Written by Rebecca Jaremko Bromwich
In business management contexts, I have received questions and criticism for saying I am passionate about “equality” instead of using the word “equity”. I say I am passionate about equality because I am Canadian, and, if you are Canadian, so should you.
My first year law and legal studies undergraduate students often knew American courtroom conventions and US law better than they understood that of Canada. Recall the 2022 #Ottawaconvoy incident, when Tamara Lich’s husband Dwayne tried to insist in Court on his “first amendment” rights. There is a staggering and dangerous disjuncture between average Canadians’ understandings of law and society, and the understanding lawyers and legal scholars have when they work with law in professional contexts. From a cultural studies of law theoretical perspective, this gap does not simply represent an error, but rather is more properly understood as a troubling and potentially dangerous space: the law-as-lived has a legitimate life of its own. As a resident of Ottawa who had convoy trucks parked outside my house for three weeks this past winter, who had an opportunity to see the folks in the trucks, and my neighbours on the streets, and all of their sincerity and genuine suffering, up close, that gap is very real to me.
Abundantly clear after the Ottawa occupation is that a key task for legal educators such as myself is not the correcting of errors exactly but work to help narrow the gap between law as lived and law as written (what law and society scholars call doctrinal law).
The gaps between Canadian legal doctrine and people’s understanding of law are growing wider in the context of equity, diversity, and inclusion in corporate and government spaces with respect to the term “equality”. In a growing body of US-based literature, and of course on social media, the word “equality” is disparaged and contrasted to the word “equity”. This is fair enough when US-based understandings of the word and concept of equality are considered. When I did graduate work in the United States, I became very aware of how different US-based notions of equality are from those under Canadian law.
However, in Canada, by virtue of the operation of s. 15(2) of the Canadian Charter of Rights and Freedoms, which is, of course, a crucial part of our national Constitution, “equality” means what has been termed “’substantive equality”. Under this provision, equality requires that we adapt rules or standards to accommodate people’s differences. Further, the provision empowers governments to promote equality by passing laws and creating programs with the goal of improving the conditions of people who have been disadvantaged historically.
Let me be clear: when a Canadian lawyer or judge is using the word “equality”, they are referring to a concept that is not the opposite of, or lesser than, what US scholars call “equity”. In fact, substantive equality under Canadian law is fundamentally the same concept as the US popular notion of “equity”. It stands to reason that we should use the word in Canadian business settings the same way we use it in our law.
Like most Canadians, I am keen to stress to Americans and others around the world that we are a whole other country – not to be confused with, or subsumed within, the United States. We spell the words colour, labour, and neighbour in our own ways and we insist on it. We have the Queen as our Head of State and it’s more than just a passing fancy for Land Rovers, horses, or big hats, although I will argue with the merits of none of those things. We have a history of compromise and gradual, incremental change instead of violent revolution, as well as basic courtesy and neighbourly care, that are all well, a big deal. We are strongly committed to women’s reproductive freedom and public health care, as well as Indigenous reconciliation, among so many other things that differentiate us from our very loud southern neighbour.
In short, we are our own legal entity, eh? The way our legal terms, not least those developed under the Charter, are crafted with great attention to nuance and our own particular history.
So, as a professional educator, businessperson and lawyer, I am going to continue to say I am passionate about equality precisely because I am grounded in the context of the true north strong and free. If you are Canadian, so should you.
The views and opinions expressed in the blogs and case reporter are the views of their authors, and do not represent the views of the Desautels Centre for Private Enterprise and the Law, the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.