It was a long time in coming, but the Supreme Court has finally delivered its ruling regarding the constitutionality of Québec’s (absence of) legal regime for de facto (a.k.a. common law) couples. The dispute pitted a wealthy businessman, identified by the Supreme Court as “B”, against his former common law spouse (and mother of his three children), identified as “A”. (In Québec, they are better known by the pseudonyms Éric and Lola). She claimed that the fact that provisions of the Civil Code of Québec (CCQ) relative to the division of family property and support obligations applied to married but not to de facto couples, such as theirs, was a breach of the equality guarantee of s. 15(1) of the Canadian Charter of Rights and Freedoms. Yesterday’s decision, Quebec (Attorney General) v. A, 2013 SCC 5, rejected that claim. The reasons, unfortunately, are obscenely long, so I will forego my usual detailed summary. After an additional rant about their length, I will summarize each of the four sets of reasons very briefly, and make some comments about the issues the decision raises and, mostly, fails to address.
First of all, let me repeat what I just said: the length of this decision is unconscionable. It is over 200 pages long. As I wrote here, when ranting about a somewhat shorter judgment,
judges impose limits on the length of written submissions by lawyers. They should impose the same limits on their own work. [Judges] make[] much of the courts’ work being for the benefit of the public. It’s not when the product is of such length that no reasonable member of the public can be expected to read it.
Now, unlike in that case, part of the explanation for the judgment’s length here is that there are multiple sets of reasons, four of them in fact. But that still works out to over 50 pages on average―and none of these sets reasons had to canvass all of the issues in the case. I simply see no excuse for the Court’s prolixity.
The four sets of reasons are as follows.
1) Justice Lebel, writing for himself and Justices Fish, Rothstein, and Moldaver, would have held that the impugned provisions of the CCQ do not infringe s. 15(1) of the Charter. Although they distinguish between married and de facto couples, this distinction is not discriminatory because it neither perpetuates prejudice nor reflects a stereotype. Instead, it gives effect to people’s autonomy, a value which, along with equality and human dignity, underpins s. 15 of the Charter.
2) Justice Abella would have held that all the impugned provisions are unconstitutional. They are discriminatory because they impose a disadvantage on a group which, historically, has been the victim of strong prejudice. And they cannot be justified under s. 1 of the Charter, because the legislative purpose of preserving autonomy can be achieved by means less impairing of equality, such as a presumptive application of the legal regime for married couples to unmarried ones, subject to an ability to contract out of that regime.
3) Justice Deschamps, writing for herself and Justices Cromwell and Karakatsanis, agrees with justice Abella that the provisions in question breach s. 15(1). However, while would also have held that the legislature’s failure to provide support rights to members of de facto couples is unconstitutional, she finds that the provisions related to the division of family property are the least restrictive means of achieving the legislature’s aim of preserving autonomy, and hence are saved by s. 1 of the Charter.
4) Chief Justice McLachlin agrees with Justice Abella that the impugned provisions are discriminatory, but she holds that they can all be justified under s. 1 of the Charter, because nothing short of the exclusion of the de facto couples from the mandatory regime imposed on married ones could preserve their full autonomy, which is the legislature’s goal.
The final tally is that the provision relative to support is upheld 5-4, while those relative to the division of property are upheld 8-1.
Now for some comments on the decision.
First, the decision shows that s. 15(1) of the Charter continues to bedevil the Supreme Court. R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, which was supposed to clarify the Courts equality jurisprudence, seems to have failed to do so. The court is fractured 5-4 on the issue of the difference between legislative distinctions, which are permissible, and discrimination, which is unconstitutional. Justice Lebel thinks that, to succeed in a s. 15(1) claim, the claimant must prove that “the disadvantage” he or she complains of “is discriminatory because (i) it perpetuates prejudice or (ii) it stereotypes” (par. 186). Justice Abella, who on this point has the support of a bare majority of the court, thinks not. Prejudice and stereotyping are indicia of discrimination, but no more than that. Whenever “state conduct widens the gap between [a] historically disadvantaged group and the rest of society rather than narrowing it, … it is discriminatory” (par. 332).
Furthermore, remarkably, not one of the four judgments discusses the possible applicability of Kapp‘s holding that, pursuant to s. 15(2) of the Charter, a legislative scheme that is intended to remedy a historic disadvantage will not be considered discriminatory even if it does not address the situation of all the groups who have suffered from that or a similar disadvantage. The family law regime challenged by A arguably had an ameliorative purpose, to help disadvantaged members of formerly-married couples. Why no mention of s. 15(2) then? Maybe B and the Québec government simply did not raise it, in which case it seems to me that their lawyers made a serious mistake. Still, I find it surprising that the court―especially Justice Lebel―did not mention it at all.
Another issue that the court does not discuss is the subject of the equality rights that A asserted. Whose rights are at issue―the de facto couples’ or those of the economically disadvantaged members of those couples? The judgments, especially those of the majority of the judges who find that s. 15(1) has been breached, shift ceaselessly between the two possibilities. But the distinction matters. It is the couples who, historically were the victims of prejudice and disapproval because their behaviour was considered immoral. But it doesn’t make sense to say, as Justices Abella and Deschamps and Chief Justice McLachlin do, that the de facto couples are denied the protection granted to married couples. The CCQ provisions challenged by A do not protect couples―they protect the economically weaker members of those couples. The trouble for the s. 15(1) majority is that historic prejudice, on which they rely to justify their conclusion of discrimination, was not directed against individual members of couples. Furthermore, the disadvantage at which individuals such as A find themselves is due, in the first instance, to their partners’ (and sometimes, though not in this case, their own) refusal to get married, rather than to any decision of the state. And so the s. 15(1) majority judgments rely on discrimination against couples or disadvantage to individuals, as suits their needs, even though one has no direct connection with the other. I’m not sure whether they are merely confused or deliberately obfuscating.
And there is a further aspect of the equality claim that the s. 15(1) majority ignores. A complains of discrimination on the ground of her marital status. The Supreme Court has long recognized marital status as a prohibited ground of discrimination for the purposes of s. 15(1) of the Charter. But marital status is different from most of the other prohibited grounds, such as sex, age, religion, or sexual orientation, in that it is a creature of the law. Most other prohibited grounds of discrimination―citizenship is the only exception I can think of―are essentially pre- or extra-legal. A person is of a certain age, a certain religion, or a certain sexual orientation regardless of what the law has to say about it. But marital status is a category entirely defined by the law. In defining marriage and other “forms of conjugality,” the law also fixes the rights and obligations that attach to that status. This definition necessarily excludes certain people, from whom the rights and obligations are also withheld. This cannot, in itself, be discriminatory. Now, distinctions on the basis of marital status, as of other categories defined by law, such as citizenship, can be discriminatory when they have nothing to do with the definition of that category. (Justice Lebel discusses this issue, par. 220-21, but the other judgments fail to respond to his points.) And a definition of a legal status can be discriminatory on some other basis―as, for example, the traditional definition of marriage was on the basis of sexual orientation. But I don’t think that it makes sense to say that a definition of a legal status can discriminate on the basis of that status.
The final comment I want to make concerns the role of the judiciary in this dispute. As I said here,
[i]t is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens.
Courts should be more cautious in such cases, all the more so when the legislature actually considered the issue with some care, as the Québec legislature did the rights of de facto spouses.
For all that, the outcome of the case is right, and a relief. The majority reaffirms the importance of the choices people make, and their freedom to define their own legal position different from the state’s default rules. And it reaffirms the same freedom for Canadian provinces too, with Québec being allowed to stick with its unique approach if it so wishes. A win for individual liberty and for federalism, then. Vive la différence!
Double Aspect 
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