I wrote, back in February, about Martin v. Canada (Attorney General), 2013 FCA 15, a case in which the Federal Court of Appeal ruled that Parliament’s failure to provide double unemployment insurance benefits to parents of newborn twins (allowing them to take twice as much time off work as the parents of an only child) was not a violation of the equality guarantee of the Canadian Charter of Rights and Freedoms. A few weeks ago, Mr. Martin, the appellant in that case, who is now appealing the decision to the Supreme Court, commented on that post. Although I’ve been travelling and neglecting the blog as a result, I am very grateful to him for sharing his views, and I wanted to give his comment a bit more prominence, so I am re-posting it here.
Mr. Martin wrote (paragraph breaks added):
There are several problems with the judgement that we will try to correct at the Supreme Court.
The first is with respect to historical disadvantage. It was blow out of proportion in importance. If a government policy decided to give half the benefits to people with blue eyes than to others, would it be a sufficient defense to say that people with blue eyes did not suffer historical disadvantage? Clearly not.
Secondly, while the act does not consider many things about a person’s individual needs, it does recognize at the most fundamental of levels that a parent can get 35 weeks of benefits to care for a newborn child. Why does this not apply to parents of multiples? The pregnancy is an irrelevant consideration in allocating parental benefits, just as the color of the eyes of the claimant would be.
Finally, the interest affected is hardly simply financial. EI Parental benefits is the most important Canadian program to help families balance the needs of working, financial security and providing care to newborn children. Parental benefits allow parents to spend time with their newborn children. To reduce that to a question of money is really missing the point.
I will briefly comment on the first of these points. (This is not to say I am persuaded by the latter two; I only don’t have anything interesting to say about them). I will also add one other observation.
The role of historic disadvantage in understanding the Charter’s equality guarantee has long been a staple of the Supreme Court’s jurisprudence, certainly going back to Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497, and arguably, at least implicitly, to Andrews v. Law Society of British Columbia,  1 S.C.R. 143. The Supreme Court has always interpreted the equality guarantee as an anti-discrimination provision, focused on preventing the perpetuation of pre-existing disadvantages. I have my doubts about the value of this approach; Mr. Martin’s example, for one thing, shows its limitations. An understanding of equality less concerned with historical injustice would allow courts to strike down legislation that is grounded in or effects not only discrimination but also unprincipled, politically motivated favouritism (as for example the French Conseil constitutionnel did in striking down, in its decision 2009-599 DC, at par. 77-83, a proposed carbon tax on the basis that it singled out one source of carbon emissions for taxation while not affecting any others). But it will be tall order to convince the Supreme Court to abandon the one element of its equality jurisprudence that has remained more or less constant throughout its struggle with this concept. I am not optimistic that this will happen any time soon.
The other observation I wanted to make concerns the remedy that Mr. Martin might get if he were successful. I am almost certain that the Supreme Court would not simply re-write the law to say that benefits must be multiplied by the number of children. The law at issue isn’t just a benefit paid out to parents from the public purse, though interfering with that is difficult enough ― it also concerns the interests of employers. I am pretty sure that, even if it were to find the law unconstitutional as it is, it would ask Parliament to revise it ― and not necessarily in the way Mr. Martin seems to hope for.
I am sorry I cannot offer Mr. Martin more optimism. But, once again, I am grateful to him for having shared his perspective on this blog. If you are somehow involved with one of the cases I write about and would like to do the same, please let me know.