The special pleading section of the Charter | |
Quote: The special pleading section of the Charter
Section 15 of the Charter is being used by judges to rule in favour of political correctness.
Grant Brown - April 1, 2008
Section 15 of the Charter of Rights and Freedoms provides as follows:
"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.
"(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
Over the past 20 years, no other section of the Charter has produced an equal volume of convoluted, fractured, ever-changing and inconsistent jurisprudence than this, the “equality” section. No other section has opened the door quite so wide to judicial activism.
This should not surprise anybody. Equality is an essentially contestable concept. There is no “true” meaning of equality, but rather a different concept for every political philosophy. And because of that, it invites courts into the political arena like never before, second-guessing public policy on the basis of the most malleable and subjective of notions.
Our courts have not had a distinguished record adjudicating equality claims. Early jurisprudence latched onto the distinction between “formal” and “substantive” equality, rejecting the former and embracing the latter--as though this cleared up any genuine disputes. Nobody ever advocated “formal equality” in the facile sense critiqued by the Supreme Court of Canada in Andrews, the first s. 15 case in 1989.
More recently, the jurisprudence has evolved into the notion that government is required to treat citizens with equal dignity. This will routinely require (as subsection 2 indicates) giving special consideration to individuals who were allegedly treated with less than equal dignity in the past.
Unfortunately, "dignity" is no more self-evident in its meaning and application than "equality." What the shift in the focus of analysis from equality to dignity signifies in practice is that the courts will require special concessions to be made by government in favour of any group that captures the court's sympathies. Political correctness becomes the defining feature of s. 15 analysis.
In the 1993 case of Weatherall, for example, the SCC said that it is okay for men to be frisk-searched, monitored while showering (etc.), and subjected to unannounced patrols of their cells by female prison guards, even though it is not okay for female prisoners to be subjected to the same treatment by male prison guards. Apparently, the dignity of male prisoners today is not threatened by cross-gender invasions of privacy because our grandmas were allegedly oppressed by our grandpas. A callous disregard for the privacy interests of 90 per cent of the prison population is justified on the completely spurious and patently false ground that male prisoners are an historically advantaged group in our society, and therefore deserve no sensitivity.
Again, the fact that aboriginals comprise a disproportionate share of the prison population warrants the special sentencing provisions in s. 718.2(e) of the Criminal Code; but the fact that men comprise an even greater disproportionate share of the prison population does not warrant any special sentencing provisions for men.
Of course, libertarians and others find the obsession with identity politics in s. 15 jurisprudence to be bizarre and misguided. Respecting my dignity requires that I be considered and treated by the government as an individual, not as a token of some unchosen larger group. What difference does it make from the point of view of impartial justice if I happen to share or not share irrelevant traits with others who are not in my circumstances anyway?
It has been reasonably argued that the important concept in s. 15 of the Charter is not really equality, but rather discrimination--or, more precisely, invidious discrimination. What s. 15 really means is that (1) governments are not allowed to engage in arbitrary or avoidable discrimination against citizens, and that (2) affirmative action programs are not to be considered “arbitrary” or invidious.
This understanding of s. 15 would indeed advance clarity if "invidious discrimination" were not also prone to politically correct application. In keeping with the focus of this column, consider two SCC cases on the gender front: Mallot (1998), and Meiorin (1999).
Mallot was charged with murdering her partner. Her defense--nowadays de rigour in cases where women kill their partners--was the (scientifically baseless) “battered woman’s syndrome.” In the course of delivering her reasons, Madame Justice L’Heureux-Dube said in obiter dicta:
"To assume that men who are victims of spousal abuse are affected by the abuse in the same way [as women], without benefit of the research and expert opinion evidence which has informed the courts of the existence and details of ‘battered woman syndrome’ would be imprudent."
“Imprudent” or not, s. 15 of the Charter is supposed to guarantee the equal protection of the law for men and women. In the absence of compelling evidence showing that men and women are different in some respect, therefore, the legally required presumption is that they be treated similarly.
Meiorin was a forest firefighter. Although she had performed satisfactorily as a member of the Initial Attack Crew for several years, she was fired when she failed one part of a four-part test for physical fitness designed specifically for forest firefighters. The SCC held that it was a form of invidious discrimination against women to hold them to the same minimum standards of physical fitness as men for this physically demanding job. Why? Because:
"The record before this Court... does not permit us to say whether men and women require the same minimum level of aerobic capacity to perform safely and efficiently the tasks expected of a forest firefighter."
Since the tasks expected of male forest firefighters are exactly the same as the tasks expected of female forest firefighters, the only way the minimum level of aerobic capacity required to perform those tasks could be lower for women than men would be if women found different ways of accomplishing those tasks equally well. How plausible is that?
The test Meirorin failed was a running test--a test aimed at assuring that forest firefighters are able to get to a location to assist others on the field, and to flee from a dangerous location, in a timely manner. Meirorin was too slow by the minimum standard devised by experts from the University of Victoria. Does the SCC honestly think that women might be able to compensate for relative slowness of foot by (e.g.) riding mountain bikes to combat forest fires?
Another way to look at these two cases is by focusing on where the onus of proof is placed by the SCC--i.e. whether the citizen or the government bears the onus of proof to establish discrimination. When a man seeks to avail himself of the same defense to a criminal charge as women have successfully argued, he (not the government) is required to prove that men and women are relevantly similar psychologically; but when a woman seeks to obtain the same job as a man, the onus is on the government employer to prove that men and women are relevantly similar physically.
Given that the physical differences between men and women are obvious to everyone, whereas psychological differences are difficult to prove and hotly contested, this way of placing the onus is puzzling at best. It reveals that what is really behind these decisions is neither principled equality nor principled anti-discrimination, but rather special pleading for the politically correct group.
| Western Standard -- The special pleading section of the Charter |
23rd-October-2008
