Article excerpt

For a Canadian in 2005. one of the most notable aspects of Raymond Williams's discussion of equality is that he perceives the word to be used only in relation to individuals. Canadians who for decades have discussed equalization payments from the federal government to the provinces, or argued whether a province, within a system of asymmetrical federalism, could be both different and equal, have routinely in recent years employed the word in discourses of group rights. The Canadian Oxford dictionary lists both equalization payments and equality rights as specifically Canadian terms. Equality rights have been since 1985 in Canada a constitutional entitlement, and although described in the compound main clause of Subsection 15(1) of the Canadian Charter of Rights and freedoms as "individual" rights ("Every individual is equal before and under the law and has the right to the equal protection of the law, without discrimination"), have become also group rights through judicial interpretation of the long appositional phrase attached to it ("and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, age or mental or physical disability"). The Supreme Court in R v. Swain (1991) stated that "the overall purpose of-5" was "to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society" although in Miren v. Trudel (1995) it moved back to an emphasis on the individual when it restated the section's purpose as being "to prevent the violation of human dignity and freedom by imposing limitations, disadvantages, or burdens through the stereotypical application of presumed group characteristics rather than on the basis of individual merit, capacity, or circumstance!' Equality here, as Williams wryly observed in 1976, is each individual's "equal opportunity to become unequal (118)." More recently the Court has distinguished (in Law v. Canada, 1999, a case in which an able-bodied surviving spouse under the age of 3s and without dependent children was denied Canada Pension Plan survivor benefits) between permissible inequality and inequality that 1s impermissible because it has a "demeaning" effect on the individual.

In his analysis, Williams distinguishes between an understanding of equality as normative, in which "newly created" inequalities are to be redressed, and an understanding of it as a starting point, in which individuals ideally begin life with equal opportunities to display and exercise their particular abilities. Since the adoption of the Charter of Rights and Freedoms, Canadians have been preoccupied with equality before the law, seeing it as a way of addressing both of Williams's understandings, including for example the legal rights of gays and lesbians-presumably rights of opportunity-and the apparent inequalities "newly created" by the Canadian government's program of assistance to those who contracted hepatitis-C through blood transfusions between January r, r986 and July 1, 1990, but not to those who contracted it before or after that period. To some extent this concern with equality has conflicted with a similarly strong concern in the past few decades in Canadian society for the acknowledgement of difference, as in the continuing Canadian problem, noted above, of how to define a Quebec province that may be different but equal. (In gay and lesbian rights, a similar question arose in 2004 about whether different nomenclature for opposite-sex and same-sex marriage could result in kinds of marriage that were also different but equal. Most likely, the Supreme Court's "demeaning" criterion implies not.) In individual legal rights, equality has tended to be ranked higher than difference, whereas in arguments for group rights, difference has often been argued to outweigh equality. Canadians, for example, had to ponder before and after the passing of Bill C-31 in x985 whether Canadian aboriginal individuals who marry an individual of another race should, depending on their gender, have unequal rights to live with their spouses on reserves merely because such inequality may be one of the "differences" that has characterized recent aboriginal cultural practice. …