Diversity and the Right to Equality: Navigating Difference

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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
Stream: Identity and Belonging; the Politics of Diversity; Globalisation
Presentation Type: Paper Presentation in English
Paper: A paper has not yet been submitted.

Jillian Boyd

PhD Candidate, Faculty of Law, University of Toronto
Ottawa, Ontario, Canada

Jillian Boyd is a Pierre Elliott Trudeau Foundation Scholar and a doctoral candidate at the Faculty of Law, University of Toronto. After receiving her law degree from Queen’s University (Canada), she served as a law clerk to Madam Chief Justice Beverly McLachlin of the Supreme Court of Canada. She subsequently earned her Master of Laws as a Fulbright Scholar at Columbia University (USA). Before commencing her doctoral work, Boyd practised human rights and social justice litigation for several years in Toronto and taught comparative constitutional law at Queen’s University. Her current doctoral research focuses on the reconciliation of competing equality rights in constitutional law.

Ref: D08P0321