The Shotgun Blog
Tuesday, April 01, 2008
Grant Brown: The special pleading section of the Charter
Section 15 of the Charter of Rights and Freedoms is aimed at ensuring equality. That's how it reads, that's what it says, and that's what everyone should rightly expect.
Unfortunately, the meaning of "equality" is not entirely perspicuous (philosophers sometimes call it an "essentially contested concept" which means, at bottom, that there is no one meaning of the word that competent speakers can agree to). The result is section 15 jurisprudence that has more to do with political correctness than treating each individual equally before the law.
Or so Grant Brown argues in his latest column for the Western Standard entitled "The special pleading section of the Charter."
"Mallot was charged with murdering her partner. Her defense--nowadays de rigour in cases where women kill their partners--was the (scientifically baseless) “battered woman’s syndrome.” In the course of delivering her reasons, Madame Justice L’Heureux-Dube said in obiter dicta:
"To assume that men who are victims of spousal abuse are affected by the abuse in the same way [as women], without benefit of the research and expert opinion evidence which has informed the courts of the existence and details of ‘battered woman syndrome’ would be imprudent."
“Imprudent” or not, s. 15 of the Charter is supposed to guarantee the equal protection of the law for men and women. In the absence of compelling evidence showing that men and women are different in some respect, therefore, the legally required presumption is that they be treated similarly." Read More...
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I'm confused by a couple of elements in your post. In referring to the Meiorin decision you ask: "Does the SCC honestly think that women might be able to compensate for relative slowness of foot by (e.g.) riding mountain bikes to combat forest fires?"
From my understanding of Meiorin, the SCC didn't think that she would have to "compensate" at all, because they didn't think that the new aerobic standard that was introduced (and resulted in her losing her job) was necessary for someone to be able to do that job. The fact that she had been able to do her job for three years prior to the new standard being introduced would seem to support that.
You also state:
"Another way to look at these two cases is by focusing on where the onus of proof is placed by the SCC--i.e. whether the citizen or the government bears the onus of proof to establish discrimination. When a man seeks to avail himself of the same defense to a criminal charge as women have successfully argued, he (not the government) is required to prove that men and women are relevantly similar psychologically; but when a woman seeks to obtain the same job as a man, the onus is on the government employer to prove that men and women are relevantly similar physically."
You seem to be implying that the fact that the onus is on the employer (as opposed to the woman) in the human rights context, while the onus is on the man (as opposed the government) to prove that men can suffer from "battered husband syndrome" in the criminal context is proof of systemic discrimination against men. Isn't it the context as opposed to anything to do with gender that would determine who bears the onus? Meaning - In the criminal context, isn't the onus always on the person putting forward an affirmative defense to prove that defense? When women put forward a "battered woman syndrome" type of defense, they still have the onus of proving that defense in court, don't they?
Anyway, I might be misinterpreting your arguments so please correct me if I'm wrong. Thank you for another thought-provoking post.
Posted by: Michelle | 2008-04-01 12:44:30 PM
You cannot claim that equality is an "essentially contestable concept" (or an "essentially contested concept") and then claim that the way section 15 is being applied does not respect the equality it is supposed to protect. At best you can only say it fails to enact one particular conception of equality - yours. But that does not mean that the courts are not accurately implementing another conception of equality.
You can disparage that conception by calling it a "politically correct" one (a term that always is a nice substitute for giving a real argument), but then people who disagree with you could say that your conception of equality is no more than a "bigoted" one. Sauce for the goose, after all....
At the end of the day if there really are just several essentially different conceptions of equality, then we can no longer use considerations of equality - unqualified - as the basis for an objection to anything. One would have to first define a clear and uncontested concept to appeal to and then show why it is the one that should be implemented. This, ultimately, is what the vast philosophical literature on political equality has been doing. Your complaints about the judicial system would have more weight if you could ground it in some particular conception of equality that you both articulate and defend. But here you really have done neither.
Posted by: Fact Check | 2008-04-01 2:35:20 PM
To say that a concept is "essentially contestable" is not to say that it is vacuous or meaningless, or that absolutely anything goes. My point is that there is NO conception of (gender) equality that is capable of supporting the SCC rulings I refer to.
The SCC has talked itself into a muddle by countenancing "special pleading" for politically correct groups, on the grounds of "equality." It's the same kind of muddle that authoritarians get themselves into when they defend banning whatever they don't like on the ground that "freedom" consists in abjuring those things.
Frankly, it puzzles me why "minimum standards" are ever a relevant consideration in employment decisions. Employers should always hire the best qualified people available. Maybe in some circumstaces there is an efficiency to be gained in the interview process to setting minimum standards and then randomly selecting from the pool of candidates that meets the minimum standards. That might be a suitable way of filling appointments to the SCC; but it clearly isn't the appropriate approach to hiring for demanding jobs like forest firefighters.
In the case of forest firefighting and aerobic capacity, the problem is that men will greatly outnumber women in the candidate pool no matter where the "minimum standards" are set. And that brute fact frustrates the social engineers on our Courts who want to gerrymander the proportions of people from various groups in every workplace.
The solution is to suggest that various groups should have minimum standards of their own -- e.g. different standards for men and women. By having lower standards for women than for men, we get closer to an equal number of men and women in the overall candidate pool.
The problem is: How do you justify two different minimun standards, one for men and a lower one for women, on the basis of equality? Well, you pretend that women do their work differently than men; they somehow achieve the same output on the same tasks by working smarter not harder. (Working smarter is something we may safely assume men can't do.)
That's what leads to the specific statement from the Meiorin decision that I was commenting on: "The record before this Court… does not permit us to say whether men and women require the same minimum level of aerobic capacity to perform safely and efficiently the tasks expected of a forest firefighter."
The SCC isn't merely making a decision in this particular case; they are attempting to articulate a general principle that is applicable to all employment situations where physical capacity requirements are relevant. In order to defend a general principle of requiring employers to set up lower physical-capacity standards for women than for men, the Court has to make patently silly pretenses about what they don't know "on the record" -- and what no employer is going to go to the expense of trying to prove.
What L'H-D says in the Mallot decision is much more than that individual men and women alike have to prove the defense of (gender neutral) "battered spouse syndrome." What she says is that there is no research out there that tells us how men react to battering by intimate partners; and because the subject hasn't been researched in a gender specific way, for all we know men might be able to resist going into the exculpatory psychological haze that battered women (allegedly) go into before killing their abusers. So we can't automatically make the defense of "battered husband syndrome" available to battered men, untill they can prove (a) that there is such a thing as (gender specific) "battered husband syndrome" and (b) the particular man in the docket suffered from it.
Bear in mind that all section 15 challenges pit a private individual or group against the government -- the issue being who bears the onus of proof for the government treating the private entity differently than another private entity. In the Meiorin case, the SCC says that we can't assume men and women will do the same physically demanding work the same way, and therefore require the same aerobic capacities. The onus is on the government employer to prove that one standard fits all. In the Mallot case, the SCC says that we can't assume that men and women respond to physical battering by an intimate partner in the same way. The onus is not on the Crown (government) but on the accused man to prove that one theory of battery fits all.
The only consistent message that comes out of these decisions -- and others -- is that we can't assume anything that might improve the prospects of men. (See also the Weatherall case, in which the privacy interests of male prisoners was deemed to be not on the same level as the privacy interests of female prisoners.)
I guess I shouldn't have said that this is incompatible with ANY conception of equality. If your conception of equality is that all men need to be taken down a notch in order to more nearly level the outcomes for some women, then you can make sense of the SCC s. 15 rulings. But if that's their theory of equality, why don't they just say so instead of producing those 100-page monstrosities they call judgments?
Posted by: Grant Brown | 2008-04-02 2:29:22 AM
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