A- Introduction

The fundamental right to equality1 is a better context for reasonable accommodation

claims than freedom of religion2. However, accommodation litigants are more successful when

invoking religion due to the restrictive analysis the court adopted regarding equality. In theory

groups seeking reasonable accommodation can challenge the inequality of face-neutral laws or

policies that effectively perpetuate oppression on the grounds of race, national origin, religion

and sex. In practice however, the insistence on formality has undermined minorities’ abilities to

invoke those markers of structural inequality as pertinent considerations informing

accommodations claims. I argue that equality can offer a more comprehensive framework to

address two issues underlying the reasonable accommodation debate: structural inequality and

intersectional discrimination. Viewed in this light, equality could reorient our understanding of

reasonable accommodation as a positive duty to take affirmative action.

B- Current limitations on accommodation

1- Equality confined to formalism.

a) Purpose. The Supreme Court of Canada has given s. 15 a largely formal purpose. It

has interpreted the provision as guarding from ‘unfair limitations upon opportunities’. 3 In

another formulation, equality is understood as ‘equal recognition at law (...) equally capable and

equally deserving of concern, respect and consideration’.4 This is a major stumbling block for

accommodation claimants challenging the differential effect of seemingly neutral law. For

instance, the complete ban of religious arbitration in Quebec and Ontario appears consistent with

the purpose of equal treatment since it purports to enforce secular law on all family disputes. In

practice however, the ban creates the very double standard it seeks to avoid: religious minorities
still use arbitration informally but its illegality means that populations at risk are out of reach

from social workers, legal aid assistance and sheltering options for battered spouse. Perversely

enough, focusing on opportunities and symbolic recognition reinforces vulnerability and

marginalisation.

b) Implementation. S.15 is currently unable to address structural inequalities at the root

of reasonable accommodation claims. The enumerated grounds of s.15 explicitly address race,

colour and religion-based discrimination, so that in theory the equality provision could be used to

combat structural inequality based on belonging to those groups. While Law emphasized a

contextual approach, in practice its formal analysis limits the utility of s.15. The correspondence

contextual factor of the dignity test acts as a formal internal limitation5. If the claimant fails to

prove the lack of correspondence between the discrimination and the objective of the law, she

will not have met her burden of proof. In Law, the differential treatment based on age was upheld

as it did not infringe the claimant’s dignity. More precisely, denying pension for deceased spouse

based on age was not discriminatory since the claimant’s youth corresponded to her increased

ability to attain long-term financial autonomy. This correspondence test constitutes a return to

the similarly situated test6, in addition to displacing a s. 17 analysis of rational connection

between the means and the objective of the impugned legislation8. In this framework, a claim for

reasonable accommodation based on unequal access or remuneration in the division of labor

would likely fail. For instance, it would be difficult for Muslims demanding prayer rooms in

federal institutions to prove that refusing this accommodation lacks correspondence with the

objective of promoting secularism, or productivity, or budget constraints. Could it be that

restrictive judicial interpretation of equality is part and parcel of the subtle institutional policies
that perpetuate structural inequalities, and indirectly sanction latent racism? While recent

decisions purport to overcome litigation impediments such as an insistence on formality and

disproportionate burden on the plaintive9, they fall short of proposing a concrete new

methodology to advance a substantial purpose and analysis of s.15.

2- Freedom of religion: essentializing reasonable accommodation. By contrast to equality,

freedom of religion is fairly conducive to litigation. It has no internal limitations10, no

comparator group —a sincerely held belief will suffice11— and imposes a positive obligation on

the State to accommodate religious differences until undue hardship, in the form of a reasonable

limit under s.112. Nevertheless, litigating for reasonable accommodation under s.2(b) has the

perverse effect of essentializing accommodation claims as religious. In the process, the complex

identities of minorities get recast as primarily non-secular. Issues of systemic discrimination in

terms of race, colour, ethnic origin and colonial inheritance become extraneous to the analysis.13

This relegates accommodation demands to a dualistic conception of fanatic radicals/modern

secular liberals. Reasonable accommodation is better understood as an equality claim for

rebalancing the differential treatment of structurally subordinated groups.14 I invite us to revisit

the purpose and implementation of s.15 in accordance.

C- Revisiting Equality

1- Structural inequality. "Without an understanding of how responses to subordinate groups

are socially organized to sustain existing power arrangements, we cannot hope either to

communicate across social hierarchies or to work to eliminate them." 15

Minorities demanding reasonable accommodation experience systemic disadvantage. The larger

context of their claims is social differentiation wherein groups, and individuals within them, are
posited differently in terms of division of labor, decision-making power and norms of

achievements.16 Accordingly, accommodation claims challenge this limitation of opportunity

based on underlying structures of racial, ethnic and colour differentiation. These paradigms for

exclusion are loosely echoed in the enumerated and analogous grounds, as they remind us of

historical and contextual disadvantages.17 Pothier suggests that grounds effectively save

claimants the footwork of proving social processes of differentiation. If enumerated and

analogous grounds are understood as importing recognition of structural injustice, s. 15 could

appropriately consider the systemic disadvantages faced by minorities demanding reasonable

accommodation.

2- Intersectional discrimination. Claims for reasonable accommodation imply a confluence of

discriminations. Gurbaj Singh Multani was of the Orthodox Sikh religion, but it is disingenuous

to ignore the possibility that discrimination on the basis of race, ethnic origin and colour also

‘coloured’ the kirpan ban. However, the current trend shows that the more grounds invoked, the

likelier it is that an equality claim will fail.18 Instead of permitting the claim to fall between the

cracks of multiple grounds, a proper understanding of the interaction between various grounds of

inequality acknowledges the mutually reinforcing effect of discrimination based on multiple

grounds.19 A conjunctive analysis of all grounds, as opposed to the current watertight approach,

would be better suited to address the cumulative effect20 of intersectional discrimination. A

joined analysis also avoids pitting gender and minority rights against each other. A case in point

is the accommodation of the veil in sexual assault court testimonies21. Discrimination is relevant

not only on the basis of religion, but also through the lens of gender. When asking Muslim

plaintives to ‘undress’, an analysis of the patriarchal nature of both rape per se and of its

institutional response in the justice system is relevant. Such a holistic approach regarding the
cumulative effects of discriminations enables a convergence of gender and minority rights and

allows us to move beyond Okin’s view that multiculturalism threatens gender equality

achievements.22

3- Affirmative action. Reasonable accommodation addresses the particular marginalization and

vulnerability of minorities who suffer from structural inequalities. Law’s reference to the

‘adverse effects’23 of face neutral legislation provides room for steering jurisprudential

interpretation of equality in this direction. In Multani, one can argue that the adverse effect of

banning the kirpan is excluding Sikhs from public education. Limiting access to free education

not only has symbolic detrimental effects on one’s dignity, it also affects the family’s financial

situation because they must pay for private education. Hence reasonable accommodation of the

kirpan can be conceived as affirmative action addressing the marginalization of Orthodox Sikhs

otherwise excluded from a key public institution and the vulnerability that comes with the

differentially onerous cost of having to seek private education. This retreat to the private sphere

is not unlike the retreat to Shari’a private arbitration. One suspects the failure to include

minorities in the public sphere is at least partially responsible for the balkanisation of both

education and family arbitration.

Accommodating the differences of minorities is a crucial step towards achieving substantial

equality. In theory Muslim women can take off their veil to testify, to pose for driving license

pictures or to vote, but in practice those policies will have the effect of curtailing participation in

public life and reinforcing marginalization and vulnerability. An overhaul of our understanding

of s.15 would open the possibility for equality to be sensitive to the complex identities of

minorities who suffer intersectional discrimination and structural inequalities.

ENDNOTES:

1
Canadian Charter of Rights and Freedoms, s.2(a), Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act, 1982 (U. K.), 1982, c. 11 [Charter].
2
Ibid. at s.15.
3
Law v. Canada (Minister of Employment and Immigration), (1999) 1 S.C.R. 497 at para. 42
[Law].
4
Ibid. at para. 88.
5
Fiona Sampson, “LEAF and the Law Test for Discrimination: An Analysis of the Injury of Law
and How to Repair It” (Toronto: Women’s Legal Education and Action Fund, November 2004)
at 8.
6
Bruce Ryder, Cidalia Faria and Emily Lawrence, “What’s Law Good For? An Empirical
Overview of Charter Equality Rights Decisions” (2004) 24 Supreme Court Review 1 at 14.
7
Charter, supra note 1 at s.1.
8
R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.
9
R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at para 22 [Kapp].
10
Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256 at
para 26 [Multani].
11
Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551.
12
Multani, supra note 10 at para 12.
13
In the context of the accommodation of Shari’a family tribunals, Razack explains that the
insistence on the secular/religious split casts minorities a non-liberal and glosses over group
based harm, namely structural issues such as colonial past and racism. Sherene Razack, “The
‘Sharia Law Debate’ in Ontario: The Modernity/Pre-Modernity Distinction in Legal Efforts to
protect Women from Culture”, (2007) 15 Feminist Legal Studies 3 at 18 and 24 [Razack].
14
Interestingly, Multani invoked s.15 for the accommodation of the kirpan in public school.
However the court didn’t consider it since the ban infringed s. 2(b).
15
Razack, supra note 13 at 8.
16
Iris Marion Young, “Structural Injustice and the Politics of Difference,” in Anthony Simon
Laden & David Owen, eds. Multiculturalism and Political Theory (Cambridge: Cambridge
University Press, 2007) 60 at 68.
17
Dianne Pothier, “Connecting Grounds of Discrimination to Real People’s Real Experiences”,
(2001) 13 CJWL 37 at 43 [Pothier].
18
Ibid. at 65.
19
The court recognizes that in theory a claim can be based on multiple grounds. See Law, supra
note 1 at para. 37. Nevertheless the analyses are conducted separately.
20
Pothier, supra note 13 at 62.
21
R. v. N.S., [2009] 95 O.R. (3d) 735.
22
Susan Moller Okin. Is Multiculturalism Bad for Women? (Princeton, N.J.: Princeton
University Press, 1999).
23
Law, supra note 3 at para 36.