'Equality and Supreme Court Jurisprudence: Never the Twain Shall Meet' - Chapter in The Supreme Court of Canada and the Achievement of Social Justice: Commitment, Retrenchment or Retreat

The assessment of whether the Supreme Court jurisprudence is moving backwards or forwards from earlier precedents that offered the promise of advancing social justice, equality and human rights is highly problematic in the context of criminal law. Like an annoying law student, I fight the hypothetical. The exercise assumes that there was a moment in the criminal law jurisprudence of our highest court that marked an advance for equality - a premise that is (almost) insupportable. This is so because first, as other scholars have observed, criminal law itself is antithetical to substantive equality. The very definition of crime is highly individualized, masking systemic inequalities and making it nigh impossible to prosecute organizations - corporations, governments and bodies - that commit undeniable harms against entire peoples, the environment and democratic institutions. Further, many criminal offences are premised on social, economic and political inequality. How else can we explain, for example, how the most dangerous drugs - alcohol and tobacco - remain legal while we maintain the criminalization of far less harmful drugs like marijuana, strongly associated in both the past and present with African-Canadians? A second and related reason for the absence of equality from our criminal law jurisprudence is that the paradigm of the criminal trial is constructed as the Crown versus the individual accused, but these parties virtually never raise equality issues. The Honourable Judge Donna Hackett reported in an article published in 1998 that she pooled the judicial experience of herself and six colleagues who sit on criminal trials in Toronto. They found that in approximately 120,000 cases they had heard among them, section 15 of the Charter had not been raised even once. She attributed this failure on the part of criminal counsel to the fact that “equality” as a value is presumed or taken for granted, the Criminal Code and relevant precedents were established in a pre-Charter era. However, 25 years after section 15 came into force, these explanations seem less compelling. Other factors, such as the criminal bar’s focus on the rights of the individual accused, may prevent them from seeing and advancing larger systemic issues like discrimination and oppression. In spite of the fact that criminal lawyers almost never argue section 15, witnesses, even those victimized by crime, have no legal standing to hire their own lawyers, insert themselves into the proceedings or argue about rights - like equality - not raised by the accused or the prosecutor. Intervener status can be accorded to allow individuals and groups to address issues raised by the case and not addressed by the parties, but intervener standing is almost never granted at the trial level. When interveners are permitted to step in at the appeal level, their equality arguments are often ignored in the resulting criminal law judgements. This may be due to the fact that a factual foundation for the argument will not have been established in the trial record. But in addition, members of the court have cautioned interveners against advocating any specific result in their section 15 arguments in criminal appeals, reminding them that the accused already faces a formidable opponent in the Crown and should not have to also defend against the advocacy of interveners. A third reason why criminal law and equality do not mix is that some of the big Charter cases have been advanced by corporations, whose issues and agendas have shriveled the interpretive possibilities of significant rights, including equality. For example, an early study of the section 15 cases litigated before our courts found that in 66 of 591 cases studied, corporations were the litigators. This is the exact same number of section 15 claims initiated by members of disadvantaged groups among the 591 cases. Although the authors of the study noted that most section 15 claims by corporations failed on standing and on showing “discrimination”, they observed that the courts are more likely to allow corporations to invoke section 15 defensively and that the litigation patterns show that corporations enjoy “good access to the courts”. Further, our Court has decided several important rights cases advanced by corporations defending themselves against criminal charges without in any way differentiating the meaning of Charter rights held by human beings from those held by artificial entities created solely for the purpose of profit-making. As has been argued by Andrew Petter and Patrick Monahan, treating rights claims by corporations the same as those advanced by human beings impoverishes the interpretive potential of those rights for real people, but also effectively immunizes corporations from criminal responsibility in many situations. In my opening paragraph, I stated that the premise that the Supreme Court has delivered even the promise of equality advances in its criminal law decisions is almost insupportable. I have not here explored dissenting and concurring opinions from the Court, predominantly those of former Justice Claire L’Heureux-Dube, that have demonstrated that criminal law can in fact be re-shaped through equality analysis. These judgments constitute significant markers of the role of judicial choice in criminal law, bringing into sharp relief the impoverished jurisprudence of the majority of the Court. In what follows, I first describe those “almost” moments, where the majority of the court hinted at a substantive vision of equality, where its decisions delivered good results to oppressed groups, albeit without the mention of equality, or where equality rights were mentioned as at least a factor in the decision to uphold criminal laws against constitutional attack. I then review three categories of Supreme Court jurisprudence where the court has failed us: those cases where the Court’s decisions have increased the inequalities experienced by accused or complainants; those cases where the Court has developed Charter doctrine that increases the power of corporations to avoid criminal sanction; and those cases where the Court’s decisions have eroded basic civil liberties, the weakest form of “equality” rights. I conclude with a modest - maybe meager - suggestion aimed at implanting a moral imperative of “first, do no harm” in the minds of criminal lawyers and judges.

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