Difference is implicitly measured against a standaro of ‘normality’ which upon closer inspection reveals the traits of society's dominant group — white Christian heterosexual able-bodied men. Those falling short of this benchmark are outcast as ‘different’. Although feminists long critiqued the hegemony of this standard, it was with limited success. In the early 1990's, however Martha Minow inspired a paradigm shift of our perception of difference, principally recognizing that difference is not fixed in the sense that it belongs to someone, but is variable, dependent on the comparator groups under review and the perspective of the person naming the difference. This theoretical leap has profound consequences for a substantive reading of equality. And yet the South African and Canadian courts have been slow to apply it to their equality jurisprudence. This paper examines the Canadian and South African equality tests and some of their more recent case law, concluding that the absence of a relational construction of difference perpetuates a formal application of equality.
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References
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National Coalition for Gay and Lesbian Equality v. Minister of Justice 1999(1) SA 6 (CC) at para 132, Sachs J. (hereinafter ‘the Sodomy case’).
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Ibid at 71.
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Dilemma of Difference (n 8) at 108.
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Minow M.Making All the Difference: Inclusion, Exclusion, and American Law. Ithaca: Cornell University Press; 1990:86.
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Sheppard notes that it is crucial that constitutional protection of equality address this second dimension of discrimination since it contains the potential to affect the vast majority of individuals from socially disadvantaged groups. Whereas the first component of discrimination provides relief primarily to those members of disadvantaged groups who can emulate the standards of the dominant group in society, the second component provides relief despite difference. Ibid at 225.
19.
Feminism Unmodified (n 3).
20.
Miron v. Trudel [1995] 2 S.C.R. 418 at 207, McLachlin J. (hereinafter ‘Miron’).
21.
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para 51, Iacobucci J. (hereinafter ‘Law v. Canada’). See also a passage in Law v. Canada (subsequently endorsed in Attorney General for Ontario v. M and H [1999] 2 S.C.R. 3, hereinafter referred to as M v. H, in which the Court affirmed (at para 63, per Iacobucci J.) ‘[P]robably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be where pre-existing disadvantage, vulnerability, stereotyping or prejudice is experienced by the individual or group. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact on them, since they are already vulnerable.’
22.
In the context of sexual orientation discrimination, see National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others 1999 (3) BCLR 280 (C); 1999 (3) SA 173 (C) at para 54, Ackermann J.
23.
Making All the Difference (n 14) at 378.
24.
Harksen v. Lane NO 1998(1) SA 300 (CC), 1997 (11) BCLR 1489 (CC) at para 40.
25.
Andrews (n 16) at 174.
26.
In Andrews, Justice La Forest asserted that the term ‘analogous’ ground will involve a circumstance in which the distinguishing characteristic is not within the control of the individual. i.e. it is an immutable class or characteristic of personhood that is not alterable by conscious action, or is not alterable except on the basis of unacceptable costs. Ibid at 193.
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Granovsky v. Canada (Minister of Employment and Immigration) 2000 S.C.C. 28 at para 27.
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Harksen (n 24) at para 49.
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Hogg P.W.Kentridge J.Constitutional Law of Canada Constitutional Law of South Africa. Chaskalson M., ed. Toronto Kenwyn: Carswell Juta & Co; 1997 1996:21 32.
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Fraser v. Children's Court, Pretoria North 1997 (2) SA 261 (CC); 1997 (2) BCLR 153 (CC). This case involved a challenge by the unmarried father of a child conceived out of wedlock against section 18(4) (d) of the Child Care Act 74 of 1983 which requires the consent of both parents to the adoption of a child unless the father of the child is not married to the mother, in which case his consent is not required. Fraser, the unmarried father of a child conceived out of wedlock succeeded in his claim that the Child Care Act discriminated against men on the basis of sex. Writing for a unanimous Court, Mahomed DP. pointed out at paras 21–3 that the section impennissibly discriminated against fathers including those in matrimonial unions not recognized by law as legal marriages — such as Islamic unions.
32.
Ibid at para 25. The Court did go on to state that a blanket prohibition on allowing single fathers to adopt their children conceived out of wedlock constituted sex discrimination and that such biological differences did not justify the effect of the impugned legislation.
33.
The ‘natural forces’ view is that disadvantage results from biological differences inherent in the individual.
34.
Bliss v A.G. Canada [1979] 1 S.C.R. 183 at 190. The Court's subsequent decision in Brooks v. Canada Safeway Ltd [1989] 1 S.C.R. 1219 effectively overruled Bliss.
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[1990] 1 S.C.R. 906.
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Bavis C. D..Vriend v. Alberta, Law v. Canada, Ontario v. M v. H: The latest steps on the winding path to substantive equality.Alberta Law Review. 1999;37:693
37.
Miron (n 20) at 428.
38.
Eaton involved an appeal by the parents of Emily Eaton, a child with cerebral palsy from a decision of the Ontario Special Education Tribunal that she should be placed in a special education class. The Court unanimously ruled that is was not a violation of a child's equality rights to place her in a special educational class to accommodate her disability without her parent's consent.
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Eaton v. Brandt County Board of Education, [1997] 1 S.C.R. 241 at para 66 (hereinafter Eaton).
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Grant I.,Mosoff J..Hearing claims of inequality: Eldridge v. British Columbia (A.G.).Canadian Journal of Women and the Law. 1998;1:235
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42.
Young, ibid at 160.
43.
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para 65 (hereinafter ‘Eldridge’). In Eldridge, three deaf individuals sought a declaration that the failure to provide funding for sign language interpreters under the British Columbia Medical Services Plan violated section 15(1) of the Charter on the grounds of disability.
44.
Ibid at para 56.
45.
President of the Republic of South Africa v. Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) (hereinafter ‘Hugo’). Hugo involved a challenge by a single father who was the primary care-taker against the President Act 17 of 1994 issued by President Mandela soon after his election in 1994 which granted the special remission of sentence to certain categories of prisoner, including ‘all mothers in prison on 10 May 1994, with minor children under the age of twelve years’. Hugo maintained that the President Act, by granting prisoners who were mothers and not prisoners who were fathers remission, discriminated against him unfairly on the grounds of sex. The majority found that prima facie, the President Act discriminated against fathers in denying them a benefit accorded to mothers, but that in light of historical patterns of disadvantage perpetuated against women as primary care-takers, such discrimination was not unfair.
46.
This was especially the case with regard to the disabled and young mothers. It should be noted that Goldstone J. did acknowledge that discrimination will not necessarily be fair where it is directed at a class not belonging to a previously disadvantaged group. He writes at paras 37–40, ‘Although it may generally be true that mothers bear an unequal share of the burden of child rearing in our society as compared to the burden borne by fathers, it cannot be said that it will ordinarily be fair to discriminate between women and men on that basis… In my view, the fact that the individuals who were discriminated against by a particular action [men who are primary care-takers], were not individuals who belonged to a class who had historically been disadvantaged does not necessarily mean that the discrimination is fair’.
47.
A sum total of 440 women prisoners were released on account of the President Act.
48.
Hugo (n 45) at paras 80–2. Mokgoro J. also dissented, but on the grounds that denying fathers release from prison on the basis of a stereotype about their aptitude for child rearing was an infringement of their equality and dignity (at paras 92–3).
49.
Ibid at para 111. O'Regan J. further held that the rigid approach advocated by Kriegler J. did not take sufficient account of present social realities and could indeed hinder rather than facilitate achieving the constitutional goal of equality. Ibid at para 113.
50.
Kentridge (n 29) at ch 14 p. 31.
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Davis D. M..Equality: the majesty of legoland jurisprudence.South African Law Journal. 1998;115:407
52.
Andrews (n 16 ) at 169.
53.
See Grant & Mosoff (n 40) at 233.
54.
Jhappan (n 4) at 89.
55.
The argument is not to advocate that accommodation is never an appropriate response, merely to underscore the fact that an approach which ignores the underlying systemic nature of discrimination will never succeed in eradicating inequality at its root.
56.
Day S.,Brodsky G..The legal duty to accommodate: who benefits.Canadian Bar Review. 1996;75:472
57.
Sheppard C..Equality rights and institutional change: insights from Canada and the United States.Arizona Journal of International & Comparative Law. 1998;15:154
58.
Supreme Court of British Columbia (Public Service Employee Relations Commission) v. BCGSEU [1999] 3 S.C.R. 1 at para 41–42 (hereinafter ‘Meiorin’).
59.
Ibid.
60.
Systemic discrimination was defined by Canadian Supreme Court Chief Justice Brian Dickson in Action Travail des Femmes as ‘discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination.’ Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at 1139, Dickson C.J. Although systemic discrimination is often associated with adverse affect discrimination, it also takes the form of direct discrimination that is widespread and unacknowledged. See Ontario (Human Rights Commission) v. and Re Bhinder et al and Canadian National Railway Co [1985] 2 S.C.R. 561, 23 DLR (4th) 481-adverse affect discrimination in the context of religious discrimination; and Andrews, supra note 20 where adverse affect discrimination was first given judicial recognition in Canada. Most recently in Meiorin (n 58) the Supreme Court held that the conventional approach of categorizing discrimination as ‘direct’ or ‘adverse effect’ discrimination should be replaced by a unified approach because the conventional bifurcated approach analysis may serve to legitimize systemic discrimination. Systemic discrimination is also widely acknowledged in a number of South African judgments. See Brink v. Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) at para 41, O'Regan J.; Harksen (n 24) at para 95, O'Regan J.; Hugo (n 45) at para 84, Kriegler J.; and the Sodomy case (n 1) at paras 121 and 124, Sachs J. Recognizing the pervasive effects of systemic discrimination, the Constitutional Court most recently stated, ‘Discrimination does not take place in discrete areas of the law, hermetically sealed from one another, where each aspect of discrimination is to be examined and its impact evaluated in isolation.’ National Coalition for Gay and Lesbian Equality v Minister of Home Affairs (n 22) at para 35, per Ackermann J.
