IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL FOR THE PROVINCE OF BRITISH COLUMBIA)

BETWEEN:

THE LAW SOCIETY OF BRITISH COLUMBIA

Appellant

(Respondent)

AND:

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Appellant

(Respondent)

AND:

MARK DAVID ANDREWS

Respondent

(Petitioner)

AND:

GOREL ELIZABETH KINERSLY

Co-Respondent

AND:

THE ATTORNEY GENERAL OF ALBERTA,

THE ATTORNEY GENERAL OF SASKATCHEWAN,

THE ATTORNEY GENERAL OF ONTARIO,

PROCUREUR GENERAL DE LA PROVINCE DE QUEBEC

Intervenors

Factum of the Intervenor

Coalition of Provincial Organizations of the Handicapped

ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED

40 Orchard View Blvd., Suite 255 Toronto, Ontario M4R 1B9 Ottawa, Ontario K1P 5P4

Solicitors for the Intervenor Coalition of Provincial

AITKEN GREENBERG

Barristers and Solicitors 410-150 Kent Street Ottawa agents for the solicitors for the Intervenor

DUNCAN W. SHAW, ESQ., Q.C. DAVIS & COMPANY, Barristers and Solicitors, 2800-666 Burrard Street, Vancouver, BC V6C 2Z7, Solicitors for the Appellant, The Law Society of British Columbia.

OSLER, HOSKIN & HARCOURT,Barristers and Solicitors, 1400-50 O'Conner Street, Ottawa, Ontario K1P 6L2 Ottawa agents for the Solicitors for the Appellant The Law Society of British Columbia

JOSEPH J. ARVAY, ESQ., Attorney-General of British Columbia, 609 Broughton Street Victoria, B.C. V8V 1X4, Solicitors for the Appellant

BURKE-ROBERTSON, CHADWICK, Barristers and Solicitors & RITCHIE, 1800-130 Albert Street, Ottawa, Ontario K1P 5G4, Ottawa agents for the Appellant,The Attorney-General of The Attorney-General of British Columbia.

RUSSELL & DUMOULIN, Barristers and Solicitors, 17^th Floor, 1075 West Georgia Street, Vancouver, BC V6E 3G2, Solicitors for the Respondents.

SCOTT & AYLEN, Barristers and Solicitors, 1200-170 Laurier Avenue W., Ottawa, Ontario K1P 5V5, Ottawa agents for the Solicitors for the Respondents.

• Part I: Statement of Facts
• Part II: Points in Issue
• Part III: Argument
• Part IV: Nature of Order Sought
• Part V: List of Authorities

Part I: Statement of Facts

1. This Intervenor accepts the facts as set out in Part I of the Appellant's Factum.

Part II: Points in Issue

1. Does the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in section 41 of the Barristers & Solicitors Act, R.S.B.C. 1979, c. 26 infringe or deny the rights guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms?

2. If the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in section 42 of the Barristers & Solicitors Act, R.S.B.C. 1797, c. 26 infringes or denies the rights guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms, is it justified by section 1 of the Canadian Charter of Rights and Freedoms?

Part III: Argument

1. The Intervenor, the Coalition of Provincial Organizations of the Handicapped, submits that the principles underlying sections 15 and 1 of the Charter of Rights and Freedoms are:

(a) Section 15(2) provides that a law, program or activity can not be discriminatory if its object is to ameliorate disadvantagement (i.e. achieve equality of results), including disadvantagement based on membership in certain enumerated categories.

(b) Section 15(1) protects all individuals against direct discrimination which can not be justified under the standard articulated by McIntyre J. in MacKay v. R., [1980] 2 S.C. R. 370 at 403-05.

(c) Section 15(1) provides members or groups (such as those identified by the enumerated categories) which have experienced disadvantagement because of systemic discrimination, with protection against adverse effects discrimination (including direct discrimination) which denies them equality of opportunity.

(d) The limits to the two kinds of equality referred to in (b) and (c) above are contained in section

2. Aristotle defined equality as requiring that things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness. Ethica Nichomachea Book V. 3 and Politics III. 9. This cool logic belies the moral difficulties inherent in determining whether people are "alike" or "similarly situated". Aristotle for example had no difficulty reconciling slavery with equality. For this reason Aristotle's formal equality has been criticized as "empty", Westen, "The Empty Ideal of Equality" 95 Harv. L. Rev. 537, and devoid of "any criteria of relevance". Bayefsky "Defining Equality Rights", in Bayefsky and Eberts (eds.) Equality Rights and the Canadian Charter of Rights and Freedoms (1985) 1 at 3.

3. "Formal" equality was found to be inadequate to meet the historically entrenched consequences of racial discrimination, the constricting stereotypes which prevented women from achieving their goals and the barriers established out of neglect rather than malice which excluded disabled people from participating in the mainstream of society.

The major criticism [of formal equality] was that, by treating different individuals as equals despite their unequal access to power and resources, it created merely an illusion of equality while it allowed real economic and social disparities to grow.

This criticism of formal equality reflected a concern for "substantive equality" - that is, the enjoyment of equal opportunity in daily life - which is taking its place in the second half of this century as the dominant approach. …the 1960's and 1970's saw a new recognition that treating every kind of person in exactly the same way sometimes resulted in unintentional discrimination, as it did not make allowances for the special needs of some kinds of persons.

Reference: The Honourable John Crosbie, Department of Justice, Report to Parliament: Toward Equality (1986) p. 2.

…the major equality issues in the 1980's will, it is suggested, revolve around those aspirant and target groups identified previously as sufficiently "different" to have been protected or excluded from equality rights for their own good, for the common good or because equality was conceived as unattainable in their case.

Reference: Vickers, "Major Equality Issues of the Eighties"; (1983), Canadian Human Rights Yearbook 47 at 54.

4. Substantive equality requires that the roots of inequality be identified, the goal of equality of opportunity be established and that a legal mechanism be established which will pursue this goal in a principles way.

At present, society's disadvantages are disproportionately assumed by the four designated groups. Clearly, some distinctions have been made or overlooked in the past that have resulted in the disproportionate representation of native people, visible minorities, disabled persons and women on the lower rungs of the ladder to society's benefits. By reversing our approach and by using these same distinctions to identify, confront and eliminate barriers these distinctions have caused in the past, we can reverse the trends, provide access, and open the door to equality.

Reference: Royal Commission Report on Equality in Employment (1984), p. 3-4, (The Abella Report).

5. The clearest articulation of the problem, the goal and the means of achieving the goal is contained in section 15(2) of the Charter of Rights and Freedoms. It authorizes the government to engage in discriminatory conduct. This authority ends when the individual or group being benefited is no longer disadvantaged. At this point "equality of results" would have been achieved. Express recognition is given to the fact that disadvantagement may occur "because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability", but is not limited to these categories.

6. "Substantive equality" (i.e. equality of opportunity) is different from "equality of results" in that the mechanism for achieving the goal entails removing the barriers associated with the group's "special characteristics" rather than securing an equal result. Substantive equality provides no guarantee that members of a particular group will achieve equality of results, only that they will have that opportunity. In other words the role of individual merit, and initiative is not displaced.

7. Because "the amelioration of conditions of disadvantaged individuals or groups" (i.e. equality of results) is its purpose rather than equality of opportunity, section 15(2) prevents advantaged individuals or groups challenging affirmative action plans on the basis that no legally actionable discrimination exists or that the plan does not redress it as has occurred in the United States. Johnson v. Transportation Agency, unreported decision of the Supreme Court of the United States, March 25, 1987 and authorities referred to herein. In Canada quotas are permissible.

8. This Intervenor adopts the position that section 15(1) assures all Canadians of formal equality. In practice this would consist of protection against "direct discrimination" (defined in O.H.R.C. and O'Malley v. Simpson-Sears [1985] 2 S.C.R. 536 at 551) which does not meet the standard articulated by McIntyre J. in MacKay v. R. [1980] S.C.R. 370 at 403-05.

9. It is further submitted that section 15(1) assures some Canadians of substantive equality: the ones who need it. The English version of section 15 uses the words "in particular" in subsection (1) and "including" in subsection (2) when referring to the enumerate categories. From this it can be inferred that special treatment is to be ascribed to discrimination based on some principle running through these categories. The enumerated categories reflect many, perhaps most of the disadvantaged groups within society which have suffered systemic discrimination, however it is by no means a complete list. A purposive interpretation of section 15(1), and one consistent with the view of this country's Constitution as a "living tree" would extend equality of opportunity safeguards to disadvantaged groups which also have experienced systemic discrimination.

10. The legislative history of section 15(1) demonstrates a remarkable series of amendments which clearly were intended to strengthen its equality guarantees. Bayefsky, supra, at 69-73. More particularly, the inclusion of express protection of mentally and physically disabled persons was discussed in terms of the need for structural changes and the cost such changes would necessitate. Lepofsky and Bickenbach, "Equality Rights of the Physically Handicapped", in Bayefsky and Eberts (eds.) supra 323 at 335-40. Political scientists, who both welcomed or lamented the eventual outcome, agree that the political support of disadvantaged groups for the equality clause provided decisive impetus allowing agreement and ultimately patriation of the Constitution with a Charter of Rights and Freedoms attached.

Reference: Russell, "The Effect of a Charter of Rights and on the Policy-Making Role of Canadian Courts" (1982), 25 Can. Admin. 1 at 25.

Banting and Simeon, "Federalism, Democracy and the Constitution",

and Whittaker, "Democracy and the Canadian Constitution", in Banting and Simeon (eds.) And No One Cheered (1983) at 5-20 and 254-57.

Romanow, Whyte and Leeson, Canada Notwithstanding (1984) at 253.

Sheppard and Valpy, The National Deal (1982) at 135-59.

11. Under the Canadian Bill of Rights no distinction has been made between individuals and groups seeking to invoke section 1(b). R. v. Burnshine, [1975] 1 S.C.R. 693 at 700. It was stated with reference to the clause in section 1 prohibiting "discrimination by reason of race, national origin, colour, religion or sex" that "…the prohibited discrimination is an additional lever to which federal legislation must respond." Curr v. The Queen, [1972] S.C.R. 889 at 896-97 per Laskin J. (as he then was). Subsequently Chief Justice Laskin returned to this theme when he suggested the enumerated categories provided "a touchstone in the legislation" for subjecting distinctions based on them to closer scrutiny. Morgentaler v. The Queen (1975), 53 D.L.R. (3d) 161 at 175-6 (dissenting).

12. Statutory human rights protection in all the jurisdictions within Canada is only available to members of groups who have experienced discrimination because of one of an enumerated list of grounds. There is no evidence that advantaged groups have been successful in asserting statutory human rights claims, (i.e. "equality with a vengeance") in Canada, (however see Re Athabasca Tribal Council and Amoco Canada Petroleum, [1980] 112 D.L.R. (3d) 200 at 213 where the majority in the Alberta Court of Appeal held affirmative action for native peoples violated the Individual Rights Protection Act S.A. 1972 c.2, and [1981] 1 S.C.R. 699 where four members of this Court disagreed) probably because human rights commissions screen out such complaints before they can proceed to a hearing. Seneca College v. Bhadauria (1981)124 D.L.R. (3d) 193 at 198. Since the Amoco case was first litigated Alberta joined most provinces in adding a clause to their human rights legislation which protects affirmative action measures. As well the decision in O.H.R.C. and O'Malley v. Simpson-Sears, supra, confirmed that where adverse effects and direct discrimination conflict the adverse effects protections are to prevail. It is unclear whether adverse effects discrimination would prevail in the event that a member of an advantaged group asserts such a claim.

13. The equal protection clause of the United States Bill of Rights is not subject to any express limits nor does it contain a clause which safeguards affirmative action programs. Its scope extends to direct but not adverse effects discrimination. Washington v. Davis 426 U.S. 229 (1976). American courts have placed limits on the equal protection guarantee by placing a heavier onus of justification upon a government which seeks to differentiate upon some grounds than upon others. The heaviest onus, "strict scrutiny", is applied to racial classifications. To qualify for strict scrutiny a group must be:

saddled with such disabilities, or subjected to such history of purposeful unequal treatment or relegated to such a position of powerlessness as to command extraordinary protection from the majoritarian political process.

Reference: San Antonio Independent School District v. Rodriguez
411 U.S. 1 at 4-18.

Ironically, a disadvantaged racial group gains "strict scrutiny" not only for itself, but also for advantaged racial groups as well. "Strict scrutiny" of racial classifications makes it extremely difficult to justify affirmative action programs, leading persons sympathetic to such programs to suggest that it might be in the overall best interests of disadvantaged racial groups to see the level lowered to medium scrutiny. Greenwalt, "Judicial Scrutiny in `Benign' Racial Preference in Law School Admissions", 75 Colum. L. Rev. 559 (1975) at 578-79. A further irony is that "strict scrutiny" tends to be accorded to groups which need it least. Thus where the Court found discrimination on the basis of a child's legitimacy to be "illogical and unjust" (i.e. therefore not meeting the minimum scrutiny standard) it decided distinctions based on legitimacy should be subjected to strict scrutiny. Weber v. Aetna Casualty & Surety, 406 U.S. 164 (1972). While most members of the Court appear dissatisfied with the levels of scrutiny approach, the lack of a consensus about the purposes underlying the equal protection clause appears to be preventing the adoption of a different one. City of Cleburne, Texas v. Cleburne Living Centre, 105 S. Ct. 313 (1985). A statement in a recnt affirmative action case under Civil Rights Act of 1964 summarizes how counterintuitive these results can be:

It would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had "been excluded from the American dream for so long" constituted the first legislative prohibition of al voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.

Reference: International Assoc. of Firefighters v. City of Cleveland, 106 S. Ct. 3063 (1986)

14. If the failure to take relevant differences into account is to be corrected under section 15 then it will be necessary to include protection against not only "intentional" and "direct" discrimination, but also "unintentional" or "adverse effect" discrimination. The latter had been defined, in a statutory employment discrimination case, as conduct

… which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties or restrictive conditions not imposed on other members of the work force.

Reference: Ontario Human Rights Commission and O'Malley v. Simpson-Sears, [1985] 2 S.C.R. 536 at 551.

While it has not been directly confronted, it has been broadly accepted that adverse effect discrimination may be within the scope of s. 15(1).

References: Re Blainey and Ontario Hockey Association 1986), 54 O.R. (2d) 513, 26 D.L.R. (4^th)

728 C.A. per Dublin J.A. Leave to appeal to S.C.C. refused.

Smith Kline & French Laboratories v. A.G. Canada.

Unreported decision of the Fed. C.A. dated Dec. 9, 1986 per Hugesson J. at p. 6, fn. 4

Several courts have supported this conclusion by referring to the decision in R. v. Big M. Drug Mart, [1985] 1 S.C.R. 294 where it was stated that both the purposes and the effects of legislation are relevant to determining its constitutionality, and in particular the statement of Dickson C.J.C. at p. 347 that "… the interests of true equality may well require defferentiation in treatment".

References: Andrews v. Law Society of British case on Appeal 91 at p. 96 per McLaughlin J.A.

Headley v. Public Service Commission Appeal Board. Unreported decision of F.C.A. dated January 26, 1987 per MaLaughlin J. at p. 5-6.

Sewchuck &Richard v. A.G. of British Columbia. Unreported decision of B.C.C.A. dated May 9, 1986 per Nemetz J.A. at p. 4.

Rebic v. Collver and A.G. of British Columbia unreported decision of B.C.C.A. dated May 12, 1986 per Macfarlane J.A. at p. 13.

15. When adverse effects discrimination is prohibited the inevitable result is differentiation whereby, for example, race is taken into account. This is turn conflicts with a prohibition against direct discrimination on the basis of race. The conflict is unavoidable, for the same reasons that conflict is inevitable between substantive and formal equality in such circumstances. Seriously (1977) at 226. Such conflicts are unequivocally resolved under the Charter through reference to section 15(2), for clearly government should be encouraged to anticipate its obligations under section 15(1) and take steps voluntarily to ameliorate disadvantagement.

In the United States this matter has not been resolved because many feel advantaged racial groups are as entitled to equal protection of the law as disadvantaged racial groups despite the fact their "race is [not] the object of prejudice or contempt". Dworkin, A Matter of Principle (1985) at 201. Thus while in the United States the debate continues about whether "colourblindness" or "taking race into account" prevails, in Canada section 15(2) and the prohibition of adverse effects discrimination make it clear substantive equality (i.e. equality of opportunity) is the dominant norm.

16. Section 15(2) does not preclude the operation of subsection (1) when a law, program or activity has as its object the amelioration of conditions of advantaged individuals or groups. Therefore advantaged groups should not expect to receive the equality of opportunity protections contained in section 15(1).

17. This argument is not merely textual. It also flows from a purposive reading of section 15(1). Those who have attempted to draw the line, have either done so on the basis of enumerated versus unenumerated categories Headley v. Public Service Appeal Board, supra, per MacGuigan J. at 8, or have extracted a common thread running through the enumerated categories which can be extrapolated to extend substantive equality protections to categories which are in this way analogous to the enumerated categories. Without exception the common thread, as was the case in San Antonio Independent District v. Rodriguez, supra, links groups which have been victimized by discrimination, suffered disadvantagement as a consequence, and face serious difficulty in securing justice within a democratic system of government.

(a) Questions of stereotyping, of historical disadvantagement, in a word, of prejudice, are the focus and there may even be a recognition that for some equality has a different meaning than for others.

Reference: Smith Kline &French Laboratories v. A.G. of Canada, supra, at 9.

(b) …. I have developed a set of factors that help make sense out of the grounds listed in section 15 and which are consistent with those conceptions of equality developed under the Canadian Bill of Rights that appear to remain viable under section 15. The first was the plausible relevance of a ground to a legitimate governmental end. The second concerned historical patterns of discrimination against various groups, understood to involve the stigmatization of those groups as inherently unworthy of equal treatment. The third concerned the relative lack of political power enjoyed by various groups defined in section 15, suggesting the possibility that their interests might have been bargained away in the log-rolling that characterizes modern interest-group politics. The fourth factor concerned those aspects of personhood either beyond one's control, or within that sphere where the Constitution protects the choices to be made. These factors suggest a set of reasons that should not be deemed acceptable as justifications for inequality.

Reference: Gold, "Equality Past and Future: The Relationship between Section 15 of the Charter and the Equality Provisions in the Canadian Bill of Rights", Equality: Section 15 and Charter Procedures, Law Society of Upper Canada (1985) A-1 at A-7.

(c) Where, however, it has classified so as to disfavour an historically subordinated class, the Crown should be required to show that the classification is substantially related to a legitimate (though not necessarily overriding) aim and that a less discriminatory approach would be significantly more costly. On the other hand, a classification that meets these requirements should still be invalid if from all the circumstances the court can infer an invidious intent. Moreover, if the classification incorporates in its justification a stereotype contingent on past domination, the state should bear the burden of showing that its tendency will be to overcome rather than perpetuate the stereotype. And if a recruitment statute using directly relevant criteria disproportionately burdens an historically disadvantaged group, the onus should be on the state to allay the court's (weak) suspicion of invidious motive.

Reference: Brudner, "What Are Reasonable Limits to Equality Rights?" (1986), 64 Can. Bar Rev. 469 at 506.

Approached purposively it is therefore difficult to justify granting a white, nondisabled male greater protection under section 15(1) than a member of a disadvantaged group which is identified by an unenumerated category which has historically been victimized by prejudice.

For these textual and purposive reasons, and in light of contemporary interpretations of the word "discrimination" and the legislative and political history of section 15(1), it is submitted substantive equality protections should be available to:

(a) members of disadvantaged groups which are systematically denied equality of opportunity because of discrimination, whether due to stigmatization, stereotyping or neglect; and

(b) the members of the group lack the collective power to effect political change within a democratic process which may heighten rather than temper the tendency of its individual members to discriminate.

18. In the case under appeal the British Columbia Court of Appeal concluded that section 15(1) must create a right which is autonomous of section 1. The Court chose not to make any distinction between the kind of equality guaranteed to disadvantaged as opposed to advantaged groups. It then concluded that since "[a]lmost all statutes draw distinctions between individuals" therefore "[t]o call every legislative distinction between people an infringement of s. 15 is to trivialize the fundamental rights guaranteed by the Charter". Case on Appeal 91 at 99. From there the Court implies an internal limit within section 15(1).

It is submitted that the right to substantive equality enshrined in section 15(1) for members of disadvantaged groups is not a prima facie right but a clear endorsement of the need for "equality of opportunity" within a moral society. There are respected theories of social philosophy which endorses this goal.

Rawls asserts that inequalities are arbitrary unless it is reasonable to expect that they will work out for everyone's advantage …

… a participant in one of Rawls'practices would be well advised to reckon with the possibility of being deprived of basic needs, as well as of being subject to a range of natural and social handicaps that would impair his capacity to supple them. Consequently, he would be rash to concur in any practice that does not guarantee the satisfaction of basic needs and compensate for handicaps before conceding less urgent advantages to others, even if that means giving the handicapped special treatment at the expense of the normal and the healthy.

Developed in this way, Rawls' model would take account of the fact that questions of social justice arise because people are unequal in ways they can do very little to change and that only be attending to these inequalities can one be said to be giving the interests equal consideration.

Referencs: Benn "Egalitarianism and Equal Consideration of Interests" in Bedau (ed.) Justice and Equality (1971) at 152 and in particular 162-65.

Dworkin, "What is Equality? Part II Equality of Resources"

10 Philosophy and Public Affairs (1983) 283.

Veatch, The Foundations of Justice, Why the Retarded and the Rest of Us Have Claims to Equality (1986).

Lepofsky in "Equality Rights for Handicapped Persons in the Charter: Putting the Accent on Individual Ability" Proceedings of Cambridge Lecture Series (1985) (forthcoming) at 27 states the following purposes underlie section 15's promise of equality for disabled persons:

1. Section 15 seeks to ensure that in its dealings with mentally and physically disabled persons, all agencies of government, legislative, judicial and administrative, respect the dignity, worth, individuality and personal autonomy of these persons, recognizing that these individuals are first and foremost individuals and not merely members of some socially-created category such as "the handicapped";

2. Section 15 seeks to ensure that when governments create, extend or protect rights, benefits, privileges or other opportunities to the public or some sector of the public, handicapped persons are afforded equality of opportunity to fully participate in these to the extent of their individual abilities. The same principle of equality of opportunity and full participation of handicapped persons should apply when governments impose burdens on members of society;

3. Section 15 seeks to ensure that when governments make or implement laws and policy or undertake initiatives having an impact on the rights, benefits, privileges, obligations or opportunities of handicapped individuals, government should conduct these activities based on a fair and accurate assessment of the individual abilities of handicapped persons, and not based upon stereotypes, preconceptions, prejudgments, paternalism, or morally unacceptable indifference to handicapped persons' rights to full participation;

4. Section 15 seeks to ensure that governments recognize that every individual is equal, but that every individual is not identical to all others. Thus, the business of government should be carried on based on respect for the similarities between individuals, and a recognition and accommodation of differences between individuals, in order to ensure equality of opportunity for all.

From this it can be seen that examples of blind person's asserting claims to driver's licences under section 15(1), and thereby trivializing the Charter are without merit. Where a person's disability, as opposed to governmental action or inaction, results in clear incapacity to exercise a right then to denial of equality of opportunity has occurred. Rawls, Dworkin or Veatch might feel "social" or "distributive" justice requires some form of compensation be made to the blind individual for this incapacity, but this is, of course, beyond the scope of section 15(1).

It is therefore submitted that any limits to the guarantee of equality of opportunity contained in section 15(1) should be contained in section 1 as they are for the other "constitutional rights and freedoms which are part of the supreme law of Canada". Such an interpretation is consistent with "the values of a free and democratic society" which include inter alia "commitment to social justice and equality". R. v. Oakes, [1986] 1 S.C.R. 103 at 135-6 per Dickson D.J.

19. Finally it has been suggested that judicial enforcement of substantive equality would represent an intrusion into the functions of the legislature, which the courts should avoid. This approach, of course, begs the questions of whether section 15(1) was intended to extend a guarantee of equality of opportunity to members of disadvantaged groups. Re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 497 per Lamer J.

As well it suggests that equality of opportunity is a norm of policy rather than of principle. Harrision v. Carswell (1979), 62 D.L.R. (3d) 68 at 82 per Dickson J. (as he then was). Certainly the courts are better equipped to engage in principled rather than pragmatic decision making. Dworkin Law's Empire (1986) at 254-75. It is submitted that a purposive interpretation of section 15(1) permits a principled application of equality, which is, after all, similar in many respects to the types of decisions being made daily by boards of inquiry under human rights legislation. O.H.R.C. & O'Malley v. Simpson-Sears, supra; Winnipeg School Division No. 1 v. Craton, [1985] 2S.C.R. 150 per McIntyre J.

It is submitted that Ely's "democratic conception of judicial review", Democracy and Distrust: A Theory of Judicial Review (1980) makes a useful contribution by pointing out the utility of enforcing strong equality guarantees in cases of race discrimination because visible minorities have been the "object of widespread vilification: which in turn leads to malfunctions in the democratic process. His analysis unfortunately fails to recognize how groups which suffer disadvantagement due to stereotyping or neglect can find themselves just as effectively excluded from the democratic process as those who are stigmatized.

Disadvantaged groups, working cooperatively, have succeeded in having the principles of equality of opportunity enshrined in the Charter of Rights and Freedoms. This represents a substantial accomplishment: one which they could not have achieved individually.

While the "floodgates" may have opened for claims to equality by members of advantaged interests, this has not been true by members of disadvantaged groups. Governments at all levels have shown a willingness to settle many valid claims and omnibus pieces of legislation have been passed or proposed. Department of Justice, Toward Equality, supra; An Act to Amend certain Ontario Statutes to conform to section 15 of the Canadian Charter of Rights and Freedoms S.O. 1986. Thus while government is normally thought of as a body of "policy" section 15(1) has provided government with a principled basis for making Canada a more pluralistic and barrier-free society. The provision of equality of opportunity for members of disadvantaged groups has become a higher legislative priority because it is a right guaranteed in the Charter of Rights and Freedoms.

Part IV: Nature of Order Sought

1. This Intervenor takes no position on the outcome in this Appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

J. David Baker
Counsel for the Intervenor
The Coalition of Provincial Organizations of the Handicapped
DATED: This 25^th day of May, 1987
Toronto, Ontario

Part V: List of Authorities

Aristotle, Ethica Nichomachae Politics

Banting and Simeon, "Federalism, Democracy and the Constitution", in Banting and Simeon (eds.) And No One Cheered (1983)

Bayefsky, "Defining Equality Rights", in Bayefsky and Eberts (eds.) Equality Rights and the Canadian Charter of Rights and Freedoms (1985)

Benn, "Egalitarianism and Equal Consideration of Interests" in Bedau (ed.) Justice and Equality (1971)

Brudner, "What Are Reasonable limits to Equality Rights?" (1986) 64 Can. Bar Rev. 469

City of Cleburne, Texas v. Cleburne Living Centre 105 S. Ct. 313 (1985)

Crosbie, Department of Justice, Report to Parliament: Toward Equality (1986)

Curr v. The Queen, [1972] S.C.R. 889

Dworkin, Taking Rights Seriously (1977)

A Matter of Principle (1985)

"What is Equality? Part II Equality of Resources" 10 Philosophy and Public Affairs (1983) 283

Ely, Democracy and Distrust: A Theory of Judicial Review (1980)

Gold, "Equality Past and Future: The Relationship Between Section 15 of the Charter and the Equality Provisions in the Canadian Bill of Rights" L.S.U.C. (1985)

Greenwalt, "Judicial Scrutiny in `Benign' Racial Preference in Law School Admissions" 74 Colum. L. Rev. 559

Harrision v. Carswell (1979) 62 D.L.R. (3d) 68

Headley v. Public Service Commission Appeal Board F.C.A. January 26, 1987

International Association of Firefighters v. City of Cleveland 106 S. Ct. 3063 (1986)

Johnson v. Transportation Agency U.S.S.C. March 25, 1987

Lepofsky, "Equality Rights for Handicapped Person" Proceedings of Cambridge Lecture Series 1985

Lepofsky and Bickenbach, "Equality Rights of the Physically Handicapped", in Bayefsky and Eberts (eds.) Equality Rights and the Canadian Charter of Rights and Freedoms (1985) 323

MacKay v. R., [1980] 2 S.C.R. 370

Morgentaler v. The Queen (1975), 53 D.L.R. (3d) 161

O.H.R.C. and O'Malley v. Simpson-Sears.[1985] 2 S.C.R. 536

R. v. Big M. Drug Mart, [1985] 1.S.C.R. 294

R. v. Burnshine [1975] 1 S.C.R. 693

R. v. Oakes, [1986] 1 S.C.R. 103

Re Athabasca Tribal Council and Amoco (1980), 112 D.L.R. (3d) 200

Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513

Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486

Rebic v. Colver and A.G. British Columbia

Romanow, Whyte and Leeson, Canada Notwithstanding (1984)

Royal Commission Report on Equality in Employment (1984)

Russell, "The Effect of a Charter of Rights on the Policy-Making Role of Canadian Courts", (1982) 25 Can. Pub. Admin. 1

San Antonio Independent School District v. Rodriguez 411 U.S. 1 (1973)

Seneca College v. Bhadauria (1981), 124 D.L.R. (3d) 193

Sewchuk & Ricard v. A.G. of British Columbia B.C.C.A. May 9, 1986

Sheppard and Valpy, The National Deal (1982)

Smith Kline & French Laboratories v. A.G. Canada F.C.A. December 9, 1986

Veatch, The Foundations of Justice, Why the Retarded and the Rest of Us Have Claims to Equality (1986)

Vickers, "Major Equality Issues of the Eighties", (1983) Canadian Human Rights Yearbook 47

Washington v. Davis 426 U.S. 229 (1976)

Weber v. Aetna Casualty and Surety 406 U.S. 164 (1972)