[ql06] PUBLIC: Potty Act and s. 15(1) Discrimination
- From: "Kenneth Campbell [QL06]" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Tue, 9 Dec 2003 13:59:40 -0500
ISSUE BEFORE THE SUPREME COURT:
Year: 2007.
Provincial Election: Ontario PC party accidentally changes its name to
Conservative Party on the ballots, invalidating every vote it got. The
Liberals, under Norman Bates, Jr., have alienated all of Toronto by
forcing the Island Airport through and putting in a special hangar for
his own plane. The NDP get another surprise win.
Making up for lost time, the NDP passes a legislative act based on the
Manhattan idea (see previous email). The Ontario Flexibly-Equitable
Toilet Installation and Distribution Act (Potty Act) plans to set new
potty allotment balances in our public places. Government buildings will
be first, changes completed by 2010. All public arenas and other such
areas will forced to comply with the legislation by 2012. On the model
of the Quebec Language Police, there will be instituted an enforcement
group in Ontario (The Potty Police) to ensure compliance from business
owners running public-ish places. (We will probably have to re-examine
the Berg decision again on what is and is not public, to clarify the
boundaries of the more zealous Potty Police.)
Jim Flaherty, head of the now voteless and completely broke, Ontario PC
Party, quits and opens a private, specialized practice dealing only with
the legislation -- which he believes is not about equity but about law
schools now producing more female lawyers than male lawyers. First we
take the washrooms, then we take Berlin...
Finally, before it is ready to become enforceable law, he launches a
Charter challenge specifically against the Ontario Potty Act -- those
sections detailing the toilet distribution standards and possible
"commandeering" of existing male facilities for female use in certain
situations (that is, a reduction in boy potties for girl potties).
After complaints are dismissed by commission, board and tribunal alike,
the courts play ping-pong with it until it makes it's way to the Supreme
Court of Chief Justice Mark Weisberg. The questions being put to the
Court:
1. Do ss. 4(1) and 18 of the Ontario Potty Act, R.S.C.,
2005, c. O-88, infringe on s. 15(1) of the Canadian
Charter of Rights and Freedoms on the ground that they
discriminate against males on the basis of sex?
2. If so, can this infringement be demonstrably justified
in a free and democratic society under s. 1 of the
Canadian Charter of Rights and Freedoms?
======================================================================
OPINION FROM THE QL06 COURT
I have found, in my pre-decision paper, now being circulated for
comment, that the complainant's s. 15(1) Charter challenge fails on at
least one of two possible grounds:
1. Oakes Test
2. Law Test itself, third stage
I invite rebuttal of any of these incredibly well-reasoned points. But I
would imagine by juridical expertise in s. 15(1) matter would intimidate
any of you into compliant silence, which is what really needs as a good
Chief Justice, so I will inquire with Gillian Ready if there are any
openings in that line for me this summer.
Reasons a complaint would fail:
1. OAKES TEST
Even if the Act was found substantively discriminatory per 15(1), Oakes
would save the day easily. Unless there were some really draconian Potty
Police out there, making male relief a hardship (shut up again Sheldon),
I cannot see how a Court would have find the Act saved by s.1.
But I think the appeal on the part of the complainant would fail before
then, in the Law Test itself. The Manhattan legislation, and it's
Ontario cousin, are certainly differential treatment of comparator
groups... and the grounds of "equal head count" are, surprisingly, not
enumerated, but the complainant would have no problem suggesting it was
all sex differentiation. But on the third part, the complainant would
fail. Gals having to hop from one foot to the other in line-ups, it's a
historical disadvantage that the friendly legislation merely seeks to
ameliorate. And the suffering of the male complainants would have to be
incredible to out balance the larger social issue. When you read down to
the bottom of the humorously written AP story in the previous email,
there really is a problem. Any male who's lived with a female partner
for any length of time appreciates the, ahem, disadvantages they suffer.
The appeal is dismissed. Flush away, girls.
1. Do ss. 4(1) and 18 of the Ontario Potty Act, R.S.C.,
2005, c. O-88, infringe on s. 15(1) of the Canadian
Charter of Rights and Freedoms on the ground that they
discriminate against males on the basis of sex?
No.
2. If so, can this infringement be demonstrably justified
in a free and democratic society under s. 1 of the
Canadian Charter of Rights and Freedoms?
Yes.
Brave Manhattan-ites, always pushing the envelope.
Ken.
--
An author is a fool who, not content with boring those he
lives with, insists on boring future generations.
-- Charles de Montesquieu
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