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The role of government and the constitutional protection of equality and freedom of expression in the… Grayson, James Warren 1996

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THE ROLE OF GOVERNMENT AND THE CONSTITUTIONAL PROTECTION OF EQUALITY AND FREEDOM OF EXPRESSION IN THE UNITED STATES AND CANADA by JAMES WARREN GRAYSON B.A., The University of New Mexico, 1991 J.D., The University of New Mexico, 1994  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES Faculty of Law We accept t h i s thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA August 1996 © James Warren Grayson, 1996  In  presenting this  degree at the  thesis in  University of  partial  fulfilment  of  of  department  this thesis for scholarly purposes may be granted or  by  his  or  her  representatives.  permission.  Department of The University of British Columbia Vancouver, Canada  for  an advanced  Library shall make it  agree that permission for extensive  It  publication of this thesis for financial gain shall not  DE-6 (2/88)  requirements  British Columbia, I agree that the  freely available for reference and study. I further copying  the  is  by the  understood  that  head of copying  my or  be allowed without my written  ABSTRACT  Canada and the United States are s i m i l a r i n many respects, and both protect i n d i v i d u a l r i g h t s at a c o n s t i t u t i o n a l l e v e l . However, the Supreme Court of Canada and the United  States  Supreme Court have developed a l t e r n a t i v e conceptions of the c o n s t i t u t i o n a l protection of freedom of expression and  equality.  This thesis describes these differences and attempts to explain the reasons for t h e i r development. Under the Fourteenth Amendment, the U.S.  Supreme Court  merely requires that governmental actors r e f r a i n from overt discrimination on the basis of an objectionable  ground.  Thus,  the Court has created numerous doctrines to l i m i t equality to t h i s d e f i n i t i o n , including color-blindness,  intentional  discrimination, and multiple l e v e l s of review.  Each of these  concepts has contributed to the a p p l i c a t i o n of formal equality by r e s t r i c t i n g governmental attempts, such as affirmative action, to a l l e v i a t e s o c i a l inequality.  In addition, the Court's  application of content n e u t r a l i t y to freedom of expression cases has r e s t r i c t e d attempts to promote equality through l e g i s l a t i o n r e s t r i c t i n g hate speech and pornography. By contrast, the Supreme Court of Canada has interpreted  the  protection of equality i n the Charter of Rights and Freedoms to respond to the actual s o c i a l consequences of l e g i s l a t i o n . than l i m i t i n g the Charter to intentional discrimination,  Rather the  Court w i l l consider governmental actions which have the e f f e c t of creating or encouraging inequality.  S i m i l a r l y , governmental  r e s t r i c t i o n s on hate speech and pornography have been upheld by ii  the Supreme Court of Canada as necessary for the protection equality.  of  For the Supreme Court of Canada, equality has a s o c i a l  reality. These differences suggest an a l t e r n a t i v e r o l e of government i n the r i g h t s sphere i n Canada and the United States.  The  United  States Supreme Court has developed a r i g h t s i n t e r p r e t a t i o n which excludes much s i g n i f i c a n t governmental action, whether p o s i t i v e or negative.  The Court has  incorporated  the Fourteenth Amendment and,  the B i l l of Rights into  i n doing so, has expanded  i n d i v i d u a l r i g h t s at the expense of state power i n the promotion of equality.  The  lack of such a development i n Canada has  resulted i n a more substantial r o l e for s o c i a l l e g i s l a t i o n , while s t i l l protecting against governmental overreaching through the Charter.  iii  TABLE OF CONTENTS Abstract  i i  Table of Contents  iv  Acknowledgement  v  Chapter One Introduction and Methodology A. Methodology B. Summary of Contents  1 2 8  Chapter Two A. B. C  D.  E. F.  Rights i n Context: P o l i t i c a l Culture i n the U.S. and Canada Introduction P o l i t i c a l Culture: I n i t i a l Observations American Individualism 1. S o c i a l and Economic Development 2. I n s t i t u t i o n a l Development: Constitution and B i l l of Rights 3. Federalism: State and Federal Governments Canadian Communitarianism 1. Social and Economic Development 2. I n s t i t u t i o n a l Development: B.N.A. Act and the Charter 3. Federalism: P r o v i n c i a l and Federal Governments The Relationship of P o l i t i c a l I n s t i t u t i o n s and C u l t u r a l Values Conclusion  Chapter Three A l t e r n a t i v e Conceptions A. Colorblindness 1. United States 2. Canada B. Levels of Review 1. United States 2. Canada 3. Comparisons C. Intentional Discrimination 1. United States 2. Canada D. P r a c t i c a l E f f e c t s E. Conclusion  of Equality  Chapter Four Freedom of Expression A. United States B. Canada C. Governmental Regulation of Pornography D. Governmental Regulation of Hate Speech Chapter Five  13 13 13 17 18 20 23 29 30 32 42 46 49 51 56 56 66 75 75 84 94 102 102 107 112 117 118 119 128 133 143  The Role of Government i n the U.S. and 154 Canada—Aggressor, Protector, or Bystander  iv  ACKNOWLEDGEMENT I would l i k e t o thank Professor Joel Bakan f o r h i s thoughtful suggestions and valuable assistance. I would also l i k e t o thank Professor B i l l Black f o r h i s h e l p f u l comments and Professor Rod MacDonald f o r h i s assistance with the p o l i t i c a l culture aspects of the paper. In addition, I thank Professors Rob Schwartz, C h r i s t i a n F r i t z , and Ann Scales f o r t h e i r comments on the freedom of expression portions of t h i s paper. I am very g r a t e f u l to the U.S.-Canada Fulbright Foundation f o r the funding which made t h i s work possible. Most of a l l , I would l i k e t o thank my wife, Michele Morosin, for her support and i n s i g h t f u l c r i t i q u e throughout my work on t h i s project.  v  Chapter 1 Introduction and Methodology  The c o n s t i t u t i o n a l protection of equality i s a highly contentious issue i n both the United States and Canada.  This  thesis analyzes the d i f f e r e n t approach to protecting equality adopted by the U.S. Canada.  The U.S.  Supreme Court and the Supreme Court of Supreme Court has l i m i t e d the a p p l i c a b i l i t y of  the Fourteenth Amendment by adopting the p r i n c i p l e s of colorblindness, multiple l e v e l s of review, and i n t e n t i o n a l discrimination.  By contrast, the Supreme Court of Canada has  rejected each of these notions.  Instead, i t has  interpreted  s . l 5 ( l ) of the Charter of Rights and Freedoms i n the context of s o c i a l , p o l i t i c a l , and economic conditions.  As a r e s u l t , the  Supreme Court of Canada has been able to achieve a more substantive  form of equality i n c o n s t i t u t i o n a l law.  As a related matter, t h i s thesis examines two  forms of  speech which implicate equality issues. The nature of free expression i n democratic s o c i e t i e s has recently received a great deal of scrutiny.  In p a r t i c u l a r , both pornography and hate  speech have caused l e g i s l a t u r e s to increase governmental regulation i n t h i s area i n order to protect notions of equality. As a r e s u l t , the j u d i c i a r y has been forced to evaluate the propriety of the l e g i s l a t i v e action under c o n s t i t u t i o n a l protections of freedom of expression.  The United States Supreme  Court and the Supreme Court of Canada have reached opposite conclusions  i n t h e i r resolution of t h i s matter.  1  This t h e s i s  d e t a i l s the nature of these c o n f l i c t i n g views and examines the possible reasons underlying these differences. A. Methodology In analyzing the law of two d i f f e r e n t countries, t h i s paper largely r e l i e s on the comparative method, which uses a broad m u l t i - d i s c i p l i n a r y approach i n order to compare l e g a l systems. Comparative law t y p i c a l l y r e l i e s on the study of s o c i a l , c u l t u r a l , and h i s t o r i c a l information to inform l e g a l s i m i l a r i t i e s and d i f f e r e n c e s .  1  There are many advantages to a comparative approach.  In the  examination of a domestic l e g a l p r i n c i p l e , the comparison of s i m i l a r p r i n c i p l e s i n other countries adds s o p h i s t i c a t i o n and *  r e l i a b i l i t y to conclusions.  A comparison reveals possible  a l t e r n a t i v e methods of dealing with l e g a l problems. I t 2  demonstrates that d i f f e r e n t solutions e x i s t and, more importantly, are practicable i n another context.  As a r e s u l t ,  the existence of a l t e r n a t i v e solutions allows f o r reevaluation of presently accepted ones.  In addition, by exploring the values  underlying these a l t e r n a t i v e solutions, one can more f u l l y appreciate the values promoted by the law i n one's own country. While differences i n values may explain a l t e r n a t i v e solutions, the i d e n t i f i c a t i o n of s i m i l a r goals would allow an analysis of the most appropriate means of reaching those ends.  There  1  Alan Watson,  2  Robert A. Kagan, What is  Too  Much  Law  LEGAL  to  TRANSPLANTS,  4-5,  9  (1973) .  Socio-Legal Scholars Should Do When Study, 22 J . LAW & SOCIETY 1 4 0 , 1 4 5 - 4 6  (1995) . 2  However, the purpose of a comparative approach should be based on more than just the improvement or endorsement of domestic law.  In order to promote international r e l a t i o n s , i t i s  important t o a s s i s t i n the transfer of knowledge between countries.  Scholars of both the United States and Canada should  attempt to more f u l l y understand each other's l e g a l problems and solutions.  Additionally, scholarship, i n s t r i v i n g t o further  general understanding, encompasses and values the pursuit of knowledge i n and of i t s e l f .  3  Thus, comparative law should not  focus s o l e l y on the solution of i n d i v i d u a l i z e d problems. It may appear that comparing countries with such s i m i l a r l e g a l t r a d i t i o n s does not require analysis beyond obvious differences and, thus, does not require a p a r t i c u l a r method.  4  However, such a view disregards the complexity of difference between the United States and Canada.  Indeed, only the  comprehensive nature of a comparative approach can begin t o explain such fundamentally contradictory r e s u l t s between these countries i n the c o n s t i t u t i o n a l protection of hate speech and pornography. In order to most accurately r e f l e c t the law of two countries i n a comparative manner, the s t a r t i n g point i n evaluating a  Rodolfo Sacco, Legal Formants: A Dynamic Approach to Law, 39 AM. J . COMP. L . 1, 4 (1991) ("Comparative law i s l i k e other sciences i n that i t s aim must be the a c q u i s i t i o n of knowledge."). 3  Comparative  "No s p e c i a l form of technique seems to be c a l l e d f o r i f the comparison i s , for instance, between A u s t r a l i a n and Canadian law or between English law and the law of the United States." Gutteridge, COMPARATIVE LAW, x i (2d ed. 1949) (quoted i n Watson, supra note 1, at 6. 4  3  p a r t i c u l a r area of law must be the text of the law i t s e l f and the o f f i c i a l i n t e r p r e t a t i o n of that law.  This reduces the danger i n  comparative law of affording too l i t t l e attention t o analyzing a l e g a l p r i n c i p l e i n foreign law.  "Now i t has been observed that  whereas [Sir Henry Maine's] Ancient  Law  i f often discussed i n  Jurisprudence and Anthropology courses i t i s l i t t l e used i n classes of Roman law.  The reason i s that Maine's statements on  Roman law are not r e l i a b l e . "  5  Thus, for any comparative  analysis to have s i g n i f i c a n t meaning t o scholars of both countries, the respective examination of national law must be comprehensive and independently v a l i d .  In addition, l e g a l  p r i n c i p l e s must be evaluated within the context of t h e i r purpose within the o v e r a l l l e g a l system and within society.  As a r e s u l t ,  laws which are c l o s e l y related to those being analyzed should also receive attention.  F i n a l l y , the law must be placed i n  s o c i e t a l context through h i s t o r i c a l and c u l t u r a l analysis. This approach represents a c r i t i c a l analysis under a comparative f u n c t i o n a l i s t methodology.  Within t h i s method of  comparison, law i s analyzed i n r e l a t i o n to society under three separate paradigms:  1 ) s o c i a l and c u l t u r a l norms and values as  determining l e g a l development; 2 ) l e g a l systems and rules as causing s o c i a l development; or 3 ) the development of law and society as i n t e r r e l a t e d .  6  As a r e s u l t , law i s characterized by  i t s function i n society, either r e f l e c t i n g s o c i a l values or as  5  Watson,  6  Gunter Frankenberg, C r i t i c a l  Comparative  Law,  SUPRA  note  1,  at 1 2 . Comparisons:  2 6 HARVARD I N T . L . J . 4 1 1 , 4  435  Re-thinking (1985) .  influencing them.  7  Thus, law must constantly transform  itself  based on either actual or desired changing s o c i e t a l needs. comparative  8  For  purposes, then, one should analyze laws which have  s i m i l a r functions i n society.  9  This methodology has been c r i t i c i z e d on several grounds. F i r s t , i t has been questioned whether society and law can be viewed and studied as separate e n t i t i e s .  1 0  Law,  as an i n t e g r a l  aspect of society, cannot be evaluated as an independent system interacting with s o c i a l development.  11  The l i n e between which  society and law are separated i s considerably blurred and constantly changing. s o c i a l norms.  12  Second, law does not necessarily r e l a t e to  Laws can either serve no s o c i a l function or  serve innumerable ones.  Thus, the method of functional analysis  i s a r b i t r a r y and based on pre-conceived ideologies and values of the i n d i v i d u a l researcher.  13  This leads to the f i n a l c r i t i c i s m :  functionalism, as an allegedly value-neutral exercise, ignores the inherent nature of comparative  researchers as p a r t i c i p a n t -  observers, r e l y i n g on personal bias i n evaluation of s i m i l a r i t i e s and d i f f e r e n c e s .  14  7  Id.  8  Id. at 438.  9  Id. at 435-36.  10  Id. at 440.  11  Frankenberg, supra  12  Id.  13  Id. at 437.  14  Id. at 439.  note 6 at 437.  5  However, t h i s c r i t i q u e , even taken as accurate, does not destroy the relevance of a f u n c t i o n a l i s t methodology.  Rather, i t  merely emphasizes those aspects of functionalism which require caution, c l a r i f i c a t i o n , and r e f l e c t i o n .  The general theory of  functionalism remains v a l i d ; laws are based on purposes, rather than formulated i n a vacuum or at random.  Further, generally  speaking, i n a democratic system of government, a law's purpose does r e l a t e t o values held i n society at large.  While a law's  purpose may r e s u l t from i n d i v i d u a l law-maker's p o l i t i c a l ,  moral,  or i d e o l o g i c a l choice, t h i s conclusion can only be reached by disproving a r e l a t i o n s h i p between the law and s o c i a l values. Nevertheless, the f u n c t i o n a l i s t method should be adapted to respond to the above c r i t i c i s m s .  A researcher should not assume  that the function of a law i n one country n e c e s s a r i l y c a r r i e s the same function i n another.  In addition, researchers should not  u n i v e r s a l l y follow only one of the three f u n c t i o n a l i s t paradigms; the r e l a t i o n s h i p of law and society should only be determined based on concrete research on a case-by-case  basis.  15  This  analysis can be completed with three equally v a l i d presumptions in performing socio-legal research:  1) law as a dependent  variable influenced by s o c i a l , p o l i t i c a l , c u l t u r a l , and economic factors; 2) law as a product of i n d i v i d u a l decision-making and i n d i v i d u a l bias; and 3 ) law as an independent v a r i a b l e  "[T]he relationship between law and society may be more complex than the simple notion that s o c i e t a l conditions determines the law." Alan Watson, From Legal Transplants to  Legal  Formants,  43 AM. J . COMP. L . 4 6 9 , 4 7 5 6  (1995).  influencing  social l i f e .  F i n a l l y , comparative f u n c t i o n a l i s t  1 6  researchers should always be aware of the danger of ethnocentrism. This c r i t i c a l approach to comparative functionalism also can be compared to a r e l a t i o n a l theory of law.  Under t h i s  17  approach, law i s analyzed as legal r e l a t i o n s interacting with s o c i a l r e l a t i o n s , such as economic and p o l i t i c a l  systems.  18  This theory seeks to account f o r d i f f e r e n t i n f l u e n t i a l ideologies and the importance of power r e l a t i o n s , both concepts which are central to the C r i t i c a l Legal Studies movement.  19  i t attempts to place individualized p l u r a l i s t context.  20  Additionally,  l e g a l rules i n a l e g a l  This approach, as a supplement t o  comparative functionalism, can provide a comprehensive methodology  i n the study of the law i n more than one country.  In t h i s paper, I evaluate the c o n s t i t u t i o n a l protection of equality  and freedom of expression i n l i g h t of t h e i r o v e r a l l  purposes i n society.  I conduct t h i s analysis  independently f o r  the United States and Canada, and without a presumption of  16  17  Kagan, supra Critical  eds.,  CRITICAL  1 9  2,  Alan Hunt, The Critique  about  18  note  Legal  Theory?,  LEGAL STUDIES,  16  at  143-44.  of  Law:  What  is  'Critical'  i n P. F i t z p a t r i c k and A. Hunt, (1987).  Id. Id. at  14-15.  Id. at 1 6 . By ' p l u r a l i s t , ' Professor Hunt i s r e f e r r i n g to the " i n t e r n a l interconnections between d i f f e r e n t forms of legal r e l a t i o n s . " Id. This does not r e f e r t o the theory of law, known as legal pluralism, which i s i n opposition t o l e g a l centralism, or law as promulgated by o f f i c i a l governmental means. See John G r i f f i t h s , What i s Legal Pluralism?, 24 J . LEGAL PLURALISM 20  1  (1986) . 7  s i m i l a r function.  A d d i t i o n a l l y , t h i s t h e s i s includes an analysis  beyond the l e g a l system to i d e n t i f y whether these laws influence or are influenced by s o c i a l r e l a t i o n s .  I assume as equally  l i k e l y that these laws either r e f l e c t p o l i t i c a l or moral choices by i n d i v i d u a l l e g a l actors or that the r e l a t i o n s h i p between the regulation of t h i s type of speech and s o c i a l b e l i e f s i s indeterminate. F i n a l l y , as an American, I recognize the danger of ethnocentrism and s u b j e c t i v i t y i n evaluating Canadian materials. Inevitably, my personal bias or, more accurately,  preconception  w i l l cause the misinterpretation of some information.  However,  the broad analysis of l e g a l rules placed i n the context of both the l e g a l system and culture and h i s t o r y reduces the degree of s u b j e c t i v i t y involved.  In addition, the common h i s t o r i c a l roots  of both Canada and the United States i n law and culture suggests r e l a t i v e l y less l i k e l i h o o d of ethnocentrism.  Nonetheless, t h i s  w i l l remain a relevant factor i n drawing conclusions. B. Summary of Contents There are many subtle s i m i l a r i t i e s and differences i n the law, history, and culture of the United States and Canada. two countries share a common l e g a l t r a d i t i o n , developing the common law of England.  The  out of  Also, both countries protect equality  and freedom of expression at a c o n s t i t u t i o n a l l e v e l .  Incidental  to t h i s protection, the j u d i c i a r y of both countries maintains ultimate authority i n the i n t e r p r e t a t i o n of these r i g h t s . A d d i t i o n a l l y , these r i g h t s , as characterized i n the text of the respective constitutions, are very s i m i l a r .  However, the U.S.  Supreme Court has established a more r e s t r i c t i v e meaning of 8  equality and a more l i b e r a l approach to freedom of expression than the Supreme Court of Canada.  Thus, i n the context of  governmental regulation of hate speech and pornography,  these  countries have reached disparate r e s u l t s . While l e g i s l a t u r e s i n both countries have recently attempted to increase r e s t r i c t i o n s on these forms of speech and have defined these terms i n a s i m i l a r manner, only the Supreme Court of Canada has been w i l l i n g to uphold these r e s t r i c t i o n s .  The  21  Supreme Court of Canada has held that these forms of speech are protected under the Charter of Rights and Freedoms.  Nonetheless,  hate speech and pornography produce s u f f i c i e n t harm i n Canadian society to permit t h e i r regulation when demonstrably  justifiable.  By contrast, the United States Supreme Court has more s t r i c t l y s c r u t i n i z e d these regulations.  Although the Court has allowed  the regulation of f i g h t i n g words and other harmful speech, Court characterized the regulation of hate speech and  22  the  pornography  as r e s t r i c t i n g speech based on a p a r t i c u l a r point of view.  Thus,  under the content-neutral p r i n c i p l e of freedom of expression jurisprudence, the Court has invalidated these laws. This thesis i s an attempt to explain the nature of these d i f f e r e n t conclusions. Chapter Two of t h i s paper places c o n s t i t u t i o n a l interpretation i n context.  I t outlines the  Hate speech i s a form of expression which promotes hatred and intolerance against p a r t i c u l a r groups i n society. See R. v. Keegstra, [1990] 3 S.C.R. 697; R.A.V. v. St. Paul, 112 S.Ct. 2538 (1992). Pornography i s a form of expression which depicts women i n sexual situations i n a v i o l e n t or degrading manner. See American Booksellers Association v. Hudnut, 721 F.2d 323 (7th C i r . 1985), a f f ' d , 475 U.S. 1001 (1986); R. v. Butler, [1992] 1 S.C.R. 452. 21  2 2  E.g.  Chaplinsky v. New Hampshire, 315 U.S. 9  568  (1942).  h i s t o r i c a l , s o c i a l , and i n s t i t u t i o n a l development of the United States and Canada.  In addition, i t provides an introduction to  the interpretation of the B i l l of Rights and the Charter of Rights and Freedoms.  While Canada has been characterized as  being more communitarian than the United States, the most s i g n i f i c a n t c o n s t i t u t i o n a l difference between these countries l i e s i n the U.S.  Supreme Court's incorporation of the B i l l of  Rights against the States through the Fourteenth Amendment.  This  development has s i g n i f i c a n t l y reduced the opportunity f o r p o s i t i v e governmental action i n the advancement of i n d i v i d u a l rights.  The lack of such an occurrence i n Canada has resulted i n  a more substantive interpretation of the Charter. Chapter 3 analyzes each country's conception of the c o n s t i t u t i o n a l protection of equality under the Fourteenth Amendment and under s,15(l) of the Charter.  This chapter  compares differences between these countries' respective methods of protecting equality i n the context of three dominant themes, each of which has been applied to a much more l i m i t e d extent i n Canada:  colorblindness, multiple l e v e l s of review,  and  intentional discrimination. In order to explore these differences further, t h i s thesis then turns to the regulation of hate speech and pornography and i t s implications for equality issues.  Chapter 4 begins by  providing an overview of American and Canadian interpretations of freedom of expression.  Subsequently,  i t analyzes the  c o n s t i t u t i o n a l v a l i d i t y of pornography and hate speech regulations, respectively.  In t h i s area, the Supreme Court of  Canada has focused on notions of harm and equality. 10  These forms  of  speech not  case,  o n l y harm i n d i v i d u a l s d i r e c t l y  but a l s o promote c o n t i n u e d o r i n c r e a s e d  s u b o r d i n a t e d groups  in society.  accepted  the  equality  through r e g u l a t i o n of  government's  S t a t e s Supreme C o u r t h a s of  this  speech against  governmental of its  involved  view.  actors  harmful  Court  speech,  the  marketplace of  speech.  i n the  to  potential the  Court,  substitutes  on a n i s s u e , Thus,  equality  harm  a particular point  United States  p r i n c i p l e s of  has  The U n i t e d  government  ideas.  of  and f u r t h e r i n g  However,  a correct viewpoint  protect  thereby  there  is  a more  to  i n the  context  of  speech.  Finally, differences freedom of  C h a p t e r 5 draws c o n c l u s i o n s  between t h e expression  Constitutional  of  prevention of promotion of  stricter  about the  role  of  protection  governmental  interference  governmental  protection  history  of  i n the Civil  equality  c o n t r o l on  As a r e s u l t ,  constitutional  numerous e x a m p l e s  the  law o f  War.  of  the  governmental  form of  nature of  the  and  U n i t e d S t a t e s and Canada.  interpretation.  Throughout the  prominently  i n the  about the  e m p h a s i z e d by j u d i c i a l r e v i e w  u n d e r l y i n g assumption The f o c u s  constitutional  protection places  which i s  constitutional  end o f  individuals.  f o r governments  affirmatively  such harmful  the  cannot promote o r s u p p r e s s  i n t e r f e r i n g with the limited role  As a r e s u l t , of p r o t e c t i n g  the  inequality  s i m i l a r l y recognized the  In r e g u l a t i n g t h i s  own o p i n i o n a s  action,  role  in  slavery  of  through  there  is  an  government  in  society.  could either  be  the  with rights  or  the  rights.  United States, abuses of  civil  i n southern  These abuses have caused  11  legislative  there  are  rights,  most  states u n t i l the  U.S.  the  Supreme  Court to progressively decrease the p o t e n t i a l f o r affirmative governmental action i n the r i g h t s sphere. content-neutrality, colorblindness,  Doctrines such as  intentional discrimination, and  each contribute to preventing p o s i t i v e  governmental action i n promoting equality. By contrast, governments i n Canada have long been i n the regulation of r i g h t s .  involved  Rather than a l t e r i n g t h i s practice,  the Supreme Court of Canada uses the Charter to j u s t i f y l e g i s l a t i v e action promoting the value of equality.  The primary  debate i n Canada does not focus on the legitimacy of governmental involvement as much as the i d e n t i t y of the governmental actor. Thus, the strongest  objections to the Charter have been based,  not i n negative r i g h t s or a n t i s t a t i s t dogma, but under a n t i f e d e r a l i s t movements o r i g i n a t i n g i n Quebec.  This debate has not  occurred i n the context of hate speech and pornography regulation due to the long-held  power of the federal government to enforce  the criminal law and because these laws do not implicate concerns s p e c i f i c to Quebec.  Thus, whereas the American debate has  evolved to exclude governmental interference, the Charter of Rights and Freedoms has affirmed the larger r o l e of government i n effectuating l i b e r t y and equality i n Canadian society.  12  Chapter 2  Rights i n Context: P o l i t i c a l Culture i n the U.S. and Canada  A.  Introduction  The method of interpretation for c o n s t i t u t i o n a l r i g h t s i n the United States and Canada, as i n many countries, r e f l e c t the s o c i o - p o l i t i c a l values of the s o c i e t y . Governmental involvement i n the sphere of r i g h t s underlying philosophical  tends to 23  involves  assumptions about the r o l e of government  and the r e l a t i v e importance of i n d i v i d u a l r i g h t s i n society. Legal and p o l i t i c a l responses i n the area of i n d i v i d u a l r i g h t s often r e f l e c t a society's p a r t i c u l a r p o l i t i c a l culture. The notion of p o l i t i c a l culture represents the complex i n t e r r e l a t i o n s h i p between ideologies, which includes the values, b e l i e f s , and goals found i n a society, and i n s t i t u t i o n s , which includes the s t r u c t u r a l form of government found i n constitutions and  l e g i s l a t i v e enactments.  In t h i s chapter, I examine the  h i s t o r i c a l development of p o l i t i c a l culture i n the United States and Canada i n order to place contemporary r i g h t s analyses i n context. B. P o l i t i c a l Culture:  I n i t i a l Observations  Canada and the United States are s i m i l a r i n many ways. In fact, some scholars have suggested that these countries are as  2 3  See, generally,  Ideologies,  Patrick Macklem,  2 0 OTTAWA L . R E V . 1 1 7  (1988) . 13  Constitutional  a l i k e as any two countries i n the world.  However, due t o  24  differences i n h i s t o r i c a l development, the c u l t u r a l values of these two countries a c t u a l l y vary s u b s t a n t i a l l y .  Even though the  United States and Canada share a s i m i l a r heritage from England, t h e i r r e l a t i o n s h i p with England dramatically diverged. scholar has described  One  the r e l a t i o n s h i p between the U.S. and  Canada as that of a revolutionary state and a counterrevolutionary  state.  25  As such, the United States i s a  nation which celebrated the overthrow of an oppressive state, whereas Canada suffered a defeat by association and struggled to preserve h i s t o r i c a l connections to England. d i f f e r e n t i a t i o n between Canada and the U.S.  26  This h i s t o r i c a l  has implications i n  numerous aspects of society continuing through the present. In fact, many t h e o r i s t s observe that Canada acts i n a more communitarian manner i n r e l a t i o n to the American ideology of individualism.  27  Communitarianism and individualism are two basic j u r i s p r u d e n t i a l theories which analyze the purposes and goals of individual rights.  Individual, or l i b e r a l , t h e o r i s t s construe  i n d i v i d u a l r i g h t s as preserving the notion that people should be  24  Seymour Martin Lipset,  CONTINENTAL D I V I D E :  INSTITUTIONS OF THE UNITED STATES AND CANADA, 25  SOCIETY:  Lipset, supra Lipset, supra  27  Patrick Monahan, AND THE  Macklem, supra  24,  184  26  FEDERALISM, 24;  note  A MACRO ANALYSIS,  note  at 1 ; Harry H. H i l l e r ,  24,  at  VALUES AND  CANADIAN  1.  POLITICS AND THE  23,  THE  (1989) .  (1986) .  SUPREME COURT OF CANADA,  note  2  at  119. 14  CONSTITUTION: (1987)  T H E CHARTER,  ; Lipset, supra  note  free to choose t h e i r own ends i n an unrestricted manner.  28  This  theory presumes that i n d i v i d u a l r i g h t s e x i s t t o further i n d i v i d u a l freedom i n society as an end i n i t s e l f .  The function  of government under i n d i v i d u a l i s t theory includes securing r i g h t s for i n d i v i d u a l s by ensuring that the public and agents of the government do not i n f r i n g e upon them.  Thus, i n d i v i d u a l  29  freedom should only be l i m i t e d i f i t harms others,  30  it  i n t e r f e r e s with the general structure of l i b e r t y , or i t i s necessary i n the i n t e r e s t of securing l i b e r t i e s more c l o s e l y connected to notions of individualism.  Government should  31  not  regulate i n d i v i d u a l freedom i n order to protect the morality of society.  32  Human c r e a t i v i t y , s a t i s f a c t i o n , and f u l f i l l m e n t are  achieved to the f u l l e s t extent i n the absence of governmental l i m i t a t i o n on l i b e r t y .  Associational r e l a t i o n s h i p s constrain  33  self-determination and force compromise.  Mark Crawford, Regimes  Because these r i g h t s  Communitarian Approach to Freedom of Expression 4 8 U . TORONTO FACULTY OF L . R E V . 1 , 1 9 ( 1 9 9 0 ) ; Marie-France Major, Obscene Comparisons: Canadian and American A t t i t u d e s Towards Pornography 28  Regulation,  Tolerance: A and i t s L i m i t s ,  L . , 51,  58  V i c t o r V. Ramraj, Keegstra,  29  Liberty: OF  1 9 J . OF CONT.  of  34  A Glimmer  L . REV. 304,  309  of  Hope  for  (1993).  B u t l e r , and P o s i t i v e F a i t h f u l , 5 1 U . TORONTO FACULTY  the  (1993).  This was the only acceptable reason for government regulation for John Stuart M i l l . See JOHN STUART M I L L , ON LIBERTY (Alburey C a s t e l l , Ed. 1 9 4 7 ) . 30  31  See Crawford, supra  32  Major, supra  33  See generally  3 4  Search  See and  note  note 28,  at  M i l l , supra  David Schuman, Taking Seizure,  2 7 AMER.  CRIM.  28,  at  18-21.  59.  note  30.  Law Seriously: L . REV. 583 15  Communitarian (1990).  have i n d i v i d u a l freedom as a goal, the extent of i n d i v i d u a l l i b e r t y should not vary between d i f f e r e n t s o c i e t i e s .  As a  35  r e s u l t , under t h i s theory of i n d i v i d u a l r i g h t s , Canada and the United States should not d i f f e r with respect t o the protection of i n d i v i d u a l freedoms. By contrast,  communitarian t h e o r i s t s believe that  r i g h t s are a means to serve larger s o c i e t a l purposes.  36  individual Self-  determination i s one of the important goals of a democracy; however, t h i s independence should not be defined so broadly that i t i n h i b i t s the function of society as a whole or others* determination.  37  self-  The focus of communitarianism, then, i s the  interdependence and i n t e r r e l a t i o n s h i p s with other members of a society.  "[HJuman agency cannot be i n t e l l i g i b l y abstracted from  the ends and purposes that an i n d i v i d u a l has as a member of society."  38  Communitarianism focuses on a shared notion of  s o c i e t a l ends, defined by those public practices,  evaluations,  and t r a d i t i o n s of the p a r t i c u l a r society which enable individuals to r e a l i z e t h e i r freedom.  39  The r o l e of government i s t o preserve the community, l i m i t i n g i n d i v i d u a l freedom as l i t t l e as possible while taking into consideration  the purpose of the freedom with respect t o i t s  5S  Crawford, supra  note 28, at 4.  36  Schuman, supra  note 34, at 587.  37  Crawford, supra  note 28, at 18-19,  Note, A Communitarian Defense HARV. L. REV. 682, 689 (1988). 38  39  Note, supra  of  note 38, at 689-90. 16  Group  Libel  Laws,  101  importance i n the community.  Thus, i n d i v i d u a l r i g h t s under  40  communitarian theory should vary between countries i n order t o account for the s p e c i f i c values and necessities of d i f f e r e n t communities.  41  Under t h i s theory, the United States and Canada  should d i f f e r i n the degree of protection afforded i n d i v i d u a l freedoms only to the extent that these r i g h t s disproportionately i n t e r f e r e with the function of society and contravene s o c i e t a l values,  respectively. C. American  Individualism  The United States developed out of the Revolutionary War as a c l a s s i c a l l y liberal society.  The ultimate evidence of a  42  Lockean t r a d i t i o n i s the language used i n the Declaration of Independence, stressing equality and the r i g h t t o l i f e , and the pursuit of happiness.  liberty,  American society can be  43  characterized as having several underlying  values and attitudes  with respect to the r o l e of government: 1 ) a general d i s t r u s t of governmental power; social relations;  THE  44  3 ) a strong notion of i n d i v i d u a l i s m ;  45  40  See Major, supra  41  Crawford, supra  42  Lipset, supra  43  Kenneth  CHARTER,  9  H.  2) a r e l a t i v e l y e q u a l i t a r i a n view of  note note  note  Fogarty,  at  28, 28,  24,  at  at  Lipset, supra  4 5  Id. at  22-23.  46  Id. at  27.  note  4)  59-60.  4.  2.  EQUALITY RIGHTS AND THEIR LIMITATIONS IN  (1987) .  44  46  24,  at  2.  17  a l a i s s e z - f a i r e c a p i t a l i s t ethic; and 5) a populist form of democrat i c government.  47  Each of these values has been associated with the American Revolution.  48  As a group, the colonies largely consisted of  middle-class B r i t i s h subjects who  f l e d England either from  p o l i t i c a l or r e l i g i o u s d i s s a t i s f a c t i o n or i n search of economic gain.  As such, i t was a society with only a d i s t a n t feudal  past.  49  The c o l o n i s t s ' discontent with the B r i t i s h government  caused a revolution seeking p o l i t i c a l independence.  This  r e j e c t i o n of authority can be seen i n numerous aspects of American society.  Thus, the nature of 18th century c o l o n i a l  society has continued to define dominant ideologies i n the United States over two hundred years l a t e r , l.  S o c i a l and Economic Development As Professor Lipset has concluded, an i n d i v i d u a l i s t ethic i s  apparent i n fundamental s o c i a l i n s t i t u t i o n s i n American society, including r e l i g i o n that the U.S.  5 0  and the economy.  51  There are i n d i c a t i o n s  i s one of the most fundamentalist C h r i s t i a n nations  i n the world and i s dominated by r e l i g i o u s groups, sectarian Protestants such as Baptists and Methodists, which tend to stress i n d i v i d u a l i s t values.  Religious b e l i e f s have contributed to a  greater number of Americans tending to characterize issues i n 47  Id. at 30.  48  Id. at 20.  Lipset, supra note 24, at 8 ( c i t i n g observations made by F r i e d r i c h Engels i n the late 19th century). 49  50  Id. at 74-78, 84-85.  51  Id. at 119-121. 18  terms of good and e v i l .  These r e l i g i o u s b e l i e f s have also  5 2  encouraged entrepreneurial success. Economically, the United States has c l o s e l y followed a c a p i t a l i s t model.  Americans are generally driven by p r o f i t and  the accumulation of wealth.  There i s a r e l a t i v e willingness to  take r i s k i n business and to encourage innovation.  The l a r g e l y  bourgeois composition of the U.S. has contributed to the capitalist ideal.  Thus, whereas European nations witnessed a  struggle between a r i s t o c r a t i c e l i t e and c a p i t a l i s t  entrepreneurs,  the United States d i d not have a feudal past which i n h i b i t e d c a p i t a l i s t development. Nonetheless,  53  the U.S. has been r e l a t i v e l y e q u a l i t a r i a n i n  i t s c a p i t a l i s t endeavors.  54  There has been a r e j e c t i o n of  e l i t i s t notions of the poor acknowledging t h e i r i n f e r i o r i t y before the upper-class.  American society has continued to stress  meritocracy i n i t s c a p i t a l i s t economic system.  In addition,  education has been more widely available i n the United States than i n most i n d u s t r i a l i z e d countries.  55  This m e r i t o c r a t i c  perspective has resulted i n a r e l a t i v e l y greater degree of emphasis on s o c i a l mobility i n the United States.  For example,  Id. at 84-85 (approximately 95% of Americans believe i n God and 66% i n the d e v i l as compared to 86% and less than 50%, respectively, i n Canada). 52  Id. at 20, 119 (this development was possible geographically due to substantial a g r i c u l t u r a l , animal, and mineral resources i n the United States). 53  54  Lipset, supra  note 24, at 24-25, 154, 159-60.  Id. at 24, 160 ( s p e c i f i c a l l y noting that 22% of 18-24 year-olds were enrolled i n f u l l - t i m e colleges or u n i v e r s i t i e s i n the U.S. as compared to 14.5% i n Canada i n 1985). 55  19  access to education and professional employment has not been as limited by the socio-economic background of an i n d i v i d u a l ' s parents as i n Europe and Canada. Each of these factors has led to decreased government involvement i n c i t i z e n a c t i v i t y and a general d i s t r u s t of government.  56  In fact, both r e l i g i o u s and economic development  occurred with r e l a t i v e l y l i t t l e governmental interference.  With  such a strong h i s t o r i c a l and c u l t u r a l emphasis on l i b e r a l i s m , some suggest that instead of a country possessing numerous ideologies, Americanism i s an ideology according to researchers,  itself.  Thus,  5 7  there i s a r e l a t i v e i d e o l o g i c a l  hegemony i n the United States which r e s u l t s i n a fundamentally individualist society.  58  This form of individualism  has  influenced the structure and on-going development of government in numerous ways. 2. I n s t i t u t i o n a l Development: Constitution and B i l l of Rights Largely i n reaction to monarchical c o n t r o l ,  59  the  Constitution divides governmental powers i n such a way  U.S. as to  prevent excessive control by the executive or, for that matter, any p a r t i c u l a r branch of government. President must negotiate  60  Thus, Congress and  the  and compromise with each other.  Id. at 95 (suggesting that such a s o c i e t a l development has caused a high rate of v i o l e n t crime i n the United States). 56  57  Id. at  19.  58  Id. at  19.  59  Lipset, supra  note 24, at  21.  U.S. Constitution, Arts. I (Congressional ( J u d i c i a l power), & III (Presidential power). 60  20  power), II  Further,  the U.S. Supreme Court, acting under the notions of  c o n s t i t u t i o n a l supremacy and separation  of powers, assumed the  r o l e of c o n s t i t u t i o n a l interpreter i n the case of Marbury v. Madison.  61  As a r e s u l t , Congress and the President  are subject  to the Court's interpretation of t h e i r powers under the Constitution.  Thus, the federal j u d i c i a r y has used t h i s power t o  invalidate l e g i s l a t i o n v i o l a t i v e of the U.S. Constitution and has, therefore, been l a r g e l y responsible development of i n d i v i d u a l freedoms.  f o r the c o n s t i t u t i o n a l  62  By d i l u t i n g the government's power i n such a way, the United States has been characterized as r e l a t i v e l y s t a t e l e s s .  63  This  s t r u c t u r a l development i s connected t o the r e l a t i v e l y a n t i s t a t i s t viewpoint held by many Americans.  64  As a r e s u l t , the  development of i n d i v i d u a l r i g h t s has been dominated by fears of governmental oppression. The United States rebelled against England's suppression of individual rights;  65  however, c i t i z e n s of the United States have  since witnessed substantial governmental l i m i t a t i o n of freedoms,  6 1  5  U.S.  (1  Cranch)  137  (1803).  Even though the Constitution i s the supreme law under the Supremacy Clause, the federal courts d i d not have the inherent power to l i m i t either Congressional or state action through the l i m i t a t i o n s on authority found i n the Constitution. See Robert Sedler, Constitutional Protection of I n d i v i d u a l Rights 6 2  in  Canada:  Freedoms,  The  59  Impact  of  the  New Canadian  NOTRE DAME L. R E V . 1 1 9 1  Charter  of  Rights  and  (1984) .  Lipset, supra note 2 4 , at 2 1 (noting that no national government i s as l i m i t e d i n power except that of Switzerland). 63  6 4  6 5  (1983);  Id. at  35.  Barry Strayer, Sedler, supra note See  THE CANADIAN 62. 21  CONSTITUTION  AND THE COURTS  including the acquiescence to slavery, segregation, forced internment, and the suppression of speech t o deter p o l i t i c a l c r i t i c i s m and s t i f l e opposition t o war.  As a r e s u l t , U.S.  c i t i z e n s have tended to d i s t r u s t government and i t s power over c o n s t i t u t i o n a l l y protected r i g h t s .  66  Thus, the development of  i n d i v i d u a l r i g h t s i n the United States i s characterized by a strong notion of i n d i v i d u a l i s m .  67  The B i l l of Rights stresses the importance of i n d i v i d u a l r i g h t s i n American society.  These r i g h t s were established i n  order t o protect against governmental intrusion i n the l i v e s of American c i t i z e n s .  Many of these protections d i r e c t l y r e f l e c t  the c o l o n i a l d i s s a t i s f a c t i o n with B r i t i s h governmental p o l i c y before the Revolutionary War.  For example, the p r o v i s i o n  r e l a t i n g to freedom of expression and the anti-establishment clause with respect t o r e l i g i o n are derived from pre-Revolution complaints against B r i t i s h r u l e .  The m e r i t o c r a t i c approach i n  the United States has also resulted i n a dominant theory of equality of opportunity.  Under t h i s perspective of equality, the  government's r o l e i n protecting equality i s merely t o ensure equal access.  There i s no obligation f o r the government t o  ensure equality of r e s u l t .  66  Expression: Defamation,  Symposium, Language Canadian  and  as Violence v. Freedom American Perspectives on  of Group  37 Buff. L. Rev. 337 (1989) (K. Mahoney, speaker); Mari Matsuda, Public Response to Racist Speech: Considering the V i c t i m ' s Story, 87 MICH. L. REV. 2320 (1989) . Schuman, supra note 34, at 585 (stating that American Fourth Amendment law i s d i s t i n c t l y i n d i v i d u a l i s t ) . 6 7  22  There i s a strong notion that i n d i v i d u a l r i g h t s are necessary as a protection against overreaching by the government. In fact, both major p o l i t i c a l p a r t i e s i n the U.S., the Republicans  and the Democrats, can be characterized as  c l a s s i c a l l y l i b e r a l and a n t i - s t a t i s t .  Thus, the majority of  p o l i t i c a l debate i n the U.S. occurs within the l i b e r a l framework. Each party asserts an a l t e r n a t i v e method of achieving i n d i v i d u a l i s t goals.  In addition, much of the attention  surrounding r i g h t s i n U.S. courts r e l a t e s to t h i s notion of the government as an oppressor of r i g h t s .  However, much of t h i s  sentiment i s r e l a t i v e l y recent and should be viewed i n the context of changes i n federalism. 3. American Federalism—State  and Federal Governments  The system of government i n which p o l i t i c a l power i s divided between national and l o c a l governments, thereby creating an interdependent completely  r e l a t i o n s h i p i n which neither l e v e l i s  subordinate to the other, i s known as federalism.  Both Canada and the United States operate within a f e d e r a l i s t system, but each has created i t s own unique version.  Federalism  i s a s i g n i f i c a n t aspect of each country's p o l i t i c a l culture and a key component i n analyzing the r o l e of government i n r e l a t i o n to individual rights.  Governmental power i n the area of r i g h t s may  be divided between federal and l o c a l l e v e l s just as i t i s between the j u d i c i a l and l e g i s l a t i v e branches.  Thus, though a weak  federal government may indicate an a n t i - s t a t i s t p o s i t i o n i n a country, the opposite could be true i f strong governmental power instead rested i n l o c a l structures.  To determine the true r o l e  of the state i n r e l a t i o n to i n d i v i d u a l s i n society, the nature of 23  federalism and the consequent power of each l e v e l of government must be assessed. In the United States, the federal power i s d i l u t e d to a great extent through the d i v i s i o n of powers and  the  c o n s t i t u t i o n a l r e s t r i c t i o n of Congressional power.  However, with  respect to the l a t t e r , much of t h i s l i m i t a t i o n i s i n r e l a t i o n to the power of state governments within the United States than i n r e l a t i o n to American c i t i z e n s i n general.  rather  Thus, the  Constitution and, more s p e c i f i c a l l y , the B i l l of Rights are  not  d e f i n i t i v e a n t i s t a t i s t documents; rather, they represent the d i v i s i o n of state power between the federal and l o c a l l e v e l s . fact, there was  substantial debate about whether to include  B i l l of Rights i n the Constitution at a l l .  In  the  Alexander Hamilton  argued that the e x p l i c i t recognition of c e r t a i n r i g h t s would necessarily exclude others unintentionally.  According to h i s  view of the Constitution, the very structure of the document i t s e l f , incorporating d i v i s i o n of powers, federalism, populism, was power.  68  and  s u f f i c i e n t to protect i n d i v i d u a l s from governmental  Ultimately, the r i g h t s were added to the  Constitution  in order to ensure that the federal government could not overcome l o c a l self-government i n these matters.  69  Indeed, the Tenth  Amendment confirmed the autonomy of states i n matters not exclusively within the j u r i s d i c t i o n of the federal government. Thus, the B i l l of Rights,  68  69  F e d e r a l i s t no.  i n i t s o r i g i n a l form, only applied to  84.  Robert S. Peck, THE B I L L 62-70 (1992) .  OF  RIGHTS AND  INTERPRETATION,  24  THE  POLITICS  OF  the power of the federal government.  This view was upheld i n the  U.S. Supreme Court by Chief J u s t i c e Marshall i n Barron v. Baltimore.  70  Following the C i v i l War, the v i c t o r y of the northern  states  resulted i n an extremely i n f l u e n t i a l development i n the nature of r i g h t s i n American society.  The C i v i l War Amendments  represented  the s t r u c t u r a l a b o l i t i o n of slavery, along with i t s badges and incidents.  S p e c i f i c a l l y , the Thirteenth Amendment prohibited  slavery and involuntary servitude, the Fourteenth Amendment pronounced the equality of c i t i z e n s and t h e i r r i g h t to due process i n state proceedings, and the Fifteenth Amendment protected voting r i g h t s based on race.  However, the ultimate  e f f e c t of these provisions was not f u l l y r e a l i z e d u n t i l well into the 20th century. I n i t i a l l y , these provisions had l i t t l e e f f e c t beyond the e x p l i c i t a p p l i c a t i o n against slave practices i n the South. Indeed, the P r i v i l e g e s and Immunities clause was interpreted i n a manner which severely l i m i t e d i t s possible consequence.  71  Around the turn of the century, the Supreme Court began to interpret the Fourteenth Amendment Due Process clause as requiring states to recognize freedom of contract.  Thus, state  attempts to regulate working conditions i n the face of extreme  n  7 Pet. 243 (1833).  Slaughter House Cases, 16 Wall. 36, 61 (1873) (upholding a Louisiana statute creating a monopoly i n l i v e s t o c k f a c i l i t i e s despite a challenge under the Fourteenth Amendment's p r i v i l e g e s and immunities clause, i n favor of state p o l i c e powers, including the power to protect the health, welfare, and safety of the community). 71  25  v i o l a t i o n s were i n v a l i d a t e d .  72  The r e s u l t s of these cases can  be better understood i n the context of the o v e r a l l l a i s s e z - f a i r e attitude of t h i s period.  Although t h i s d i d not s i g n i f i c a n t l y  73  a l t e r state power i n the area of i n d i v i d u a l r i g h t s , i t d i d represent a s i g n i f i c a n t trend toward c e n t r a l i z a t i o n of federal power. With respect to i n d i v i d u a l r i g h t s , the s h i f t i n power came l a t e r and more slowly.  Beginning with Gitlow v. New York,  74  75  the U.S. Supreme Court began the process of incorporating the B i l l of Rights into the Fourteenth Amendment.  Under the r u b r i c  of due process, the Court determined that the fundamental r i g h t s a r t i c u l a t e d i n the Constitution should apply t o state governments.  76  Ultimately, t h i s was the most s i g n i f i c a n t a n t i -  s t a t i s t development i n the r i g h t s sphere i n the United States. Rather than a document d i v i d i n g power between two governments,  "  Lochner v. New York, 198 U.S. 45 (1905). Peck, supra  73  74  RIGHTS  note 69, at 291.  Richard C. Cortner, (1981) .  T H E SUPREME  COURT AND THE SECOND  B I L L OF  268 U.S. 652 (1925) ("[F]or present purposes we may and do assume that freedom of speech and of the press which are protected by the F i r s t Amendment from abridgement by Congress, are among the fundamental personal r i g h t s and l i b e r t i e s protected by the due process clause of the Fourteenth Amendment from impairment by the States."). 75  Although the Supreme Court has never e x p l i c i t l y incorporated the entire B i l l of Rights into the Fourteenth Amendment, most of the relevant provisions have been transferred. Leonard Levy, ed., THE FOURTEENTH AMENDMENT AND THE B I L L OF RIGHTS: THE INCORPORATION THEORY, X X I I I (1970) . For a discussion of the debate surrounding t h i s process, see Charles Fairman, Does the 76  Fourteenth Original  Amendment Understanding,  Incorporate  2  STANFORD  the  Bill  of  Rights?  L. REV. 5 (1949) . 26  The  the Constitution now prevented any government i n the United States from i n t e r f e r i n g with i n d i v i d u a l l i b e r t i e s contrary to the B i l l of Rights.  Prior to these developments, states, within  t h e i r sovereign p o l i c e power, could regulate speech and other fundamental matters without federal interference. With the incorporation doctrine, the federal j u d i c i a r y became the nation's primary keeper and interpreter of r i g h t s . The incorporation doctrine has s i g n i f i c a n t l y reduced the opportunity for s i g n i f i c a n t p o s i t i v e action on the part of the government i n the protection and promotion of r i g h t s .  For  example, p r i o r to the Fourteenth Amendment, the c i t y of  New  Orleans passed a law r e s t r i c t i n g funerals to one chapel, and p r o h i b i t i n g them altogether i n Catholic churches, i n order to prevent the spread of yellow fever.  The Supreme Court, i n  Permoli, upheld a f i n e imposed against a Catholic p r i e s t v i o l a t i n g t h i s d i r e c t i v e under the reasoning of Barron.  77  Thus,  the state was able to place p u b l i c health concerns above those of freedom of r e l i g i o n i n order to protect the state's c i t i z e n s from harm.  Advocating the contemporary application of a s i m i l a r  balancing of interests t h i s type of reasoning would not imply that the Fourteenth Amendment has not had a p o s i t i v e impact f o r individual rights.  Indeed, the context i n which incorporation of  the F i r s t Amendment occurred, state prosecutions of i n d i v i d u a l s advocating communist b e l i e f s , represented a s i g n i f i c a n t development i n the protection of p o l i t i c a l speech.  Nonetheless,  the Supreme Court's application of freedom of expression against  Permoli v. New  Orleans, 3 How.  589  (1845).  the states went well beyond t h i s limited context and followed the degree of scrutiny afforded the federal government under the F i r s t Amendment. According to J u s t i c e Holmes, the t o t a l incorporation of the F i r s t Amendment was not necessary to serve the purposes of the Fourteenth Amendment. i t seems to me,  "[T]he general p r i n c i p l e of free speech,  must be taken to be included i n the 14th  Amendment, i n view of the scope that has been given to the word • l i b e r t y ' as there used, although perhaps i t may  be accepted with  a somewhat larger l a t i t u d e of interpretation than i s allowed to Congress by the sweeping language that governs, or ought to govern, the laws of the Untied States."  78  For example, the  Supreme Court could apply an intermediate scrutiny t e s t , used i n equal protection cases, to evaluate the legitimacy of state regulation of speech.  In the case of the New  Orleans p u b l i c  health law, for example, the Court could evaluate the reasonableness of the law i n l i g h t of the importance of both freedom of r e l i g i o n and p u b l i c safety.  However, the Supreme  Court has rejected t h i s p o s i t i o n and has applied i t s F i r s t Amendment doctrines i n t h e i r entirety against state a c t i o n .  79  Thus, o v e r a l l , the United States has witnessed a c e n t r a l i z a t i o n i n the power of the federal government i n the 20th century.  However, t h i s c e n t r a l i z a t i o n has not expanded the r o l e  of the federal government i n promoting i n d i v i d u a l r i g h t s .  Gitlow v. New J., dissenting). 78  79  (1964) .  See, e.g.,  New  York, 268 U.S.  652, 672  (1925) (Holmes,  York Times v. Sullivan, 376 U.S. 28  254  On the  contrary, the Supreme Court has limited the a b i l i t y of government to balance the needs of society i n r e l a t i o n to the importance of individual rights. D. Canadian  Communitarianism  In comparison to the United States, Canada developed i n a considerably d i f f e r e n t manner. the French and the English.  F i r s t , Canada was s e t t l e d by both  The Treaty of Paris, i n 1763, placed  Quebec within the B r i t i s h Empire and caused many French bourgeois to return to France.  80  In response to the French Revolution,  many conservative Catholic p r i e s t s emigrated from France to Quebec.  S i m i l a r l y , when the Revolutionary War began,  81  L o y a l i s t s f l e d north to Canada from the American  colonies.  82  Thus, the country was inhabited by two d i s t i n c t s o c i e t i e s , both of which had rejected revolutions against governmental tyranny.  83  As a r e s u l t , the population was generally  conservative, or tory, and possessed an image of the state as a necessity i n the protection of the community.  84  The prime  example of t h i s communitarian t r u s t i n government i s symbolized by the c o n s t i t u t i o n a l axiom of "peace, order, and good government" placed i n the B r i t i s h North America A c t .  80  Lipset, supra  81  Id. a t 47.  8 2  Id. at 47.  8 3  Id. at 47.  84  Id. at 43.  85  constitution Act, 1867, s. 91(1).  note 24, at 47.  29  85  Lipset  i d e n t i f i e s several c h a r a c t e r i s t i c s , including r e l i g i o n economics, 1.  87  and  8 6  which r e f l e c t t h i s communitarian perspective.  S o c i a l and Economic Development By contrast to the development of r e l i g i o n i n the United  States, r e l i g i o n i n Canada developed under two churches which were h i e r a r c h i c a l and had been established by the state i n Europe: Catholicism, largely followed by the francophone population, and the Anglican church, l a r g e l y followed by B r i t i s h L o y a l i s t s and which has now  largely given way to the u n i f i e d  anglophone sectarian United Church.  Because of a lack of  emphasis on moralism and a recognition of coexistence, there has not been the same tendency toward competitive values.  The  h i e r a r c h i c a l , state-supported nature of r e l i g i o n i n Canada has contributed to the retention of toryism and general communitarian values.  88  Within the economic sphere, Canada has developed more slowly than the United States.  With a larger land mass, a smaller  population, and a r e l a t i v e lack of resources, the p r i v a t e business sector was not able to f l o u r i s h on i t s own.  Rather, the  government acted as a necessary partner i n economic development. Canadians have been characterized as less aggressive, r i s k taking, and innovative than Americans i n the business  sphere.  There has been an o v e r a l l decreased emphasis on competition personal economic gain.  86  Lipset, supra  87  Id. at 118-134.  88  Id.  As a r e s u l t , the economy i n Canada,  note 24, at 79-83.  30  and  while r e l a t i v e l y strong among i n d u s t r i a l i z e d nations, has developed more slowly than that of the U.S. Nevertheless, the difference between these two countries' economies i s shrinking and i s narrower than any time i n history. Canada's emphasis on ethnic d i v e r s i t y serves as further evidence of a strong sense of c o l l e c t i v i s m .  Rather than  r e f l e c t i n g the American notion of a melting pot, many scholars have referred t o Canadian society as a mosaic.  89  Within t h i s  analogy, society values the d i s t i n c t i v e n e s s of each culture and encourages retention of c u l t u r a l b e l i e f s and p r a c t i c e s .  90  This  tolerance i s largely i n response t o the powerful presence of Francophones i n Quebec.  91  The presence of such a large minority  population, d i s t i n c t i n language, culture, and geography, has forced Canadian society t o t o l e r a t e a heterogenous system of values.  In fact, i t has been suggested that Canada's multi-  c u l t u r a l character defines the country's true national i d e n t i t y more than any other c u l t u r a l factor.  This r e l a t i v e l y  communitarian ideology has, i n turn, shaped the development of p o l i t i c a l i n s t i t u t i o n s i n Canada.  By  Id. at 173.  90  Id. at 180.  Id. at 179; Morton Weinfeld, Canadian Jews and Canadian Pluralism, i n S.M. Lipset, ed., AMERICAN PLURALISM AND THE JEWISH COMMUNITY (1989) ("The binational o r i g i n of the Canadian state paved the way f o r f u l l acceptance of the p l u r a l nature of Canadian society and acknowledgement of the contribution, value, and r i g h t s of a l l Canadian minority groups"). 91  31  2.  I n s t i t u t i o n a l Development: B.N.A. Act and the Charter Within the p o l i t i c a l sphere, there i s arguably more  i d e o l o g i c a l d i v e r s i t y i n Canada than i n the United States.  92  In  addition to the l i b e r a l i n d i v i d u a l i s t theory found i n the United States,  93  Canadian p o l i t i c a l thought incorporates both toryism  and socialism.  Toryism finds i t s basis i n 19th century  monarchical English p o l i t i c s .  Under t h i s ideology, the state i s  a fundamental i n s t i t u t i o n i n society, responsible f o r maintaining order and ensuring the basic needs of c i t i z e n s .  94  Individual  needs are s a c r i f i c e d i n the interests of the larger community.  95  As such, t o r i e s support the economic class system as necessary to achieve s o c i a l s t a b i l i t y and economic p r o s p e r i t y .  96  By  contrast, although s o c i a l i s t s also advocate the strong r o l e of government i n achieving s o c i e t a l ends at the expense of i n d i v i d u a l concerns, s o c i a l democrats perceive the objective of t h i s r o l e as eliminating class d i s t i n c t i o n s through welfare programs. Thus, without unitary l i b e r a l thought, there i s greater opportunity for p o l i t i c a l , rather than j u d i c i a l , solutions on contentious issues such as the death penalty.  In addition, the  government has continued to be strongly connected t o economic  See Macklem, supra  note 23, at 143.  See i d . at 129-38. Id. at 125. Id. at 125. Id. at 125-27. 32  development, religion.  s o c i a l welfare,  97  8  crime c o n t r o l ,  99  and  Canada's i d e o l o g i c a l d i v e r s i t y can be seen i n the  1 0 0  development of i t s l e g a l and p o l i t i c a l i n s t i t u t i o n s . In 1867,  Canada gained independence from England with the  B r i t i s h North America Act.  This Act established Canada's  Constitution and granted powers t o both federal and p r o v i n c i a l governments.  S t r u c t u r a l l y , the Parliamentary  101  form of  government does not d i l u t e governmental power as much as i n the United S t a t e s . of powers.  103  102  There i s not the same emphasis on separation  The executive branch of government i s led by the  cabinet, a group composed of the Prime Minister and several other  Lipset, supra note 24, at 51 (noting the importance of Canada's r e l a t i v e l y large land mass and small population i n promoting a strong governmental r o l e i n the economy). 9 7  For example, the s o c i a l i z a t i o n of health care i n Canada reaches f a r beyond the U.S. model of providing services to the elderly, poor, and disabled. 98  Canada has more stringent gun control laws than the U.S., and opinion p o l l s show Canadians place more t r u s t i n p o l i c e protection. See David B. Kopel, Canadian Gun Control: Should 99  the United States Look North for a Solution to Problem?, 5 TEMPLE I N T . & COMP. L.J. 1 (1991) ; Canada Survive the Charter, 30 ALBERTA L. REV.  its  Firearms  Charles Taylor, Can 427, 429 (1992) (arguing that Canada i s less v i o l e n t due to a lack of r a c i a l c o n f l i c t and the nature of p o l i t i c a l c u l t u r e ) . In r e l a t i o n to the U.S., there i s a much lesser degree of emphasis on the importance of separation of church and state in Canada. 100  101  Sedler, supra  note 62, at 1192.  102  Lipset, supra  note 24, at 50.  103  Peter W. Hogg, CONSTITUTIONAL LAW OF CANADA, 243 (3d ed.  1992).  33  ministers, each of whom i s a member of Parliament.  104  In f a c t ,  the Prime Minister i s the Parliamentary leader of the p r e v a i l i n g p o l i t i c a l party i n the House of Commons.  105  Because the cabinet  has such influence i n the House of Commons and i s p r i m a r i l y responsible f o r appointing members of the Senate, i t e f f e c t i v e l y controls both the l e g i s l a t i v e and executive government i n Canada.  106  branches of  In addition, the notion of  parliamentary supremacy dominated i n Canada u n t i l the adoption of the Charter and s.52(l) of the Constitution Act, which allows the j u d i c i a r y to s t r i k e down laws inconsistent with the Constitution, in 1982. Even with such a provision, the notion of parliamentary supremacy continues to influence Canadian c o u r t s .  107  Thus,  there has been r e l a t i v e l y l i t t l e oversight of l e g i s l a t i v e action by the j u d i c i a r y i n Canada. From the prevalence of positivism and the p o l i t i c a l  ideology  of toryism at the time the B.N.A. Act was drafted, the Canadian Constitution retained the B r i t i s h notion of Parliamentary supremacy and, as such, did not contain any s p e c i f i c guarantee of r i g h t s s i m i l a r to the American B i l l of Rights.  108  By d i v i d i n g  Id. at 229 (although the Governor General i s the formal head of state, he or she must follow the d i r e c t i o n of the cabinet). 104  105  Id. at 233.  106  Id. at 243.  107  Id. at 305.  Strayer, supra note 65. However, t h i s notion of Parliamentary supremacy was not as r i g i d as i n England. See i d . at 4; Hogg, supra note 103, at 303 ("[T]here was no l e g i s l a t i v e body i n Canada which was sovereign i n the sense of being able to make or unmake any law whatsoever."). Under the English system, following Parliament's declaration of supremacy a f t e r the English 108  34  powers exclusively t o either federal or p r o v i n c i a l l e v e l s of government,  109  Canada's c o n s t i t u t i o n established a s t r u c t u r a l  grant of power for j u d i c i a l review of l e g i s l a t i v e a c t i o n s .  110  Canadian courts had c o n s t i t u t i o n a l powers t o f i n d a statute u l t r a vires,  or outside the scope of a l e g i s l a t i v e body's  c o n s t i t u t i o n a l authority.  In Canada, some Supreme Court  111  decisions based on u l t r a v i r e s grounds emphasized the importance of i n d i v i d u a l freedoms.  112  Thus, even though r i g h t s were not  c o n s t i t u t i o n a l l y recognized,  Canada did acknowledge t h e i r  importance t o the democratic structure of government. In 1982,  113  Canada passed the Constitution Act which contained  the Charter of Rights and Freedoms.  114  This was the  first  instance i n which Canada c o n s t i t u t i o n a l l y recognized i n d i v i d u a l freedoms.  The Charter, as a modern document, was formulated  in a  c i v i l wars i n the seventeenth century, English courts were subject to Parliamentary supervision and override. Strayer, supra note 65, at 36. Further, because the courts did not have the power t o determine the v a l i d i t y of l e g i s l a t i o n , Parliament had unlimited power that was not subject to j u d i c i a l review. Id. See Sedler, supra 65, at 39. 1uy  110  Strayer, supra  note 62, at 1195;  Strayer, supra  note  note 65, at 40.  For example, since the Constitution grants the exclusive authority t o enact criminal laws t o Parliament, i f a p r o v i n c i a l l e g i s l a t u r e enacted a criminal provision, a Canadian court could hold the statute to be u l t r a v i r e s . See Strayer, supra note 65, at 39. 111  The Supreme Court of Canada held a p r o v i n c i a l statute which prohibited the d i s t r i b u t i o n of communist propaganda t o be ultra vires. See, e . g . , Reference Re Alberta Statutes, [1938] S.C.R. 100; Sedler, supra note 62, at 1198. 112  113  Id.  114  Id. 35  dramatically d i f f e r e n t atmosphere than the American B i l l of Rights.  Most notably, t h i s document was not a response t o  governmental oppression and emerging independence of an inexperienced n a t i o n .  115  Thus, Canada could use i t s h i s t o r i c a l  experiences as a nation to formulate a document which would r e f l e c t values developed  and refined since i t s i n c e p t i o n .  116  In  addition, Canada was able t o learn from the experience of the United States with the B i l l of Rights as well as other national and international documents, such as the European Convention on Human R i g h t s .  117  Although the Charter contains many provisions which could be characterized as c o l l e c t i v i s t , t h i s document has been r e f e r r e d to as the single most "American" of a l l s t r u c t u r a l elements i n Canada.  118  In many ways, i t mirrors the American B i l l of  Rights, i n conjunction with the 14th Amendment t o the U.S. Constitution.  In the Charter, there are protections for freedom  of expression, freedom of r e l i g i o n , freedom from unreasonable search and seizure, various other protections i n the c r i m i n a l j u s t i c e system, and r i g h t s of equality.  Most s i g n i f i c a n t l y ,  although Canada has been characterized as being communitarian and t o l e r a t i n g s i g n i f i c a n t l y greater governmental involvement  i n the  area of r i g h t s , the Supreme Court of Canada has l i m i t e d the application of the Charter, l i k e the B i l l of Rights, t o instances  115  Id.  116  Id.  117  Sedler, supra  note 62, at 1198; Strayer, supra  118  Lipset, supra  note 24, at 116. 36  note 65.  of governmental conduct.  119  Thus, the Charter's sole function  i s to oversee l e g i s l a t i v e , or other governmental rule-making, authority.  Although the Court may  interpret the Charter i n such  a manner as to allow p o s i t i v e action by the government, the Charter i t s e l f cannot mandate such a r e s u l t .  This, more than  anything else, demonstrates the s i m i l a r i t y of the Charter to the American B i l l of Rights. However, t h i s document d i f f e r s from the American B i l l of Rights i n several respects, notably i n the strength of governmental interests i n r e l a t i o n to i n d i v i d u a l r i g h t s .  Most  importantly, a l l of the r i g h t s enunciated i n the Charter are subject to l i m i t a t i o n under s . l .  This provision allows  governmental action to v i o l a t e the r i g h t s i n the Charter i f i t i s demonstrably j u s t i f i a b l e i n a free and democratic society. i s remarkably  This  d i f f e r e n t from the absolute nature of the B i l l of  Rights. Further, there are other manifestations of a c e r t a i n f a i t h in representative government.  The Charter, r e t a i n i n g aspects of  the history of Parliamentary supremacy i n Canada, contains a l e g i s l a t i v e override i n s. 3 3 .  120  Parliament and p r o v i n c i a l  l e g i s l a t u r e s can circumvent the Charter through an overt purposive statement  of intention to do so.  This p r o v i s i o n has no  R.W.D.S.U. v. Dolphin Delivery [1986] 2 S.C.R. 573 (holding the Charter as inapplicable to the p i c k e t i n g of a private company). 119  Section 33 of the Charter provides that "Parliament or the l e g i s l a t u r e of a province may expressly declare i n an Act of Parliament or of the l e g i s l a t u r e , as the case may be, that the Act or a provision thereof s h a l l operate notwithstanding a provision included i n section 2 or sections 7 to 15 of t h i s Charter." 120  37  counterpart i n the U.S.  Constitution.  The i n c l u s i o n of t h i s  section i n the Charter symbolizes a substantial t r u s t of the Canadian people i n the l e g i s l a t i v e process. As a r e s u l t of such l e g i s l a t i v e deference, courts i n Canada tend not to focus on slippery slope arguments as often as t h e i r U.S. was  counterparts.  121  Further,  altered by t h i s document,  although Parliamentary supremacy 122  i t s importance t o the Canadian  l e g a l system and long h i s t o r y i n Canada may demonstrate a greater degree of t r u s t i n elected o f f i c i a l s by the Canadian people. A d d i t i o n a l l y , because of the h i s t o r y of the ultra  vires  123  doctrine,  Canadian courts have chosen to "read down" and "read i n " statutes so that t h e i r provisions, even i f possibly unconstitutional, be interpreted so as to conform to the c o n s t i t u t i o n .  will  124  See Matsuda, supra note 66; compare Garrison v. Louisiana, 379 U.S. 64 (1964) with Keegstra, 3 S.C.R. 697 (1990). The Charter created a method of c o n s t i t u t i o n a l , rather than u l t r a v i r e s , j u d i c i a l review: s.52. The Constitution of Canada i s the supreme law of Canada, and any law that i s inconsistent with the provisions of the Constitution i s , t o the extent of the inconsistency, of no force or e f f e c t . This provision i s the equivalent of the Supremacy Clause i n A r t i c l e VI of the U.S. Constitution. However, because t h i s provision i s more e x p l i c i t , Canadian courts did not require a decision equivalent t o Marbury v. Madison i n order t o obtain c o n s t i t u t i o n a l j u d i c i a l review. See Sedler, supra note 62, at 1197. 122  See Strayer, supra note 65; Symposium, supra note 66, at 337 (indicating a greater degree of t r u s t i n government by the Canadian people than i n the United States); Kopel, supra note 99, at 43-45. 123  See Sedler, supra note 62, at 1196 (stating that t h i s method of interpretation has the e f f e c t of j u d i c i a l l e g i s l a t i o n by s i g n i f i c a n t l y changing the meaning of a statute). 124  38  The Canadian Charter of Rights and Freedoms gives primacy to the values of democracy and community.  Unlike the Fourteenth  125  Amendment, the r i g h t to equality i s s p e c i f i c a l l y granted to several i d e n t i f i a b l e groups.  The Charter makes reference t o the  preservation of m u l t i c u l t u r a l heritage and affirmative-action programs, and i t includes community-based r i g h t s such as aboriginal and language r i g h t s .  126  Thus, the Charter i s more  concerned with 'the related values of democracy and community,• rather than with the l i b e r t y of the i n d i v i d u a l against the state.  127  This democratic and community-based i n t e r p r e t a t i o n i s  one of the primary reasons behind s . l of the Charter.  128  Section 1 of the Charter i s unique i n the c o n s t i t u t i o n a l law of these two countries.  This section reads as follows: " s . l :  The Canadian Charter of Rights and Freedoms guarantees the r i g h t s and  freedoms set out i n i t subject  prescribed  by  law  democratic  society"  as  can  be  only  demonstrably  (emphasis added).  to  such  reasonable  justified  in  limits  a free  and  Thus, there i s a two part  analysis i n interpreting a l l Charter provisions: a) i s there a v i o l a t i o n of the protected r i g h t ; b) i f so, i s i t a reasonable l i m i t prescribed by law as can be demonstrably  justified in a  free and democratic society under s . l of the Charter?  The f i r s t  step can be characterized as determining the meaning of a  ^"  Monahan, supra  126  Richard Moon, The Scope  OSGOODE HALL L . J . 127  28,  at 128  3 31  Monahan, supra  note  27,  at of  102.  Freedom  of  Expression,  23  (1985) .  note  27,  at 1 0 2 ; see Crawford, supra  Monahan, supra note  27,  at  48.  39  101-102.  note  s p e c i f i c c o n s t i t u t i o n a l guarantee, and the burden i s on the i n d i v i d u a l asserting a v i o l a t i o n of the r i g h t . 129  Under the  second step, the burden s h i f t s to the government, or the party attempting to j u s t i f y the l i m i t a t i o n of the r i g h t , to show that the v i o l a t i o n i s demonstrably j u s t i f i e d i n a free and democratic society through both the goal of the l e g i s l a t i o n and i t s means of achieving that goal.  Because of t h i s reverse onus on the  government, the Charter i s written i n favor of the r i g h t s and freedoms. The authoritative decision i n section 1 analysis, R. v Oakes,  130  established a uniform and precise t e s t : f i r s t , the  l e g i s l a t i v e objective must be of s u f f i c i e n t importance to warrant overriding a c o n s t i t u t i o n a l l y protected  r i g h t or freedom; and  second, the means chosen to a t t a i n the objective must be proportional to the ends.  In applying t h i s analysis, the  objective of the l e g i s l a t i o n must have a "pressing and substantial" concern.  131  Under the p r o p o r t i o n a l i t y t e s t , three  elements have been i d e n t i f i e d : f i r s t , there must be a r a t i o n a l connection between the l e g i s l a t i o n and i t s objective; second, the measure should impair the r i g h t as l i t t l e as possible;  finally,  the attainment of the objective must be proportional to the e f f e c t s of the impugned measures and not so severely i n f r i n g e on i n d i v i d u a l or group r i g h t s that the l e g i s l a t i v e objective, a l b e i t important, i s nevertheless outweighed by the abridgement of 129  Sedler, supra  130  26 D.L.R.4th 200 (S.C.C. 1986).  131  Regina v. Edwards Books and Art, Ltd  (1986) .  note 62, at 580.  40  2 S.C.R. 713, 768  rights.  These p r i n c i p l e s are uniformly  132  Charter v i o l a t i o n s proscribed by law,  applied to a l l  including  s.2(b).  133  Thus, although Canada can define i n d i v i d u a l freedoms as broadly as the United States, there i s more opportunity  to limit rights  when competing s o c i e t a l interests demand. This analysis bears some resemblance to numerous t e s t s developed by the U.S. Rights.  Supreme Court i n i n t e r p r e t i n g the B i l l of  For example, the s . l analysis i s s i m i l a r t o the  134  s t r i c t j u d i c i a l scrutiny t e s t under the F i r s t and Fourteenth Amendment,  135  the "commercial speech d o c t r i n e , "  and present danger" t e s t ,  15d  1 3 7  136  the "clear  and the "symbolic speech"  138  Edmonton Journal, 64 D. L.R. 4th at 599 (S.C.C. 1989).  The terms "proscribed by law" found i n section 1 also require a j u d i c i a l determination i n most instances; however, f o r purposes of t h i s paper, i t i s s u f f i c i e n t t o note that l e g i s l a t i v e enactments and common law p r i n c i p l e s s a t i s f y t h i s t e s t so long as they are not overly vague. See Jerome Atrens, T H E CHARTER AND CRIMINAL PROCEDURE: THE APPLICATION OF SECTIONS 7 AND 11 (1989) . 133  Sedler, supra note 62, at 581; see also McGowan v. Maryland, 366 U.S. 420 (1961); Braunfield v. Brown, 366 U.S. 599 (1961) . 134  Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (stating that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims t o the free exercise of r e l i g i o n " ) . 135  Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (four-part analysis to determine whether a p a r t i c u l a r regulation of commercial speech i s c o n s t i t u t i o n a l l y permissible). 136  Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (state may p r o h i b i t advocacy of unlawful action only where such advocacy " i s directed to i n c i t i n g or producing imminent lawless action and i s l i k e l y to i n c i t e or produce such action."). 137  138  United States v. O'Brien, 395 U.S. 41  367 (1968).  doctrine.  13  Thus, an important difference between the Charter  and the B i l l of Rights interpretations appears t o be the uniform application of the same t e s t under the Charter f o r a l l r i g h t s , rather than the development of s p e c i f i c t e s t s f o r each i n t e r e s t under the B i l l of Rights. 3. F e d e r a l i s m — P r o v i n c i a l  140  and Federal Governments  Like the U.S. Constitution, the B r i t i s h North America Act established a federal system.  Similar to the o r i g i n a l debate  among the framers of the American Constitution, t h i s document represented a compromise between those p r e f e r r i n g a unitary  state  and those p r e f e r r i n g sovereignty f o r each region i n the area. However, t h i s Act r e f l e c t e d s p e c i f i c concerns of nineteenth century Canada.  F i r s t , one of the Act's primary purposes was to  resolve l i n g u i s t i c and c u l t u r a l differences by accommodating Lower Canada, which was predominantly French, and Upper Canada, which was l a r g e l y inhabited by descendants of B r i t i s h L o y a l i s t s . With a goal of c u l t u r a l harmony and with knowledge of the American system and the c i v i l war i t produced, Canada's federal system had a much more c e n t r a l i z i n g intention than the American federal system.  141  Contrary to the American Constitution, the  B r i t i s h North America Act provided the provinces with enumerated powers and vested the federal government with r e s i d u a l , i n addition to enumerated, powers.  142  However, i n p r a c t i c e , while  1iy  Sedler, supra  note 62, at 582.  140  Sedler, supra  note 62, at 582.  141  Hogg, supra  142  note 103, a t 108.  Id. 42  the federal government dominated i n the mid-nineteenth century and  for a short period a f t e r the Depression and World War  II,  Canada has witnessed a greater degree of decentralization  than  the United S t a t e s .  to  The  143  s h i f t i n power from the federal  p r o v i n c i a l l e v e l i s largely due  to the influence  Committee of the Privy Council,  the f i n a l court of appeal i n  Canada u n t i l 1949,  of the J u d i c i a l  which supported strong p r o v i n c i a l r i g h t s .  Although Canada s Constitution 1  was  founded on the  144  principle  of parliamentary supremacy, the r o l e of the j u d i c i a r y i n interpreting the d i v i s i o n of power between federal and governments weakened that p r i n c i p l e to some extent.  provincial  145  U t i l i z i n g the doctrine of u l t r a v i r e s , the Canadian j u d i c i a r y struck down many statutes enacted by both Parliament  and  p r o v i n c i a l l e g i s l a t u r e s as being outside the scope of delegated powers under the B.N.A. Act.  This had a s i g n i f i c a n t e f f e c t on  the power of the j u d i c i a r y i n protecting  individual rights.  For  example, the Supreme Court of Canada struck down several provisions v i o l a t i n g freedom of expression based on u l t r a v i r e s grounds. The  adoption of the Charter gave the j u d i c i a r y an even  stronger r o l e i n the protection  of i n d i v i d u a l r i g h t s .  However, t h i s document, unlike the C i v i l War  146  Amendments or  the  Id. at 110 ("[I]t i s clear that Canada now has a federal Constitution . . . that i s less centralized than that of either the United States or A u s t r a l i a . " ) . 143  144  Id. at  110.  145  Id. at  303.  Hogg, supra note 103, at 797 ("The major e f f e c t of Charter has been the expansion of j u d i c i a l review."). 146  43  the  B i l l of Rights i n the United States, did not have s p e c i f i c federalism implications.  The r i g h t s protected by the Charter  applied equally against both the federal and the p r o v i n c i a l governments and allowed them both to usurp those r i g h t s when demonstrably  j u s t i f i a b l e under s . l .  Thus, t h i s was neither  1 4 7  the d i v i s i o n of power represented by the B i l l of Rights nor the r e j e c t i o n of power represented by the doctrine of incorporation. Nonetheless, i t did place the Supreme Court of Canada i n a p o s i t i o n at least s i m i l a r to that of the U.S.  Supreme Court:  the  ultimate interpreter of i n d i v i d u a l r i g h t s at both the national and l o c a l governmental l e v e l . Despite the application of t h i s document to both l e v e l s of government, t h i s n a t i o n a l i z a t i o n of the meaning and content of c i v i l l i b e r t i e s sparked a s i g n i f i c a n t f e d e r a l i s t debate.  Indeed,  s.33, the l e g i s l a t i v e override provision, was a necessary addition i n order to gain the support of the r e q u i s i t e number of provinces to enact the Charter.  148  Thus, s i m i l a r to the debate  surrounding the adoption of the B i l l of Rights, the Constitution Act was viewed as a threat to p r o v i n c i a l sovereignty.  In fact,  Quebec has never assented to the Act f o r t h i s very reason. Since the implementation  149  of the Charter, some of the most  controversial cases have focused on Quebec's sovereignty over language matters. 147  In Ford v. Quebec,  150  the Supreme Court of  Id. at 798.  Id. at 892 (stating that s.33 "was the c r u c i a l element of the f e d e r a l - p r o v i n c i a l agreement of November 5, 1981 . . . " ) . 148  149  150  Id. at 892. [1988] 2 S.C.R. 712. 44  Canada held that a law banning the use of non-French languages on commercial signs v i o l a t e d the Charter's protection of free expression.  Subsequently,  the Quebec l e g i s l a t u r e re-enacted the  exterior signs portion of the law with a notwithstanding clause under s.3 3.  151  In fact, the only substantial use of s.33 has  occurred i n t h i s context.  However, i n doing so, Quebec d i d  152  not invoke an equivalent override provision i n i t s own Charter of Human Rights and Freedoms.  Thus, Quebec's d i s s a t i s f a c t i o n  153  with the Charter does not r e s u l t from a r e j e c t i o n of c i v i l liberties.  Rather, i t i s a matter of p r o v i n c i a l sovereignty i n  an a n t i - f e d e r a l i s t movement. Whereas the B i l l of Rights represented a concession to a n t i f e d e r a l i s t s and a l i m i t only to federal power, the Charter struck a balance between p r o v i n c i a l and federal powers by incorporating both s.3 3 and s . l into a document applying to both powers. Canada should not need the unsystematic incorporation of the Charter against the provinces which occurred i n the U.S. a f t e r the adoption of the Fourteenth Amendment.  As a r e s u l t , the  Charter i s less l i k e l y to be transformed into such an a n t i s t a t i s t document as the B i l l of Rights now represents.  Indeed, the  Charter should have a much more limited r o l e than the B i l l of Rights.  "The Charter w i l l never become the main safeguard of  c i v i l l i b e r t i e s i n Canada. 151  Hogg, supra  The main safeguards w i l l continue to  note 103, at 893.  Id. at 892-93 (noting that Quebec o r i g i n a l l y included the notwithstanding clause i n a blanket provision covering a l l l e g i s l a t i o n ; however, t h i s provision expired i n 1987 and was not re-enacted). 152  153  Id. at 893 n.5. 45  be the democratic character of Canadian p o l i t i c a l i n s t i t u t i o n s , the  independence of the j u d i c i a r y , and a l e g a l t r a d i t i o n of  respect f o r c i v i l  liberties.  1 , 1 5 4  This i l l u s t r a t e s the primary difference between the United States Supreme Court and the Supreme Court of Canada i n analyzing p o s i t i v e governmental attempts t o eliminate s o c i a l inequality at the  expense of i n d i v i d u a l r i g h t s ; the former, through content-  n e u t r a l i t y and colorblindness, has v i r t u a l l y eliminated a l l such governmental action, while the l a t t e r determines both the proper actor and the proper scope of such action.  Unlike the United  States, there i s s t i l l a s i g n i f i c a n t r o l e f o r government i n Canada to a f f i r m a t i v e l y promote p r i n c i p l e s of equality.  Indeed,  as t h i s thesis suggests, there does appear t o be a more l i m i t e d application of the Charter than that of the B i l l of Rights. E. The Relationship of P o l i t i c a l I n s t i t u t i o n s and C u l t u r a l Values Although the c u l t u r a l values and p o l i t i c a l i n s t i t u t i o n s of the  U.S. and Canada appear to support an i n d i v i d u a l i s t and  communitarian  society, respectively, there are many aspects of  American and Canadian p o l i t i c a l culture which indicate greater ambiguity.  I t has been asserted that the ideologies of the U.S.  and Canada are actually very s i m i l a r .  155  Rather than a  d i f f e r i n g world-view, the primary difference l i e s i n the  Id. at 7 9 6 . Interestingly, t h i s statement sounds s i m i l a r to the arguments of Alexander Hamilton i n opposition t o the B i l l of Rights. 154  155  America,  Robert Finlow, Ideology 26  CANADIAN J .  and  POL. SC. 671 46  Institutions (1993) .  in  North  i n s t i t u t i o n a l l y created p o s s i b i l i t y f o r a l t e r n a t i v e viewpoints to a t t a i n a p o s i t i o n of power i n Canada.  156  Both countries possessed a strong Lockean l i b e r a l ideology i n the 19th century.  157  In fact, Canadian Tories may have  resembled B r i t i s h Whigs i n t h e i r a n t i - s t a t i s t p o s i t i o n .  158  Further, a f a i r l y strong faction i n American constitutionalism, the Hamiltonians, preferred a strong federal government acting as a u n i f i e d power.  159  Although t h i s p o s i t i o n d i d not e n t i r e l y  succeed, d e f i n i t e c o n c i l i a t i o n s to t h i s group are apparent i n the text i t s e l f .  For example, although Congress  1  power i s  s p e c i f i c a l l y limited under A r t i c l e I and by the B i l l of Rights, i t s laws are nonetheless supreme i n the nation.  In addition,  Congress i s able to achieve i t s powers with "any means which are necessary and proper," a phrase accorded a f a i r l y generous interpretation by the U.S.  Supreme Court.  Neither of these  developments can be characterized as wholly a n t i s t a t i s t . A d d i t i o n a l l y , despite the l a i s s e z - f a i r e attitude i n the U.S., government managed to maintain a f a i r l y strong r o l e i n the economy at various times i n h i s t o r y . promulgated  For example, the  160  U.S.  a n t i - t r u s t laws, regulated wages, and protected  against unsafe working conditions.  156  Id.  at 674.  157  Id.  at 677.  158  Id.  at 677.  159  Id.  at 678.  160  Finlow, supra  161  Id.  161  Further, while the  note 155, at 685,  at 685 . 47  U.S.  the  may have higher rates of advanced education, these rates have not affected actual s o c i a l mobility i n the U.S. as compared with Canada.  162  In Canada, even though socialism established i t s e l f i n the p o l i t i c a l system, the regulation of wages and worker conditions t r a i l e d the U.S. f o r a s i g n i f i c a n t period of time i n the early 20th Century.  163  One analysis of 20th century union a c t i v i t y i n  Canada and the United States supports t h i s view.  164  As shown i n  t h i s study, union membership was more prevalent i n the U.S. than i n Canada u n t i l well into the 1950's.  Further, the greater  percentage of union density i n Canada now can l a r g e l y be explained by p u b l i c sector p a r t i c i p a t i o n .  165  This r e s u l t could  r e f l e c t a difference i n i n s t i t u t i o n a l structure more than s o c i e t a l values.  Indeed, unless union values completely reversed  in these two countries i n the 1950's, a notion not supported by opinion p o l l data, then i d e o l o g i c a l explanations could not support the development of labor unions i n these two countries. Thus, contrary to e a r l i e r suggestions, the i d e o l o g i c a l development i n the two countries can be seen as very s i m i l a r . Both countries have possessed progressive and conservative values  162  Lipset, supra  note 24, at 160.  163  Finlow, supra  note 155, at 688.  John Richards, A Tangled Tale: Unions i n David Thomas, ed., CANADA AND DIFFERENCES THAT COUNT, 65 (1993) . 164  United  States,  165  Id. 48  in  Canada  THE UNITED  and STATES:  the  i n varying strengths and at d i f f e r e n t times i n t h e i r h i s t o r y . Ideology does not exclusively control the development of i n d i v i d u a l r i g h t s i n these two countries. Charter may  While Canada and  place more emphasis on communitarian values  the  overall,  i t i s not to such an extent that i t would control actual outcomes i n c i v i l r i g h t s issues.  In both the United States and Canada,  the respective high courts have s u f f i c i e n t c o n s t i t u t i o n a l power to i n t e r p r e t r i g h t s i n either a p o s i t i v e or negative manner. Nonetheless, the United States Supreme Court, through the i n s t i t u t i o n a l l y and i d e o l o g i c a l l y driven incorporation doctrine, has applied a s t r i c t l y a n t i s t a t i s t perspective i n i t s analysis of individual rights. F.  Conclusion  The i n t e r r e l a t i o n s h i p between s o c i a l values and governmental i n s t i t u t i o n s i s extremely complex.  Underlying values undoubtedly  influenced the system of government chosen by these two countries.  The U.S.  Constitution r e f l e c t s a revolutionary  attitude at the time of d r a f t i n g .  S i m i l a r l y , the B r i t i s h North  Finlow, supra note 155, at 690. Such a d i f f e r e n t c o n s t i t u t i o n a l structure of government contributed to the a l t e r n a t i v e p r a c t i c a l application of these ideologies into public p o l i c y . The Parliamentary form of government i n Canada i s more f l e x i b l e i n allowing non-liberal p o l i t i c a l p a r t i e s to voice t h e i r concerns. For example, whereas the S o c i a l i s t Party struggled and f a i l e d i n the U.S., s o c i a l democrats i n Canada achieved much greater p o l i t i c a l recognition. Although t h i s could imply a lesser emphasis on s o c i a l i s t values i n the U.S., h i s t o r i c a l evidence suggests that both countries had a strong s o c i a l i s t movement. There are even examples of anti-communist a c t i v i t y i n both countries, though perhaps more extreme i n the United States. However, due to the i n a b i l i t y of the U.S. s o c i a l i s t supporters to gain p o l i t i c a l power i n a two-party system, the i d e o l o g i c a l acceptance of t h i s viewpoint diminished with economic prosperity. By contrast, i n Canada, socialism controlled a v i a b l e p o l i t i c a l party and established i t s e l f i n government, ensuring a continuity through economic cycles. 166  49  America Act r e f l e c t e d a d e f i n i t e tory influence, as well as an awareness of Canadian c u l t u r a l d i v e r s i t y , the developments under the U.S. governmental system, and a concern about U.S. expansionism.  However, the subsequent i n t e r p r e t a t i o n of these  documents and general governmental a c t i v i t y i n the two countries has been inconsistent enough as to minimize the value of generalizations.  Nevertheless, recognizing each country's  p o l i t i c a l culture i s c r u c i a l i n order to understand the underlying assumptions of judges and the h i s t o r i c a l context i n which they decide the proper r o l e of government i n the c o n s t i t u t i o n a l protection of l i b e r t y and equality.  Thus, the  remainder of t h i s thesis w i l l explore the a l t e r n a t i v e interpretations of equality and freedom of expression i n Canada and the United States.  50  Chapter 3 Alternative Conceptions of Equality  There are many s i g n i f i c a n t differences i n the manner i n which the Supreme Court of Canada has applied s.15 of the Charter  167  as compared to the U.S.  Supreme Court's  interpretation of the Fourteenth Amendment.  168  While the  language of s.15 d i f f e r s from that of the Fourteenth Amendment by e x p l i c i t l y including a number of groups deserving  equality  protections and by including four separate forms of equality instead of r e l y i n g s o l e l y on the guarantee of equal protection, these language differences alone cannot explain the a l t e r n a t i v e conceptions of equality i n Canada and the United States.  This  chapter explores and contrasts each country's general approach to the c o n s t i t u t i o n a l guarantee of equality. As an i n i t i a l matter, i t should be noted that the c o n s t i t u t i o n a l guarantee of equality i n both countries i s l i m i t e d  Part 1, Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c . l l . Section 15 reads: "(1) Every i n d i v i d u a l i s equal before and under the law and has the r i g h t to the equal protection and equal benefit of the law without discrimination and, i n p a r t i c u l a r , without discrimination based on race, national or ethnic o r i g i n , colour, r e l i g i o n , sex, age, or mental or physical d i s a b i l i t y . (2) Subsection (1) does not preclude any law, program or a c t i v i t y that has as i t s object the amelioration of conditions of disadvantaged i n d i v i d u a l s or groups including those that are disadvantaged because of race, national or ethnic o r i g i n , colour, r e l i g i o n , sex, age, or mental and physical disability." 167  168 »No State s h a l l deny any person i n the United States . the equal protection of the laws." 51  ..  to governmental a c t i o n . s.15  169  As with other Charter provisions,  only applies to governmental action; purely private action  i s beyond the scope of the Charter.  170  S i m i l a r l y , evaluating  an  act of Congress promulgated under section 5 of the Fourteenth Amendment and directed at both private and public action, U.S.  the  Supreme Court found that the Fourteenth Amendment only  protects against state interference with r i g h t s of e q u a l i t y .  171  Some i n t e r p r e t a t i o n a l schemes have been s i m i l a r i n both Canadian and American models of equality.  The Supreme Court of  Canada has interpreted the Charter of Rights and Freedoms  172  as  In order to reach private discrimination, both countries have promulgated various forms of c i v i l r i g h t s statutes at the national and l o c a l l e v e l which regulate such areas as p u b l i c accommodation, employment, housing, and eating establishments. These statutes c e r t a i n l y r e f l e c t each country's willingness to protect the p r i n c i p l e of equality through governmental action. Nevertheless, the extent to which governmental protection of equality i s required and governmental v i o l a t i o n of equality i s prohibited w i l l be defined by c o n s t i t u t i o n a l i n t e r p r e t a t i o n . Thus, t h i s thesis focuses on the a l t e r n a t i v e notions of equality as a c o n s t i t u t i o n a l r i g h t i n Canada and the United States. 169  Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143, 163-64 (stating that s.15 i s only "concerned with the application of the law"). Thus, many forms of inequality i n Canadian society, those caused by private actors, must be addressed outside of the Charter. This l i m i t a t i o n precludes an interpretation of the Charter as a "general guarantee of equality." Id. at 163. 170  The C i v i l Rights Cases, 109 U.S. 3 (1883) ("Individual invasion of i n d i v i d u a l r i g h t s i s not the subject-matter of the Amendment."). 171  The nature of equality law i n Canada has changed dramatically i n the l a s t ten years. In 1985, s.15 of the Charter of Rights and Freedoms came into force. This represented a s i g n i f i c a n t expansion i n the c o n s t i t u t i o n a l protection of equality. Although the Court i s s t i l l divided on some issues of interpretation, the primary analysis for equality r i g h t s under s.15 r e l i e s heavily on the majority opinion i n Andrews. Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143. As delivered by Mclntyre, J., the Andrews' opinion established a two-part analysis under s.15: 1) whether the impugned provision 172  52  a purposive document: one which should be interpreted i n accordance with the purposes of i t s p r o v i s i o n s .  173  Thus, the  Supreme Court of Canada has attempted to a r t i c u l a t e the purpose underlying s.15 of the Charter.  "The purpose of the Charter i s  to ensure equality i n the formulation and a p p l i c a t i o n of the law[, which] . . . e n t a i l s the promotion of a society i n which a l l are secure i n the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration."  174  "The overarching purpose of the equality  guarantee i n the Charter [ i s ] to prevent the v i o l a t i o n of human dignity and freedom by imposing  l i m i t a t i o n s , disadvantages or  burdens through the stereotypical a p p l i c a t i o n of presumed group c h a r a c t e r i s t i c s rather than on the basis of i n d i v i d u a l merit, capacity, or circumstance." following these statements,  175  However, rather than uniformly  one scholar has noted a trend i n  Supreme Court cases to r e l y on three d i s t i n c t notions of infringes any of the four equality r i g h t s , equality under the law, equality before the law, equal benefit of the law, or equal protection of the law; 2) and, i f so, whether the law i s discriminatory. Id. at 170-172. J u s t i c e Mclntyre dissented i n the ultimate holding of the case, but the majority agreed with h i s analysis of S.15(1). Id. at 151 (Wilson, J . , w r i t i n g f o r the majority). Hunter v. Southam, [1984] 2 S.C.R. 145, 155-56; Egan v. Canada, (1995) 124 D.L.R. (4th) 609, 628 ("There i s no more important task i n approaching any Charter r i g h t than that of characterizing properly i t s purpose.", c i t i n g R. v. Big M Drug Mart Ltd., (1985), 18 D.L.R. (4th) 321). 173  174  Andrews, [1990] 1 S.C.R. at 171.  Miron v. Trudel, [1995] 124 D.L.R. (4th) 693, 741; see Egan, at 661 ("It i s t h i s section of the Charter, more than any other, which recognizes and cherishes the innate human dignity of every i n d i v i d u a l . " ) ; McKinney v. U n i v e r s i t y of Guelph, [1990] 3 S.C.R. 229, 391 (Wilson, J.) ("The purpose of the equality guarantee i s the promotion of human d i g n i t y . " ) . 175  also  53  equality.  176  In addition, L Heureux-Dube, J . , has asserted that 1  the Supreme Court has "divergent approaches" to s. 15(1).  177  Nonetheless, each member of the Court has continued to interpret the equality provision i n accordance with i t s o v e r a l l purpose. S i m i l a r l y , the United States Supreme Court has based i t s interpretation of the Fourteenth Amendment i n the context of i t s general purposes.  178  The Equal Protection Clause " i s to be  construed l i b e r a l l y , to carry out the purposes of i t s framers."  179  However, even t h i s s i m i l a r i t y i n purposive  interpretation does not withstand scrutiny. The U.S.  Supreme Court has a r t i c u l a t e d the purposes of the  Fourteenth Amendment with regard to the framer's o r i g i n a l intent. Thus, according to the Supreme Court, the Fourteenth Amendment has the purpose of "securing to a race recently emancipated,  a  race that through many generations has been held i n slavery, a l l the c i v i l r i g h t s that the superior race enjoy."  180  As a r e s u l t ,  there i s a very s p e c i f i c h i s t o r i c a l circumstance which t h i s provision was intended to a l l e v i a t e .  J . Donald C. Galloway, Three McGlLL L.J. 64 (1993). 176  177  The Supreme Court has  Models  Egan v. Canada, [1995] 124 D.L.R.  (In)Equality,  (4th) 609,  38  629.  Kathleen Mahoney The Constitutional Law of 44 MAINE L. REV. 229, note 27 (1992) (stating that the purposive approach of the Supreme Court of Canada has led to a more substantive interpretation of equality r i g h t s ) . 1 7 8  Equality  But  of  in  see  Canada,  Strauder v. West V i r g i n i a , 100 U.S. (10 Otto) 303, 30607 (1879) ("The true s p i r i t of the [ C i v i l War] Amendments . . . cannot be understood without keeping i n view the h i s t o r y of the times when they were adopted, and the general objects they p l a i n l y sought to accomplish.") (emphasis added). 179  180  Strauder v. West V i r g i n i a 100 U.S. 54  303, 306  (1879).  extended i t s meaning beyond t h i s o r i g i n a l intent to include heightened protection for a l l races and many other c h a r a c t e r i s t i c s , as well as protecting generally  against  i r r a t i o n a l and a r b i t r a r y l e g i s l a t i v e action a f f e c t i n g any person i n the United States.  However, o r i g i n a l intent remains  i n f l u e n t i a l i n modern cases.  181  By contrast, the Supreme Court of Canada has s p e c i f i c a l l y rejected an o r i g i n a l intent version of a purposive approach. Rather, the interpretation " i s to be sought by reference to the character  and the larger objects of the Charter i t s e l f , to the  language chosen to a r t i c u l a t e the s p e c i f i c r i g h t or freedom, to the h i s t o r i c a l o r i g i n s of the concepts enshrined, and where applicable, to the meaning and purpose of the other s p e c i f i c r i g h t s and freedoms with which i t i s associated within the text of the Charter."  182  Beyond t h i s general methodological difference i n interpretation, there are, p r i n c i p a l l y , three s p e c i f i c aspects of the U.S. Supreme Court's interpretation of the Fourteenth Amendment which are distinguishable from the Supreme Court of Canada's i n t e r p r e t a t i o n of s.15 of the Charter:  colorblindness,  multiple l e v e l s of review, and intentional discrimination.  For a discussion of the American debate regarding o r i g i n a l intent, see Peck, supra note 69, at 161-195. 181  182  R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295, 344. 55  A. 1. United  Colorblindness  States  P r i o r to the C i v i l War, the U.S. Supreme Court, i n one of i t s most infamous decisions, denied the existence of equality on the basis of race.  In Dred Scott v. Sandford,  183  Chief J u s t i c e  Taney, writing f o r the majority, pronounced that no i n d i v i d u a l i n the United States who was a descendant of slaves imported into the country from A f r i c a , whether or not the person was s t i l l a slave, could be considered a c i t i z e n of the United States. Neither the Declaration of Independence's use of the word "people"  184  nor the Constitution's use of " c i t i z e n " included  black people within t h e i r respective meaning.  185  The Court  struck down the Missouri Compromise, which required p a r t i c u l a r states to be free from slavery as a condition of admission to the Union, because the issue of slavery was a matter f o r each state to decide for i t s e l f .  1 8 6  Even a f t e r the adoption of the Fourteenth Amendment, the Court upheld a Louisiana statute which required passengers on  1Hi  60 U.S. (19 How.) 393 (1857).  Id. at 404 ("The general words . . . would seem to embrace the whole human family and i f they were used i n a s i m i l a r instrument at t h i s day, would be so understood. But i t i s too clear for dispute that the enslaved A f r i c a n race were not intended to be included, and formed no part of the people who framed and adopted t h i s document."). 184  Id. at 404 ("It i s not the province of the Court to decide upon the j u s t i c e or i n j u s t i c e , the p o l i c y or impolicy of these laws. The decision of that question belonged to the p o l i t i c a l or law-making power; to those who formed the sovereignty and framed the Constitution."). 185  186  Id. at 418. 56  t r a i n s to be divided between blacks and whites.  The Court  187  found that the law did not touch on the c i v i l or p o l i t i c a l r i g h t s protected by the Fourteenth Amendment; instead, i t was matter of s o c i a l i n t e r a c t i o n between the races. Protection Clause "could not have been intended  aimed at a  The Equal . . . to  s o c i a l , as distinguished from p o l i t i c a l , e q u a l i t y . "  enforce  Once the  188  Court made t h i s finding, i t went on to conclude that the Constitution cannot be used as a weapon against prejudices.  social  As a r e s u l t , the Court refused to p r o h i b i t the  practice of segregation  i n the South, despite the f a c i a l  d i s t i n c t i o n based on race. In reaction to Dred Scott and Plessy, however, the Supreme Court has since adopted the p r i n c i p l e of c o l o r b l i n d n e s s i t s decisions.  189  in  This p r i n c i p l e , f i r s t a r t i c u l a t e d by J u s t i c e  Harlan i n P l e s s y ,  190  dictates that governmental d i s t i n c t i o n s  i l l e g i t i m a t e l y based on the grounds protected by the Constitution, such as race and national o r i g i n , are a r b i t r a r y and that these grounds are wholly i r r e l e v a n t to any l e g i s l a t i v e exercise.  legitimate  Rather, the l e g i s l a t u r e should d i s t i n g u i s h  187  Plessy v. Ferguson, 163 U.S.  188  Id. at  537  (1896).  538.  Although the term suggests a p p l i c a t i o n only to l e g i s l a t i v e d i s t i n c t i o n s based on race, i t a c t u a l l y applies to any c l a s s i f i c a t i o n afforded heightened scrutiny under the Equal Protection Clause, such as sex and i l l e g i t i m a c y . In Canada, the p r i n c i p l e has been referred to, more accurately, as "sameness" rather than colorblindness. 189  1 63 U.S. 537, 559 (Harlan, J . , dissenting) Constitution i s c o l o r - b l i n d . " ) . 190  57  ("Our  based on i n d i v i d u a l merit.  Colorblindness establishes a  191  rebuttable presumption that those who treated i n a s i m i l a r manner.  192  are s i m i l a r l y situated be  The extent of proof required to  rebut the presumption i s determined based on the l e v e l of protection designated  for the p a r t i c u l a r c h a r a c t e r i s t i c .  d i s t i n c t i o n based on race must further a compelling  193  Any  governmental  i n t e r e s t through the l e a s t r e s t r i c t i v e means a v a i l a b l e , while d i s t i n c t i o n s based on sex must further an important governmental i n t e r e s t with means s u b s t a n t i a l l y r e l a t e d to the goal.  194  legislative  Thus, colorblindness i s not a f i x e d p r i n c i p l e , and i t  i s applied i n variable strengths depending on the p a r t i c u l a r classification  challenged.  Based on t h i s p r i n c i p l e , the Supreme Court eventually overturned the Plessy decision with respect to segregation i n  P l y l e r v. Doe, 457 U.S. 202, 221-22 (1982) (stating that one of the goals of equal protection i s the " a b o l i t i o n of governmental b a r r i e r s presenting unreasonable obstacles to advancement on the basis of merit"). 191  Cleburne v. Cleburne L i v i n g Center, 473 U.S. 432, 439 (1985) (stating that the Equal Protection Clause " i s e s s e n t i a l l y a d i r e c t i o n that a l l persons s i m i l a r l y situated should be treated a l i k e " ) . "What i s [the Fourteenth Amendment] but declaring that the law i n the States s h a l l be the same for the black as f o r the white . . . that no discrimination s h a l l be made against them by law because of t h e i r color?" Strauder v. West V i r g i n i a , 100 U.S. (10 Otto) 303, 307 (1879). 192  See section B for a more complete discussion about l e v e l s of review. 193  Cleburne, 473 U.S. at 440 (stating that race, alienage, and national o r i g i n are "so seldom relevant to the achievement of any legitimate state i n t e r e s t " that s t r i c t scrutiny should apply; that gender "generally provides no sensible ground f o r d i f f e r e n t treatment"; and that i l l e g i t i m a c y "bears 'no r e l a t i o n to the individual's a b i l i t y to p a r t i c i p a t e i n society'" (quoting Mathews v. Lucas, 427 U.S. 495 (1976)); whereas age i s a c h a r a c t e r i s t i c which i s relevant to the legitimate i n t e r e s t s of the s t a t e ) . 194  58  public schools i n Brown v. Board of Education.  Chief J u s t i c e  195  Warren, d e l i v e r i n g a unanimous opinion, found that  segregation  "generates a f e e l i n g of i n f e r i o r i t y as to [Black children's] status i n the community that may a f f e c t t h e i r hearts and minds i n a way u n l i k e l y ever to be undone."  196  As a r e s u l t ,  was depriving minority children equal educational  segregation opportunities,  even assuming that the segregated i n s t i t u t i o n s were equal i n instructional capability.  The Court decided that education  valuable aspect of l i f e i n America.  197  is a  Thus, Brown I opened the  door to the use of the Fourteenth Amendment i n challenging a l l state action, whether p o l i t i c a l or s o c i a l i n nature. Nonetheless, t h i s interpretation l i m i t e d the Fourteenth Amendment by the p r i n c i p l e of colorblindness. There have been numerous challenges under the Fourteenth Amendment by members of the dominant s o c i a l group, whether by men against sex discrimination or by whites against discrimination.  race  For example, i n Craig, a statute established  d i f f e r i n g ages of majority for men and women with respect to the sale of alcohol at twenty-one and eighteen, r e s p e c t i v e l y .  198  Using the p r i n c i p l e of colorblindness, the Court applied the same protections of the Fourteenth Amendment against sex  iys  347 U.S. 483 (1954) (hereafter Brown I ) .  196  Id. at 494.  "Education i s perhaps the most important function of state and l o c a l governments." Brown, 347 U.S. at 493. 197  198  Craig v. Boren, 429 U.S. 190 (1976). 59  discrimination for challenges by males as by females.  199  S i m i l a r l y , i n Hogan, the Court invalidated, under the Equal Protection Clause, a statute which excluded males from a statesupported professional nursing school.  The Court made i t c l e a r  that discrimination against men would receive the same protection as against women.  200  Thus, through colorblindness,  the Court  has applied i t s Equal Protection Clause system of i n t e r p r e t a t i o n consistently with regard t o the class of discrimination without d i f f e r e n t i a t i n g among groups within the c l a s s . Colorblindness  has also dramatically a l t e r e d the Court's  p o s i t i o n with respect to affirmative action.  Unlike the above  cases, affirmative action does not merely discriminate on the basis of i l l e g i t i m a t e c r i t e r i a ; i t represents an attempt by a governmental actor t o benefit groups which are s o c i a l l y and economically disadvantaged. considerable  201  This remedial purpose has caused  d i f f i c u l t y for the U.S.  Supreme Court i n formulating  a proper standard of review for affirmative action cases.  But see Craig, 429 U.S. at 219 (Rehnquist, J . , dissenting) (arguing for a lower standard of review for discrimination against men). 1 9 9  M i s s i s s i p p i Univ. for Women v. Hogan, 458 U.S. 718, 723 (1982) (stating that discrimination "against males rather than against females does not exempt i t from scrutiny or reduce the standard of review"). 200  In Hogan, although the state a r t i c u l a t e d as i t s purpose the compensation of women for discrimination i n education, the Court noted that over 94% of nursing degrees i n the state were granted to women p r i o r to the school's opening. Id. Instead, the Court found the l e g i s l a t u r e ' s actual purpose t o be the perpetuation of "the stereotyped view of nursing as an exclusively woman's job." Id. Thus, under the Court's reasoning, t h i s i s not an affirmative action case. 201  60  Beginning with Regents of Univ. of C a l i f o r n i a v. Bakke,  202  the Court began the process of evaluating the c o n s t i t u t i o n a l i t y of affirmative action plans.  In t h i s case, a white student  challenged a medical school p o l i c y reserving spaces i n each class for minority students.  Not s u r p r i s i n g l y , the Court was unable to  come to s u f f i c i e n t agreement to produce an o f f i c i a l opinion.  A  p l u r a l i t y of four j u s t i c e s argued f o r a less stringent standard of review than s t r i c t scrutiny.  In t h e i r opinion, the remedial  nature of the provision combined with the i n a p p l i c a b i l i t y of the suspect class determination to white people s u f f i c i e n t l y distinguished t h i s case from t y p i c a l r a c i a l discrimination as to apply the form of intermediate scrutiny a r t i c u l a t e d i n C r a i g .  203  The Court continued i t s sharp d i v i s i o n on t h i s issue i n several other cases, each of which only produced opinions.  204  plurality  In Wygant, the Court invalidated a race-based  layoff preference by a school board.  Contrary to the p l u r a l i t y  i n Bakke, t h i s p l u r a l i t y suggested that "the l e v e l of scrutiny does not change merely because the challenged c l a s s i f i c a t i o n operates against a group that h i s t o r i c a l l y has not been subject to governmental d i s c r i m i n a t i o n . "  205  Under t h i s standard, the  p l u r a l i t y refused to f i n d compelling the purpose of " a l l e v i a t [ i n g ] the e f f e c t s of s o c i e t a l discrimination" i n school 202  4 3 8 U.S  265  (1978) .  Regents of Univ. of C a l i f o r n i a v. Bakke, 438 U.S. 357-59 (1978). 203  F u l l i l o v e v. Klutznick, 448 U.S. 448 Jackson Board of Ed., 476 U.S. 267 (1986). 204  Wygant, 476 U.S. plurality). 205  at 273  265,  (1980); Wygant v.  (Powell, J . , writing f o r the 61  by "providing minority r o l e models f o r i t s minority students."  206  The p l u r a l i t y required states to have s p e c i f i c  evidence of p r i o r discrimination i n the p a r t i c u l a r a c t i v i t y i n question requiring remedial e f f o r t s i n order to j u s t i f y an affirmative action p l a n .  207  The p l u r a l i t y view i n Wygant ultimately gained the support of a majority of the Court.  208  In Croson, a Richmond, V i r g i n i a ,  c i t y council required 30% of construction contracts to be used for h i r i n g minority-owned subcontractors.  Five j u s t i c e s , though  in separate opinions, concluded that " s t r i c t scrutiny must be applied to a l l governmental c l a s s i f i c a t i o n by race, whether or not i t s asserted purpose i s 'remedial' or 'benign.'" the Court noted that there i s a compelling  209  While  i n t e r e s t of government  to insure that public funds are not used to further private prejudice, a purpose based s o l e l y on evidence of generalized past discrimination i s not s u f f i c i e n t l y compelling standards of the Equal Protection Clause.  210  to meet the The remedy  employed by the state must be "narrowly t a i l o r e d to remedy the e f f e c t s of p r i o r d i s c r i m i n a t i o n . " 206  Id. at  211  Under t h i s t e s t , the Court  274.  Id. at 277 (stating that state actors "must have s u f f i c i e n t evidence to j u s t i f y the conclusion that there has been p r i o r discrimination"). 207  208  Richmond v. J.A.  Croson Co.,  488 U.S.  469  (1989).  Id. at 520 (Scalia, J . , concurring i n judgment) ( c i t i n g Croson, at 493, 495 (opinion of O'Connor, J.) i n which a p l u r a l i t y of four j u s t i c e s applied the s t r i c t scrutiny standard of review). 209  210  Id. at  498.  211  Id. at  508. 62  found the Richmond plan to be defective i n two respects: race-neutral  1) no  alternatives were considered; and 2) the 30% quota  was not grounded i n any evidentiary findings of p r i o r discrimination and was based, instead, on proportions population  at l a r g e .  212  of the  Thus, the Court struck down the  affirmative action plan under the Fourteenth Amendment. Although Croson resolved the standard of review with regard to affirmative action by i n d i v i d u a l states, i t did not resolve the question with regard to Congressional action.  Under section  5 of the Fourteenth Amendment, Congress has the power "to enforce, by appropriate Clause.  l e g i s l a t i o n , " the Equal Protection  Nonetheless, the federal government, including Congress,  must act i n accordance with p r i n c i p l e s of due process under the F i f t h Amendment, interpreted to include protection against the form of invidious discrimination prohibited by the Fourteenth Amendment against the s t a t e s .  Within the context of  213  affirmative action plans, the U.S. Supreme Court has had some d i f f i c u l t y r e c o n c i l i n g these two propositions. In F u l l i l o v e v. K l u t z n i c k ,  214  the Court was unable to  produce a majority  opinion on the issue.  positions asserted  i n Bakke urging either intermediate  212  In addition to the two 215  or  Id. at 507-08.  See B o i l i n g v. Sharpe, 347 U.S. 497 (1954) ( s t r i k i n g down the segregation of schools i n Washington, D.C. under the F i f t h Amendment Due Process Clause). 213  448 U.S. 448 (1980) (addressing aside for minority-owned businesses). 214  a Congressional 10% set-  Id. at 519 (Marshall, J., concurring (joined by Justices Brennan and Blackmun). 215  63  i n judgment)  s t r i c t scrutiny,  216  a new t e s t was formulated by three j u s t i c e s  to respond to Congress' power under the Fourteenth Amendment. Within t h i s framework, the relevant inquiry focused on whether the objectives were within Congressional authority and whether using r a c i a l c r i t e r i a for such a limited purpose was a c o n s t i t u t i o n a l l y permissible means of achieving the objectives.  217  Thus, a majority of the Court d i d not apply a  standard of s t r i c t s c r u t i n y ,  218  though there was disagreement as  to the proper standard of review among that majority. Ultimately, the Court upheld the Congressional statute at issue. In Metro Broadcasting, the Federal Communications Commission, under a mandate by Congress, promulgated race-based regulations concerning new  licenses and " d i s t r e s s sales" i n order  to promote minority p a r t i c i p a t i o n i n broadcasting.  A majority of  the Court applied intermediate scrutiny and concluded that "benign race-conscious measures mandated by Congress . . . are c o n s t i t u t i o n a l l y permissible to the extent that they serve important governmental objectives within the power of Congress and are s u b s t a n t i a l l y related to achievement of those objectives."  219  Using t h i s t e s t , the Court found that the  F.C.C.'s purpose of broadcast d i v e r s i t y was an  important  Id. at 523 (Stewart, J . , dissenting) (joined by thenJ u s t i c e Rehnquist); i d . at 537 (Stevens, J . , dissenting) (arguing for "the most exact connection between j u s t i f i c a t i o n and classification"). 216  Id. at 473 White and Powell). 217  (opinion of Burger, C.J.)  218  Metro Broadcasting v. F.C.C., 497 U.S.  219  Id. at 564-65. 64  (joined by J u s t i c e s 547, 564  (1990).  governmental interest and that the regulations themselves were s u b s t a n t i a l l y related to the d i v e r s i t y g o a l .  220  Despite reaching a majority consensus i n Metro Broadcasting, the U.S.  Supreme Court has overruled that decision with respect  to the proper standard of review under the Equal Protection Clause f o r affirmative action plans created by Congress.  221  The  Court rejected the p r i n c i p l e of intermediate scrutiny with respect to benign r a c i a l c l a s s i f i c a t i o n s by Congress under two separate rationales.  F i r s t , the t e s t used i n Metro Broadcasting  ignored the reasoning of the Court i n Croson to the e f f e c t that determining whether or not a statute i s , i n fact, benign i s problematic.  As a r e s u l t , s t r i c t scrutiny should be applied i n  order to t e s t the law's actual purpose.  Second, the method  employed by the Court i n Metro Broadcasting, by d i s t i n g u i s h i n g between r a c i a l discrimination by Congress as opposed to the states, contravened the Court's long-standing p r i n c i p l e of "congruence between the standards applicable to federal and state racial classifications . . . . "  222  Thus, presently, "federal  r a c i a l c l a s s i f i c a t i o n s , l i k e those of a State, must serve a compelling governmental interest, and must be narrowly to further that i n t e r e s t . " 220  223  tailored  Because the Court of Appeals  had  Id. at 566.  Adarand Constructors, Inc. v. Pena, 515 U.S. L.Ed.2d 158 (1995). 221  , 132  Id. at 181 ( c i t i n g Buckley v. Valeo, 424 U.S. 1 (1976) ("Equal protection analysis i n the F i f t h Amendment area i s the same as that under the Fourteenth Amendment"); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (stating same); B o i l i n g v. Sharpe, 347 U.S. 497 (1954). 222  223  Pena, 132 L.Ed.2d at 187. 65  decided the case under the p r i n c i p l e s of Metro Broadcasting, the Court remanded the case rather than analyzing the f a c t s under the s t r i c t scrutiny t e s t .  The decision i n Pena demonstrates that  neither states nor the federal government have s i g n i f i c a n t power to promote equality under the Fourteenth Amendment.  As such, i t  represents the most recent step toward a completely c o l o r b l i n d system of interpretation. Because of the outcomes i n affirmative action cases, colorblindness has not been without c r i t i c i s m i n the United States.  This p r i n c i p l e , by assuming equality i n the absence  224  of l e g i s l a t i v e interference, ignores the r e a l i t y that inequality exists i n today's s o c i e t y .  225  In fact, given the existence of  s o c i a l inequality, colorblindness  can a c t u a l l y promote adverse  conditions for protected groups.  Thus, while the Supreme Court  developed t h i s p r i n c i p l e i n an attempt t o p r o h i b i t governmental discrimination, i t s present application a c t u a l l y impedes governmental e f f o r t s to a l l e v i a t e s o c i a l inequality.  2. Canada The Supreme Court of Canada has e x p l i c i t l y rejected  the  p r i n c i p l e of colorblindness under an i n t e r p r e t a t i o n of  See, e.g., Craig v. Boren, 429 U.S. 190, 219 (1976) (Rehnquist, J., dissenting). 224  225  Mahoney, supra  Colorblindness, Rhetoric Against  note 178,  I n d i v i d u a l i t y , and Affirmative Action,  (1994) . 66  at 249; Merit:  79  John E. Morrison, An Analysis L. REV.  IOWA  of  the  313, 320-21  s.15(1).  Instead, the Court requires more than a mere  2 2 6  showing that a law distinguishes on the basis of an i l l e g i t i m a t e ground.  The Court has noted that equality i s a very elusive  concept and that i t must be viewed i n r e l a t i o n to the p a r t i e s i n question i n comparison with the relevant s o c i a l and p o l i t i c a l aspects of Canadian s o c i e t y .  227  As implied by t h i s conclusion,  the Court rejected the notion that i d e n t i c a l treatment i s always necessary.  228  Indeed, the Court recognized that s i t u a t i o n s may  a r i s e i n which i d e n t i c a l treatment could r e s u l t i n a v i o l a t i o n of the type of equality protected under the Charter.  229  The Court  e x p l i c i t l y rejected the widely accepted analysis of equality as 'similar treatment f o r those s i m i l a r l y s i t u a t e d . '  230  In doing  so, the Court adopted substantive equality as the proper form of Charter p r o t e c t i o n .  231  The Court found t h i s analysis necessary  i n l i g h t of the e x p l i c i t protection under the Charter of four  See, e.g., Weatherall v. Canada (Attorney General) S.C.R. 8 7 2 , 8 7 7 ("The jurisprudence of t h i s Court i s clear: equality does not necessarily connote i d e n t i c a l treatment and, i n fact, d i f f e r e n t treatment may be c a l l e d f o r i n c e r t a i n cases to promote e q u a l i t y . " ) . iib  [1993]  2 2 7  S.C.R.  2  Andrews v. Law Society of B r i t i s h Columbia,  [1989]  1  143, 164.  Id. at 1 6 4 - 6 5 (quoting J u s t i c e Frankfurter's opinion i n Dennis v. United States, 3 3 9 U.S. 1 6 2 , 1 8 4 ( 1 9 5 0 ) , " I t was a wise man who said that there i s no greater inequality than the equal treatment of unequals."). 228  229  Id. at  165.  2 3 0  Id. at  165-68.  231  Equality Freedoms:  Anne F. Bayefsky, A Case Rights Cases Under Andrews, Workers'  SUPREME COURT L.  REV. 503,  Comment on the F i r s t Three the Canadian Charter of Rights and Compensation Reference, Turpin, 1  511-13  (1990). 67  d i s t i n c t forms of e q u a l i t y .  232  Thus, the conception of equality  under the Charter went beyond the formal equality recognized under the B i l l of R i g h t s .  233  A d d i t i o n a l l y , the e x p l i c i t exclusion of affirmative action plans from s,15(l) under s.15(2) has the p r a c t i c a l e f f e c t of avoiding many color-blindness issues.  Under the Charter, c e r t a i n  types of l e g i s l a t i o n which may contravene s,15(l) are e x p l i c i t l y protected from Charter scrutiny under s. 15 ( 2 ) .  234  However,  because the Supreme Court of Canada has yet t o thoroughly analyze t h i s section of the Charter, i t s interpretation i s s t i l l unclear. Nevertheless, there are some indications that t h i s section w i l l be l i m i t e d to a greater extent than i t s text may suggest.  In  Hess, McLachlin, J . , i n dissent, endorsed the analysis of s.l5(2) by a lower court i n B r i t i s h Columbia. s.15(2) i n l i g h t of i t s purpose:  235  Huddart, J . , analyzed  to assure the legitimacy of  affirmative action by protecting l e g i s l a t i o n granting p r e f e r e n t i a l treatment to those suffering from a disadvantage, and not to endorse a l l laws "intended to have a p o s i t i v e effect."  236  As a r e s u l t , "there must be a r a t i o n a l connection  Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143, 170. 232  233  Id.  s.15 (2): Subsection (1) does not preclude any law, program or a c t i v i t y that has as i t s object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic o r i g i n , colour, r e l i g i o n , sex, age or mental and p h y s i c a l disability. 234  Re MacVicar and Superintendent of Family & C h i l d Services, (1986), 34 D.L.R. (4th) 488. 235  236  Id. at 502. 68  between the p r e f e r e n t i a l treatment and the disadvantage."  237  Ultimately, almost any law has as i t s purpose the amelioration of conditions i n society of those disadvantaged, so s.15(2) must require more than just t h i s stated purpose.  Interestingly,  Huddart, J . , did not analyze the meaning of the term "disadvantaged" under s.15(2), nor elaborate on the degree of nexus between the disadvantage i n question and the stated purpose of the law which would be required to s a t i s f y s.15 ( 2 ) .  238  Even though these cases may serve to i l l u s t r a t e the manner i n which courts can address s.15(2), i t i s s t i l l uncertain whether a majority of the Supreme Court w i l l use a s i m i l a r analysis.  There are c e r t a i n phrases of s.15(2) which w i l l  undoubtedly receive scrutiny by the Court.  2 3 7  239  In any event,  Id.  In another lower court case, eventually overruled on technical grounds, the court analyzed s.15(2) i n the context of the purpose of s.15 as a whole: "to achieve the objective of equality." Apsit v. Manitoba Human Rights Comm.,(1988) 1 W.W.R. 629, 631 (Man. Q.B.). Because s,15(2) operates as an exception to s . l 5 ( l ) , the government must bear the burden of proving the elements of s.15(2). Rejecting the notion that courts should not look further than the stated purpose of a law i n order to s a t i s f y the "object" requirement of s.15(2), Simonsen, J . , concluded that there must be a "real nexus between the object of the program as declared by the government" and the means chosen to implement that object. Id. at 642. In order to demonstrate a s u f f i c i e n t nexus, there must be a "reasonable r e l a t i o n s h i p between the cause of the disadvantage and the form of ameliorative action." Id. A d d i t i o n a l l y , the Court found that an affirmative action program, in order to be upheld under s.15(2), must not unnecessarily deny the e x i s t i n g r i g h t s of the non-target group. Id. at 644. 238  239 F i r s t , the purpose of any law under t h i s section must be to a l l e v i a t e or lessen the degree of disadvantage experienced by c e r t a i n groups i n society. There has been some debate whether t h i s purpose should be analyzed under the subjective intent of the l e g i s l a t u r e or under the objective consequences of the law.  Michael Peirce, A Progressive of  the  Charter,  Interpretation  57 SASK. L . R E V . 263 69  of  Subsection  (1993) (rejecting several  15(2)  S.15(1) and s,15(2) provide a greater opportunity f o r the government to take p o s i t i v e action to promote equality by e x p l i c i t l y recognizing the s o c i a l r e a l i t y of inequality. For example, the Court has made i t c l e a r i n sex discrimination cases that s o c i a l and p o l i t i c a l context are very important considerations.  The Supreme Court has upheld two laws  which d i s t i n g u i s h on the basis of sex against males but do not, according t o the Court, constitute discrimination.  In Hess,  240  the Court reviewed a statute which criminalized sexual intercourse by males over 14 years-old with females under the age of 14. The defendant challenged the law under s,15(l) because i t did not apply to either female perpetrators or t o male victims and, thus, was discriminatory on the basis of sex.  241  The Court  found that the law was not discriminatory because only males were capable of committing t h i s crime.  242  Wilson, J . , w r i t i n g f o r  scholars' suggestion of an objective approach i n favor of a subjective i n t e r p r e t a t i o n ) . A d d i t i o n a l l y , the Court w i l l need to determine whether the l e g i s l a t i o n must attempt t o "ameliorate" the disadvantage i n a r a t i o n a l manner. Although the e x p l i c i t exclusion of such a provision from s,15(l) appears t o foreclose a s . l analysis, the Court must determine whether s.l5(2) includes a s i m i l a r p r o p o r t i o n a l i t y t e s t . F i n a l l y , the textual connection between disadvantage and the enumerated grounds of S.15(1) may lead the Court to apply the "enumerated and analogous grounds" analysis from Andrews under S.15(2). Under t h i s approach, the Court may use the same c r i t e r i a employed i n the S.15(1) analysis i n determining whether the group sought t o be protected q u a l i f i e s as disadvantaged. 2 4 0  R. v. Hess, [1990] 2 S.C.R. 906.  241  Id. at 919.  Id. at 927-933. The statute used the term penetration i n defining the crime, and women are b i o l o g i c a l l y incapable of committing t h i s act. Id. at 931. The Court contrasted t h i s statute with a hypothetically discriminatory statute punishing only one sex f o r a crime which could be committed by both sexes, such as murder. Id. at 928. 242  70  the majority, recognized that t h i s analysis could r e s u l t i n f a l s e j u s t i f i c a t i o n s for true discrimination, but she concluded that b i o l o g i c a l r e a l i t i e s may legitimately be used f o r d i s t i n g u i s h i n g between men and women.  243  The Court also recognized  the s o c i a l  r e a l i t y that sexual assaults are overwhelmingly committed by men, as well as the l e g a l r e a l i t y that Parliament punishes s i m i l a r acts with a male v i c t i m under other sections of the Criminal Code.  244  Thus, the Court went beyond formal notions of equality  to determine whether a group was a c t u a l l y being treated i n a discriminatory manner given the s o c i a l , h i s t o r i c a l , and l e g a l reality. The Court applied a s i m i l a r analysis i n Weatherall.  245  In  t h i s case, a male prisoner challenged the p r a c t i c e of allowing female guards to search male prisoners while not allowing male guards to search female prisoners.  The Court rejected t h i s  argument i n a unanimous judgment.  Once again, the Court  246  stated that equality does not require i d e n t i c a l treatment and, i n some cases, d i f f e r e n t treatment may more appropriately r e f l e c t the values protected by s.15 of the Charter.  247  The Court  r e l i e d on two contextual reasons i n upholding t h i s p r a c t i c e . F i r s t , the s o c i a l r e a l i t y of male-female r e l a t i o n s includes  Id. at 931-933. Wilson, J . , compared t h i s statute with the p r o h i b i t i o n of self-induced abortion, a crime only applicable against women due t o b i o l o g i c a l r e a l i t i e s . Id. a t 933. 243  244  Id. at 930-931.  245  Weatherall v. Canada, [1993] 2 S.C.R. 872.  246  Id. at 878.  247  Id. at 877. 71  violence perpetrated by men against women and, equally as important,  does not include violence i n which women are the  aggressor and men are the v i c t i m . disadvantaged  248  Thus, due t o the general  p o s i t i o n of women i n society and d i f f e r e n t  psychological implications for s i m i l a r parts of the anatomy (such as with a chest search), a cross-gender  search i s r e a l i s t i c a l l y  more threatening for women than f o r men.  249  Second, assuming a  v i o l a t i o n of s . l 5 ( l ) could be demonstrated, an important consideration for the s . l analysis would be the s o c i e t a l and p o l i t i c a l attempt to a l l e v i a t e employment i n e q u a l i t y between men and women.  250  This consideration r e l a t e s to the underlying  value of equality i n society under s.15 i t s e l f .  In these two  cases, the Court has analyzed equality r i g h t s broadly enough t o evaluate s o c i e t a l consequences of a law beyond just the alleged discrimination.  This i s a s i g n i f i c a n t development toward the  promotion of substantive equality i n a l e g a l context. Despite t h i s seeming r e j e c t i o n of colorblindness, however, McLachlin, J.'s, analysis of S.15(1) i n Miron  251  could be  characterized as accepting the p r i n c i p l e of colorblindness, though not i n the same form as i n the United States.  Of a l l the  p l u r a l i t y opinions i n a recent t r i l o g y of cases, McLachlin, J.'s, in Miron, received the most support, both with respect to the s.15  analysis and the s . l analysis.  248  Id.  2 4 9  Id.  250 251  Weatherall,  While r e l y i n g on the same  [1993] 2 S.C.R. at 878.  Miron v. Trudel, [1995] 124 D.L.R. (4th) 693. 72  two-part t e s t from Andrews applied i n Egan, McLachlin, J . , has a somewhat d i f f e r e n t view of discrimination; the denial of equality must r e s t on enumerated or analogous grounds and the unequal treatment must be motivated by stereotypical a p p l i c a t i o n of presumed group or personal c h a r a c t e r i s t i c s .  252  The general  purpose of equality protection i s to prevent "the v i o l a t i o n of human dignity and freedom by imposing l i m i t a t i o n , disadvantages, or burdens through stereotypical application of presumed group c h a r a c t e r i s t i c s rather than on the basis of i n d i v i d u a l merit, capacity,  or circumstance."  253  Enumerated and analogous grounds  serve as indicators of the types of d i s t i n c t i o n s which are based on stereotypes rather than on actual c h a r a c t e r i s t i c s and are, therefore,  presumptively i n d i c a t i v e of d i s c r i m i n a t i o n .  254  Although situations may e x i s t i n which a d i s t i n c t i o n based on enumerated grounds does not v i o l a t e s. 15 ( 1 ) , w i l l be " r a r e . "  256  This proposition,  255  those s i t u a t i o n s  i n i t s e l f , does not a l t e r  the p r i n c i p l e s of Andrews and Turpin; however, McLachlin, J . , seems to read into s,15(l) a s h i f t i n burden of proof, even p r i o r to the s . l a n a l y s i s .  257  In fact, she states, "one would be  Id. at 739. For a more thorough discussion of the enumerated and analogous grounds approach, see Section B. 2 5 2  2 5 3  Id. at 741.  254  Id. at 739.  Id. at 741 ( c i t i n g Weatherall v. Canada (AttorneyGeneral) (1993), 105 D.L.R. (4th) 210, [1993] 2 S.C.R. 872.). 255  2 5 6  Id.  Miron v. Trudel, [1995] 124 D.L.R. (4th) 693. According to Cory, J . , the claimant s t i l l has the burden of demonstrating t h i s element. In order to prove discrimination, a claimant must f i r s t show that an "equality r i q h t was denied on the basis of a 2 5 7  73  hard-pressed t o show that the d i s t i n c t i o n [based on enumerated or analogous grounds] i s not d i s c r i m i n a t o r y . "  258  Thus, under t h i s standard, i t appears that, absent evidence to the contrary, a party would successfully demonstrate a S.15(1) v i o l a t i o n i f able t o demonstrate a d i s t i n c t i o n denying equality based on enumerated or analogous grounds.  There i s no burden on  the claimant to demonstrate that the law "impos[es] burdens, obligations, or disadvantages on such i n d i v i d u a l or group not imposed upon others, or which withholds or l i m i t s access t o opportunities, benefits, and advantages a v a i l a b l e t o other members of s o c i e t y . " Court sua sponte,  259  Accordingly, the government, or the  must adduce evidence which demonstrates that  the impugned provision does not a c t u a l l y disadvantage the claimant based on s o c i a l , h i s t o r i c a l , p o l i t i c a l , and l e g a l context. For example, i n Weatherall, the claimant would only have had the burden of demonstrating that men were being treated i n an unequal fashion from women based on sex, an enumerated ground. The burden would then be on the government or the Court t o  personal c h a r a c t e r i s t i c which i s either enumerated i n S.15(1) or which i s analogous to those enumerated, and second, . . . that [the] d i s t i n c t i o n has the e f f e c t on the claimant of imposing a burden, o b l i g a t i o n or disadvantage not imposed upon others or of withholding or l i m i t i n g access to benefits or advantages which are available t o others." Egan v. Canada, [1995] 124 D.L.R. (4th) 609, 662. In addition, Cory, J . , noted that the d i s t i n c t analysis of s . l 5 ( l ) from s . l i s necessary due t o the s h i f t i n burden of proof. Id. at 663. 2 5 8  Miron, [1995] 124 D.L.R. (4th) at 741.  Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143, 174 (defining discrimination beyond a d i s t i n c t i o n based on personal c h a r a c t e r i s t i c s ) . 2 5 9  74  demonstrate the reason why t h i s provision d i d not create a disadvantage i n the larger s o c i a l context. departure from Andrews.  This i s a s i g n i f i c a n t  In fact, i n McLachlin, J.'s, own  opinion, she restates the propriety f o r s h i f t i n g the burden of proof at the s . l stage of a n a l y s i s .  260  Based on t h i s reasoning,  i t i s unclear whether McLachlin, J . , a c t u a l l y intended such a burden s h i f t i n g i n the context of S.15(1).  In order to determine  her meaning, the appropriate inquiry should focus on whether the claimant or the state would be i n the "best p o s i t i o n to adduce [proof]" of disadvantage beyond a d i s t i n c t i o n based on analogous or enumerated  grounds.  261  Like the American application of colorblindness, a d i s t i n c t i o n based on c o n s t i t u t i o n a l l y protected grounds appears to r a i s e a rebuttable presumption of i n v a l i d i t y under the Supreme Court's most recent approach.  However, unlike American  colorblindness, t h i s presumption would appear to apply equally with regard to each protected ground.  This l a t t e r difference  r e f l e c t s the i n a p p l i c a b i l i t y i n Canada of the U.S. Supreme Court's notion of multiple l e v e l s of review. B. Levels of Review 1. United States Based on the purposes of the Fourteenth Amendment, the Supreme Court has developed a m u l t i - t i e r e d approach to the standard of review under the Equal Protection Clause determined by the group against which a law discriminates.  2 6 0  261  Miron, [1995] 124 D.L.R. (4th) at 739. Id. 75  The Court has  i d e n t i f i e d three standards of review: 1) s t r i c t scrutiny, under which a government must demonstrate a compelling  i n t e r e s t and  must employ the least r e s t r i c t i v e means a v a i l a b l e ; 2) intermediate  scrutiny, under which a government must demonstrate  an important i n t e r e s t and must employ means which are s u b s t a n t i a l l y r e l a t e d to the objective; and 3) minimum scrutiny, under which the government must demonstrate a legitimate i n t e r e s t and must employ means which are r a t i o n a l l y r e l a t e d to the objective.  Depending on which group a p a r t i c u l a r law targets f o r  discrimination, the Court w i l l evaluate the a p p l i c a b i l i t y of the Equal Protection Clause according to one of these three t e s t s . Because the Fourteenth Amendment was drafted i n the context of abolishing slavery, any discrimination against blacks receive s t r i c t scrutiny.  will  This p r i n c i p l e has been generalized to  include any discrimination on the basis of race, including that against whites.  In addition, s t r i c t scrutiny i s applied i n the  context of l e g i s l a t i v e d i s t i n c t i o n s on the basis of national origin,  fundamental r i g h t s ,  2 6 2  alienage.  264  2 6 3  or, i n c e r t a i n contexts,  Most l e g i s l a t i o n , however, receives only minimum  scrutiny due to the j u d i c i a r y ' s l i m i t e d r o l e i n evaluating legislation. 262  2 6 5  There have been many c l a s s i f i c a t i o n s which have  See Korematsu v. United States, 323 U.S. 214 (1944).  Shapiro v. Thompson, 394 U.S. 618 (1969) ( s t r i k i n g down welfare residency requirements based on the r i g h t to i n t e r s t a t e travel). 2 6 3  264  See, e.g., Graham v. Richardson, 403 U.S. 365 (1971).  Cleburne v. Cleburne L i v i n g Center, 473 U.S. 432, 440 (1985) (stating that States have a wide l a t i t u d e f o r s o c i a l and economic l e g i s l a t i o n ) ; see also i d . at 443 ("Heightened scrutiny inevitably involves substantive judgments about l e g i s l a t i v e 265  76  caused some d i f f i c u l t y i n the Supreme Court's a p p l i c a t i o n of a p a r t i c u l a r standard of review. For example, the Supreme Court had a d i f f i c u l t time establishing a standard under which t o decide cases of discrimination on the basis of sex.  In Reed v. Reed,  266  the  Court, addressing a statute which e x p l i c i t l y preferred males over females i n the selection of an administrator of an estate, applied minimum s c r u t i n y  267  and found the law's means t o be  a r b i t r a r y i n r e l a t i o n t o i t s purpose.  Subsequently, the Court,  in a p l u r a l i t y opinion, did apply the higher standard accorded t o r a c i a l discrimination, designating c l a s s i f i c a t i o n s based on sex to be "inherently suspect".  The Court ultimately struck a  268  compromise between the r a t i o n a l i t y standard applied i n Reed and the " s t r i c t j u d i c i a l scrutiny" applied by the p l u r a l i t y i n Frontiero. In Craig v. Boren,  269  the Opinion of the Court established  a new standard of review under the Equal Protection Clause i n order t o decide cases based on sex discrimination.  "To withstand  c o n s t i t u t i o n a l challenge, . . . c l a s s i f i c a t i o n s by gender must serve important decisions . . . 266  governmental  objectives  and must be s u b s t a n t i a l l y  .").  404 U.S. 71, 75 (1971).  "A c l a s s i f i c a t i o n 'must be reasonable, not a r b i t r a r y , and must r e s t upon some ground of difference having a f a i r and substantial r e l a t i o n t o the object of the l e g i s l a t i o n , so that a l l persons s i m i l a r l y circumstanced s h a l l be treated a l i k e . ' " Reed, 404 U.S. at 76 (quoting Royster Guano Co. v. V i r g i n i a , 253 U.S. 412 (1920).). 2 6 7  2 6 8  Frontiero v. Richardson, 411 U.S.  269  429 U.S. 190 (1976) . 77  677 (1973).  to achievement of those o b j e c t i v e s . "  related  Chief J u s t i c e  270  Burger and Justices Powell and Rehnquist dissented from the judgment on the grounds that no heightened scrutiny was appropriate i n sex discrimination cases.  According t o  271  J u s t i c e Rehnquist, the newly created standard of review would create an unacceptable l e v e l of j u d i c i a l s u b j e c t i v i t y .  272  This standard of review, nonetheless, was s o l i d i f i e d into the Court's Equal Protection Clause system of i n t e r p r e t a t i o n i n both Personnel Administrator of Mass. v. Feeney M i s s i s s i p p i University f o r Women v. Hogan.  274  273  and  In Feeney, the  Court addressed the c o n s t i t u t i o n a l i t y of a Massachusetts  statute  providing a preference to m i l i t a r y veterans f o r c i v i l service positions i n the state.  The p l a i n t i f f challenged the law because  i t provided a benefit t o a s u b s t a n t i a l l y disproportionate number of males i n r e l a t i o n t o females due, at least i n part, t o federal  270  Id. at 197 (emphasis added) .  See Id. at 220 (Rehnquist, J . , dissenting) (asserting that the intermediate standard as created "out of t h i n a i r " with no textual or h i s t o r i c a l support). 271  Id. at 221 (Rehnquist, J . , dissenting), (stating that the language used by the Court was "so diaphanous and e l a s t i c as to i n v i t e subjective j u d i c i a l preferences or prejudices r e l a t i n g t o p a r t i c u l a r types of l e g i s l a t i o n " ) . Although J u s t i c e Rehnquist implied that only t h i s standard lacked h i s t o r i c a l support, i t i s far from clear that either the r a t i o n a l basis or the s t r i c t j u d i c i a l scrutiny standard r e l y on some h i s t o r i c a l basis and, more than l i k e l y , were also created "out of t h i n a i r , " so t o speak. 272  273  442 U.S.  256, 273 (1979).  274  458 U.S.  718 (1982) . 78  r e s t r i c t i o n s on female enlistment i n the m i l i t a r y .  The Court  2 7 5  applied the standard established i n Craig for discrimination based on sex and required "an exceedingly persuasive j u s t i f i c a t i o n to withstand a c o n s t i t u t i o n a l challenge under the Equal Protection Clause of the Fourteenth Amendment."  276  In  Hogan, the Court applied the standards a r t i c u l a t e d i n both Craig and Feeney and found that the statute did not meet the substantial r e l a t i o n s h i p t e s t .  2 7 7  The most recent decision involving sex discrimination once again applied the intermediate l e v e l of s c r u t i n y .  278  In J.E.B.,  the Court applied t h i s standard to the use of peremptory jury challenges t o exclude members of the jury on the basis of sex. The Court had already struck down such a p r a c t i c e on the basis of race.  2 7 9  Given the important, indeed compelling, governmental  i n t e r e s t i n achieving a f a i r and impartial t r i a l , the Court had to decide "whether discrimination on the basis of gender i n jury s e l e c t i o n s u b s t a n t i a l l y furthers" that i n t e r e s t .  280  The Court  began i t s analysis by noting the h i s t o r i c a l exclusion of women from j u r i e s based on the notion that women were either u n f i t to Feeney, 442 U.S. at 269-270 (noting that at the time of l i t i g a t i o n , over 98% of veterans i n Massachusetts were male, r e s u l t i n g i n a disproportionate number of men hired for c i v i l service jobs). 275  276  Id. at 273.  277  M i s s i s s i p p i Univ. for Women v. Hogan, 458 U.S. 718, 731  (1982). 278  2d 89,  J.E.B. v. Alabama ex r e l . T.B., 511 U.S. 102 (1994).  279  Batson v. Kentucky, 476 U.S. 79 (1986).  280  J.E.B. , 128 L.Ed.  2nd at 102. 79  , 128 L.Ed.  serve t h i s function or were too f r a g i l e t o be exposed t o "the polluted courtroom atmosphere."  281  The Court found that the  j u s t i f i c a t i o n for peremptory challenges on the basis of sex r e l i e d on stereotypical presumptions about jury voting patterns based on sex and "reinvokes [for women] a h i s t o r y of exclusion from the p o l i t i c a l p a r t i c i p a t i o n . "  As a r e s u l t , the Court  prohibited t h i s practice under the Equal Protection Clause. However, there i s l i n g e r i n g doubt whether the intermediate standard w i l l continue t o exist or whether sex d i s c r i m i n a t i o n w i l l eventually be elevated to the l e v e l of "inherently suspect." According t o the Court, t h i s i s s t i l l an undecided issue. "Because we conclude that gender-based peremptory challenges are not s u b s t a n t i a l l y related to an important government objective, we once again need not decide whether c l a s s i f i c a t i o n s based on gender are inherently suspect."  282  Indeed, only two members of  the o r i g i n a l debate i n Frontiero are s t i l l on the Court: J u s t i c e Stevens and Chief Justice Rehnquist.  Although both have since  accepted the intermediate standard of review, J u s t i c e Stevens o r i g i n a l l y joined the p l u r a l i t y i n Frontiero, while then-Justice Rehnquist argued for no heightened scrutiny beyond the t e s t f o r  Id. at 99. Indeed, t h i s practice of exclusion was condoned by the U.S. Supreme Court i n Strauder v. West V i r g i n i a , 100 U.S. 303, 310 (1879), and only as recently as 1975, the Court began enforcing, based on the Sixth Amendment r i g h t t o a jury t r i a l , the notion of equal treatment i n jury s e l e c t i o n procedures. Taylor v. Louisiana, 419 U.S. 522 (1975) ( s t r i k i n g down an exemption of women from mandatory jury duty). 281  J.E.B. v. Alabama ex r e l . T.B., 511 U.S. , 128 L.Ed. 2d 89, 102 n.6 (1994) ( c i t i n g Harris v. F o r k l i f t Systems, 510 U.S. , 126 L.Ed. 2d 295 (1993) (Ginsburg, J . , concurring) ("[I]t remains an open question whether ' c l a s s i f i c a t i o n s based on gender are inherently suspect'") (citations omitted i n J.E.B.)). 282  80  rationality.  I t i s unclear how the Court would decide t h i s issue  i f faced d i r e c t l y today, though the p r i n c i p l e of stare  decisis  would undoubtedly influence the Court's decision and may weigh against a l t e r i n g the standard. With the exception of discrimination on the basis of inherently suspect c l a s s i f i c a t i o n s , such as race, national o r i g i n , and, to a lesser extent, sex, other forms of discrimination against i d e n t i f i a b l e groups are evaluated under the minimum scrutiny standard of r a t i o n a l basis review.  Because  laws must make c l a s s i f i c a t i o n s between d i f f e r e n t groups of people i n order to be e f f e c t i v e , most d i s t i n c t i o n s do not v i o l a t e the Equal Protection Clause.  The Court must defer to l e g i s l a t i v e  judgment i n the determination of whether a p a r t i c u l a r law i s necessary, and i t must be c a r e f u l not to overreach i t s delegated power.  Thus, under the minimum l e v e l of scrutiny, a law w i l l  survive unless i t i s found to be i r r a t i o n a l .  2 8 3  For example,  the Court has been very unwilling to s t r i k e down laws discriminating on the basis of wealth  284  and age.  285  However,  other c l a s s i f i c a t i o n s have, i f not raised the standard of review, at least received closer attention by the Court.  Such a diminished standard of review has been characterized as "largely equivalent to a strong presumption of c o n s t i t u t i o n a l i t y . " Laurence Tribe, AMERICAN CONSTITUTIONAL LAW 1443 (1978) . 283  San Antonio Independent School D i s t r i c t v. Rodriguez, 411 U.S. 1 (1973) ("[T]his Court has never heretofore held that wealth discrimination alone provides an adequate basis f o r invoking s t r i c t scrutiny . . . . " ) . 284  Massachusetts Board of Retirement v. Murgia, 427 (1976). 285  307  81  U.S.  Although discrimination based on alienage by states, at least when unrelated to a public function, i s subject t o heightened scrutiny, the Court has limited the a p p l i c a t i o n of t h i s p r i n c i p l e to a l i e n s authorized by law to be i n the country.  286  The Court has concluded that an i n d i v i d u a l ' s  i l l e g a l presence i n the country i s a relevant factor i n promulgating l e g i s l a t i o n on the subject and, therefore, should receive only r a t i o n a l basis review.  287  However, the Court  invalidated the statute and concluded that the law could not be "rational  State."  288  unless i t promoted a substantial  goal of the  The Court, therefore, seemed to be expanding the  t y p i c a l minimum scrutiny requirement of a legitimate  governmental  interest. S i m i l a r l y , i n Cleburne v. Cleburne L i v i n g Center,  2 8 9  the  Court e x p l i c i t l y rejected a heightened scrutiny analysis f o r the purpose of evaluating laws discriminating against the mentally retarded.  In assessing the v a l i d i t y of a zoning requirement of a  special use permit i n order t o operate a group home f o r the mentally retarded,  290  the Court noted that the Equal Protection  Clause " i s e s s e n t i a l l y a d i r e c t i o n that a l l persons s i m i l a r l y  286 p i y i e r v. Doe, 457 U.S. 202 (1982) (examining the v a l i d i t y of a statute which excluded the children of i l l e g a l immigrants from obtaining an education i n public schools). 2 8 7  Id. at 220.  2 8 8  Id. at 224 (emphasis added) .  289  473 U.S. 432 (1985) .  2 9 0  I d . The neighborhood  i n question d i d not r e q u i r e a  permit t o operate hospitals, boarding houses, and other s i m i l a r facilities. 82  situated should be treated a l i k e . "  2 9 1  However, the mentally  retarded are not s i m i l a r l y situated with the general p u b l i c due to a diminished a b i l i t y to cope with and function i n s o c i e t y .  292  Thus, unlike other c l a s s i f i c a t i o n s which may be presumptively suspect, the States have a legitimate i n t e r e s t i n d i s t i n g u i s h i n g between the public and the mentally retarded.  Nevertheless, as  i n P l y l e r , the Court d i d invalidate the law, s t a t i n g that there was no " r a t i o n a l basis f o r believing that [a group home f o r the mentally retarded] would pose any s p e c i a l threat t o the c i t y ' s legitimate i n t e r e s t s . "  293  In doing so, the Court went beyond  i t s t r a d i t i o n a l d e f e r e n t i a l p o s i t i o n i n r a t i o n a l basis review with respect t o economic and s o c i a l r e g u l a t i o n .  294  The Court continued t o expand the notion of minimal scrutiny in the recent case of Romer v. Evans.  295  In Romer, the Court  struck down a Colorado c o n s t i t u t i o n a l provision which prohibited protections against discrimination on the basis of sexual orientation by state and l o c a l governments.  296  In Romer, the  Court applied the minimal scrutiny t e s t t o i n v a l i d a t e the state  2yi  Id. at 439.  2 9 2  Id. at 442.  2 9 3  Id. at 448.  294  Tribe, supra  295  6 4 U.S.L.W. 4353 (1996).  note 283, at 1444.  Although the Court had upheld a law which c r i m i n a l i z e d the p r a c t i c e of sodomy, Bowers v. Hardwick, 106 S.Ct. 2841 (1986), the decision only rejected the a p p l i c a t i o n of the Due Process Clause's protection of privacy, not the a p p l i c a b i l i t y of the Equal Protection Clause. 2 9 6  83  constitutional provision.  297  The Court explained that t h i s  standard of review "ensure[s] that c l a s s i f i c a t i o n s are not drawn for the purpose of disadvantaging the group burdened by the law."  298  The provision at issue, according to the Court, was  enacted with a s p e c i f i c intention to harm a p o l i t i c a l l y disfavored group.  Thus, the Court concluded that "[a] state  cannot so deem a class of persons a stranger to i t s laws."  299  2. Canada Canadian equality law does not incorporate the notion of assigning a p a r t i c u l a r l e v e l of review, and, therefore, a r e l a t i v e presumption of v a l i d i t y , based on the type of c l a s s i f i c a t i o n made by the l e g i s l a t u r e .  A l l classifications  which receive the protection of s,15(l) are evaluated under the same c r i t e r i a .  3 0 0  However, there are aspects of Canadian  equality law which mirror the analysis involved i n the m u l t i tiered  approach.  Under the Court's analysis of s.15, a complainant must demonstrate membership i n a group which i s either enumerated i n Romer, 64 U.S.L.W. 4363. The Court d i d not decide whether sexual orientation i s a suspect or quasi-suspect c l a s s i f i c a t i o n because the law could not meet the threshold requirement of r a t i o n a l i t y . 2 9 7  2 9 8  Id.  299  Id.  In the U.S. Supreme Court, one j u s t i c e has applied an analysis s i m i l a r to that of the Supreme Court of Canada i n i t s uniformity. According to J u s t i c e Stevens, the proper consideration i n every case involving discrimination i s whether the d i s t i n c t i o n i s based on a r a t i o n a l decision or merely on some stereotypical viewpoint. Cleburne, 473 U.S. 432, 452 (Stevens, J., concurring). 300  84  the Charter provision or which shares fundamental q u a l i t i e s with enumerated groups.  Under Andrews, the Court noted that both  enumerated and analogous grounds must be interpreted i n a "broad and generous manner, r e f l e c t i n g the fact that they are c o n s t i t u t i o n a l provisions not e a s i l y repealed or amended."  301  Toward that end, the Court advocated the use of the American concept of a "discrete and insular m i n o r i t y . " illustrating  302  By way of  the meaning of t h i s phrase, the Court described the  group i n question, non-citizens, as vulnerable to p o l i t i c a l oppression, due to a lack of power and representation i n government.  303  The Court further developed t h i s concept i n R. v. Turpin, [1989] 1 S.C.R. 1296. Once again, the Court noted the importance of viewing the d i s t i n c t i o n i n the larger s o c i a l , p o l i t i c a l , and l e g a l context.  304  J u s t i c e Wilson characterized the "discrete  and insular minority" analysis as only "one of the a n a l y t i c a l t o o l s which are of assistance i n determining whether the interest advanced by a p a r t i c u l a r claimant i s the kind of i n t e r e s t s.15 of the Charter  i s designed to p r o t e c t . "  305  Similar t o the United  States, those c h a r a c t e r i s t i c s of the enumerated grounds which are to be used i n analogy include s o c i a l , p o l i t i c a l and l e g a l  301  S•C•R•  Andrews v. Law Society of B r i t i s h Columbia, 143, 175.  Id. at 183 (quoting United States v. Carolene Products 304 U.S. 144, 152-53 n.4 (1938)).  3 0 2  Co  [1989] 1  303  Id.  304  Turpin, [1989] 1 S.C.R. at 1331.  305  Id.  at 152.  at 1333. 85  disadvantage, stereotyping, h i s t o r i c a l disadvantage, p o l i t i c a l v u l n e r a b i l i t y , and s o c i a l p r e j u d i c e .  306  In addition, a recent t r i l o g y of cases s i g n i f i c a n t l y reexamined the proper elements to be considered i n determining whether a personal c h a r a c t e r i s t i c i s an analogous ground. In Thibaudeau,  307  McLachlin,  J . , i n dissent, addressed whether a  tax provision distinguished based on an analogous ground.  308  Under her analysis, there are many factors, l a r g e l y those a r t i c u l a t e d i n Andrews and Turpin, which can a s s i s t i n making t h i s determination:  h i s t o r i c a l disadvantage, d i s c r e t e and  insular minority status, immutable personal c h a r a c t e r i s t i c unrelated t o an i n d i v i d u a l ' s merit or capacity, s i m i l a r i t y to enumerated grounds, and previous recognition by l e g i s l a t u r e s or courts as an i l l e g i t i m a t e ground of d i s c r i m i n a t i o n .  309  Thus,  the enumerated and analogous ground approach i s merely a preferred method of analysis under s,15(l) f o r protecting the important concept of human d i g n i t y .  In analyzing whether  divorced custodial parents constitute an analogous ground, 306  Id. at 1333.  Thibaudeau v. Canada, [1995] 124 D.L.R. 94th) 449, 503. Neither the opinion of Cory and Iacobucci, J J . , nor that of Gonthier, J . , reached the question of the ground of discrimination. Cory and Iacobucci, J J . , concluded that there was no denial of the four equality r i g h t s . Id. at 503. Gonthier, J . , found that the tax provision i n question d i d not prejudice the complainant, or, i n other words, r e s u l t i n a burden, obligation, or disadvantage not imposed on others. Id. at 486. 3 0 7  308  Id. at 517.  Id. at 517 ("[I]t i s e s s e n t i a l t o ask whether the c h a r a c t e r i s t i c on the basis of which the p r e j u d i c i a l d i s t i n c t i o n i s made may be used t o make i r r e l e v a n t d i s t i n c t i o n s that are contrary t o human d i g n i t y . " ) . 309  86  McLachlin, J . , focused on h i s t o r i c a l disadvantage and immutability.  310  In addition, however, she elaborated on the  concept of d i s c r e t e and insular minority introduced, but not explained, i n Andrews.  E s s e n t i a l l y , a d i s c r e t e and insular  minority, according t o J u s t i c e McLachlin, i s a s t a t i s t i c a l minority i n comparison with other groups i n the same category of the personal c h a r a c t e r i s t i c , which experiences a disadvantage i n society and s p e c i a l d i f f i c u l t i e s unique t o i t s members.  311  F i n a l l y , McLachlin, J . , r e l i e d on a factor not previously a r t i c u l a t e d : linkage between the analogous ground and one of the enumerated grounds under s. 15(1).  312  Although McLachlin, J. ,  did not elaborate on t h i s factor, a ground of discrimination w i l l more l i k e l y be analogous  i f a law r e l i e s on a ground of  discrimination related to an enumerated ground.  This p r i n c i p l e  i s supported by the Court's inclusion within S.15(1) of adverse e f f e c t discrimination. S i m i l a r l y , McLachlin, J . , i n her p l u r a l i t y opinion i n Miron,  313  considered protection of human d i g n i t y and freedom  against s t e r e o t y p i c a l use of presumed group c h a r a c t e r i s t i c s t o be  3 1 0  Id. at 517, 519.  Id. at 518 (finding that single custodial parents are a s t a t i s t i c a l minority, are disadvantaged, and are "confronted with s o c i a l , personal and emotional challenges unique t o i t s members."). 311  Thibaudeau, [1995] 124 D.L.R. (4th) at 519 (acknowledging that the "great majority" of divorced c u s t o d i a l parents are women). 3 1 2  Miron v. Trudel, [1995] 124 D.L.R. 94th) 693 ( i n v a l i d a t i n g an insurance provision which denied spousal benefits, based on marital status, t o an unmarried partner l i v i n g a marital-like relationship). 3 1 3  87  "the overarching purposes of the equality guarantee i n the Charter."  314  As a r e s u l t , the analogous ground approach should  be designed to serve t h i s purpose.  315  The use of h i s t o r i c a l  discrimination as a prerequisite of an analogous ground would foreclose the development of the Charter i n accordance with changing s o c i a l v a l u e s .  316  The enumerated ground of sex does  not constitute a d i s c r e t e and insular minority, and r e l i g i o n i s not an immutable c h a r a c t e r i s t i c .  317  These factors are relevant  and useful i n comparing a c h a r a c t e r i s t i c t o those grounds enumerated, but the analogous ground approach must be broad enough t o incorporate any ground of discrimination under which laws d i s t i n g u i s h based on stereotypical c h a r a c t e r i s t i c s , h o s t i l e to human dignity, rather than on actual merit or circumstance. McLachlin, J . , found that "freedom t o l i v e l i f e with a mate of one's choice i n the fashion one chooses" without discrimination i s a s u f f i c i e n t l y fundamental personal c h a r a c t e r i s t i c t o be included under S.15(1) of the Charter. 3 1 4  ground).  318  In essence, marital  Id. at 741 (finding marital status t o be an analogous  Id. at 746 (analogous ground analysis should be "generous"). 3 1 5  Id. at 748 ("[I]f the Charter i s t o remain relevant t o future generations, i t must r e t a i n a capacity t o recognize new grounds of discrimination."). 3 1 6  3 1 7  Id. at 748.  Miron, 124 D.L.R. (4th) at 749. A d d i t i o n a l l y , unmarried couples have experienced both h i s t o r i c a l disadvantage and s o c i a l prejudice. F i n a l l y , the status of being unmarried may not necessarily be a choice due t o a partner's reluctance t o marry or because of f i n a n c i a l , r e l i g i o u s , or s o c i a l constraints. McLachlin, J . , compared marital status, based on these q u a l i t i e s , to c i t i z e n s h i p , another analogous ground, and t o r e l i g i o n , an enumerated ground under s . l 5 ( l ) . Id. 3 1 8  88  status i s "an i r r e l e v a n t basis f o r exclusion and a denial of e s s e n t i a l human d i g n i t y . . . . " In Egan,  320  319  Cory, J . ' s p l u r a l i t y opinion addressed the  analogous ground concept with respect t o sexual o r i e n t a t i o n .  321  As with McLachlin, J.'s, approach, Cory, J . , concluded that h i s t o r i c a l disadvantage, discrete and insular minority status, and p o l i t i c a l v u l n e r a b i l i t y are only indicators i n determining the more "fundamental consideration underlying the analogous grounds analysis [of] whether the basis of d i s t i n c t i o n may serve to deny the e s s e n t i a l human dignity of the Charter claimant."  322  Thus, human dignity i s the primary concern i n determining whether a personal c h a r a c t e r i s t i c i s an analogous ground, and t h i s concept can only be evaluated " i n the context of the place of the group i n the entire s o c i a l , p o l i t i c a l and l e g a l f a b r i c of our society."  323  In t h i s case, a very divided Court found that the  provision v i o l a t e d S.15(1) but upheld the law as demonstrably j u s t i f i e d i n a free and democratic society.  3 1 9  Cory, J . , found  324  Id. at 747.  Egan v. Canada, [1995] 124 D.L.R. 94th) 609 (examining the claim of a homosexual man who applied f o r spousal allowance under the Old Age Security Act; the government denied h i s application because he was not a "person of the opposite sex," as required by the statute). 3 2 0  321  Id. at 673.  3 2 2  Id. at 673.  3 2 3  Id. at 674 (quoting Andrews, at 32.).  Id. Cory, J . , also found t h i s law t o be f a c i a l l y discriminatory based on the e x p l i c i t r e s t r i c t i o n of "opposite sex." Id. at 664. He concluded that t h i s provision made a d i s t i n c t i o n which denied homosexual couples the equal benefit of the law. Id. 3 2 4  89  that t h i s law discriminated on the basis of sexual o r i e n t a t i o n and that sexual orientation i s an analogous ground under S.15(1) .  325  Unlike the American analysis, once a group achieves analogous status, then i t receives the same protection under S.15(1) as enumerated groups. t h i s general rule, however.  There have been some exceptions to  In McKinney, the majority of the  Court discussed whether a university's mandatory retirement p o l i c y would v i o l a t e s,15(l) of the Charter.  326  The Court  e a s i l y concluded that t h i s p o l i c y distinguished t o a disadvantage against individuals based on enumerated personal c h a r a c t e r i s t i c s and, as such, v i o l a t e d s,15(l).  A d d i t i o n a l l y , because t h i s  provision precluded individuals from engaging i n employment, "one of the most fundamental aspects i n a person's l i f e , "  3 2 7  i t was  p a r t i c u l a r l y suspect.  Egan, 124 D.L.R. (4th) at 673-676. In f a c t , t h i s holding represented the unanimous opinion of the Court. While agreeing with McLachlin, J.'s, opinion i n Miron that h i s t o r i c a l disadvantage and status as a discrete and insular minority are not prerequisites f o r finding a ground to be analogous, Cory, J . , nonetheless found that h i s t o r i c a l disadvantage, public harassment, and employment discrimination of homosexuals was well-documented. In addition, some homosexual i n d i v i d u a l s have concealed t h e i r sexual orientation i n order t o avoid hatred. Id. at 674-675. 3 2 5  McKinney v. University of Guelph, [1990] 3 S.C.R. 229 (finding that u n i v e r s i t i e s are not governmental bodies and, therefore, are not subject to Charter scrutiny, but assuming otherwise f o r purposes of the s.15 a n a l y s i s ) ; see also Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Harrison v. University of B r i t i s h Columbia, [1990] 3 S.C.R. 451. 3 2 6  McKinney, [1990] 3 S.C.R. at 278 (quoting Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 368). 3 2 7  90  Having found a s.15 v i o l a t i o n , the Court then considered whether the p o l i c y was demonstrably j u s t i f i e d under the s . l analysis from Oakes adopted i n Andrews.  La Forest, J . , noted  that t h i s p o l i c y was promulgated i n an attempt t o mediate between competing claims of legitimate s o c i a l values.  As such, the Court  should not t r y to substitute i t s own judgment f o r that of the l e g i s l a t i v e body. "had a reasonable  The relevant inquiry i s whether the government for concluding that i t impaired the r i g h t  basis  as l i t t l e as possible,  1,328  actually  rather than whether the r i g h t i s  impaired as l i t t l e as possible.  Thus, the mandatory  retirement p o l i c y of the university, although v i o l a t i v e of s.15, was saved by s . l of the Charter as demonstrably j u s t i f i a b l e i n a free and democratic  society.  Following t h i s discussion, the Court considered whether section 9(a) of Ontario's Human Rights Code  329  violated s.l5(l)  of the Charter by excluding those over 65 years of age from the protections against employment discrimination.  With respect t o  the protection of age under the Charter, the Court acknowledged that i t i s an enumerated ground.  However, La Forest, J . ,  concluded that age, unlike most other grounds, can p o t e n t i a l l y be correlated with permissible grounds for making d i s t i n c t i o n s , such as a b i l i t y and m e r i t .  330  Overall, according t o La Forest, J . ,  328  Id. at 286 (emphasis i n o r i g i n a l ) .  3 2 9  Human Rights Code, 1981, S.0. 1981, c.53,  s.9(a).  McKinney, [1990] 3 S.C.R. at 297 (recognizing the r e l a t i o n s h i p between advanced age and d e c l i n i n g a b i l i t y ) . Additionally, the other enumerated factors are associated with h o s t i l i t y , intolerance, and prejudice. By contrast, most individuals i n society can expect to reach the age of 65, so there i s less suspicion i n the motivations f o r d i s t i n g u i s h i n g on 330  91  laws discriminating based on age should not be s c r u t i n i z e d to the same extent as those discriminating on other enumerated grounds. In a lengthy s . l analysis, the Court recognized the objective of the Human Rights Code as the protection of those i n greatest need from discrimination with respect to a s p e c i f i e d age range.  With respect to the requirement  of minimal impairment,  the Court restated the d i f f i c u l t y of evaluating s o c i a l l e g i s l a t i o n i n which the government has had t o choose between competing i n t e r e s t s .  The j u d i c i a r y , i n the Court's opinion, i s  not i n a p o s i t i o n to second-guess judgments made by the l e g i s l a t u r e based on i t s own method of f a c t u a l i n v e s t i g a t i o n .  331  The Court d i d not conclude that the l e g i s l a t i v e r e s u l t was proper; rather, the Court recognized the d i f f i c u l t y of reaching a proper r e s u l t and, therefore, the reasonable basis i n choosing t h i s p a r t i c u l a r means of advancing the l e g i s l a t i v e goals. Overall, the Court concluded that t h i s p r o v i s i o n represented an incremental approach to protecting individual's r i g h t s , and government should be given the opportunity to thoroughly analyze the costs and benefits of changing such an established p r a c t i c e applied throughout  Canada.  332  This suggests that the Court  considers age as less fundamental t o the notions of equality  t h i s ground. Id. at 305. Nonetheless, the Court should evaluate e x i s t i n g knowledge, including s o c i a l science research, i n order to determine whether the government was reasonable i n concluding that the infringement on s.15 was minimized t o the greatest extent possible. 331  332  Id. at 317. 92  protected by the Charter than other grounds enumerated under S.15(1). S i m i l a r l y , i n Egan, the Court upheld a v i o l a t i o n of s,15(l) under s . l .  3 3 3  According t o both La Forest, J . ,  3 3 4  and Sopinka,  J., the law at issue represented a substantial step toward achieving the governmental o b j e c t i v e .  335  Although Sopinka, J .  found a s,15(l) v i o l a t i o n , he concluded that the h i s t o r y of amendments t o t h i s Old Age Security Act provision, adding common law spouses and providing benefits to widowed spouses, indicated a "substantial step i n an incremental approach t o include a l l those who are shown to be i n serious need of f i n a n c i a l assistance due t o the retirement or death of a supporting spouse."  336  In  accordance with the judgment i n McKinney, Sopinka, J . , afforded deference t o the l e g i s l a t u r e f o r three reasons: "represents the kind of socio-economic  1) t h i s law  question i n respect of  which the government i s required to mediate between competing groups rather than being the protagonist of an i n d i v i d u a l ; "  337  2) Parliament had amended the law several times i n order t o expand benefits to those i n greatest need, such as to unmarried spouses and widowed spouses, so i t was reasonable t o assume that Parliament would also expand the law t o include homosexual 333  Egan v. Canada, [1995] 124 D.L.R. (4th) 609.  Id. at 618. Although La Forest, J . , represented the p l u r a l i t y of the Court on the s . l issue, Sopinka, J.'s, opinion a r t i c u l a t e d the intermediate p o s i t i o n between the p l u r a l i t y supporting S.15(1) and the p l u r a l i t y supporting s . l . Id. at 653. 334  335  3 3 6  3 3 7  Id. at 655. Id. Egan, 124 D.L.R. (4th) at 655. 93  spouses at some point; 3) Parliament should have more time to consider expanding the provision because recognition of sexual orientation as an analogous ground has only occurred recently.  338  By affording t h i s l e v e l of deference i n Egan and Miron, the Court protects sexual orientation to a lesser extent than marital status.  When combined with the Court's characterization of  age  discrimination i n McKinney and i t s deference i n Rodriguez, t h i s creates a form of multiple l e v e l s of review.  These burgeoning  l e v e l s of review, however, have yet to reach the extent found i n U.S.  Supreme Court cases.  3. comparisons This difference i n the degree of acceptance of the l e v e l s of review approach between Canadian and American interpretations of equality can be explained  to a large extent by the language and  Id. at 654-656. See also Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 588. In Rodriguez, a woman s u f f e r i n g from a terminal, d e b i l i t a t i n g disease challenged a provision of the Criminal Code which prohibited her physician a s s i s t i n g i n her suicide due to her i n a b i l i t y to commit t h i s act on her own. With respect to S.15(1), the Court did not engage i n an analysis of the p r i n c i p l e s enunciated i n Andrews. Rather, the majority assumed arguendo that t h i s law discriminates on the basis of physical d i s a b i l i t y and completed i t s analysis of the provision under s . l . Under s . l , the Court characterized the objective of the l e g i s l a t i o n as preserving l i f e and protecting vulnerable individuals who might be induced i n moments of weakness to commit suicide. Id. at 595. The state has a p o l i c y that "human l i f e should not be depreciated by allowing l i f e to be taken." Id. Because t h i s i s a "morally laden" issue, the Court chose to defer to a greater extent to Parliament's judgment. Id. at 614-15 ("[I]t i s not the proper function of t h i s Court to speculate as to whether other alternatives available to Parliament might have been preferable."). As a r e s u l t , the government must only have had a reasonable basis for concluding that t h i s provision minimally impaired equality r i g h t s i n achieving i t s objective. Id. at 614. 338  94  history of the Fourteenth Amendment as compared to that of s.15 of the Charter.  The Fourteenth Amendment was drafted i n the  context of a C i v i l War v i c t o r y of the Union over the South and the r e s u l t i n g a b o l i t i o n of slavery throughout the country i n the Thirteenth Amendment.  Thus, i t was intended, to a substantial  degree, to a l l e v i a t e the discriminatory, dehumanizing treatment of blacks related to t h e i r enslavement.  Although the U.S.  Supreme Court has extended the application of the Equal Protection Clause beyond that immediate concern, the l e v e l s of review indicate the Court's d i f f i c u l t y with doing so.  In  p a r t i c u l a r , the Supreme Court struggled with the a p p l i c a t i o n of heightened scrutiny to l e g i s l a t i v e d i s t i n c t i o n s based on sex. According to the dissent i n Frontiero, the proposed, and ultimately defeated, Equal Rights Amendment foreclosed the p o s s i b i l i t y of protecting sex under the Equal Protection Clause to the same extent as race.  Otherwise, the Equal Rights  Amendment would be unnecessary.  Indeed, less than f i f t e e n years  a f t e r the adoption of the Fourteenth Amendment, the Court assumed that equal protection did not apply to women.  339  As a r e s u l t ,  the Supreme Court has not been w i l l i n g to apply s t r i c t scrutiny to governmental  c l a s s i f i c a t i o n s based on sex.  Thus, discrimination against blacks or, through the p r i n c i p l e of colorblindness, against any race has become the exemplar f o r achieving the highest l e v e l of review under the Equal Protection Clause.  A l l other groups making an i n i t i a l  challenge under the Fourteenth Amendment have been compared with  Strauder v. West V i r g i n i a , 100 U.S. 303 (1879). 95  those aspects of race which require heightened s c r u t i n y .  340  The  more successful the group i n comparison t o r a c i a l c h a r a c t e r i s t i c s , the higher the l e v e l of scrutiny under the Fourteenth Amendment. In Canada, the Charter was not adopted i n response t o a s p e c i f i c concern about a p a r t i c u l a r group's p o s i t i o n i n society. Rather, s.15 i s a general guarantee of equality and was drafted i n a very broad fashion,  enumerating, i n a non-exclusive manner,  many c h a r a c t e r i s t i c s as protected.  Thus, i t has not been  necessary f o r the Supreme Court of Canada t o d i s t i n g u i s h between those c h a r a c t e r i s t i c s i n terms of t h e i r r e l a t i v e nature.  "suspect"  A l l of these c h a r a c t e r i s t i c s are suspect i n the sense  that they are protected against invidious  discrimination.  Nonetheless, the Supreme Court of Canada's actual a p p l i c a t i o n of the enumerated and analogous grounds approach bears some resemblance to the American model. Both countries'  conception of equality r a i s e s a s i m i l a r  concern; there i s an inherent d i f f i c u l t y and s u b j e c t i v i t y i n i d e n t i f y i n g the proper ground on which the law d i s t i n g u i s h e s .  341  Assigning a party's c h a r a c t e r i s t i c s to a p a r t i c u l a r group i s a subjective process based on s o c i a l context, the characterizations made by the parties, and the decision-maker's  individual  United States v. Carolene Products Co., 3 0 4 U.S. 1 4 4 (discrete and insular minority as well as p o l i t i c a l powerlessness and h i s t o r i c a l discrimination compared with race factors). 340  (1938)  341  the  Nitya Iyer, Categorical  Shaping  of  Social  Identity,  Denials: 19 QUEEN'S 96  Equality L . J . 179  Rights (1993).  and  background.  342  A d d i t i o n a l l y , any conception  of the extent to  which the chosen group must experience a disproportionate impact w i l l be a r b i t r a r y .  In choosing which groups t o protect, both  343  countries have evaluated s o c i a l , h i s t o r i c a l , and p o l i t i c a l disadvantage, immutability, status.  and d i s c r e t e and i n s u l a r minority  These factors create an i n i t i a l subjective evaluation of  which groups deserve protection i n s o c i e t y .  344  Many c a t e g o r i c a l  groups i n society experience a disadvantage based on personal c h a r a c t e r i s t i c s , but only those groups whose c h a r a c t e r i s t i c s are s u f f i c i e n t l y s i m i l a r to enumerated grounds receive protection under the Charter.  Necessarily, any evaluation of the degree of  s i m i l a r i t y to e x i s t i n g protected groups involves r e l i a n c e on subjective b e l i e f s . Further, the protection of a p a r t i c u l a r group i s i t s e l f problematic.  Some groups w i l l be protected i n some s i t u a t i o n s  but not others. ^  345  F i n a l l y , the categorization process i s  Id. at 186.  For example, i n Thibaudeau v. Canada, [1995] 124 D.L.R. (4th) 449, McLachlin, J . , characterized discrimination against custodial parents as "related" to the enumerated ground of sex because 73% of custodial parents are women. At what percentage would t h i s s t a t i s t i c be s u f f i c i e n t to demonstrate an adverse e f f e c t based on sex, rather than on an analogous ground? 343  344  Iyer, supra  note 341 at 197.  Egan v. Canada, [1995] 124 D.L.R. (4th) 609, 636; see Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143 (citizenship only protected i f law does not r e l a t e t o governmental function); R. v. Turpin [1989] 1 S.C.R. 1296 (province of residence may be protected, but not i n r e l a t i o n t o application of the criminal law). A d d i t i o n a l l y , i n Graham v. Richardson, the Court struck down a provision denying welfare benefits to noncitizens. 403 U.S. 365 (1971). The Court found that " c l a s s i f i c a t i o n s based on alienage, l i k e those based on n a t i o n a l i t y or race, are inherently suspect and subject t o close j u d i c i a l scrutiny." Id. at 372. However, i n Foley v. Connelie, 345  97  rather p a t e r n a l i s t i c .  Courts tend t o focus on which group i n  society i s most deserving of protection, rather than determining that a p a r t i c u l a r provision i s a r b i t r a r y i n i t s e f f e c t .  Each of  these problems demonstrate the i n a b i l i t y of t h i s t e s t t o evaluate the actual detrimental impact of a law on a p a r t i c u l a r portion of the population. L Heureux-Dube, J . , has recognized the i n e f f i c i e n c y and 1  inaccuracy of t h i s process i n redressing i n e q u a l i t y .  346  According t o her, the enumerated and analogous ground approach only i n d i r e c t l y advances the purpose of s. 15 ( 1 ) .  Because  347  t h i s section i s meant to protect human d i g n i t y and recognize each person's worth as a human being, the proper focus of the Court should be on the impact of the law rather than on the basis of distinction.  3 4 8  a combination  The best means of achieving equality i s through subjective/objective test, "from the point of view  of the reasonable person, dispassionate and f u l l y apprised of the circumstances, possessed of s i m i l a r a t t r i b u t e s to, and under  the Court established a substantial exception t o the reasoning i n Graham. 435 U.S. 291 (1978). Whereas the s t r i c t scrutiny t e s t had been applied i n order t o protect a "noncitizens a b i l i t y t o e x i s t i n the community," the t e s t had not been developed i n order to ensure equal treatment between c i t i z e n s and a l i e n s i n the p o l i t i c a l functions of government. "The essence of our holdings to date i s that although we extend t o a l i e n s the r i g h t t o education and p u b l i c welfare, along with the a b i l i t y t o earn a l i v e l i h o o d and engage i n licensed professions, the r i g h t t o govern i s reserved to c i t i z e n s . " Id. at 297 As a r e s u l t , the Court applied a standard of " r a t i o n a l r e l a t i o n s h i p between the i n t e r e s t sought to be protected and the l i m i t i n g c l a s s i f i c a t i o n . " Id. at 292. 1  346  Egan, [1989] 124 D.L.R. (4th) at 635-38.  3 4 7  Id. at 636.  348  Id. at 637-38. 98  s i m i l a r circumstances as, the group of which the r i g h t s claimant i s a member."  349  This t e s t emphasizes the point of view of the  victim of discrimination rather than that of the state.  Courts  should focus on the actual p r e j u d i c i a l e f f e c t of the law, the existence of stereotyping, and whether the law i n f r i n g e s the claimant's  human d i g n i t y .  350  Although the enumerated and  analogous ground approach s u f f i c i e n t l y i d e n t i f i e s discrimination among those groups recognized  as more s o c i a l l y vulnerable, the  discriminatory impact of a l l l e g i s l a t i o n v i o l a t i v e of s . l 5 ( l ) should not require discrete group membership. One  351  case p a r t i c u l a r l y demonstrates t h i s point.  In  Thibaudeau, the majority focused on the relevant ground of discrimination as parents who are divorced or separated. doing so, the Court inescapably not v i o l a t e S.15(1).  352  In  concluded that t h i s p r o v i s i o n did  However, as i l l u s t r a t e d by the dissenting  opinions, the discriminatory impact of the l e g i s l a t i o n was experienced by divorced or separated custodial  parents.  comparing custodial and non-custodial  the dissenting  parents,  353  By  j u s t i c e s focused on the actual adverse e f f e c t of the l e g i s l a t i o n , rather than on the group i d e n t i f i e d by the government. Otherwise, the government could always i d e n t i f y a group i n need of protection and,  for convenience or otherwise, a r b i t r a r i l y  349  Id. at 638.  350  Id. at 639-40.  351  Egan, [1989] 124 D.L.R. (4th) at 639-41.  352  Thibaudeau v. Canada, [1995] 124 D.L.R. (4th) 449, 490.  353  Id. at 509 (McLachlin,  J . , dissenting). 99  choose t o only a s s i s t one member of the group.  This case  demonstrates the overinclusive and underinclusive nature of the approach to discrimination emphasizing group c h a r a c t e r i s t i c s .  354  Arguably, the American analysis i s p o t e n t i a l l y more f l e x i b l e and far-reaching i n t h i s regard.  Whereas s,15(l) of the Charter  c a r r i e s an all-or-nothing categorical process, the m u l t i - t i e r e d approach of the U.S.  Supreme Court allows even those groups not  deserving of heightened scrutiny to challenge a law's rationality.  Legislatures are precluded from discriminating  against any group i n an arbitrary, i r r a t i o n a l manner or based on i l l e g i t i m a t e objectives.  This lowest l e v e l of review has been  applied to invalidate l e g i s l a t i o n i n several cases.  355  While a  successful claim i n the t y p i c a l American case i s l a r g e l y determined by the a p p l i c a b i l i t y of heightened scrutiny,  Canadian  claimants must r e l y heavily on the application of analogous grounds. For example, the Supreme Court of Canada has denied three separate claims r e l a t i n g t o province of residence based on the i n a p p l i c a b i l i t y of the enumerated and analogous grounds approach. 3 5 4  356  Taken as a group, these three opinions e f f e c t i v e l y  See also  Iyer, supra  note 341 at 191-194.  E.g., Cleburne v. Cleburne L i v i n g Center, 473 U.S. 432 (1985); P l y l e r v. Doe, 457 U.S. 202 (1982); and Romer v. Evans, 64 U.S.L.W. 4363 (1996). 3 5 5  In R. v. Turpin, [1989] 1 S.C.R. 1296, three defendants accused of murder challenged the v a l i d i t y of a section of the Criminal Code which permitted residents of Alberta to s e l e c t a bench t r i a l while members of other provinces, including the defendants' resident province, Ontario, were forced to be t r i e d by a jury. Wilson, J . , writing f o r a unanimous Court, noted the relevance of the s o c i a l , p o l i t i c a l , and l e g a l context surrounding the law. Wilson, J . , also found that residents of a l l provinces 3 5 6  100  except Alberta charged under t h i s provision could not meet the d e f i n i t i o n of a "discrete and insular minority," nor was a d i s t i n c t i o n based on these c h a r a c t e r i s t i c s analogous t o those grounds enumerated i n the Charter. Id. at 1333. This p a r t i c u l a r category of persons d i d not possess i n d i c i a of d i s c r i m i n a t i o n i n society at large, such as h i s t o r i c a l disadvantage, stereotyping, or p o l i t i c a l v u l n e r a b i l i t y . Id. However, the Court d i d recognize that a person's province of residence, under other circumstances, may constitute i l l e g i t i m a t e grounds f o r creating a l e g i s l a t i v e d i s t i n c t i o n . Id. at 1333 ("I would not wish t o suggest that a person's province of residence or place of t r i a l could not i n some circumstances be a personal c h a r a c t e r i s t i c of the i n d i v i d u a l or group capable of c o n s t i t u t i n g a ground of discrimination."). In R. v. S. (S.)/ [1990] 2 S.C.R. 254, a claimant challenged the exercise of d i s c r e t i o n by Ontario's Attorney General i n not creating an a l t e r n a t i v e measure to j u d i c i a l proceedings as provided i n a non-mandatory section of the Act. The Court noted that d i s t i n c t i o n s based on province of residence i n which p r o v i n c i a l l e g i s l a t u r e s exercise legitimate j u r i s d i c t i o n a l powers do not v i o l a t e s . l 5 ( l ) . Id. at 288. Otherwise, s,15(l) would eliminate a d i v i s i o n of power between federal and p r o v i n c i a l governments. Id. However, the impugned p r o v i s i o n i n t h i s case concerned the d i f f e r e n t i a l application of a " v a l i d federal law." Id. In such circumstances, the Court emphasized that d i f f e r e n t i a l application of the criminal law according t o province a c t u a l l y r e i n f o r c e s notions of federalism by incorporating community differences. Id. at 290-91. In addition, with respect to t h i s law, there are implications f o r c h i l d welfare, administered by p r o v i n c i a l governments. Id. at 291. Thus, t h i s l e g i s l a t i o n does not create a d i s t i n c t i o n "based upon a 'personal c h a r a c t e r i s t i c ' f o r the purposes of S.15(1) of the Charter." Id. at 292. In another decision by the Supreme Court of Canada with respect t o province of residence as a ground of discrimination, the Court, once again, found no discrimination. Haig v. Canada, [1993] 2 S.C.R. 995, at pp. 1042-47. In t h i s case, a man who was precluded from voting i n both a federal and a p r o v i n c i a l referendum due to residency requirements challenged the federal Referendum Act under s.15 of the Charter. Under the Canada Elections Act, only residents of p o l l i n g d i v i s i o n s were l i s t e d as e n t i t l e d t o vote. S i m i l a r l y , the E l e c t i o n Act (Quebec) required an i n d i v i d u a l to be domiciled i n Quebec f o r s i x months before being included i n the l i s t of e l i g i b l e voters. Because Mr. Haig had moved to Quebec two months before the respective referenda, he was excluded from both. Id. at 1007-09. L'Heureux-Dube, J . , w r i t i n g f o r the majority, found that those newly relocated to a province within s i x months of a referendum did not form a "discrete and insular minority group" and d i d not possess c h a r a c t e r i s t i c s analogous t o the enumerated grounds under S.15(1). Id. at 1044. This group of i n d i v i d u a l s , though denied an opportunity to vote i n t h i s referendum, "do not s u f f e r from stereotyping, s o c i a l prejudice, . . . h i s t o r i c a l 101  foreclose future challenges  against federal l e g i s l a t i o n which  distinguishes on the basis of province of residence.  Thus, both  countries r e l y on a process of categorization which creates r e l a t i v e presumptions of v a l i d i t y based on the c h a r a c t e r i s t i c s of the groups o r i g i n a l l y recognized as deserving  i n each c o n s t i t u t i o n a l document  of protection against governmental discrimination. C. Intentional Discrimination  1. United  States  The f i n a l aspect of American equality law which s u b s t a n t i a l l y d i f f e r s from Canada i s the U.S.  Supreme Court's  d i s t i n c t i o n between de jure and de facto discrimination.  Under  t h i s requirement, heightened scrutiny w i l l only apply i f a law f a c i a l l y creates a d i s t i n c t i o n based on i l l e g i t i m a t e grounds or i f a neutral law was i l l e g i t i m a t e grounds.  enacted with an intent to discriminate  on  Thus, situations i n which a law causes a  discriminatory impact against groups protected by heightened scrutiny w i l l not a c t u a l l y receive that l e v e l of review unless the government intended to discriminate.  Unlike both  colorblindness and multiple l e v e l s of review, which have h i s t o r i c a l foundations, the p r i n c i p l e of i n t e n t i o n a l discrimination i s a r e l a t i v e l y recent development i n U.S.  law.  Neither the text nor l e g i s l a t i v e h i s t o r y of the Fourteenth Amendment supports t h i s requirement, and i t only arose i n the Supreme Court around the early 1970's.  disadvantage, or p o l i t i c a l prejudice." Id. A d d i t i o n a l l y , t h i s group i s "highly f l u i d " and constantly changing. Id. 102  In fact, i n Yick Wo v. Hopkins,  357  the Court applied the  Fourteenth Amendment to a f a c i a l l y neutral statute.  In t h i s  case, San Francisco had passed a municipal ordinance which gave d i s c r e t i o n to a board of supervisors to p r o h i b i t the use of wooden buildings to operate a laundry, ostensibly i n order to protect the public against the danger of f i r e .  While the law d i d  not e x p l i c i t l y require or suggest discriminatory implementation, i t was unquestionably applied on the basis of race and nationality.  358  As a r e s u l t , i t v i o l a t e d the Fourteenth  Amendment's guarantee of equal protection of the laws. Following Brown I I ,  3 5 9  the Court ultimately acknowledged  the necessity f o r affirmative steps to be taken immediately by states to integrate public s c h o o l s . >  5  360  This requirement  118 U. S. 356 (1886) .  f  358 "Though the law i t s e l f be f a i r on i t s face and impartial in appearance, yet, i f i t i s applied and administered . . . with an e v i l eye and an unequal hand, so as p r a c t i c a l l y to make unjust and i l l e g a l discrimination between persons i n s i m i l a r circumstances." Id. at 373-74. Brown v. Board of Education, 349 U.S. 294, 300-01 (1955) (hereafter Brown II) (delegating primary r e s p o n s i b i l i t y f o r supervision of desegregation to the federal d i s t r i c t courts which were instructed to ensure a "prompt and reasonable s t a r t toward f u l l compliance" i n order "to effectuate a t r a n s i t i o n to a r a c i a l l y nondiscriminatory school system."). Even though the Court directed that such action was to occur "with a l l deliberate speed," many states f a i l e d to take action which would a l t e r the e x i s t i n g d i v i s i o n of schools between blacks and whites. Id.; see also Cooper v. Aaron, 358 U.S. 1 (1958); Goss v. Board of Education, 373 U.S. 683 (1963); G r i f f i n v. County School Board, 377 U.S. 218 (1964) ("There has been e n t i r e l y too much d e l i b e r a t i o n and not enough speed" since the mandate of Brown II.) . 3 5 9  360 county School Board, 391 U.S. 430, 437-38 (1968) ("School boards . . . were nevertheless c l e a r l y charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system i n which r a c i a l discrimination would be eliminated root and branch."). G  r  e  e  n  v >  103  extended the Equal Protection Clause to a new  l e v e l ; not  only  were states prohibited from discriminating, they were directed to a f f i r m a t i v e l y remove the e f f e c t s of such discrimination i n order to comply with the Fourteenth Amendment.  However, the Court  l a t e r backed away from such a substantive  i n t e r p r e t a t i o n of the  361  Fourteenth Amendment, instead r e s t r i c t i n g i t s a p p l i c a t i o n to i n t e n t i o n a l discrimination. U n t i l the early 1970's, the only segregation cases before the Court originated out of the South where laws e x p l i c i t l y provided for segregation p r i o r to the Brown r u l i n g . Keyes v. School D i s t r i c t No.  1, Denver, Colo.,  362  However, i n  the Court  addressed the status under the Equal Protection Clause of a which did not discriminate on i t s face i n the context of  law  school  desegregation. The Denver, Colorado, school board had divided i t s d i s t r i c t i n such a way  as to create segregated schools  without ever a c t u a l l y mandating t h i s r e s u l t .  The Court concluded  that the Equal Protection Clause could reach de  facto  segregation; however, the Fourteenth Amendment was  l i m i t e d to  those situations i n which the de facto segregation was of l e g i s l a t i v e i n t e n t .  up  a result  363  Id. at 436 ("The t r a n s i t i o n to a unitary, non-racial system of public education was and i s the ultimate end to be brought about."). 361  362  4 1 3 U.S.  189  (1973) .  But see i d . at 217-53 (Powell, J . , concurring i n part and dissenting i n part) (arguing that the r a t i o n a l e of Green which required p o s i t i v e action on the part of the States i n the South to integrate schools necessarily required the same r e s u l t in the North and, therefore, the concept of i n t e n t i o n a l discrimination was at odds with that decision). Interestingly, Justice Powell l a t e r joined the Opinion of the Court, requiring intentional discrimination, i n Washington v. Davis, 426 U.S. 229 3 6 3  104  Despite the Court's pronouncement i n Yick Wo  that  i l l e g i t i m a t e application of a neutral law would not be the Court, continued principle.  permitted,  to formulate a narrower version of t h i s  In Washington v. Davis,  364  two black i n d i v i d u a l s  challenged a q u a l i f y i n g exam for the D i s t r i c t of Columbia p o l i c e department on which a disproportionate number of black applicants had f a i l e d .  The Court distinguished cases under the Fourteenth  Amendment from those brought under T i t l e VII, the  Congressional  C i v i l Rights Act.  specifically  Under the l a t t e r , Congress had  provided that an intention to discriminate need not be proved. However, the Court found t h i s to be inapplicable i n Constitutional cases.  The Court denied the challenge  expanding on the reasoning  and,  of Keyes i n the segregation  context,  found that a l l cases decided under the Equal Protection Clause require either a state action which discriminates on i t s face or one which has a discriminatory intent or purpose.  365  While  c i t i n g a l i n e of cases which had established t h i s requirement, the Supreme Court did not a r t i c u l a t e the p a r t i c u l a r h i s t o r y of the Fourteenth Amendment which would require such an interpretation.  Rather, the Court merely stated that the  (1976), and authored the Court's Opinion, e s t a b l i s h i n g the c r i t e r i a for proving i n t e n t i o n a l discrimination, i n V i l l a g e of Arlington Heights v. Metropolitan Housing Devolopment Co., 429 U.S. 252 (1977). 364  426 U.S.  229  (1976) .  365 "This i s not to say that the necessary discriminatory r a c i a l purpose must be express or appear on the face of the statute, or that a law's disproportionate impact i s i r r e l e v a n t . . . . A statute, otherwise neutral on i t s face, must not be applied so as i n v i d i o u s l y to discriminate on the basis of race." Id. at 241 ( c i t i n g Yick Wo v. Hopkins, 118 U.S. 356 (1886).). 105  Fourteenth Amendment's central purpose " i s the prevention of o f f i c i a l conduct discriminating on the basis of r a c e . " The U.S.  366  Supreme Court concluded that any other reading of  the Fourteenth Amendment would encroach on the government's a b i l i t y to function.  "A r u l e that a statue designed t o serve  neutral ends i s nevertheless i n v a l i d , absent compelling j u s t i f i c a t i o n , i f i n practice i t benefits or burdens one race more than another would be f a r reaching and would r a i s e serious questions about, and perhaps invalidate, a whole range of tax, welfare, p u b l i c service, regulatory, and l i c e n s i n g statutes that may be more burdensome t o the poor and t o the average black than to the more a f f l u e n t  white."  367  There have been two primary c r i t i c i s m s of the requirement of intent.  F i r s t , for any given statute which does not e x p l i c i t l y  r e f e r t o an i l l e g i t i m a t e ground, proof of l e g i s l a t i v e intention to discriminate can be very d i f f i c u l t .  3 6 8  Second, the focus on  the motive of the l e g i s l a t u r e ignores the r e a l concern of equal  Id. at 239; see also V i l l a g e of A r l i n g t o n Heights v. Metropolitan Housing Development Co., 429 U . S . 252, 266-68 (1977) (establishing c r i t e r i a which may be used i n order t o demonstrate a discriminatory purpose behind state action; however, noting that discriminatory impact could only be s u f f i c i e n t i n extreme cases, such as the discrimination i n Yick Wo). 366  Id. at 248. The Court applied the purposeful discrimination requirement of Davis and A r l i n g t o n Heights i n Feeney t o f i n d that the state did not intend t o exclude women from c i v i l service jobs with a veteran preference. Rather, the Court found that the preference applied i n favor of both male and female veterans and applied against both male and female nonveterans. Personal Administrator of Mass. v. Feeney, 442 U . S . 256, 275 (1979). 3 6 7  3 6 8  Protection:  Charles R. Lawrence I I I , The Id, Reckoning  with  Unconscious  317, 319 (1987). 106  the Ego, Racism,  and  Equal  39 STANFORD L. R E V .  protection:  protecting groups from harm r e s u l t i n g from  governmental a c t i o n .  369  2. Canada As with the p r i n c i p l e of colorblindness, the Supreme Court of Canada has e x p l i c i t l y rejected the requirement of i n t e n t i o n a l discrimination.  The Court w i l l evaluate a l l l e g i s l a t i o n , whether  f a c i a l l y objectionable  or f a c i a l l y neutral, i n order t o determine  whether there i s a v i o l a t i o n of s.15.  Because the Court w i l l  review evidence of the s o c i a l , p o l i t i c a l , and economic conditions surrounding the impugned provision, proof of an intent t o discriminate i s not necessary.  370  Rather, s,15's purpose i s t o  promote a society " i n which a l l are secure i n the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration." adversely  371  Thus, a law which  a f f e c t s one group more than another, even i f  unintentionally so, may v i o l a t e s.15. of s.15 provides,  Nonetheless, as the text  the r i g h t t o equality i s q u a l i f i e d by the  notion of discrimination.  A law which deprives a group of one of  the four equality r i g h t s i n a non-discriminatory manner does not contravene  s.15.  Id. at 319, 323 ("goal [of the 14th Amendment] i s the eradication of invidious discrimination") ; Andrew Luger, Lijberal 369  Theory as Protection,  Constitutional  Doctrine:  A Critical  Approach  to  Equal  73 GEORGETOWN L.R. 153, 172 (1984) (stating that courts should l i m i t de facto discrimination due t o the reinforcement of unequal s o c i a l r e l a t i o n s ) . Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143, 174. 370  371  Id. at 171. 107  However, the Court struggled with the proper d e f i n i t i o n of discrimination.  372  Relying on human r i g h t s acts throughout  Canada, the Court defined discrimination as "a d i s t i n c t i o n , whether intentional or not, but based on grounds r e l a t i n g t o personal c h a r a c t e r i s t i c s of the i n d i v i d u a l or group, which has the e f f e c t of imposing burdens, obligations, or disadvantages on such i n d i v i d u a l or group not imposed upon others, or which withholds or l i m i t s access t o opportunities, benefits, and advantages available to other members of s o c i e t y . "  373  The Court  e x p l i c i t l y distinguished the suspect nature of d i s t i n c t i o n s based on personal c h a r a c t e r i s t i c s as opposed t o those based on merit and c a p a c i t y .  374  However, i t i s s t i l l unclear whether the Court w i l l a c t u a l l y follow i t s r e j e c t i o n of intentional discrimination i n p r a c t i c e . The Court has yet t o f i n d a v i o l a t i o n of s . l 5 ( l ) i n the context of adverse e f f e c t s d i s c r i m i n a t i o n .  375  For example, the Court  has not acknowledged broader s o c i a l i n e q u a l i t i e s f o r women i n cases of non-intentional, adverse e f f e c t discrimination involving economic considerations.  In Symes, a female partner i n a law  firm challenged a tax provision which prevented her from  5fd  Id. at 172.  3 7 3  Id. at 174.  3 7 4  Id. at 174-75.  See, e.g., Thibaudeau v. Canada, [1995] 124 D.L.R. (4th) 449; R. v. S.(S.), [1990] 2 S.C.R. 254; R. v. Swain, [1991] 1 S.C.R. 933; Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 588. Although the Court i n Rodriguez evaluated the law under S.15(1), the Court presumed, rather than found, a S.15(1) v i o l a t i o n . 3 7 5  108  deducting c h i l d care as a business expense on her income tax.  7 6  The Court referred t o the Andrews analysis under s . l 5 ( l ) and recognized the v a l i d i t y of adverse e f f e c t cases under the equality provision of the Charter.  377  However, the Court d i d  not f i n d evidence that t h i s s p e c i f i c statute adversely affected women.  378  Even though evidence established that women  disproportionately carry the burden of caring f o r children, there was i n s u f f i c i e n t evidence to e s t a b l i s h that women disproportionately pay f o r c h i l d c a r e .  379  This l a t t e r evidence  was necessary f o r the Court due to the p r i m a r i l y economic impact of t h i s tax provision and an i d e n t i c a l l e g a l o b l i g a t i o n on both parents to f i n a n c i a l l y care f o r t h e i r c h i l d , thereby creating a presumption of fathers' actual f i n a n c i a l c o n t r i b u t i o n .  380  As a  r e s u l t , the Court could not f i n d a disadvantage either f o r women as a group or f o r the subgroup of professional women, as required by s. 15(1).  381  Thus, although the Court recognized sex  inequality i n the s o c i e t a l d i s t r i b u t i o n of the care of  i n  Symes v. Canada, [1993] 4 S.C.R. 695.  Id. at 754. According t o the Supreme Court, intent or animus i s i r r e l e v a n t i n the context of discrimination. 3 7 7  3 7 8  Id. at 765.  379  Id. at 763-64.  Id. The Court did theorize that t h i s type of evidence could be demonstrated i n another case, e s p e c i a l l y with respect to single mothers with the primary f i n a n c i a l o b l i g a t i o n over c h i l d care, but there was not enough evidence i n t h i s case t o show more than an i n d i v i d u a l i z e d disadvantage r e s u l t i n g from the statute. Id. 3 8 0  381  Symes, [1993] 4 S.C.R. at 763-64. 109  children,  8 2  i t would not i n f e r a s i m i l a r inequality i n the  f i n a n c i a l r e s p o n s i b i l i t y f o r c h i l d care. In Thibaudeau,  the Supreme Court upheld a tax provision  which adversely affected custodial parents i n r e l a t i o n t o noncustodial parents. law:  383  The Court focused on the purpose of the  to increase the amount of disposable income f o r divorced or  separated couples i n order to more e a s i l y meet the f i n a n c i a l needs of c h i l d r e n .  384  Gonthier, J . , f o r the majority, concluded  that both parents need not benefit equally i n Parliament's attempt t o achieve t h i s g o a l .  385  Rather, the two parents can be  treated as a unit f o r purposes of meeting the c h i l d ' s f i n a n c i a l needs because both parents have a corresponding f i n a n c i a l duty to the c h i l d .  3 8 6  Thus, taking the family unit as a whole, the tax  provision provides an o v e r a l l b e n e f i t .  387  As a r e s u l t , there  was no v i o l a t i o n of any of the four equality r i g h t s protected by s. 15(1).  388  Additionally, the Court stated that t h i s provision  prejudiced custodial parents regardless of sex.  389  Once again,  the Court f a i l e d t o consider the s o c i a l r e a l i t y of inequality i n  3 8 2  Id. at 763.  383  Thibaudeau v. Canada, [1995] 124 D.L.R. (4th) 449.  3 8 4  Id. at 490.  385  Id. a t 493.  386  Id. at 491.  3 8 7  Id. a t 493.  388  Thibaudeau,  3 8 9  Id. at 492-93.  [1995] 124 D.L.R. (4th) a t 496.  110  r e l a t i o n t o c h i l d care as between men and women i n the context of a f a c i a l l y neutral s t a t u t e .  390  By contrast, the Court has found a s,15(l) v i o l a t i o n i n more than h a l f of the f a c i a l l y discriminatory laws which have been challenged.  In fact, i n the only two cases i n which the  391  Court found an u n j u s t i f i a b l e v i o l a t i o n of s . l 5 ( l ) , the impugned provision f a c i a l l y discriminated against the protected groups.  392  Although there have been cases i n which the Court  f a i l e d to recognize a s,15(l) v i o l a t i o n f o r laws making f a c i a l distinctions,  393  a law's de jure discrimination does appear t o  a f f e c t the Court's analysis.  As a whole, though there are  currently not enough cases with which t o draw conclusions with respect t o the Court's application of the adverse e f f e c t s p r i n c i p l e , the Court's e x p l i c i t r e j e c t i o n of the requirement of intentional discrimination suggests a p o t e n t i a l of extending equality protection beyond that of the U.S. Supreme Court.  Additionally, there i s a s i g n i f i c a n t l y higher burden of proof on claimants asserting an adverse e f f e c t s claim. The Court has made i t clear that s,15(l) requires substantial s p e c i f i c evidence demonstrating an adverse e f f e c t . See i d . at 492-496; Symes, [1993] 4 S.C.R. at 762-65. Thus, there i s a s i m i l a r concern i n both countries about the complainant's a b i l i t y t o prove a v i o l a t i o n of c o n s t i t u t i o n a l protections of equality i n de facto discrimination cases. 3 9 0  Miron v. Trudel, [1995] 124 D.L.R. (4th) 693; Egan v. Canada, [1995] 124 D.L.R. (4th) 609; Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143; McKinney v. Univ. of Guelph, [1990] 3 S.C.R. 229. 391  Andrews, [1989] 1 S.C.R. 143; Miron, (1995) 124 D.L.R. (4th) 693. 3 9 2  R. v. Hess, [1990] 2 S.C.R. 906; Weatherall v. Canada [1993] 2 S.C.R. 872; R. V . Turpin, [1989] 1 S.C.R. 1296. 3 9 3  Ill  D.  Practical Effects  Overall, the c o n s t i t u t i o n a l protection of equality i n the United States has been shaped by three dominant concepts, none of which has been accepted i n Canada:  colorblindness,  l e v e l s of review, and intentional discrimination.  multiple While the  Supreme Court of Canada has developed p r i n c i p l e s which resemble these American concepts, i t has neither been as extreme i n application nor as concerned with notions of formal equality. The U.S.  Supreme Court has limited the government's a b i l i t y to  consider the r e a l i t y of s o c i a l inequality by i n s i s t i n g on colorblindness  and focusing on de jure discrimination.  Court, i n r e j e c t i n g claims of de facto discrimination  The and  attempts at affirmative action, has emphasized the importance of removing governmental involvement, both p o s i t i v e and negative, from the struggle for equality.  Any governmental conduct based  on suspect c l a s s i f i c a t i o n s w i l l not be tolerated under the Fourteenth Amendment.  By contrast, the Supreme Court of Canada,  in placing more emphasis on s o c i a l context and actual e f f e c t s of l e g i s l a t i o n , has taken a more substantive  approach to equality.  In Canada, governmental action which promotes p r i n c i p l e s of equality does not v i o l a t e the Charter. These differences i n the manner i n which Canada and  the  United States interpret equality could have concrete implications on the outcome of s p e c i f i c cases.  In order to i l l u s t r a t e t h i s  point, I have analyzed one Canadian case under the American l e v e l s of review doctrine and two American cases under s,15(l) of the Charter.  112  The ultimate evidence of the p r i n c i p l e of colorblindness i n the United States l i e s i n the Supreme Court's a f f i r m a t i v e action position.  In Bakke, the Court struck down a medical school's  s p e c i a l admissions program designed t o increase the representation of disadvantaged students.  Although the Court  found that race could be a legitimate consideration i n admissions, i t must be narrowly t a i l o r e d , based on s p e c i f i c j u d i c i a l , l e g i s l a t i v e , or administrative findings, t o remedy past c o n s t i t u t i o n a l or statutory v i o l a t i o n s .  394  Restating the  r a t i o n a l e f o r colorblindness, Justice Powell stated that "preferring members of any one group f o r no reason other than race or ethnic o r i g i n i s discrimination f o r i t s own sake."  395  By contrast, because the Supreme Court of Canada has not accepted the p r i n c i p l e of colorblindness, i t would analyze t h i s case i n a s i g n i f i c a n t l y d i f f e r e n t manner. Under s.15(2) of the Charter, affirmative action programs are granted a s p e c i a l exclusion from the requirements of S.15(1). Nonetheless, even beyond t h i s exemption, the Supreme Court of Canada has interpreted S.15(1) i n a manner which would allow l e g i s l a t u r e s to consider protected c h a r a c t e r i s t i c s and s o c i a l context i n shaping remedial laws.  Under the f a c t s i n Bakke, the  Court would f i r s t determine whether t h i s law v i o l a t e d one of the four equality r i g h t s and, then, whether i t was  Regents of University of C a l i f o r n i a v. Bakke, 438 U.S. 265, 307-308 (1978) (Powell, J . , announcing the Judgment of the Court) . 3 9 4  395  Id. at 307. 113  discriminatory.  396  The Court has noted several times that  equality does not require i d e n t i c a l treatment.  Because the  dominant group i s over-represented i n medical schools, an attempt to remedy t h i s problem, e s p e c i a l l y i n l i g h t of the s o c i a l r e a l i t y that disadvantaged groups are underrepresented i n the medical field,  3 9 7  would not be seen as discriminatory under S.15(1).  Further, even assuming a s,15(l) v i o l a t i o n , the Court would probably uphold t h i s provision as demonstrably j u s t i f i a b l e under s.l.  As s.15(2) makes clear, affirmative action plans are  "pressing and s u b s t a n t i a l " concerns.  A d d i t i o n a l l y , the set aside  of sixteen positions i n a class of one hundred, although not the least r e s t r i c t i v e a l t e r n a t i v e , i s not disproportionate t o the goals of the p r o v i s i o n the dominant group.  398  and has a f a i r l y minimal impairment on  Ultimately, Canada's r e j e c t i o n of  colorblindness would r e s u l t i n an opposite conclusion with respect t o the impugned provision i n Bakke. In Miron, an insurance provision denied spousal benefits to an unmarried couple on the basis of marital s t a t u s .  399  Even  though the couple were l i v i n g i n a m a r i t a l - l i k e r e l a t i o n s h i p and shared many c h a r a c t e r i s t i c s with married couples, provision required a marriage under law.  the insurance  In s t r i k i n g down the  The analysis would probably follow that of Weatherall, [1993] 2 S.C.R. 872, and Hess, [1990] 2 S.C.R. 906. 396  Bakke, 438 U.S. at 369-70 (Brennan, J . , concurring i n the Judgment i n part, and dissenting i n p a r t ) . 3 9 7  See i d . at 374 (Brennan, J.) (stating that the s p e c i a l admission proportion of 16% i s less than the rate of minorities i n C a l i f o r n i a ' s population). 3 9 8  399  Miron v. Trudel,  [1995] 124 D.L.R. (4th) 693. 114  provision, the Supreme Court of Canada found that marital status i s an analogous ground under the Charter, that t h i s provision v i o l a t e d s . l 5 ( l ) , and, f i n a l l y , that i t was not demonstrably j u s t i f i a b l e under s . l .  Under the Fourteenth Amendment, however,  t h i s case probably would have a d i f f e r e n t outcome.  This  provision contravenes two equal protection requirements; i t v i o l a t e s the colorblindness p r i n c i p l e by discriminating on the basis of a group c h a r a c t e r i s t i c , marital status, against one p a r t i c u l a r c l a s s , unmarried couples, and i t does so i n t e n t i o n a l l y i n a de jure manner.  Nonetheless, under the Court's m u l t i - t i e r e d  approach, the claimants must also attempt to gain suspect or quasi-suspect status for heightened scrutiny. Under the Supreme Court of Canada's analogous ground approach, marital status received protection because, l i k e r e l i g i o n and c i t i z e n s h i p , i t i s a fundamental personal c h a r a c t e r i s t i c which has h i s t o r i c a l l y served as the basis f o r discrimination and s o c i a l prejudice.  However, i t i s l i k e l y that  the U.S. Supreme Court would not f i n d t h i s group worthy of heightened protection.  Unlike race and national o r i g i n , marital  status does not have any h i s t o r i c a l connection to the Fourteenth Amendment.  In addition, marital status i s not an immutable  characteristic.  Further, the type of h i s t o r i c a l discrimination  noted by the Supreme Court of Canada does not r i s e to the l e v e l of other groups receiving heightened scrutiny, such as sex and l e g a l a l i e n status.  Similar to mental d i s a b i l i t y , age, economic  class, and other c h a r a c t e r i s t i c s connected to s o c i a l prejudice, the U.S. Supreme Court would relegate marital status to r a t i o n a l r e l a t i o n s h i p review.  Because the Supreme Court has often 115  emphasized the importance of marriage i n society, i t i s u n l i k e l y that i t would f i n d an attempt to promote that i n s t i t u t i o n an act of i r r a t i o n a l i t y .  Thus, the l e v e l s of review approach would  a l t e r the outcome of t h i s case i f i t were decided  i n the United  States. The U.S.  Supreme Court unequivocally adopted the p r i n c i p l e of  i n t e n t i o n a l discrimination i n Davis.  400  This incident  s u b s t a n t i a l l y affected the outcome of the case; the Court upheld a written personnel t e s t for the D i s t r i c t of Columbia's P o l i c e Department which had the e f f e c t of excluding a disproportionate number of black applicants.  Unlike the U.S.  Supreme Court, the  Supreme Court of Canada has rejected the l i m i t a t i o n of i n t e n t i o n a l discrimination under S.15(1).  Thus, under the facts  i n Davis, the Supreme Court of Canada would be able to d i r e c t l y analyze the c o n s t i t u t i o n a l i t y of the disproportionate impact. Although highly speculative, the Court would probably f i n d a s . l 5 ( l ) v i o l a t i o n by analyzing the s o c i a l , p o l i t i c a l , economic conditions surrounding  the t e s t .  and  A lower court had  already found that a higher percentage of blacks f a i l the t e s t and that the number of black p o l i c e o f f i c e r s was  disproportionate  to the percentage of blacks i n the l o c a l population. t h i s provision may  401  Thus,  have been discriminatory under S.15(1).  so, i t would probably not survive s . l .  If  Although ensuring  applicants are q u a l i f i e d for such a high r i s k p o s i t i o n would be 400  Washington v. Davis, 426 U.S.  229  (1976).  Id. at 235. However, the lower court also found that the t e s t was not c u l t u r a l l y slanted and that the p o l i c e department had made a concentrated e f f o r t to increase the number of black p o l i c e o f f i c e r s i n the department. Id. 401  116  pressing and substantial, a t e s t which discriminates against black applicants would have to impair the r i g h t to equality as l i t t l e as possible and be proportional to the l e g i s l a t i v e objective.  Unlike i n the U.S.  Supreme Court, s . l would not allow  an exception due to the p o t e n t i a l l y "far-reaching" implications for i n v a l i d a t i n g a nation-wide  402  c i v i l service exam.  E. Conclusion The manner i n which Canada and the United States analyze the c o n s t i t u t i o n a l meaning of equality d i f f e r s dramatically. the U.S.  While  has limited the implications of the Fourteenth Amendment  with such p r i n c i p l e s as colorblindness, l e v e l s of review,  and  intentional discrimination, the Supreme Court of Canada has given a more expansive reading to s,15(l) of the Charter. U.S.  Unlike the  Supreme Court, Canada i s somewhat more w i l l i n g to examine  the s o c i a l consequences of l e g i s l a t i o n .  As a r e s u l t , there i s a  greater opportunity for a more substantive form of equality. This difference i s also r e f l e c t e d i n other areas of law which r e l y on p r i n c i p l e s of equality.  Thus, t h i s t h e s i s next  explores each country's reaction to governmental r e s t r i c t i o n s on hate speech and pornography, two forms of speech protected as freedom of expression but which p o t e n t i a l l y promote s o c i a l inequality.  I n i t i a l l y , however, i t i s important to place these  cases i n context of each country's o v e r a l l p o s i t i o n on freedom of expression.  402  Id.  at 248. 117  Chapter 4 Freedom of Expression  Freedom of expression has long been acknowledged as a c r u c i a l component of democracy.  403  In addition t o i t s value as  a means t o e s t a b l i s h and maintain a democratic government, many view freedom of expression as an end i n i t s e l f .  4 0 4  Thus, there  are three general values embodied i n the freedom of expression: 1) "marketplace  of ideas", including concepts of advancement of  knowledge and discovery of truth through free and vigorous exchange of a variety of ideas; 2) "furtherance of democracy," including p a r t i c i p a t i o n i n p o l i t i c a l decision-making and e l e c t i o n of o f f i c i a l s through expression of opinion and access t o p u b l i c records as well as resolving internal and interpersonal c o n f l i c t s by open discussion so as to protect the peace and order of a democratic society; 3) " s e l f - f u l f i l l m e n t , " including the development of character, personality, and personal knowledge through receiving and expressing opinions and i d e a s .  405  The  f i r s t two of these values characterize speech as a means t o achieving the s o c i e t a l goals of truth and democracy while the f i n a l concept, s e l f - f u l f i l l m e n t , recognizes the value of speech  40-5  404  John E. Nowak, et a l . , Tribe, supra  CONSTITUTIONAL  LAW,  (2d Ed. 1983).  note 283.  Thomas Emerson, T H E SYSTEM OF FREEDOM O F E X P R E S S I O N (197 0) ; Nowak, supra note 403, at 863-864; see also R . v. Zundel, [1992] 95 D . L . R . 4th 202; R . C . Post, Racist Speech, Democracy, and the F i r s t Amendment, 32 W I L L I A M , AND MARY L . R E V . 267 (1991) ; Matsuda, supra note 66. 405  118  at an i n d i v i d u a l l e v e l .  4 0 6  Each of these ideals have been  recognized i n both Canadian and American freedom of expression jurisprudence.  407  Another approach to free expression focuses on the i n t e r a c t i o n between each of these elements.  Human beings e x i s t  in s o c i e t i e s which require interaction i n order to function. Because communication i s an e s s e n t i a l element of community l i f e through self-determination, i t receives c o n s t i t u t i o n a l protection.  408  Thus, communication i n a democracy  the need for interaction and interdependence i n d i v i d u a l i s t i c society.  i n an  As a r e s u l t , expression should only  limited to the extent i t negatively a f f e c t s A.  symbolizes  interdependence.  United States  In the United States, freedom of expression found c o n s t i t u t i o n a l protection immediately  following independence  under the B i l l of Rights of 1791 i n the F i r s t Amendment.  409  order t o understand  In  contemporary notions of free expression, i t  i s necessary to examine the context i n which the F i r s t Amendment was drafted.  In England, speech was limited extensively by p r i o r  r e s t r a i n t through elaborate l i c e n s i n g schemes and seditious 4 0 6  See  Nowak, supra  note 403, at 863-864.  Canada (Canadian Human Rights Commission) v. Taylor, [1990] 75 D.L.R. 577, 595; R. v. Keegstra, [1990] 3 S.C.R. 697; Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J . dissenting); Cohen v. C a l i f o r n i a , 403 U.S. 15 (1971). 4 0 7  408  Moon, supra  note 126, at 414.  "Congress s h a l l make no law respecting an establishment of r e l i g i o n , or p r o h i b i t i n g the free exercise thereof; or abridging the freedom of speech, or of the press; or the r i g h t of the people peaceably to assemble, and t o p e t i t i o n the Government for a redress of grievances." 409  119  libel.  4 1 0  After l i c e n s i n g was abolished i n the English B i l l of  Rights i n 1 6 8 8 , freedom of the press was s t i l l only thought to imply the absence of censorship p r i o r t o p u b l i c a t i o n .  411  Blackstone, i n reviewing the state of the law i n the eighteenth century, voiced no general concern that subsequent punishment for a publication would e f f e c t i v e l y deter or c h i l l future publications.  412  As a colony of England, early American law  r e f l e c t e d the English t r a d i t i o n of suppressing o p i n i o n .  413  Thus, the F i r s t Amendment was drafted i n the context of English and c o l o n i a l governmental repression of dissent and unpopular  ideas.  Probably r e s u l t i n g from t h i s context, many  414  currently regard freedom of expression as the most fundamental of the B i l l of Rights.  410 PRESS  Leonard Levy,  I N EARLY 411  412  As a r e s u l t , the United States Supreme  415  AMERICAN  LEGACY  HISTORY  OF S U P P R E S S I O N :  FREEDOM  OF S P E E C H AND  (1960)  Id. at 1 4 . See i d . at  15.  413 "The persistent image of c o l o n i a l America as a society i n which freedom of expression was cherished i s an h a l l u c i n a t i o n that ignores h i s t o r y . " Id. at 1 8 . Levy proposed that the F i r s t Amendment' s d r a f t e r s held the same limited notions of free speech and press as Blackstone. Id. at 2 1 4 - 2 3 5 . However, modern F i r s t Amendment jurisprudence r e j e c t s such an interpretation of the founders' views. See Nowak supra note 4 0 3 , at 8 6 2 ; see also Sedler, supra note 6 2 , a t 1 1 9 5 . 414  See Nowak supra note 4 0 3 , at 8 7 0 ; Post supra Matsuda supra note 6 6 ; see also Brandenberg v. Ohio, 415  (1969) . 120  note 4 0 5 ; U.S. 4 4 4  395  Court has been very cautious when examining p o t e n t i a l l i m i t a t i o n s on t h i s r i g h t .  4 1 6  There are two p r i n c i p a l approaches to the F i r s t Amendment as interpreted by the United States Supreme Court: 1) protected expression limited f o r various other purposes; and 2) expression which i s not within the protection of the F i r s t Amendment.  417  Under the f i r s t approach, beginning with cases i n v o l v i n g the Espionage and Sedition Acts of World War I, the Supreme Court formulated a t e s t for l i m i t i n g expression which i s c o n s t i t u t i o n a l l y protected.  418  In Schenck v. United States,  Justice Holmes, recognizing the importance of freedom of expression, created the clear and present danger r u l e to analyze l e g i s l a t i o n on t h i s matter: the expression t o be l i m i t e d must present a clear and present danger such that i t w i l l bring about the substantive e v i l s that Congress has a r i g h t t o prevent.  419  J u s t i c e Holmes upheld a conviction of obstructing recruitment based on the defendant's d i s t r i b u t i o n of a l e a f l e t which asserted that the d r a f t v i o l a t e d the Thirteenth Amendment.  420  Holmes  acknowledged that the l e a f l e t s were expression protected by the F i r s t Amendment but that the circumstances,  l a r g e l y the existence  of the state of war, created a substantial enough harm f o r Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (establishing the basis by which the Supreme Court can review l e g i s l a t i o n on c o n s t i t u t i o n a l grounds); see Nowak, supra note 403, at 10. 416  4 1 7  See  Tribe, supra  note 283, at 580.  4 1 8  See  Nowak, supra  note 403, at 866.  419  249 U.S. 47, 52 (1919).  420  Schenck, 249 U.S. at 52. 121  Congress to punish t h i s expression.  421  Holmes emphasized the  need for a present danger or intent t o bring about such a danger.  422  This contained the notion that, presumptively, the  state cannot p r o h i b i t or punish  expression.  423  In Dennis v. United States, t h i s formulation was approved and expanded by the Supreme Court i n reference to the Smith Act.  424  This new use of Holmes' p r i n c i p l e was adopted from  Judge Learned Hand's i n t e r p r e t a t i o n : courts "must ask whether the gravity of the e v i l , discounted by i t s improbability, j u s t i f i e s such invasion of free speech" i n order to prevent the danger.  425  This usage of the c l e a r and present danger r u l e disregarded Holmes' emphasis on the immediacy of danger and transformed the p r i n c i p l e into a balancing of p r o b a b i l i t i e s t e s t .  4 2 6  In  addition, t h i s usage seems to ignore the existence and importance of a war i n Holmes' formulation. States,  427  Even i n Abrams v. United  where the defendant was convicted of promoting  421  Schenk, 249 U.S. at 51.  422  Schenck, 249 U.S. at 51.  See Whitney v. C a l i f o r n i a , 274 U.S. 357, 374 (1927) (Brandeis, J . concurring). 423  3 41 U.S. 494 (1951). The Smith Act was Congress' c o d i f i c a t i o n of McCarthyist p r i n c i p l e s i l l e g a l i z i n g the formation of a communist party. S p e c i f i c a l l y , the statute prohibited i n c i t i n g violence as a form of overthrowing the current government, but the a p p l i c a t i o n i n Dennis, with very l i t t l e evidence of violence incitement, shows the true scope of the Act to be against mere communist propaganda. See Nowak, supra note 403, at 875. 424  425  1950).  Dennis v. United States, 183 F.2d 201, 212 (2d C i r .  426  See Nowak, supra  note 403, at 880.  4 2 7  2 5 0 U.S. 616 (1919) . 122  communism and i n which Holmes dissented, the majority r e l i e d on the notion that t h i s a c t i v i t y would somehow i n t e r f e r e with the war e f f o r t against Germany. In the late 1960's, the Supreme Court rejected the Dennis notion of the c l e a r and present danger r u l e . Ohio,  428  In Brandenberg v.  the Supreme Court reversed a conviction of a Ku Klux  Klan leader for advocating v i o l e n t p o l i t i c a l reform.  The court  held that the state could not p r o h i b i t advocacy of violence unless i t was directed to i n c i t i n g or producing an imminent danger.  In addition, the court required that a statute be  429  narrowly drawn and only follow as a r e s u l t of a compelling state interest.  430  This formulation focused on the objective  immediacy of lawless action, s i m i l a r to the Holmes and version.  Brandeis  431  Once the questioned a c t i v i t y i s found to constitute expression for purposes of the F i r s t Amendment, there are  two  general standards f o r the j u s t i f i c a t i o n of the government's l i m i t i n g speech.  F i r s t , i f the state's regulation i s not r e l a t e d  to expression, then courts apply a less stringent t e s t f o r noncommunicative conduct.  444  432  Under t h i s t e s t , "a government  428  395 U.S.  (1969) (Per curiam).  429  Brandenberg, 395 U.S.  at  447.  Brandenberg, 395 U.S. at 460 (Douglas, J . , concurring) (discussing the abuses of Holmes' formulation i n s t i f l i n g the free discussion of and opposition to World War I as well as the c h i l l i n g e f f e c t accomplished by McCarthyism and the Smith Act as 430  applied i n 4 3 1  432  See  Dennis).  Nowak, supra  note 403, at  885.  United States v. O'Brien, 391 U.S. 123  367,  377  (1968).  regulation i s s u f f i c i e n t l y j u s t i f i e d i f i t i s within the c o n s t i t u t i o n a l power of the Government; i f i t furthers an important or substantial governmental  i n t e r e s t ; i f the government  interest i s unrelated to the suppression of free expression; and i f the i n c i d e n t a l r e s t r i c t i o n on alleged F i r s t Amendment freedoms i s no greater than i s e s s e n t i a l to the furtherance of that interest."  433  However, i f the regulation i s r e l a t e d to  expression, then i t i s subjected to s t r i c t scrutiny, and the government must demonstrate a compelling i n t e r e s t .  434  In addition to these p r i n c i p l e s , another l i n e of cases has developed a second form of F i r s t Amendment analysis: f i n d i n g that the expression i t s e l f i s not protected by the F i r s t Amendment i n the f i r s t instance.  435  Beginning with Chaplinsky v. New  Hampshire, a case upholding a conviction f o r i n c i t i n g violence by using " f i g h t i n g words," the Supreme Court found c e r t a i n types of speech t o be outside of the protection of the F i r s t Amendment: l i b e l , c e r t a i n commercial speech, and f i g h t i n g words. 433  4 3 4  436  O'Brien, 391 U.S. 377. See Texas v. Johnson, 491 U.S. 397 (1989).  This d i s t i n c t i o n was recently c l a r i f i e d by the Supreme Court. Referring t o the characterization of some expression as f a l l i n g outside c o n s t i t u t i o n a l protection, the Court explained that "such statements must be taken i n context, . . . and are no more l i t e r a l l y true than i s the occasionally repeated shorthand characterizing obscenity 'as not being speech at a l l . ' " R.A.V. v. City of St. Paul, Minnesota, 112 S.Ct. 2538, 2543 (1992) (quoting Sunstein, Pornography and the F i r s t Amendment, 1986 Duke L.J. 589, 615 n.146.). The Court continued, "[w]hat they mean i s that these areas of speech can, consistently with the F i r s t 435  Amendment, be regulated  because  of  their  constitutionally  (obscenity, defamation, e t c . ) — n o t that they are categories of speech e n t i r e l y i n v i s i b l e t o the Constitution. . . ." Id. (emphasis i n o r i g i n a l ) .  prescribable  436  content  3 1 5 U.S. 568, 572 (1942). 124  Subsequently, the Supreme Court held obscenity t o be outside F i r s t Amendment p r o t e c t i o n . Sullivan  438  437  Although New York Times Co. v.  rejected Chaplinsky's d i c t a that l i b e l was not  c o n s t i t u t i o n a l l y protected,  439  the court d i d not d i s t u r b the  " f i g h t i n g words" holding, and the obscenity proposition i n Roth was  affirmed i n M i l l e r v. C a l i f o r n i a .  440  Currently, even though some argue that the United State's F i r s t Amendment law i s somewhat confused and unpredictably applied,  441  some p r i n c i p l e s remain constant: freedom of  expression, although v i t a l l y important, right;  4 4 2  i s not an absolute  a limited number of forms of expression are not within  the scope of the F i r s t Amendment's protection; any law regulating expression s h a l l be drafted narrowly and s h a l l otherwise be void  4 3 7  Roth v. United States, 352 U.S. 964 (1957).  4 3 8  3 7 6 U.S. 254, 273 (1964).  439 Tribe suggests that Times has a l l but dissolved the notion that c e r t a i n expression i s outside F i r s t Amendment protection. See Tribe, supra note 283, at 670-671. However, Times did not hold that l i b e l l o u s speech i s c o n s t i t u t i o n a l l y protected. Instead, i t simply created procedural safeguards for defendants accused of defamation. Defamation, i f proved t o these standards, i s s t i l l outside F i r s t Amendment protection. See New York Times, 376 U.S. at 273-280 (1964); see also R.A.V. v. St. Paul, 112 S.Ct. at 2551-52 (White, J . , concurring i n the judgment). 440  4 1 3 U.S. 15, 22 (1973).  See C o l l i n v. Smith, 578 F.2d 1197 (7th C i r . 1976); Keegstra, 3 S.C.R. 697 (S.C.C. 1990); Derrikson v. Tomat, 88 D.L.R. 4th 401 (B.C.C.A. 1992); Matsuda, supra note 66, at 2350. 441  Although the F i r s t Amendment i s worded i n absolute terms, unlike other r i g h t s such as the Fourth Amendment's p r o h i b i t i o n on unreasonable search, c e r t a i n i d e n t i f i a b l e l i m i t a t i o n s to the r i g h t have been upheld as c o n s t i t u t i o n a l . See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); see also Symposium, supra note 66 (K. Mahoney, speaker). 442  125  on i t s f a c e ;  443  and the government must have an overriding and  compelling interest i n order to l i m i t c o n s t i t u t i o n a l l y protected expression and must proscribe expression t o the least extent possible.  444  When that compelling i n t e r e s t concerns a competing  c o n s t i t u t i o n a l r i g h t , courts determine the degree of interference on expression and whether regulating expression promotes the competing value i n an e f f e c t i v e manner, as unintrusively as possible.  445  Thus, i t i s clear that the United States places  great value on freedom of expression and w i l l only r a r e l y t o l e r a t e l i m i t a t i o n s on t h i s r i g h t .  4 4 6  American F i r s t Amendment law i s strongly based on individualism.  The state should not engage i n regulating speech  with respect to i t s truth and must remain content n e u t r a l .  447  Because the state cannot d i s t i n g u i s h between acceptable and unacceptable ideas, a l l ideas should remain unregulated unless harmful to others.  This protection i s necessary i n order t o  promote p r i n c i p l e s of democracy and freedom.  For example, the  ideas of the Ku Klux Klan cannot be absolutely p r o h i b i t e d ,  443  4 4 4  See Broadrick v. Oklahoma,  V. Cohn, 446  U.S. 6 0 1  Catherine MacKinnon, Pornography  Discrimination, 445  413  71 B . U . L .  Sedler, supra 420  U.S. 4 6 9  REV. 793  note 6 2 , (1975).  Symposium, supra  note  448  (1973).  as Defamation  and  (1991).  at 1 1 9 9 ; Cox Broadcasting, Inc. 66  (J. Cameron, speaker) .  Police Department v. Mosley, 4 0 8 U.S. 9 2 , 9 5 ( 1 9 7 2 ) (stating that "above a l l else, the F i r s t Amendment means that government has no power to r e s t r i c t expression because of i t s message [or] i t s ideas"); Major, supra note 2 8 , at 1 9 . 4 4 7  448  Brandenburg v. Ohio,  395 126  U.S. 4 4 4  (1969).  communism can be espoused without s a n c t i o n ,  449  and the Nazi  Party cannot be prohibited from marching i n a town with a large Jewish population.  450  Nonetheless, the Supreme Court does take into account the s o c i a l value and p o t e n t i a l or actual harm of the speech.  451  By  holding c e r t a i n speech unprotected by the F i r s t Amendment, such as speech which i n c i t e s imminent lawless a c t i o n , words,  453  c h i l d pornography,  and obscenity,  456  c e r t a i n commercial  fighting  speech,  455  the Court has engaged i n a balancing of s o c i a l  values against i n d i v i d u a l  4 4 9  454  452  freedoms.  DeJonge v. Oregon, 299 U.S.  457  353 (1937).  C o l l i n v. Smith, 578 F.2d 1197 (7th C i r . ) , c e r t , denied, 439 U.S. 916 (1978). Additionally, people may teach r e l i g i o n s that others despise, misrepresent the views of the President i n c r i t i c i s m , and seek to repeal c o n s t i t u t i o n a l amendments granting equal protection and voting r i g h t s t o women and m i n o r i t i e s . See American Booksellers Association v. Hudnut, 771 F.2d 323, 328 (7th C i r . 1985), a f f ' d , 475 U.S. 1001 (1986). 450  451  Major, supra  note 28, at 73.  Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (based on the notion that the speech-caused harm i s imminent and l i k e l y and, thus, cannot be prevented by more speech). 4 5 2  453  Chaplinsky v. New Hampshire, 315 U.S.  568 (1942).  454  New York v. Ferber, 458 U.S. 747 (1982).  . 455  Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980). 456  M i l l e r v. C a l i f o r n i a , 413 U.S. 15, 22 (1973)  457 "prom 1791 to the present, however, our society, l i k e other free but c i v i l i z e d s o c i e t i e s , has permitted r e s t r i c t i o n s upon the content of speech i n a few limited areas, which are 'of such s l i g h t s o c i a l value as a step t o truth that any benefit that may be derived from them i s c l e a r l y outweighed by the s o c i a l interest i n order and morality." R.A.V. v. City of St. Paul, Minnesota, 112 S.Ct. 2538, 2543 (1992) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). 127  B.  Canada  Canada's law on freedom of expression developed quite d i f f e r e n t l y than that of the United States.  P r i o r t o 1 8 6 7 , since  Canada was a colony of England, i t s law on freedom of expression was derived from the English system.  Thus, from the English  458  B i l l of Rights i n 1 6 8 8 , Canada recognized the importance of freedom of expression.  459  Even though Canadian law was f a i r l y  r e s t r i c t i v e of speech, as with England, Canada began t o accept fewer l i m i t a t i o n s on free speech as time progressed.  460  Due t o  limited Constitutional power vested i n the courts, many decisions based on u l t r a vires of expression.  461  grounds emphasized the importance of freedom  Thus, even though free expression was not  c o n s t i t u t i o n a l l y recognized, Canada d i d acknowledge i t s importance t o the democratic structure of government.  462  Under the Charter, Canada's f i r s t c o n s t i t u t i o n a l protection of the freedom of expression can be found i n Section 2 : "Everyone has the following fundamental freedoms: a. freedom of conscience and r e l i g i o n ; b. freedom of thought, b e l i e f , opinion and  4 5 8  DILEMMAS 4 5 9  See W.R. Lederman,  CONTINUING  CANADIAN  CONSTITUTIONAL  (1981) .  Strayer, supra  note  65,  at  3.  See generally Strayer, supra note 6 5 ; see also Nowak, supra note 4 0 3 , at 8 5 9 (stating that England accepted t r u t h as a defense t o seditious l i b e l i n 1 8 4 3 ) . 4 6 0  Saumur v. City of Quebec, [ 1 9 5 3 ] 2 S.C.R. 2 9 9 ; Boucher v. The King, [ 1 9 5 1 ] S.C.R. 2 6 5 ; Reference Re Alberta Statutes, [ 1 9 3 8 ] S.C.R. 1 0 0 . The Supreme Court of Canada has held a p r o v i n c i a l statute which prohibited the d i s t r i b u t i o n of communist propaganda to be u l t r a v i r e s . See Sedler, supra note 6 2 , a t 461  1198. 462  Sedler, supra  note  62,  at 1 1 9 8 , 128  expression, including freedom of the press and other media of communication; c. of a s s o c i a t i o n . "  freedom of peaceful assembly; and d.  freedom  463  This i s t e x t u a l l y s i m i l a r to the F i r s t Amendment i n that i t i s broadly phrased and open-ended. establishment clause included.  464  However, there i s no a n t i -  In addition, the language i s  somewhat more comprehensive and s p e c i f i c a l l y includes associational freedoms.  In comparison, i t was necessary f o r  American courts to i n f e r t h i s protection from other r i g h t s a r t i c u l a t e d under the F i r s t Amendment.  465  Currently, Canada  views freedom of expression as one of the most fundamental values in a free and democratic s t a t e .  466  In Edmonton Journal v.  Alberta, the Supreme Court of Canada recognized that " i t i s d i f f i c u l t to imagine a r i g h t more important to a democratic society than freedom of expression" and that "the v i t a l importance of the concept cannot be over-emphasized."  467  In  addition, the Court recognized the s i g n i f i c a n c e and importance of the Charter's protection, s i m i l a r to that of the F i r s t Amendment, being established through absolute wording.  468  " I f the  guarantee of free expression i s to be meaningful,  i t must protect  Canadian Charter of Rights and Freedoms, Constitution Act, 1982, pt. I. 463  464  Sedler, supra  465  Roberts v. United States Jaycees, 468 U.S.  (1984) .  note 62, at 579. 609,  622  Irwin Toy Ltd. v. Quebec (Attorney-General), [1989]58 D.L.R. 4th 577. 466  4 6 7  468  [1989]64 D.L.R. 4th 577,  605.  Edmonton Journal, 64 D.L.R.4th at 605. 129  expression which challenges the very basic conceptions about our society."  469  Thus, Canada has a very broad notion of freedom of  expression, perhaps even broader than the United S t a t e s .  470  The Supreme Court of Canada uses a two-step analysis i n determining the scope of s.2(b): 1) Does the matter i n question constitute expression protected by s.2(b)? and 2) Is the purpose or e f f e c t of the l e g i s l a t i o n (used broadly t o include any governmental interference) t o r e s t r i c t such expression. the i n i t i a l question, Canada affords an extremely protection under s.2(b): all and all  471  For  broad  communications which convey meaning  communications which attempt to convey meaning (excluding  physical forms of communication involving violence) are protected by s. 2 ( b ) .  472  Further, a l l content of expression i s protected,  and content i s not a factor i n determining whether the communication i s protected by s.2(b) of the Charter.  473  Once  the communication i s protected, the next step i n the analysis i s to determine that the l e g i s l a t i o n ' s purpose i s t o r e s t r i c t expressive a c t i v i t y or that i t has the e f f e c t of r e s t r i c t i n g  R. v. Keegstra, 61 C.C.C.3d 1, 107 (1990) (McLachlin, J., dissenting). 469  470  See Irwin Toy,  [1989] 58 D.L.R. 4th at 596.  471  See R. v. Zundel,  472  Zundel, 95 D.L.R. 4th at 251.  473  Zundel, 95 D.L.R.4th at 251.  [1992] 95 D.L.R. 4th 202, 251.  130  expressive a c t i v i t y .  74  I f the l e g i s l a t i o n meets t h i s c r i t e r i a ,  then the l i m i t a t i o n infringes the freedom of expression. However, finding a v i o l a t i o n of the r i g h t does not terminate the analysis i n Canada.  Rather, as previously stated, the  analysis s h i f t s to s . l of the Charter to determine whether the impugned provision i s j u s t i f i e d i n a free and society.  475  democratic  Thus, even though the s.2(b) analysis may  be  broader than the F i r s t Amendment doctrine i n the U.S.,  476  Canada  i s nonetheless able to r e s t r i c t expression to a greater degree than the United States. Section 1 of the Charter allows Canadian courts to define expression i n very broad and f l e x i b l e terms so as to a r t i c u l a t e Canadian values more f r e e l y without concern f o r undesirable r e s u l t s i n i n d i v i d u a l cases.  Additionally, because of the  reverse onus on the government, the Charter i s written i n favor of expression.  By contrast, American courts cannot state r i g h t s  in an overly broad fashion because there i s no s . l p r o v i s i o n i n the B i l l of Rights which would allow an exception i n i n d i v i d u a l See Canada (Canadian Human Rights Commission) v. Taylor, [1990] 75 D.L.R. 4th 577. The "good f a i t h " or "bad f a i t h " of the l e g i s l a t u r e i s only considered under the §1 analysis of proportionality. 474  This provision has been interpreted as placing the burden of persuasion for l i m i t i n g a r i g h t or freedom upon the government. See Edmonton Journal, 64 D.L.R. 4th at 594 (1989). 475  For example, t h i s formulation of freedom of expression would protect speech that i s defamatory, obscene, and that which i n c i t e s to violence. These concepts are not protected as free speech under the F i r s t Amendment. See Times, 376 U.S. at 270 (1964); United States v. Roth, 354 U.S. 476 (1957) (holding that obscenity i s not within the area of c o n s t i t u t i o n a l l y protected speech or press); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (holding that " f i g h t i n g words" are not protected by the F i r s t Amendment). 476  131  cases.  Instead, American courts must be very c a r e f u l i n defining  r i g h t s so as only to encompass the s p e c i f i c facts before them. Thus, i n Roth v. United S t a t e s ,  477  the Supreme Court excluded  obscenity from the protection of the F i r s t Amendment. the U.S.  Further,  Supreme Court was forced to disregard i t s e a r l i e r  decisions i n order to hold that l i b e l actions deserve constitutional protection.  478  By contrast, the Supreme Court of  Canada held obscenity to be within the protection of s.2(b), but i t was presently j u s t i f i a b l e to l i m i t t h i s expression i n a democratic s o c i e t y .  479  As a r e s u l t , Canada does not have to  redefine the scope of c o n s t i t u t i o n a l l y protected speech according to society's views.  Instead, courts simply apply the s . l  analysis i n i n d i v i d u a l cases while r e t a i n i n g a consistent d e f i n i t i o n a l scope of free expression. Although Holmes  1  480  clear and present danger r u l e contains a  s i m i l a r balancing process to s . l , the t e s t does not have the same s p e c i f i c i t y and c l a r i t y of the Canadian p r o v i s i o n .  In addition,  because s . l i s applied uniformly to a l l r i g h t s , i t i s easier to balance two d i s t i n c t and c o n f l i c t i n g c o n s t i t u t i o n a l r i g h t s due to the e x p l i c i t , i n t e l l i g i b l e p r i n c i p l e s developed over numerous cases and c o n s t i t u t i o n a l d e c i s i o n s .  481  Thus, although Canada  has not had as many Charter cases interpreting freedom of  477  352 U.S.  478  New  479  R. v. Butler, [1992] 1 S.C.R. 452.  480  See i d .  481  See Strayer, supra  964  (1957).  York Times, 376 U.S.  at 273  (1964).  note 65, at 42. 132  expression as U.S.  F i r s t Amendment decisions, Canada has more  opportunity to r e f i n e s . l balancing than the U.S.  Supreme Court  under the clear and present danger r u l e and other F i r s t Amendment doctrines.  482  While Canada holds freedom of expression i n as high of regard as the United States, there i s more opportunity t o l i m i t t h i s r i g h t when competing s o c i e t a l interests demand under the s . l analysis.  In order t o determine the extent to which t h i s  provision allows greater r e s t r i c t i o n on freedom of expression, i t i s necessary to compare American and Canadian perspectives on s p e c i f i c areas of expression.  This next section focuses on hate  speech and pornography due to t h e i r r e l a t i o n s h i p with p r i n c i p l e s of equality and due to the opposite r e s u l t s of cases dealing with these issues i n Canada and the United States.  C. Governmental Regulation of Pornography Pornography r e f e r s generically to the description or depiction of sexual a c t i v i t y .  4 8 3  However, i n the context of  governmental regulation, i t has been described much more narrowly.  Pornography as a l e g a l concept i s the "graphic,  sexually e x p l i c i t depiction of rape or other forms of male subordination of females."  484  One regulation defined  pornography more s p e c i f i c a l l y as the graphic sexually e x p l i c i t subordination of women, men, children, or transsexuals, whether See Strayer, supra 403, at 885. 4 8 2  483  Sedler, supra  484  Tribe, supra  note 65, at 43; cf.  note 62, at 593. note 283 at 920. 133  Nowak, supra  note  in pictures or i n words, that also includes one or more of the following:  1) presentation as sexual objects who enjoy pain or  humiliation; 2) presentation as sexual objects who experience sexual pleasure i n being raped; 3) presentation as sexual objects t i e d up or cut up or mutilated or bruised or p h y s i c a l l y hurt, or as dismembered or truncated or fragmented or severed into body parts; 4) presentation of being penetrated by objects or animals; 5) presentation of scenarios of degradation,  injury, abasement,  torture, shown as f i l t h y or i n f e r i o r , bleeding, bruised, or hurt in a context that makes these conditions sexual; or 6) presentation as sexual objects for domination, conquest, v i o l a t i o n , e x p l o i t a t i o n , possession, or use, or through postures or positions of s e r v i l i t y or submission or d i s p l a y .  485  In  Canada, the federal criminal law defines pornography as "any publication a dominant character of which i s the undue e x p l o i t a t i o n of sex, or of sex and any one or more of the following subjects, namely crime, horror, c r u e l t y and violence."  486  Although there have been attempts to regulate many types of sexually e x p l i c i t material, some regulations target obscenity, while others focus on the above description of pornography. There are three primary d i s t i n c t i o n s between obscenity and pornography, l a r g e l y relevant for purposes of American F i r s t  See American Booksellers Association v. Hudnut, 721 F.2d 323 (7th C i r . 1985), a f f d without opinion, 475 U.S. 1001 (1986) (overturning an Indianapolis ordinance defining pornography i n t h i s manner). 486  Criminal Code, R.S.C., §159(8) (1990). 134  Amendment decisions.  8 7  F i r s t , the focus of pornography i s on  sexual coercion rather than the mere depiction of sexuality under obscenity.  Second, the regulation of pornography seeks t o  488  prevent and redress harm caused by the material, whether against women as a group or the p a r t i c i p a n t depicted i n a degrading manner.  489  Obscenity  laws, by contrast, merely seek t o protect  society from morally offensive m a t e r i a l .  490  F i n a l l y , while  obscenity i s viewed as a v i o l a t i o n of p u b l i c morals, pornography i s , i n addition to t h i s , a v i o l a t i o n of c i v i l  rights.  491  The U.S. Supreme Court has distinguished pornography from obscenity i n terms of F i r s t Amendment p r o t e c t i o n .  492  While the  Court has held that obscenity i s not speech within the protection of the F i r s t Amendment, i t has f a i l e d t o extend t h i s doctrine to pornography.  493  Obscenity  i s defined as something which: 1)  the average person, applying contemporary community, or l o c a l , standards, would f i n d that the work, taken as a whole, appeals to a prurient interest; 2) depicts or describes, i n a patently offensive way, sexual conduct s p e c i f i c a l l y defined by the  4 8 7  Major, supra  note  4 8 8  Id. at 5 6 - 5 7  (quoting Elizabeth Spahn, On Sex  Violence,  20  NEW E N G L .  489  Id. at  490  Id. at 5 7 .  491  28,  at 5 6 .  L . REV. 639,  631-33  and  (1984-85)).  64.  Id.  Compare M i l l e r v. C a l i f o r n i a , 413 U.S. 15 (1973); Roth v. United States, 354 U.S. 476 (1957) with American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (1985). 4 9 2  493  M i l l e r v. C a l i f o r n i a , 413 U.S. 15, 24-25 (1973). 135  applicable state law; and 3) taken as a whole, lacks serious l i t e r a r y , a r t i s t i c , p o l i t i c a l , or s c i e n t i f i c value.  494  Because  governmental regulations of obscenity do not reach the viewpoint of the p a r t i c u l a r material, these laws do not abridge the requirement of content-neutrality. The c o n s t i t u t i o n a l approach to the protection of sexually e x p l i c i t material a r t i c u l a t e d i n M i l l e r developed at a time when l e g i s l a t u r e s focused on offensiveness t o public morality rather than on degradation and dehumanization.  Since that time, both  Canada and the United States have become more t o l e r a n t of sex and nudity i n films and magazines.  495  Thus, the primary  contemporary objection about sexually e x p l i c i t material surrounds sexual violence, the degradation of women, and c h i l d pornography.  496  As a r e s u l t , the concern with protecting the  public morality from "patently offensive" material has s h i f t e d to a concern about the types of harm produced by the depiction of women i n a subordinating manner. Pornography has been characterized as producing many d i f f e r e n t types of harm against a number of d i f f e r e n t victims. The most d i r e c t harm attributed t o pornography i s the use of coercion and violence against the women who p a r t i c i p a t e i n the making of the material.  A d d i t i o n a l l y , there have been numerous  research projects which have studied the r e l a t i o n s h i p between 494  M i l l e r v. C a l i f o r n i a , 413 U.S. 15 (1973).  495  Sedler, supra  note 62, at 595.  Hudnut, 771 F.2d at 325 (" [T]he statute [regulating pornography] i s a way t o a l t e r the s o c i a l i z a t i o n of men and women rather than to vindicate community standards of offensiveness.); Sedler, supra note 62, at 596. 496  136  pornography and sexual violence. the  This form of harm i s , perhaps,  most controversial claim against pornography.  Further,  pornography, l i k e obscenity, has been characterized as offensive. However, the type of offensiveness d i f f e r s from obscenity i n that pornography produces feelings of embarrassment, shame, and i n f e r i o r i t y i n women.  F i n a l l y , many have argued that  pornography's depiction of women promotes s o c i a l i n e q u a l i t y .  497  These t h e o r i s t s believe that concepts of equality and nondiscrimination should supersede i n d i v i d u a l i s t notions of free expression.  498  The U.S. Supreme Court, through memorandum affirmance of a Court of Appeals decision, has invalidated an ordinance  note 28, at 71; Catherine MacKinnon, and Speech, 20 HARV. C.R.-C.L. L. R E V . 1 (1985); Hudnut, 771 F.2d at 325 ("Those supporting the ordinance say that i t w i l l play an important r o l e i n reducing the tendency of men t o view women as sexual objects, a tendency that leads t o unacceptable attitudes and discrimination i n the workplace and violence away from i t . " ) . Pornography has been compared to hate speech as a communication of an untrue message which expresses or promotes hatred against women. S P E C I A L COMMITTEE ON PORNOGRAPHY AND PROSTITUTION, 1 PORNOGRAPHY AND P R O S T I T U T I O N I N CANADA 319 (1985) . 4 9 7  Pornography,  Major, supra Civil  Rights  Major, supra note 28, at 68; S P E C I A L COMMITTEE ON PORNOGRAPHY, supra note 497, at 20 ("As long as r i g h t s i n the l i b e r a l glossary mean l i b e r t y i n the sense of being free t o act without r e s t r a i n t , they have l i t t l e value i n a society i n which fundamental i n e q u a l i t i e s e x i s t . Thus, f o r women, the f a c t that on the formal l e v e l they enjoy the l i b e r t y to do c e r t a i n things i s of l i t t l e consequence i f the s o c i a l environment prevents the exercise of those r i g h t s , and there i s no c o r r e l a t i v e duty on the part of others to see that the r i g h t s are exercisable. The d i s t i n c t i o n i s one between " p r i v i l e g e " or " l i b e r t y " r i g h t s , which merely r a i s e an obligation on others not t o i n f r i n g e , on one hand, and on the other, "claim" r i g h t s which generate p o s i t i v e r e s p o n s i b i l i t y to see that the claimant i s enable t o exercise her rights."). 4 9 8  137  p r o h i b i t i n g pornography based on F i r s t Amendment grounds.  499  Unlike the equivalent Canadian criminal provision, the ordinance created a c i v i l cause of action f o r those who are injured by pornography against a person t r a f f i c k i n g pornography, coercing others t o perform i n pornography, or f o r c i n g pornography on another person.  500  The procedure f o r i n s t i t u t i n g the action was  i d e n t i c a l to c i v i l r i g h t s l i t i g a t i o n .  5 0 1  The Court of Appeals accepted the premise that the depiction of subordination i n the material at issue tends t o perpetuate subordination of women at a broader s o c i e t a l l e v e l .  5 0 2  As a  r e s u l t , the subordinate status of women causes " a f f r o n t and lower pay at work, i n s u l t and injury at home, battery and rape on the streets."  503  However, pornography does not f i t neatly within  any of the exceptions to the F i r s t Amendment and, 504  s p e c i f i c a l l y , does not comply with the Supreme Court's d e f i n i t i o n of obscenity.  505  Rather, the ordinance r e s t r i c t e d a p a r t i c u l a r  American Booksellers Association v. Hudnut, 721 F.2d 323 (7th C i r . 1985), a f f ' d mem., 475 U.S. 1001 (1986). 4 9 9  5 0 0  Id. at 325.  501  Id. at 326.  502  Id. at 329.  American Booksellers Association v. Hudnut, 721 F.2d 323, 329 (7th C i r . 1985). 503  504  Major, supra  note 28, at 75-79.  But see Sedler, supra note 62, at 596-97 ("[A] 11 the sexually v i o l e n t and degrading and dehumanizing pornography that i n Canada has been held t o be obscene under §159(8) would be held t o be obscene under the M i l l e r t e s t as w e l l . " ) (emphasis i n 5 0 5  original).  138  point of view instead of neutrally regulating relevant concepts such as coercion and a s s a u l t .  506  Under the Supreme Court s interpretation of the F i r s t 1  Amendment, any regulation of speech must be neutral with respect to viewpoint.  5 0 7  The court s p e c i f i c a l l y rejected the notion  that content n e u t r a l i t y should not apply i n s i t u a t i o n s i n which f a l s e assertions cannot be e f f e c t i v e l y answered.  508  Noting that  the importance of finding truth i s one of the purposes of freedom expression, the court concluded that i t was not the r o l e of the government t o select the truth among viewpoints.  509  The court  pointed to other p o t e n t i a l harms to society created by speech that i s protected under the F i r s t Amendment: t o t a l i t a r i a n government through communist speech, s o c i a l collapse and revolution through speech which demonstrates a disrespect f o r the government, bigotry through r a c i s t speech, and increased v i o l e n t crime through t e l e v i s i o n programs.  510  To allow governmental  Hudnut, 721 F.2d at 332-333. "The ordinance discriminates on the ground of the content of the speech. Speech t r e a t i n g women i n the approved w a y — i n sexual encounters 'premised on e q u a l i t y ' — i s lawful no matter how sexually e x p l i c i t . Speech t r e a t i n g women i n the disapproved way—as submissive i n matters sexual or as enjoying h u m i l i a t i o n — i s unlawful no matter how s i g n i f i c a n t the l i t e r a r y , a r t i s t i c , or p o l i t i c a l q u a l i t i e s of the work taken as a whole." Id. at 325 ( c i t a t i o n omitted). 5 0 6  Id. at 327 ("[T]he government must leave t o the people the evaluation of ideas."). 5 0 7  508  Id. at 330-31.  Hudnut, 721 F.2d at 331 (stating that freedom of expression means that "there i s no such thing as a f a l s e idea, so the government cannot r e s t r i c t speech on the ground that i n a free exchange truth i s not yet dominant") ( c i t i n g Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). 509  510  Hudnut, 721 F.2d at 329-30. 139  regulation of these forms of speech based on t h e i r s o c i a l impact would make the government "the great censor and d i r e c t o r of which thoughts are good f o r us."  511  Social conditioning, f o r the  court, i s the ultimate product of most forms of speech, and i t i s t h i s power of speech which requires governmental absence i n the search f o r the t r u t h f u l p o s i t i o n .  512  Overall, the court  invalidated the law, despite p o t e n t i a l harmful e f f e c t s of the material, because the d e f i n i t i o n of pornography  was  unconstitutionally broad, content oriented, and without some exception f o r works with l i t e r a r y , a r t i s t i c , p o l i t i c a l , or s c i e n t i f i c value.  513  By contrast, the Supreme Court of Canada has upheld a criminal obscenity statute which includes pornography.  The  514  Court focused on the harm caused to society as a whole.  515  Under t h i s analysis, the Court held that the portrayal of sex with violence w i l l o r d i n a r i l y be an undue e x p l o i t a t i o n of sex, dehumanizing or degrading e x p l i c i t sex can be an undue exploitation, and e x p l i c i t sex with neither violence nor degradation or dehumanization w i l l t y p i c a l l y not constitute undue  511  Id. at 330.  512  Id. at 329-30.  Hudnut, 721 F.2d at 331-32 ("The Court sometimes balances the value of speech against the costs of i t s r e s t r i c t i o n , but i t does t h i s by category of speech and not by the content of p a r t i c u l a r works."). 513  514  R. v. Butler, [1992] 1 S.C.R. 452.  Id. at 485 ("The courts must determine as best they can what the community would t o l e r a t e others being exposed to on the basis of the degree of harm that may flow from such exposure."). 515  140  e x p l o i t a t i o n under the s t a t u t e .  516  Thus, within these l i m i t s ,  the relevant consideration i s the r i s k of harm to society. Under t h i s d e f i n i t i o n of pornography, v i o l a t i o n of §2(b) of the Charter.  the Court found a  The Court stated that  " a c t i v i t i e s cannot be excluded from the scope of the guaranteed freedom on the basis of the content or meaning being conveyed.  1,517  Nonetheless, the Court found the statute to be a  demonstrably j u s t i f i a b l e l i m i t i n a free and democratic society under §1 of the Charter.  However, the Court rejected as the  basis f o r the §1 analysis the notion of public morality based on a common understanding of good and e v i l .  5 1 8  Rather, the Court  distinguished i t s analysis as r e l y i n g on p o l i t i c a l morality, the safeguarding of the values which are i n t e g r a l to a free and democratic s o c i e t y .  519  As a r e s u l t , the type of harm produced  by pornography which j u s t i f i e s l i m i t i n g freedom of expression r e l a t e s to notions of equality as an e s s e n t i a l p r i n c i p l e i n a democracy.  520  This harm, the Court concluded, was  516  Id.  5 1 7  Id. at 488.  significant  Id. at 492 ("To impose a c e r t a i n standard of public and sexual morality, s o l e l y because i t r e f l e c t s the conventions of a given community, i s i n i m i c a l to the exercise and enjoyment of i n d i v i d u a l freedoms."). 518  Id. Thus, t h i s notion of p o l i t i c a l morality does not l e g i s l a t e governmental and majoritarian notions of r i g h t and wrong. Instead, the focus i s on the basic underlying p r i n c i p l e s of democracy and whether infringement of the r i g h t i n h i b i t s or furthers the degree of freedom i n society as a whole. 519  Id. at 497 (stating that " i f the true equality of male and female persons i s to be achieved, we cannot ignore the threat to equality r e s u l t i n g from exposure to . . . v i o l e n t and degrading material"). 520  141  enough to support a l i m i t a t i o n of freedom of expression under §1.  Under the proportionality t e s t of §1, the Court held  521  that there was s u f f i c i e n t evidence of harm f o r Parliament t o conclude that regulation and p r o h i b i t i o n of pornography was necessary f o r i t s prevention.  522  Further, the Court held that,  even though protected under §2(b), pornography does not embody the core p r i n c i p l e s of freedom of expression.  523  Additionally,  the statute only limited that material which could r e s u l t i n harm, and there were not less r e s t r i c t i v e means a v a i l a b l e .  524  F i n a l l y , the Court held that the objective of promoting equality among men and women was s u f f i c i e n t l y important to supersede the minimal l i m i t a t i o n of freedom of expression.  525  Thus, without  the p r i n c i p l e of content n e u t r a l i t y and with the f l e x i b i l i t y of s . l , the Supreme Court of Canada can incorporate notions of equality into the pornography analysis.  Id. at 496-497 ("A society which holds that egalitarianism, non-violence, and mutuality are basic t o any human interaction, whether sexual or other, i s c l e a r l y j u s t i f i e d in c o n t r o l l i n g and p r o h i b i t i n g any medium of depiction, description, or advocacy which v i o l a t e s these p r i n c i p l e s . " ) . 521  Butler, [1992] 1 S.C.R. at 502 ("While a d i r e c t l i n k between obscenity and harm may be d i f f i c u l t , i f not impossible to establish, i t i s reasonable to presume that exposure t o images bears a causal r e l a t i o n s h i p t o changes i n a t t i t u d e s and beliefs."). 522  523  Id. at 500.  5 2 4  Id. at 504-507.  525  Id. at 509-510. 142  D. Governmental Regulation The U.S.  of Hate Speech  Supreme Court's content-neutrality doctrine  also affected other areas of freedom of expression. the U.S.  has  Recently,  and Canada have attempted to a l l e v i a t e r a c i a l  and  r e l i g i o u s discrimination through the regulation of hate speech. This form of communication contains matter that excites or promotes hatred against an i d e n t i f i a b l e group of people.  526  This issue i s of such importance that i n t e r n a t i o n a l organizations have denounced t h i s type of expression.  527  There are several  i d e n t i f i a b l e harms r e s u l t i n g from hate propaganda:  1)  intrinsic  harm that t h i s speech i s evidence of and promotes inequality; 2) harm to s p e c i f i c i d e n t i f i a b l e groups, such as r a c i a l , ethnic, or r e l i g i o u s group; 3)  harm to individuals, such as defamation,  invasion of privacy, and psychological trauma producing feelings of humiliation, i s o l a t i o n , and self-hatred; and 4) marketplace of ideas by affording less opportunity groups to express ideas due to i n e q u a l i t y .  Chaplinsky v. New  to minority  528  The topic of hate speech i s a r e l a t i v e l y new American law.  harm to the  Hampshire was  concept i n  the f i r s t case  which could support the notion of a hate speech regulation by holding that " f i g h t i n g words," words which i n c i t e d another to violence, were not protected under the F i r s t Amendment.  529  Following t h i s decision, the U.S. 526  Supreme Court upheld the  R. v. Keegstra, [1990] 3 S.C.R. 697.  A r t i c l e IV of the International Convention on Elimination of a l l Forms of Racial Discrimination. 527  528  Post, supra  529  3 1 5 U.S.  note 405, 568  at  (1942) . 143  269.  the  c o n s t i t u t i o n a l i t y of a criminal statute p r o h i b i t i n g hate speech.  However, i t i s currently uncertain whether t h i s  5 3 0  decision remains v a l i d i n l i g h t of other Supreme Court cases. In Garrison, the Supreme Court declared a s e d i t i o n statute unconstitutional.  531  J u s t i c e Douglas stated that "Beauharnais  should be overruled as a m i s f i t i n our c o n s t i t u t i o n a l system."  532  However, the majority merely stated that nothing i n  Beauharnais foreclosed the r e s t r i c t i o n of sanctions f o r c r i t i c i s m of a public o f f i c i a l .  5 3 3  In Brandenburg, the Supreme Court held  that a state could not f o r b i d advocacy of violence unless i t was directed to i n c i t i n g or producing imminent lawless action and was l i k e l y to produce such a r e s u l t .  5 3 4  Even though Brandenburg  concerned a Ku Klux Klan member, the decision was not applied to a hate speech p r o v i s i o n .  535  The basis f o r the Supreme Court's  Beauharnais v. I l l i n o i s , 343 U.S. 250 (1952) (upholding an I l l i n o i s statute, l a t e r repealed by the I l l i n o i s l e g i s l a t u r e , which provided: " I t s h a l l be unlawful f o r any person, firm or corporation to manufacture, s e l l , or o f f e r f o r sale, advertise or publish, present or exhibit i n any public place i n t h i s state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, c r i m i n a l i t y , unchastity, or lack of v i r t u e of a c l a s s of c i t i z e n s , of any race, color, creed or r e l i g i o n which said p u b l i c a t i o n or exhibition exposes the c i t i z e n s of any race, color, creed or r e l i g i o n t o contempt, derision, or obloquy or which i s productive of breach of the peace or r i o t s . . . . " ) ; see Matsuda, supra note 66 (analyzing the continuing v a l i d i t y of the case). 530  531  532  Garrison,  379 U.S. 64 (1964).  Id.  Id. Subsequently, the court held the New York standard applicable t o criminal actions. 533  534  Times  Brandenburg, 395 U.S. 444 (1969).  This decision was based on a statute s i m i l a r i n content to that i n Dennis. The l e g i s l a t i o n i n Brandenburg i l l e g a l i z e d the advocacy of v i o l e n t p o l i t i c a l overthrow. Thus, because t h i s 535  144  decision was the overbreadth of the statute i n not being related to the l i k e l i h o o d of a breach of the peace.  536  A U.S. Court of Appeals considered whether Beauharnais was v a l i d and concluded that the case was limited to a narrow holding as a form of the Chaplinsky " f i g h t i n g words" d o c t r i n e .  This  537  decision invalidated a municipal ordinance p r o h i b i t i n g p u b l i c demonstrations which i n c i t e violence, hatred, abuse, or h o s t i l i t y toward a person or group based on r e l i g i o u s , r a c i a l , ethnic, or national a f f i l i a t i o n .  5 3 8  This provision was applied to the  American Nazi Party to prevent a march i n Skokie, I l l i n o i s , a town with a large population of holocaust s u r v i v o r s .  539  There  have also been recent attempts to regulate hate speech by American u n i v e r s i t i e s .  For example, i n Doe v. University of  Michigan, the court struck down a regulation p r o h i b i t i n g the stigmatization or v i c t i m i z a t i o n of individuals or groups based on race, e t h n i c i t y , sex, and many other f a c t o r s .  540  The court,  while emphasizing the importance of free expression, found the regulation to be overbroad and overly vague.  541  Thus, lower  decision d i d not overrule Beauharnais, i t should not stand f o r Douglas's overbroad assertion that hate speech regulation i s unconstitutional. See Garrison, 379 U.S. at 64 (1964); Brandenburg, 395 U.S. 444 (1969). 536  Brandenburg, 395 U.S. 444.  5 3 7  C o l l i n v. Smith, 578 F.2d 1197 (7th C i r . 1976).  538  Id.  5 3 9  Id.  540 541  72 1  F  .  S u p p  . 52 (E.D. Mich. 1989). 8  Id. at 868. 145  courts appear to have rejected the notion of hate speech regulation under the reasoning of  Beauharnais.  The United States Supreme Court has had a recent opportunity to decide the v a l i d i t y of hate-related expression regulations. In R.A.V. v. St. P a u l ,  542  the Supreme Court held that an  ordinance c r i m i n a l i z i n g f i g h t i n g words aimed at p a r t i c u l a r groups  543  was unconstitutional under the F i r s t Amendment.  544  The Court held that even though f i g h t i n g words may  be proscribed  by a state, the l i m i t a t i o n of t h i s statute to p a r t i c u l a r types of f i g h t i n g words amounted to an unconstitutional p r o s c r i p t i o n based on the content of the speech.  545  The Court emphasized that i t  was not i n v a l i d a t i n g a provision which prohibited speech directed at s p e c i f i c classes of people, but rather, i t was  S M  invalidating  112 S.Ct. 2538 (1992).  The ordinance provided as follows: "Whoever places on public or private property a symbol, object, appellation, characterization or g r a f f i t i , including, but not l i m i t e d to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment i n others on the basis of race, color, creed, r e l i g i o n , or gender commits disorderly conduct and s h a l l be g u i l t y of a misdemeanor." St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn. Legis. Code §292.02 (1990) (cited i n R.A.V., 112 S.Ct. at 2541). Although t h i s ordinance could have a much broader interpretation, the Minnesota Supreme Court limited the ordinance's scope to the " f i g h t i n g words" i d e n t i f i e d i n Chaplinsky, and the United States Supreme Court was bound by t h i s interpretation. R.A.V., 112 S.Ct. at 2541-42. 543  544  R.A.V., 112 S.Ct. at 2547.  Id. at 2547 ("The F i r s t Amendment does not permit St. Paul to impose special p r o h i b i t i o n s on those speakers who express views on disfavored subjects".). Four members of the Court concurred i n the judgment, r e l y i n g instead on overbreadth p r i n c i p l e s . Id. at 2550 (White, J . , concurring i n the judgment) (joined by Justices O'Connor and Blackmun); i d . at 2560 (Blackmun, J . , concurring i n the judgment); i d . at 2561 (Stevens, J., concurring i n the judgment). 545  146  the ordinance f o r s e l e c t i n g bias-motivated messages based on v i r u l e n t notions of r a c i a l supremacy as the only type of f i g h t i n g words which would not be allowed.  546  The type of content  preference by government creates "the p o s s i b i l i t y that the c i t y i s seeking to handicap the expression of p a r t i c u l a r i d e a s . "  547  A d d i t i o n a l l y , the Court distinguishes the "secondary e f f e c t s " of other types of regulated speech from t h i s ordinance:  "listeners'  reaction to speech are not the type of 'secondary e f f e c t s ' we referred to i n Renton."  Secondary e f f e c t s are those which  548  happen to be associated with the p a r t i c u l a r type of speech but have nothing to do with i t s content.  549  However, t h i s statement  seems to overlook both defamation and emotional d i s t r e s s doctrines.  Under defamation, a l i s t e n e r s reaction to the speech  causes reputational harm.  550  S i m i l a r l y , emotional d i s t r e s s  t o r t s based on speech are characterized by psychological harm r e s u l t i n g from l i s t e n i n g to the speech.  551  Further, under some  d e f i n i t i o n s of assault, speech could be considered criminal based  546  Id. at 2548.  5 4 7  Id. at 2549.  Id. at 2549 (quoting Boos v. Barry, 485 U.S. 312 (1988), and r e f e r r i n g to Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)). 5 4 8  549  5 5 0  Boos, 485 U.S. See  New  at 314.  York Times v. Sullivan, 376 U.S.  254  (1964).  See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (holding that intentional i n f l i c t i o n of emotional d i s t r e s s of a public figure requires a showing of actual malice under the New York Times standard, but accepting the t o r t f o r normal citizens). 5 5 1  147  on the l i s t e n e r s ' subjective interpretation of the words.  552  Nevertheless, the Court f i n a l l y determined that the i n t e r e s t i n promoting equality and preventing discrimination were not s u f f i c i e n t l y compelling t o outweigh the '"danger of censorship' presented by a f a c i a l l y content-based s t a t u t e . "  553  Although the  Court never mentioned Beauharnais, the reasoning of t h i s case and the s i m i l a r i t y of the ordinances involved makes an overruling implicit. Even though t h i s statute was i n v a l i d under the F i r s t Amendment, R.A.V. d i d not foreclose other possible methods of preventing hate speech.  554  Nonetheless, under the current state  See N.M. Stat. Ann. §30-3-1 (Michie 1994) ("Assault consists of . . . B. any unlawful act, threat, or menacing conduct which causes another person t o reasonably believe that he i s i n danger of receiving an immediate b a t t e r y . . .") (emphasis added). 552  553  R.A.V., 112 S.Ct. at 2549.  Elena Kagan, Regulation of Hate Speech and 60 U . C H I . L . R E V . 873 (1993). In Wisconsin v. M i t c h e l l , the Supreme Court upheld a criminal sentencing enhancement provision which considered whether the defendant selected the victim because of race, r e l i g i o n , color, d i s a b i l i t y , sexual orientation,-national o r i g i n or ancestry. Wisconsin v. M i t c h e l l , 113 S.Ct. 2194 (1993). The Court upheld the statute because i t was based on conduct unprotected by the F i r s t Amendment rather than expression considered i n R.A.V. Id. at 2200-01. Violence i s not protected as expression under the F i r s t Amendment. Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982). Additionally, there have been many lower court decisions which have applied the p r i n c i p l e s i n R.A.V. and M i t c h e l l to the application of statutes to hate expression. In U.S. v. Hayward, the court upheld the use of a federal arson statute and a federal housing statute to prosecute the defendant for cross burning. United States v. Hayward, 6 F.3d 1241 (7th C i r . 1993), cert, denied, 114 S.Ct. 1369 (1994). The Court held that the act of cross burning "promotes fear, intimidation, and psychological injury" and, therefore, lacks F i r s t Amendment protection. Id. at 1250. Further, the purpose of the housing statute i s "to protect the r i g h t of an i n d i v i d u a l t o associate 554  Pornography  See generally After  R.A.V.,  148  of law i n the United States, any d i r e c t regulation of hate speech must be content neutral and regulate conduct.  555  By contrast, the Canadian view of hate speech i s c l e a r : hate speech regulations v i o l a t e section 2(b) of the Charter, but i f the l e g i s l a t i o n i s narrowly drawn and s p e c i f i c , then i t w i l l be seen as a reasonable  l i m i t i n a free and democratic society  under section 1. This was the precise analysis used i n R. v. Keegstra, Code,  557  556  which upheld section 319(2) of the Criminal  as a reasonable  l i m i t under §1 of the  Charter.  f r e e l y i n h i s home with anyone, regardless of race." Id. To achieve t h i s goal, the statute, i n a content-neutral manner p r o h i b i t s the conduct of intimidation based on race and, thus, does not regulate speech. Id. Thus, under the O'Brien t e s t , the governmental objective i s s u f f i c i e n t l y j u s t i f i e d and c o n s t i t u t i o n a l under Congress' Thirteenth Amendment power t o eradicate a l l incidents and badges of slavery. Id. at 1250-51. By contrast, another lower court held that the a p p l i c a t i o n of a conspiracy statute to a cross burning v i o l a t e d the F i r s t Amendment. United States v. Lee, 6 F.3d 1297 (8th C i r . 1993), cert, denied, 114 S.Ct. 1550 (1994). The Court held that the statute focuses on the conduct's communicative impact, and the harm was not a secondary e f f e c t unrelated t o that communication. Id. at 1301. "Although there i s an important governmental i n t e r e s t i n protecting the exercise of the black residents' r i g h t to occupy a dwelling free from intimidation, we cannot say that . . . the governmental i n t e r e s t i s unrelated t o the suppression of free expression." Id. 5 5 5  See R.A.V., 112 S.Ct. at 2545.  556 [ 1 9 9 0 ] 3 S.C.R. 697 (addressing the conviction of a high school i n s t r u c t o r convicted for teaching students that Jews were "treacherous," "subversive," " s a d i s t i c , " " c h i l d k i l l e r s , " who created the Holocaust i n order t o gain sympathy). The Criminal Code reads as follows: "319. . . . (2) Every one who, by communicating statements, other than i n private conversation, w i l f u l l y promotes hatred against an i d e n t i f i a b l e group i s g u i l t y of (a) an i n d i c t a b l e offence and i s l i a b l e t o imprisonment f o r a term not exceeding two years." "318. . . . (4) In t h i s section, " i d e n t i f i a b l e group" means any section of the p u b l i c distinguished by colour, race, r e l i g i o n or ethnic origin." 557  149  In Keegstra, the Court noted the importance of affording a "large and l i b e r a l interpretation of s.2(b)  1,558  and t o only  balance freedom of expression with "contextual values and factors in s . l . "  5 5 9  Thus, the s p e c i f i c value of hate speech i n society  did not influence the determination that t h i s form of expression i s protected under s.2(b).  Instead, the harmful nature of the  speech was evaluated under s . l . The Court introduced the s . l analysis by quoting the judgment i n Oakes with respect to the meaning of the phrase "free and democratic s o c i e t y . "  560  the promotion of e q u a l i t y  561  In finding the l e g i s l a t i v e goal of to be pressing and substantial, the  Court noted s t a t i s t i c a l analyses of the degree of harm caused by hate speech i n Canada Canadian  563  562  and focused the s . l analysis on the  and i n t e r n a t i o n a l  564  commitment to protect  558  Keegstra, [1990] 3 S.C.R. at 728.  559  Id. at 734.  560  A free and democratic society includes "respect f o r the inherent dignity of the person, commitment t o s o c i a l j u s t i c e and equality, accommodation of a variety of b e l i e f s , respect f o r c u l t u r a l and group i d e n t i t y , and f a i t h i n s o c i a l and p o l i t i c a l i n s t i t u t i o n s which enhance the p a r t i c i p a t i o n of i n d i v i d u a l s and groups i n society." R. v. Oakes, [1986] 26 D.L.R. (4th) 200. Keegstra, [1990] 3 S.C.R. at 756 (stating that s.319(2) "seeks t o ensure the equality of a l l i n d i v i d u a l s i n s o c i e t y " ) . 561  Id. at 746 (The "presence of hate propaganda i n Canada i s s u f f i c i e n t l y substantial to warrant concern."). 562  Id. at 755 (" [S]s. 15 and 27 represent a strong commitment to the values of equality and multiculturalism."). 563  Id. at 750 (noting that two international human r i g h t s documents f o r b i d the dissemination of hate propaganda). 564  150  equality.  565  Based on these reasons, the Court s p e c i f i c a l l y  rejected the American approach subsequently adopted i n R.A.V. "The international commitment t o eradicate hate propaganda and most importantly, the special r o l e given equality and multiculturalism i n the Canadian Constitution necessitate a departure from the view, reasonably prevalent i n America at present, that the suppression of hate propaganda i s incompatible with the guarantee of free expression."  566  The Court c l e a r l y  rejected the form of content n e u t r a l i t y applied i n the U.S. Supreme Court.  In p a r t i c u l a r , the Court objected t o the content  of the speech  and i t s usefulness i n l i g h t of the purposes of  567  freedom of expression under the Charter. In R. v. Zundel,  569  568  the Supreme Court of Canada held that a  provision which imposed criminal sanctions f o r the w i l f u l publication of a known falsehood v i o l a t e d freedom of expression under §2(b).  In addition, even though i t was argued that t h i s  provision sought to prevent hate speech and r a c i a l discrimination, the provision was found t o be so overbroad as to punish f a l s e statements that d i d not constitute hate speech and Accord Ross v. New Brunswick School D i s t r i c t No. 15, [1996] 1 S.C.R. 825 (noting an "adherence to the p r i n c i p l e of equality" i n p a r t i a l l y upholding d i s c i p l i n a r y measures taken against a teacher f o r anti-Semitic hate messages). 5 6 5  566  Keegstra, [1990] 3 S.C.R. at 743.  Id. at 761-62 (finding the speech t o be "deeply offensive . . . misleading . . . and a n t i t h e t i c a l t o the furtherance of tolerance and understanding i n s o c i e t y " ) . 5 6 7  Id. at 765 (denouncing the "unparalleled vigour with which hate propaganda repudiates and undermines democratic values. . . . " ) . 5 6 8  569  [1992] 95 D.L.R. at 240. 151  which may contribute to the marketplace of i d e a s .  570  Thus,  although preventing harmful speech i s a v a l i d objective of Parliament, t h i s provision of the Criminal Code f a i l e d t o s a t i s f y the second aspect of the §1 analysis; the l e g i s l a t i o n d i d not impair free expression as l i t t l e as possible and was, therefore, not proportional to Parliament's o b j e c t i v e .  571  Overall, the  Supreme Court of Canada does acknowledge and endorse the importance of l i m i t i n g hate speech, but i t i s c l e a r that these provisions must be drafted narrowly so as not t o i n f r i n g e on permissible discourse. The U.S. Supreme Court would have reached the opposite conclusion i f faced with the statute upheld i n Keegstra.  In  fact, the U.S. Supreme Court would not go further than the law's objective as stated by the Supreme Court of Canada.  The purpose  of s.319(2) was "to r e s t r i c t the content of expression by s i n g l i n g out p a r t i c u l a r meanings that are not to be conveyed."  572  Under the reasoning of R.A.V., t h i s form of  viewpoint regulation, e s p e c i a l l y as targeted against speech about " i d e n t i f i a b l e groups," offends the p r i n c i p l e s of content n e u t r a l i t y required by the F i r s t Amendment. U.S.  Thus, as with the  Supreme Court's application of content n e u t r a l i t y t o  invalidate the pornography regulation i n Hudnut, the Court would not address the degree of harm i n society or the r e l a t i v e value of the speech with respect to the purposes of freedom of  570  Id.  571  Id. at 241.  572  Keegstra, [1990] 3 S.C.R. at 730, 152  expression i n the United States.  Overall, content-neutrality  under the F i r s t Amendment has resulted i n an i n a b i l i t y to promote p r i n c i p l e s of equality through freedom of expression through the regulation of hate speech and pornography i n the United States. In comparison, the Supreme Court of Canada has applied s . l i n conjunction with s.2(b) of the Charter to protect the value of freedom of expression while accounting f o r notions of harm and the  importance of equality i n the hate speech and pornography  context.  153  Chapter 5 The Role of Government: Aggressor, Protector, or Bystander  An a l t e r n a t i v e conception of equality represents the distinguishing c h a r a c t e r i s t i c between American and Canadian c o n s t i t u t i o n a l jurisprudence.  There i s a s i g n i f i c a n t difference  in the manner i n which the r i g h t to equality has been interpreted under the Fourteenth Amendment and under s.15 of the Charter. Further,  even though equality i s c o n s t i t u t i o n a l l y protected  under  the Fourteenth Amendment i n the U.S., t h i s p r i n c i p l e has had very l i t t l e impact i n the area of free expression, generally, and i n cases concerning hate speech and pornography regulation, specifically. Differences  i n the textual content of the Equal Protection  Clause and s . l 5 ( l ) alone cannot explain the extent to which the respective high courts have disagreed about the i n t e r p r e t a t i o n of the notion of equality as a c o n s t i t u t i o n a l l y protected r i g h t . The United States Supreme Court has held that any challenge of discrimination must f i r s t demonstrate either an intent to discriminate or a f a c i a l reference to the grounds of discrimination.  In addition, the U.S. Supreme Court has applied  a lower standard of scrutiny to discrimination on the basis of sex and c h a r a c t e r i s t i c s other than race.  F i n a l l y , through the  p r i n c i p l e of colorblindness, the Supreme Court has severely limited affirmative action plans by governments i n the United States. By contrast, the Supreme Court of Canada has focused on the e f f e c t s of l e g i s l a t i o n , rather than requiring an intention to 154  discriminate.  573  Even though some Canadian interpretations,  such as the analogous grounds approach and a p o t e n t i a l presumption of discrimination for d i s t i n c t i o n s based on protected grounds, mirror aspects of the U.S.  analysis, the Supreme Court  of Canada's r e j e c t i o n of the doctrines of colorblindness,  levels  of review, and intentional discrimination has resulted i n a form of equality beyond the mere i d e n t i c a l treatment by government. Thus, the contrast between the United States and Canada i n equality law i s one of formal equality versus r e l a t i v e substantive  equality.  574  In Canada, "the promotion of equality  e n t a i l s the promotion of a society i n which a l l are secure i n the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration."  575  While  Canadian law focuses on equality as a s o c i a l r e a l i t y , American law has retained a narrow focus on governmental e q u a l i t y .  576  Thus, although both countries value equality, the United  States  Supreme Court has been unwilling t o t o l e r a t e governmental attempts t o a f f i r m a t i v e l y combat s o c i a l inequality. S i m i l a r l y , the United States Supreme Court has applied F i r s t Amendment with extreme caution i n not allowing government to express i t s viewpoint. expression cases, the U.S.  the  the  Thus, i n freedom of  Supreme Court has adopted a p r i n c i p l e  of content-neutrality which precludes government from regulating Andrews v. Law Society of B r i t i s h Columbia, [1989] 1 S.C.R. 143. 573  574  Mahoney, supra  note 178,  at 241.  575  Andrews, [1989] 1 S.C.R. at 171.  576  Major, supra  note 28, at 89. 155  the viewpoint of any form of speech.  Consequently, the U.S.  577  Supreme Court, while allowing prohibitions on obscenity, has not been receptive to laws regulating and p r o h i b i t i n g  pornography.  In addition, the U.S. Supreme Court has revised i t s p o s i t i o n with respect to hate speech.  The Court now regards these regulations  as content-based and as impermissible attempts at l e g i s l a t i n g morality. By contrast, the Supreme Court of Canada has allowed p o s i t i v e governmental action to prevent the harmful e f f e c t s of some forms of speech.  578  Canada has determined that there i s  s u f f i c i e n t harm to women and society caused by pornography t o j u s t i f y the l i m i t a t i o n on free expression. A d d i t i o n a l l y , the Supreme Court of Canada has emphasized the harmful e f f e c t s of hate speech on minorities and society as a whole.  As with  pornography, these e f f e c t s are viewed as s u f f i c i e n t l y harmful that l i m i t a t i o n s on freedom of expression have been t o l e r a t e d and approved. There i s a fundamental d i s s i m i l a r i t y i n the two countries' approach t o c o n s t i t u t i o n a l protections of equality and freedom of expression.  Because pornography and hate speech impede equality,  freedom of expression i n t h i s context does not promote notions of democracy.  5 7 7  5 7 8  In fact, the p r i n c i p l e of equality i s the primary  579  R.A.V.  V.  St. Paul,  See R . v. Keegstra,  112  S.Ct.  [1990]  3  2538  S.C.R.  (1992). 697.  See Catherine A. MacKinnon, Not a Moral Issue, 2 YALE L . & P O L ' Y R E V . 3 2 1 , 3 3 7 - 3 4 0 ( 1 9 8 4 ) ; Matsuda, supra note 6 6 ; Post, supra note 4 0 5 ; see also Toni Massaro, Free Speech and Religious, 5 7 9  Racial,  and  Expression:  Sexual the  Harassment:  Hate  Speech  Equality Dilemma, 156  and 32  Freedom  of  W I L L I A M AND MARY L . R E V . 2 1 1  impetus f o r the regulation of pornography and hate speech i n both countries.  The Supreme Court of Canada, i n Keegstra, found  580  that equality i s an overriding p r i n c i p l e found throughout the Charter and i s possibly the most fundamental r i g h t expressed therein.  As a r e s u l t , the Supreme Court r e l i e d heavily on  581  s.15, as well as the m u l t i c u l t u r a l protection found i n s.27, t o uphold the hate speech provision i n the Criminal Code.  582  The difference i n equality and freedom of expression doctrines suggests alternative views of governmental power i n the United States and Canada.  In addition, the h i s t o r i c a l context i n  which i n d i v i d u a l freedoms developed d i f f e r s greatly between the United States and Canada.  Canadian history contains much less  emphasis on the i n d i v i d u a l and on governmental d i s t r u s t than that of the United States.  "[T]he American national character has  been shaped by the v i o l e n t , armed assertion of independence, whereas Canada has been shaped by a reaction against the American tradition.  The absence of a c o n s t i t u t i o n a l guarantee of  1,583  r i g h t s u n t i l 1982 demonstrates that Canada, although concerned with i n d i v i d u a l freedom, possessed much more confidence i n the  (1991) . MacKinnon, supra note 444, at 800. Some have argued that hate speech and pornography are d i r e c t harms s i m i l a r t o an assault, which can be a completely verbal crime based on the perceptions of the victim. See Matsuda, supra note 66; Mackinnon, supra note 444. However, the courts i n both countries have f a i l e d to introduce t h i s concept into the hate speech analysis. 5 8 0  581  [1990]  3  S.C.R. 697; see also  582  [  3  S.C.R. at 740.  88.  583  1  9  9  0  ]  Kopel, supra  note 99. 157  Major, supra  note 28, at  democratic structure of government.  Canada did not r e j e c t the  p o l i t i c a l system of England, so there was  no attempt to suppress  i n d i v i d u a l r i g h t s i n Canada i n order to prevent a  revolution.  Accordingly, some authors contend that Canadians have a more communitarian interpretation of r i g h t s compared to an American i n d i v i d u a l i s t ideology. Indeed, whereas the United States Supreme Court  has  developed p r i n c i p l e s l i m i t i n g governmental interference  i n both  expression and equality contexts, the Supreme Court of Canada has repeatedly chosen to defer to l e g i s l a t i v e judgment and interests.  While t h i s may  societal  imply each society's r e l a t i v e t r u s t i n  government, i t does not provide a comprehensive explanation for either p o s i t i o n .  In fact, as previously  differences between these two  stated,  ideological  countries are very complex and  d i f f i c u l t to simplify with generalization.  Thus, rather than  focus on the s o c i e t a l l e v e l , I analyzed the  alternative  conceptions of the r o l e of government as characterized respective  by  national supreme courts.  Although the U.S.  has been characterized  as i n d i v i d u a l i s t i c  and equalitarian, the i d e o l o g i c a l discourse of antistatism explains American interpretations of equality and compared to those of Canada. r i g h t s can only be exercised others.  the  best  l i b e r t y as  Under an i n d i v i d u a l i s t theory, when not v i o l a t i v e of the r i g h t s of  Thus, notions of harm i n freedom of expression cases  would provide s u f f i c i e n t cause for r e s t r i c t i n g c e r t a i n types of speech.  S i m i l a r l y , an equalitarian theory would i n s i s t  that  individuals have an equal opportunity to exercise t h e i r r i g h t s . Such a commitment would include the recognition 158  of the  importance  of equality of r e s u l t .  Thus, formal equality and the r e j e c t i o n  of equality concerns i n free speech cases would be contrary to this position.  By contrast, under a a n t i s t a t i s t ideology, courts  l i m i t government involvement as much as possible. cases, the U.S.  In expression  Supreme Court's content-neutrality p r i n c i p l e  ensures limited governmental involvement.  As well, the notion of  formal equality precludes government action i n many s i t u a t i o n s where the existence of discrimination i s contentious. Both of these p r i n c i p l e s , content-neutrality and formal equality, represent the American Revolution's strong d i s t r u s t of external governmental control i n t e r n a l i z e d against governments within the United States.  However, rather than as an immediate  reaction to the revolutionary attitude of the 18th century, t h i s i n t e r n a l i z a t i o n evolved slowly.  Differences i n the  c o n s t i t u t i o n a l protection of equality and freedom of expression should ultimately be viewed as a 20th century s h i f t i n the United States Supreme Court away from governmental power over i n d i v i d u a l r i g h t s , a s h i f t which has not occurred i n Canada.  This  explanation becomes clear when placed i n the context of federalism. Both countries operate under a f e d e r a l i s t regime which has h i s t o r i c a l l y defined the content of i n d i v i d u a l r i g h t s .  Both the  B i l l of Rights and the Charter of Rights and Freedoms were drafted i n the context of a f e d e r a l i s t debate.  Thus, one of the  primary concerns of each document centered on the proper  source  of l e g i s l a t i v e power i n the regulation of i n d i v i d u a l l i b e r t i e s . However, unlike the Charter, the B i l l of Rights, through the  U.S.  Supreme Court's incorporation doctrine, has been extended beyond 159  the dispute between federal and l o c a l governments t o p r o h i b i t many e f f e c t i v e advancements i n the substantive protection of equality and l i b e r t y .  In Canada, the f e d e r a l i s t debate continues  to define the most contentious of Charter cases.  Within the  context of affirmative action and the regulation of hate speech and pornography, however, the lack of such a debate has allowed the federal government t o exercise i t s power so as t o further notions of equality.  Thus, although these two countries  originated i n d i f f e r e n t circumstances  suggesting a l t e r n a t i v e  views of government, the r a t i o n a l e for contemporary r i g h t s analysis has a very modern cast.  The United States Supreme Court  has slowly constructed a system of i n t e r p r e t a t i o n which has progressively removed government further from the r i g h t s  sphere.  Thus, i n c o n s t i t u t i o n a l interpretation, the United States Supreme Court follows i t s own narrow contemporary v i s i o n of the country's i n d i v i d u a l i s t p o l i t i c a l and s o c i a l foundations;  584  i t has  interpreted the Fourteenth Amendment both too narrowly,  as a  protection of equality, and too broadly, as a protection of liberty. In Canada, there i s a l i b e r a l t r a d i t i o n s i m i l a r t o the United States.  However, there has never been an extreme sense of  d i s t r u s t against governmental involvement  i n society.  Rather,  the government has been a necessary and i n t e g r a l part of the society's evolutionary growth.  Thus, i n the context of l i b e r t y  and equality, the government has a much stronger r o l e t o play.  584  Women,  Lorenne M.G. Clark, Liberalism and the Charter, 28  Equality,  160  and ALBERTA  the  L.  Living REV.  Tree:  384 (1990)  Legislatures are permitted to regulate the content of speech i n order to protect larger s o c i e t a l concerns.  Additionally, in  equality law, there i s much more emphasis on substantive  equality  because the evaluation of governmental motives and e f f e c t s i s a legitimate exercise i n c o n s t i t u t i o n a l oversight.  Thus, the  Supreme Court of Canada has interpreted a p o t e n t i a l l y a n t i s t a t i s t document i n a manner which allows government a s i g n i f i c a n t r o l e i n the promotion of r i g h t s .  While the Charter suggests a  d i s t r u s t of governmental abuse, the Supreme Court of Canada has upheld several regulations which give the government a r o l e as a protector of r i g h t s .  Despite a substantial communitarian  influence i n Canadian p o l i t i c a l and s o c i a l h i s t o r y , the Supreme Court of Canada's i n t e r p r e t a t i o n of the Charter does not r e f l e c t a s t r i c t l y communitarian approach. s o c i e t a l harm i n these cases may,  While the Court's emphasis on at a surface l e v e l , imply a  r e l i a n c e on a communitarian theory of a common good, reasoning i s more complex. Charter,  585  its  For example, i n applying s . l of the  the Court rejected a public morality basis i n Butler.  Rather, the Court established a p r i n c i p l e of p o l i t i c a l  morality.  Under t h i s analysis, the Court focused more d i r e c t l y on  the  importance of equality i n society. Ultimately, p o s i t i v e governmental protection of r i g h t s i s permissible to a greater extent i n Canada than i n the States.  United  While the United States places too l i t t l e emphasis on  the s o c i a l r e a l i t y i n which l i b e r t y and equality are i n jeopardy See Note, supra note 38, at 691 n.69 (discussing the communitarian nature of the ordinance struck down by Hudnut i n recognizing that pornography injures women through group denigration). 585  161  by r e l y i n g too heavily on a perceived governmental aggressor, Canada places a great deal of power and f a i t h , as demonstrated through j u d i c i a l deference, i n governmental bodies which have the p o t e n t i a l f o r abuse.  Nonetheless, the Supreme Court of Canada  does appear more w i l l i n g to evaluate the actual costs and benefits of l e g i s l a t i o n i n the context of e x i s t i n g s o c i a l r e l a t i o n s h i p s than the United States Supreme Court. U.S.  Although the  Supreme Court has attempted t o formulate balancing t e s t s  equivalent t o s . l of the Charter, i t does not t r u s t i t s own a b i l i t y , nor that of the l e g i s l a t u r e , t o d i s t i n g u i s h between p o s i t i v e and negative s o c i a l l e g i s l a t i o n .  Although such an  analysis i n the Supreme Court of Canada i s not flawless, i t demonstrates the advantages of a more thorough inquiry.  The U.S.  Supreme Court recently summarized i t s own p o s i t i o n i n t h i s matter by endorsing a "commitment to the law's n e u t r a l i t y where the r i g h t s of persons are at stake." the U.S.  586  In taking t h i s p o s i t i o n ,  Supreme Court has relegated government, often perceived  as a threat, to the r o l e of bystander i n the face of s o c i a l inequality. Democracy i s characterized by equal freedom and independence of i t s c i t i z e n s .  5 8 7  In order to achieve these goals, there must  be equal r i g h t s of self-determination and equal p a r t i c i p a t i o n i n the p o l i t i c a l process.  The focus i s on the freedom of each  person to make r a t i o n a l decisions and f r e e l y pursue i n d i v i d u a l  586  Romer v. Evans, 64 U.S.L.W. 4353 (1996).  5 8 7  Samuel Freeman, Constitutional  Legitimacy  of  Judicial  Review,  Democracy and the 9 L . & PHIL. 3 2 7 , 331 (1991)  162  interests as well as t o equally p a r t i c i p a t e i n c o l l e c t i v e decisions promoting s o c i e t a l i n t e r e s t s .  588  "The equal p o l i t i c a l  condition of individuals i s intimately connected to t h e i r freedom."  589  Whether a society chooses t o be i n d i v i d u a l i s t or  communitarian, the protection  of i n d i v i d u a l r i g h t s ,  including  freedom of expression, can only be e f f e c t i v e i n the context of a c e r t a i n l e v e l of equality i n s o c i e t y .  590  In t r y i n g to s t r i k e a  balance between governmental overreaching of i n d i v i d u a l r i g h t s and governmental protection of equality, both the United States and Canada can benefit from each other's experience i n the c o n s t i t u t i o n a l interpretation of equality and freedom of expression.  Ramraj, supra note 29, at 314 ("Individuals must not be prevented from contributing either to the community or t o the wider s o c i a l discourse merely because of non-procedural constraints."). 588  589  Id. at 316.  See M i l l , supra note 30, at 75 ("[E]very one who receives the protection of society owes a return for the benefit, and the f a c t of l i v i n g i n society renders i t indispensable that each should be bound to observe a c e r t a i n l i n e of conduct towards the r e s t . " ) ; Post, supra note 405, at 277. 5 9 0  163  

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