Diversity and the Right to Equality: Navigating Difference
Equality rights claims in Canada have typically involved members of a minority group challenging their exclusion from benefits or services provided to the dominant majority. In recent years however, several cases have emerged which do not readily fit into this model. These cases involve inter-minority group conflicts, in which members of a minority group attack affirmative action or ameliorative programs benefiting a different minority group as discriminatory. In these cases the minority challengers define the content of the right to equality for themselves, seeking not the status or treatment enjoyed by the advantaged majority, but rather the specialized treatment provided to another minority group. By displacing the majoritarian norm as the benchmark of equal treatment and disrupting the majority versus minority or advantaged versus disadvantaged framework which has structured Canadian equality law, these cases challenge existing ways of conceptualizing the role and scope of the right to equality. At risk is the ongoing egalitarian nature of this right. Inter-minority conflicts place the Supreme Court of Canada in the cross-hairs of a jurisprudence which has long affirmed the constitutionality of ameliorative programs, which has defined the purpose of the right to equality as to ameliorate the position of groups who have been excluded from mainstream society, and yet which recognizes and respects legislative intent and resource limitations. To date, the Court has responded to these inter-minority conflicts by avoiding the substantive equality issues at play and retreating to a position of almost total deference to legislative intent. This article considers how conflicting minority equality claims can be reconciled and how and whether, in the face of such conflicts, an egalitarian content to the right to equality can be preserved.
Keywords: Equality, Affirmative Action, Constitutional Law, Discrimination, Canada, Egalitarianism, Inter-group Conflict
PhD Candidate, Faculty of Law, University of Toronto