‘Expressive Harms and the Strands of Charter Equality: Drawing Out Parallel Coherent Approaches to Discrimination’

Abstract

“Expressive harms” are rights violations that may arise from governmental expression through laws or state action, even absent material or otherwise tangible harms. Same-sex marriage provides an example: having won rights to most marriage-related economic benefits in M. v. H., gays and lesbians nevertheless fought for state recognition of their marriages in Halpern v. Canada. The author delineates three conceptions of expressive harms. Among these are what may be termed “direct dignity harms”; on this conception, some forms of state expression exert effects upon human dignity without intermediate steps (for example, stereotyping) or ultimate material consequences (for example, exclusion from benefits). The author provides, in particular, an account of direct-dignity expressive harms and relates this account to the equality jurisprudence of s. 15 of the Charter. Finally, the author shows how the Supreme Court of Canada has implicitly incorporated expressive insights within s. 15, but suggests that the Court has done so with some incoherence. By failing to make explicit its reliance on several expressive and other rationales, the Court has produced an equality test with requirements derived from various conflated equality approaches, rendering the test unnecessarily onerous for some claimants.