity explain most of the cases to date: the first consists in grounding legislation or policy in prejudice and the second in the use of, or reliance on, stereotype.

59. A third form of indignity has been less well articulated by the Supreme Court of Canada to date. It involves exclusion from benefits, institutions, or opportunities access to which is integral to our notion of personhood or constitutes part of the conditions for a life with dignity. In grasping this form of indignity, it is the nature and importance of the benefit itself that makes its denial a violation of dignity rather than the attitudes, mistaken beliefs, or motivations that prompt the denial. When either prejudice or stereotype operates as well, the indignity of such denial is exacerbated.

60. Any of the three forms of indignity can be inflicted through the explicit use of a characteristic important to personal and group identity or through facially neutral standards that fail to take account of the diverse circumstances of various groups. These are simply alternate formal means of achieving the same effect. For this reason, a formal conception of equality must be rejected. To discover whether the legislation or policy in issue conveys a message of lesser worth, the various factors commonly invoked operate as diagnostic tools in discerning whether indignity, in whatever form, is present.

61. Since the courts have dealt most often with the first two forms of denial of worth, the factors identified as markers of the violation of dignity have tended to be ones that alert us to the presence of prejudice or stereotype or help us to contextualize their effects. They are relevant not in their own right but rather because and insofar as they help us detect prejudice and stereotype. This explains why, as the Supreme Court of Canada has often said, the various relevant factors are neither necessary nor sufficient conditions of a finding of discrimination. The presence of these features of context does not constitute discrimination. They simply help us “read” the implicit meaning of legislative distinctions imposing burdens or denying benefits to see whether it connotes the inferiority of a group.

(a) Prejudice

62. The wrong of prejudice is easily understood as a violation of dignity. A distinction based on prejudice connotes a belief in the inferiority of those targeted. One that reinforces the prejudices of others, even if unintended by the policy maker, has the same effect. This not only deprives those targeted of the concrete benefit at issue but, through doing so, it also treats them as being unworthy of basic human respect. Distinctions that target an important aspect of human identity for stigmatization, humiliation, and the excuse for deprivation violate dignity in this way. Prejudice works through the categorical and false attribution of negative worth to personal characteristics that are important aspects of identity. Such an assault on the sense of self of its victims constitutes the violation of dignity.

63. Personal identity has both an individual and a social dimension. The kinds of characteristics that people regard as important to their sense of self tend to be, at the same time, characteristics by which they define themselves as individuals and through which they identify as members of a group (see Greschner, supra, at 298). It should be remembered, of course, that individuals can identify with more than one such group. We know from our social and political history that it has tended to be precisely this aspect of identity that has often been targeted for contempt ? individuals have been denied respect through the use of a characteristic identifying them as part of a group that is categorically devalued.

64. The enumerated grounds mark aspects of personal identity that are socially understood as aspects of self that are important to self-understanding, but nevertheless are often used to classify groups as unworthy. Our knowledge of how this has been done in the past can guide our reading of current behaviour to see if past practices and attitudes are being reinforced. History can also enable us to detect other, unenumerated, ways of categorizing that subject members of a group to contempt in a similar way. The sorts of factors often relied upon to recognize a new ground as analogous to those listed in section 15 operate as more concrete signposts.

65. For example, the characteristics that are important to one?s sense of self are typically, actually, or constructively immutable (see Andrews, supra, at 195; Miron, supra, at paras. 158-59 and 163; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at para. 84; and Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 13). However, too much emphasis should not be placed on actual immutability. Prejudice is rationalized by the lie that it is some difference within others that justifies their derogatory treatment even though difference is often socially constructed. Actual human attributes are less important in understanding the dynamic of prejudice than what society makes of those attributes. If an attribute has been socially constructed as being inferior, there should be no onus on those so characterized to change themselves, even if they could.

66. Historical disadvantage has also often been referred to in the cases but without a very precise analysis of its relevance (see Andrews, supra, at 180; R. v. Turpin, [1989] 1 S.C.R. 1296 at 1333 (per Wilson J.); Miron, supra, at para. 158; and Egan, supra, at para. 176). One function that historical disadvantage serves is as an indicator, and result, of past prejudices previously translated into legal disabilities. The fact that a group is historically disadvantaged may indicate a long-standing failure by the legal system or social mores to extend equal concern and respect. The challenged law may perpetuate or further promote this failure. Likewise, status as a chronic minority is a warning signal because it renders a group vulnerable to such prejudice. It may also be the result of a history of prejudice.

67. However, these contextual factors are all merely guides meant to make us confront the typical features of social prejudice. They should not be mistaken for a formal test. They remind us to think about how prejudice operates as a social phenomenon and to use this knowledge in interpreting the rule or policy in issue.

68. Entrenched prejudice can unleash social forces that devalue members of particular groups even when those acting within the practices shaped by those social forces have no subjective desire to show contempt. The sorts of distinctions and denials that constitute an infringement of dignity are a matter of social meaning rather than subjective attitudes. To understand the violation of dignity in its entirety, we must look to the meaning of government action, and this must always be read in social context rather than merely treated as a matter of plumbing the content of an actor?s mind.

(b) Stereotype

69. Stereotypes are inaccurate generalizations, normally negative, about the characteristics or attributes of members of a group. They can usually be traced back to a time when social relations were based more overtly on contempt for the moral worth of the group. Positive stereotyping can exist too, although normally these form the binary opposite of a negative stereotype about another group. “Men are courageous” is the positive correlate of the negative attribution of timidity to women, for example. Positive stereotypes are usually problematic only when they help feed their negative counterpart.

70. Stereotypes partly stem from backhanded recognition that acting on prejudice is a violation

Full post as published by The Court on June 17, 2009 (boomark / email).

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