Assistant Professor, University of New Brunswick
A truly god-awful section 15 Charter decision penned by McLachlin CJ (as she then was), commonly regarded as the “high watermark” of formalism under the previous “human dignity” test. The majority found it “dignity affirming,” for under 30s in Quebec to be forced to participate in workfare or be subjected to drastic deductions in their level of social assistance. Arguably, the decision relied on stereotypes about poor people in finding it was consonant with equality to incentivize participation through draconian penalties (when in fact there were not enough “workfare” placements for all under 30s in any event). And this was a case largely about discriminatory stereotypes. McLachlin CJ also speculated without any evidence about the availability of family resources that would save these young people from starvation (saying that “evidence of actual hardship is wanting”). Another troubling element is the majority’s refusal to rule on whether section 7 contained “positive rights,” indicating only that, “[o]ne day s. 7 may be interpreted to include positive obligations”. This reasoning satisfied virtually no one on any side of the issue and since then, the Supreme Court has refused to clarify the matter by denying leave in relevant appellate cases.
This case seemed to launch a thousand terrible treatments of legislative history in Charter jurisprudence. Justice Lamer, for the majority, rejected testimony from two legislative drafters at the Special Joint Committee on the Constitution regarding the meaning of fundamental justice under section 7. It is not so much the ultimate finding that I find repugnant – namely, that substantive as well as procedural justice can be considered. In fact, I believe that such a finding is supportable on a principled interpretation of s.7. Rather, it is that the majority treated evidence of legislative history so cavalierly, so early on in the Charter’s life. Without much thoughtful analysis, Justice Lamer mused that “framers’ intent” was nearly “impossible of proof” and that consideration of historical materials evincing such intent could lead to “frozen rights” contrary to living tree constitutionalism. Therefore, this evidence ought to be given “minimal weight.” Purposive interpretation requires courts to interpret the Constitution in light of “the historical origins of the concepts enshrined,” among other things. This, plus the BC Motor Vehicles Reference has meant, for instance, that judges are entitled to consider Aristotle’s views on equality in interpreting s.15 but not necessarily those of the many women and women’s organizations who influenced its text and the views of politicians who passed it. The weak and malleable standard of “minimal weight” permitted Lamer J. himself, less than 10 years later to rely on legislative history to deny the existence of a right to funded legal counsel in Charter section 10(b) (in the 1994 Prosper decision). For all the dire warnings about “frozen rights,” the nearly unfettered discretion of judges in considering historical evidence wrought by the BC Motor Vehicles Reference has not benefitted Charter claimants.
As a feminist it is difficult to pick the Court’s worst rulings on gender. Is it when the Court cited the guarantees of sex equality in section 15 and equal rights in section 28 in a decision that justified cross-examination based on rape mythology (Osolin)? Is it when the Court accepted the Newfoundland government was justified in reneging on pay equity agreements for financial reasons merely on its say-so in Hansard (example: “We couldn’t take the chance that our credit rating would drop one more notch”)?
Bliss and Lavell, however, are the OGs of bad gender equality decisions, made under the Canadian Bill of Rights. In a feat of breathtaking abstraction, Justice Ritchie in Bliss deemed discrimination against pregnant women in the provision of employment benefits not to be a distinction based on sex, but between pregnant and non-pregnant people. He pronounced, “Any inequality between the sexes in this area is not created by legislation but by nature.” Justice Ritchie in Lavell, with similar formalist sophistry, found essentially that the “marrying out” provisions under the Indian Act that stripped Indigenous women of status for marrying non-status partners, treated all Indigenous women equally badly. Therefore, it maintained equal administration of the law, and did not discriminate.
While ultimately the SCC distanced itself from the Bliss ruling in another pregnancy discrimination case a decade later (Brooks v Canada Safeway,  1 SCR 1219), the legacy of both cases is still with us. The Court has been loathe to recognize that women have been discriminated against as women, rather than, say, as “people who do most of the childcare but can’t deduct the expense” (Symes) or “people whose aren’t allowed to speak in their own right during constitutional negotiations but have to go through men” (NWAC).
I hate rights “balancing” or “reconciling” cases generally, for the way in which they dissolve the rigor of a Charter rights analysis and introduce value-based determinations about whose rights are most important (all the while papering over the fact by using the objective-sounding language of “balancing”). Spoiler: when women are involved in Supreme Court balancing cases, they lose. However, R v NS, seems to have it all for the purposes of raising my ire. It is another majority decision penned by McLachlin CJ, wherein she set out a framework for determining whether a sexual assault complainant must remove her niqab at trial. Minimizing the impact of removing the niqab on NS’s freedom of religion (stating, wrongly, that the complainant would be prepared to remove her niqab for a security check at a border crossing)? Check. Doubling down on the common law assumption of demeanour evidence’s value, even in the face of an impressive body of social science evidence to the contrary? Check. A gender- and intersectionality-free analysis in a case saturated with gender and racial tropes? Check. Denying a rights claimant the rigours of the Oakes test in favour of a balancing framework cribbed from publication ban cases? Check. Setting out a complex framework that nevertheless likely would result in the same outcome 100% of the time? Check.