In Andrews, SCC adopted “substantive equality”: S. 15 intended to prevent discrimination against groups subject to stereotyping, historical disadvantage, & pol & social prejudice.
Bakan argues that the following prevent achievement of social equality
through the Charter:
-anti-statism: Charter is there to prevent abuse by state, not to force state to take positive steps to promote equality (Schachter)
-Atomism: rights claims expressed in “dyads”: two groups or parties, one with an obligation, one with a right.
Implementation of Social Equality in western countries:
“intentional communities”: communities created with particular goals in mind, often social equality. Most are religious communities, and most have not been successful. The most successful, and longest-lasting, are the Hutterite communes (a Mennonite order), with a 400-year history. There are several hundred Hutterite colonies in Alberta, Saskatchewan and Manitoba. They typically have farms of about 10 square miles. They live traditional life-styles, but have adopted modern farming methods.
-No private property except momentos
-Housing according to family need
(another Mennonite order)
-Relatively equal apportionment
-Community responsibility for education, health services, social services
“direct democracy, equality in the workplace, gender equality, and mutual responsibility”
Cuba: comprehensive social services; substantive equality in wages.
Liberal society exhibits much more limited notions of social
equality than any of the above. Liberal society promotes:
-Admin, formal, and some substantive equality.
-The extent of social equality, however, is more a function of individual & community choices than gov’t policy.
Paul Sniderman, Joseph Fletcher, Peter Russell, Philip Tetlock: Clash of Rights (1996)
Questions addressed in this book:
-What are the attitudes of Canadians toward human rights issues (including equality) in the post-Charter era?
-To what extent do the views of ordinary Canadians differ from “elites” and from Americans?
The authors conducted
-a random sample of 2,084 Canadians through York’s Institute for Social Research. Comparisons were made to U.S. studies previously conducted.
-a systematic sample of elected politicians at fed & prov levels (474)
-a sample of administrative elites from senior officials in fed Dept of Justice, Crown Attorneys, depts of AG – fed & prov levels (260)
-a sample of lawyers with 10-30 years prof experience weighted acc to province (352), as a "proxy" for judges.
The researchers found that all Canadians exhibit a high degree of support of the abstract concept of "equality." However, most Canadians support the idea of competition, and the idea that those with greater abilities ought to receive higher pay. Most Canadians would clearly not be comfortable living in the situations of social equality along the lines of the Hutterite, Amish, Kibbutzim or Cuba. (NDP politicians are much more sympathetic toward more radical ideas of social equality than most Canadians.) However, most Canadians think that government ought to promote somewhat more social equality, but they are hesitant to have government take much more initiative than at present for ensuring security. They don't blame poverty either on the poor or the rich, but see it as a much more complex phenomenon. Canadians, unlike Americans, are generally supportive of affirmative action for disadvantaged minorities, though they are split about the idea of quotas for women, and most Anglo-Canadians are not supportive of affirmative action for Franco-Canadians. Most Canadians are supportive of aboriginal rights and the settlement of outstanding land claims prior to development. Except for the affirmative action issue, the attitudes of Canadians toward human rights issues are much like the attitudes of Americans. The research shows that political elites do not necessarily become more tolerant and accommodating as a result of political experience. They come into politics with particular views -- and on the right and left these views are in some ways out of step with the views of average Canadians -- and these views tend to remain.
Michael Mandel: The Charter and “inequality”:
Chapter 6 of The Charter of Rights and the Legalization of Politics
-Annual income of top 20% of income receivers is 8 times that of bottom 20%
-Senior partners in large Bay Street law firms: $700,000 annual salary, 75 times Ont minimum wage
-Top corporate executives: $1 million to $3 million annually
-Richest 1% of Canadians own 19% of national wealth (av $900,000)
-Richest 10% own 57% of wealth (average $270,000)
-Poorest 40% own 1% of wealth; av $1000.
-Richest 1% of corporations own 80% of corporate wealth; top .01% own 44.9%.
-3 Canadians are amongst the top ten wealthiest people in the world: Reichmann brothers, K.C. Irving, Kenneth Thomson.
-During previous 10 years, disparity in wealth distribution had increased.
-Government transfers have managed to reduce disparities in income, so that there has only been a small increase in disparities.
-My social services experience: causes of poverty - poor education, inadequate parenting (usually ass’d with poverty) leading to poor life skills.
It is not known to what extent Canadians tolerate the degree of inequality in Canadian society, though most think that some inequality in the distribution of income and wealth is acceptable. According to Bakan, the Charter is an unlikely tool to tackle social inequality, but in addition to the legal issues, the attitudes of Canadians as a whole need to be considered. Courts rarely get ahead of public opinion on major social issues.