There has been a great deal of talk over the last several months about the way one ought to react to the Olympics in Sochi in light of Russia’s ban on “propaganda of homosexuality” or whatever Russian prosecutors construe as “propaganda of homosexuality.” People have, in order of decreasing glamour and increasing effectiveness, boycotted a vodka which turned  out not to be made in Russia at all, raised rainbow flags, and made other, more sensible suggestions. But it seems to me that, although a lot has already been and is still being said on the subject, an important element is missing from this conversation. It is the fact that, while the “propaganda” ban certainly is homophobic, its underlying cause is authoritarianism as much as, if not more than, homophobia. What this means is that to really help Russian gays and lesbians (and all other Russians too), we must not only criticize and support the victims of a specific law, but the whole system of Vladimir Putin’s government.

Now this is not to say that this criticism and support are unimportant. People suffering as a result of the “propaganda” ban, and perhaps even more because of the wave of discrimination and violence that this signal of official homophobia has helped unleash. I would like to think that, for them, knowing that the world cares is at least a small consolation and source of hope. And the overt, shameless callousness of this law deserves its own response.

Nor do I mean to suggest, by saying that the “propaganda” ban is the product of authoritarianism, that a free Russia would a very gay-friendly place. Unfortunately, it would be no such thing. Freedom, democracy, and the Rule of Law are not enough to eliminate at a stroke the latent prejudices of society. But they do tend to make it rather less likely that these prejudices will translate into official policy, or that the authorities will let them run loose to the extent homophobia now does in Russia. Of course, there are some sad exceptions to this general trend, as Québec’s proposed ban on public employees wearing “ostentatious religious symbols,” which is calculated to discriminate against minorities (and especially Muslim women) and which Charles Taylor has rightly compared to the Russian anti-gay law, demonstrates. Still, such laws are both rarer and generally less malign in democratic countries. As, or more importantly, as I will shortly argue, free, democratic countries committed to the Rule of Law give their citizens the tools to fight and, at least over time, overturn those discriminatory measures that they do enact.

The reason Mr. Putin’s authoritarianism is key to understanding and deciding how to respond to the “propaganda” ban is that this law and the prominence of homophobic discourse more broadly are quite recent phenomena. What is not recent ― what has lasted for more than a decade now ― is a trend of small, unpopular groups being persecuted, whether with the active participation or with the silent connivance of officials. First ― before Mr. Putin even was elected President, there was the population of Chechnya, made the victim of a war designed to bolster his (theretofore nonexistent) credentials. Then (and to this day), it was political opponents and independent journalists. A businessman who supported opposition political parties imprisoned. Journalists who reported on human rights violations murdered. The rare media that still remain independent being denied access to their audiences. But then there were other victims. Later and still now, it was ethnic and racial minorities ― first African students, then immigrant workers from central Asia, who the victims of campaigns of murderous brutality, which the authorities have seldom done much of anything to stop. Gays and lesbians are only the latest on the list of the enemies of the Russian state. For a government that lacks the legitimacy that comes from prevailing over political opponents in a fair electoral contest (or indeed for one, like the PQ’s, which is committed to democracy but knows that its electoral prospects are dim), having enemies is probably indispensable to manufacture popular support. The enemy’s identity matters little, provided that he is weak and unpopular. In Russia, liberals, ethnic minorities, and LGBT people all are.

For this reason, and although, as I said above, it is important to oppose the “propaganda” ban and other forms of discrimination against gays and lesbians in Russia, the real solution to their problems must pass by the (re-)establishment in Russia of a free and democratic political system committed to the Rule of Law. Only such a system will not need to make minorities into scapegoats for its shortcomings and prejudice against them the only rallying point it can offer the people.

In addition, such a system would, unlike the present one, allow gays and lesbians ― as well as all other citizens, whether persecuted in their individual capacities or as members of unpopular groups ― to fight back and vindicate their rights. At present, it is not only equality that is absent from Russia. It is also, among many other rights and freedoms, freedom of expression and an independent judiciary. Yet as Jonathan Rauch argues in a fascinating and important guest-post at the Volokh Conspiracy, “[h]istory will show …  that gay marriage, and gay legal equality generally, owe their success not primarily to the 14th Amendment but to the First” ― not the one protecting equality, but the one protecting freedom of speech. The reason is simple: in order to have equality, you must persuade people to recognize you as their equal. You need to be able to speak to them. You need the freedom to make your case. And before you can insist on rights which on paper are yours, you need judges to know that nothing particularly bad will happen to them if they enforce them.

Once Russian gays and and lesbians have these basic rights, which (unlike equality rights which are of more recent vintage) we perhaps take so much for granted that we forget that others might lack them, we can hope, and indeed believe, that they too will in time succeed in having their equality rights recognized. Let us denounce and oppose homophobia. But let us not forget that, in Russia and elsewhere, it will not end without freedom, democracy, and the Rule of Law. 

“We All Have to Compromise”

Once again, apologies for the last week’s silence. I have a good excuse for once, however: I was in Israel to participate in a workshop on the “Law in a Changing Transnational World” at the Tel-Aviv University. The workshop was very instructive, and I plan on having a few posts in the coming days and weeks dealing with things I learned or heard about there. For now though, I will start with an anecdote, a story about what happened to me. I haven’t indulged into much of that here, nor do I intend to, but this particular story is, I think, directly relevant to some of the things I have been blogging on.

The story is from my flight back to New York yesterday. I had a window seat. My neighbour was an old and very conservatively dressed lady (a scarf over her hair, long skirt, etc.). And in the aisle seat next to her was supposed to sit an Ultra-Orthodox Jewish man ― referring to him as a gentleman, as you will presently see, would not have been appropriate. When he came to his seat and saw the seating arrangements, he asked me ― but not my neighbour ― if I would mind changing places with her. I asked why. “Because,” he said, “I don’t like like seating next to a lady.” I asked my neighbour what she thought about it. She squirmed. So I said that I’d rather stay where I was. The man was visibly annoyed and displayed his annoyance hovering around the seat he did not want to take for a minute or two ― and then went away, never to be seen again. (There were a few empty seats on the plane, fortunately.) As for my neighbour, she turned out to be a Talmud scholar, and, needless to say, very religious herself. She also turned out to be worldly, knowledgeable about all sorts of things, a pacifist, and very pleasant.

The reason I’m telling this story is, of course, the protracted, and often unseemly, debate about how to deal with expression of religion, in the West generally, and specifically in Québec in light of the “Values Charter” proposal. Those who would like to ban various forms of religious expression from the public sphere often argue that religious symbols such as the burka or the hijjab stand for gender inequality; some of them also say, with various degrees of laboured politeness, that religious people want to take over our societies and remake them in their image.

Well, there certainly was an awful lot of sexism, and perhaps even some aggression in our would-not-be neighbour. His behaviour and beliefs are distasteful ― and, by the way, hate-speech or anti-discrimination legislation should not prevent me (or anyone) from saying this. And, importantly, in our private interactions, we can and ought to resist that sort of behaviour.

But what the law should do about it is a very different matter. Not only did we not need the law to make this person go away ― in this case at least ― but no law could force him to change his retrograde beliefs. Certainly laws such as the proposed “Charter of Values,” which would ban public-sector employees from wearing “conspicuous” religious symbols would not eliminate or even reduce the bigotry that some religious beliefs encourage.

What such laws do, however, is to marginalize religious believers, regardless of their actual views on such matters as gender equality or the separation of religion and state. If the “Charter of Values” were enacted (and not invalidated, as it in fact would be, by courts), my neighbour might not be able teach in a university in Québec ― depending on whether her scarf is construed as a “conspicuous religious symbol,” a point on which Bernard Drainville’s pictograms provide no clear answer. Would excluding her advance the cause of equality? I think not. My neighbour, in fact, was a living illustration of the fact, which those who claim to defend equality by banning religious expression conveniently ignore or even deny, that religious, and even very religious, women are not always stupid, deluded, or oppressed. Many of them are smart, knowledgeable, and free in any meaningful sense.

She also proves that religious people generally are not all fanatics bent on world domination. In her own words, “we all have to make compromises.” And also try to see people, not just labels, in front of us.

Égalité, Liberté?

As I was thinking about the application of the liberty interest protected by s. 7 of the Canadian Charter of Rights and Freedoms to the family/marriage context, which I have written about here and here, a question occurred to me: why wasn’t it invoked to argue for the unconstitutionality of denying same-sex couple the opportunity to marry? The question is, of course, academic, since same-sex marriage has now been the law of the land for many years. But I am, after all, a wannabe academic, and find it quite interesting.

Probably the most significant judicial decision on the subject was Halpern v. Canada (Attorney General), 65 OR (3d) 161 (Ontario C.A.); it held that the restriction of marriage to opposite-sex couples was a breach of the equality guarantee of s. 15(1) of the Charter, while rejecting a church’s claim that it was a violation of its freedom of religion. But the s. 7 liberty guarantee was not even raised before the Court. The same was true in Hendricks c. Québec (Procureur général), [2002] R.J.Q. 2506, a decision of the Superior Court of Québec.

Yet the Supreme Court’s jurisprudence recognizes (and already recognized by the time these cases were decided) that “‘liberty’ is engaged where state compulsions or prohibitions affect important and fundamental life choices,” as Justice Bastarache put it, writing for the majority in Blencoe v. British Columbia (Human Rights Commission), 200o SCC 44, [2000] 2 S.C.R. 307, at par. 49. It seems to me that the choice of a spouse is quite obviously a “fundamental life choice,” or, to take up language from Justice Laforest’s concurring opinion in  Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at par. 66, a matter “fundamentally or inherently personal such that, by [its] very nature, [it] implicate[s] basic choices going to the core of what it means to enjoy individual dignity and independence.” And it also seems to me that it would not have been difficult to argue that denying homosexuals this fundamental life choice is arbitrary and therefore not in accordance with principles of fundamental justice ― not more difficult, in any case, than the very similar argument that was made in the context of the equality analysis.

Why, then, did the applicants in Halpern and Hendricks not invoke s. 7? Why, indeed, is the public discourse about same-sex marriage only concerned, so far as I can tell, with equality and not liberty ― why do we talk about marriage equality and not marriage liberty?

I can think of one way to argue that marriage isn’t about liberty at all. It would involve saying that marriage is not something that people do, but merely a package of benefits that they get. In that case, it makes little sense that denying access to it is a breach of a person’s liberty, though if the reason for the denial is discriminatory, it is a breach of equality rights. (Similarly, it would have made no sense for the appellants in Egan v. Canada, [1995] 2 S.C.R. 513, the case in which the Supreme Court first recognized that sexual orientation is a prohibited ground of discrimination under s. 15(1) of the Charter, to argue that the denial to one of them of a spousal allowance because they were in a same-sex rather than opposite-sex relationship was a breach of their liberty.) But I am pretty sure  that neither the advocates nor the opponents of same-sex marriage think about it as a mere package of benefits granted by the state. They see it as something more, something people engage in and not only receive. If so, then restricting it is a breach of people’s liberty.

The only other explanation for the absence of liberty from the same-sex marriage discourse I have come up with is political. Same-sex marriage has been, for the most part, a cause of the “progressive” side of the political spectrum. Its advocates tend to be people who just are more concerned with equality than with liberty ― not just in the matter of marriage, but in most, if not all, of their political views. Equality-based arguments have more appeal to them than those based on liberty. Perhaps. But I doubt that that is all there is to this curious matter, and would be disappointed it were. What am I missing?

All that is not to say that the equality arguments in favour of same-sex marriage are mistaken or unimportant. Discrimination is at the heart of the denial to same-sex couples of the opportunities that their opposite-sex counterparts have always enjoyed. And so far litigation is concerned, there might be no point in invoking an additional argument if one is sure to prevail on another one (though recall that in Halpern, the applicants asserted a religious freedom claim, which in my view was much less plausible than the one based on liberty, and which indeed went nowhere). Still, I find the absence of liberty from the discourse about marriage perplexing, and the same-sex marriage litigation will remain something of a lost opportunity for courts to develop this branch of our constitutional jurisprudence.

Multiple Perspectives

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), [1999] 1 S.C.R. 497, and arguably, at least implicitly, to Andrews v. Law Society of British Columbia, [1989] 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.

Can’t Compel

In “Law Like Love,” W.H. Auden wrote that “we can’t compel” love. He was right of course, and not only in the sense he meant. So holds―without reference to Auden―a decision of the Ontario Superior Court of Justice, R. v. Hall, 2013 ONSC 834. At issue the constitutionality of the exclusion of common law spouses from the rule that one spouse cannot testify against the other (except in prosecutions for a number of offences where the other spouse is the victim), a common law rule codified (and modified) by s. 4 of the Canada Evidence Act.

The decision is actually the second on Mr. Hall’s application to prevent his spouse (or perhaps former spouse, judging by the description in R. v. Hall, 2013 ONSC 429, par. 4) from testifying at his trial. Although the first decision is not available, it seems that Justice Lofchik initially rejected the application, but re-opened the matter after the Supreme Court delivered its decision on the constitutionality of the treatment of common law spouses in Québec’s family law, Quebec (Attorney General) v. A, 2013 SCC 5 (about which I blogged here). In that case, a 5-4 majority of the Supreme Court held that the Québec legislature’s failure to grant separating common law spouses the same entitlements as divorcing couples constituted discrimination contrary to the equality guarantee of s. 15 of the Charter. (One of the five, Chief Justice McLachlin, went on to find that this discrimination was nevertheless justified under s. 1 of the Charter.)

Following that holding, Justice Lofchik finds that the exclusion of common law spouses from the benefit of s. 4 of the Canada Evidence Act is also a breach of s. 15 of the Charter, as it denies the accused a benefit on the basis of a prohibited ground of discrimination (namely his status as a cohabiting but unmarried spouse):

 as a result of the lack of a formal martial bond, the accused is not afforded the protection of the act, vis-à-vis the competence of his spouse/partner to testify before the court.  This is differential treatment of the accused as a person living in common-law relationship as compared to those who are married.  While we recognize the nobility of a public commitment of two people to each to the exclusion of all others, we cannot ignore that certain couples chose for a variety reasons to make this commitment through their actions rather than by scripted words.  Common-law couples must also be accorded respect, dignity and the benefit of the law. (Par. 17)

Justice Lofchik further holds that the discrimination cannot be justified under s. 1 of the Charter. The objective of the impugned rule “is to promote conjugal confidences, protect marital harmony, and prevent the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution” (par. 22, summarizing  R. v. Hawkins, [1996] 3 S.C.R. 1043, par. 38). That is well and good, but, Justice Lofchik observes, “[t]here is no evidentiary or logical reason to believe the proponents of this rule and the statutory scheme which followed had any intention of considering the autonomy and freedom of choice of unmarried persons and excluding them from” its scope (par. 22). Indeed, there is no rational connection between the exclusion and the provision’s objective. Excluding common law spouses does nothing to protect married ones.

The final question is that of the remedy. Mr. Hall wanted the protection for common law spouses to be “read in” s. 4 of the Canada Evidence Act. The Crown argued that this would be too radical a change in the law and hence not an appropriate judicial intervention. Justice Lofchik sides with Mr. Hall: “[t]o include common-law spouses in the evidentiary protection provided by this area of the law does no more than to keep the law in step with the changed and changing social and moral fabric of Canada” (par. 28).

Substantively, I think this is the right decision. There seems to be no particularly good reason for making married but not common law spouses non-competent and non-compellable witnesses for the prosecution. Nor does the Crown seem to have adduced any such reason.

But I wonder whether Justice Lofchik is right about the remedy. The rationale for the spousal incompetence rule has been challenged (as the Supreme Court explains in Hawkins), and alternative versions of the rule have been proposed (for example, making spouses competent but not compellable witnesses). It might have been a good idea to suspend the declaration of invalidity and to leave it for Parliament to choose whether simply to extend the rule to common law spouses or to modify it for all.

Different But Equal

Most claims under the Charter‘s equality provision, s. 15(1), allege violations of the principle that like cases ought to be treated alike. So, for example, the appellant A. in the Supreme Court’s decision on the post-separation rights of common law spouses in Québec argued that common law couples are really like married ones, and should not be treated differently by the law. But some equality cases involve a corollary claim: that different cases ought to be treated differently. The legal framework applicable to both sorts of cases is the same, as the Federal Court of Appeal’s recent decision in Martin v. Canada, 2013 FCA 15, illustrates.

After Mr. Martin’s spouse gave birth to twins, both she and he applied for the 35 weeks of parental benefits which the  Employment Insurance Act, S.C. 1996, c. 23, entitles the parents of newborn or newly-adopted children to divide up between themselves. Her application was granted; his was rejected because the benefits were, accordingly, going to be paid to to her. He appealed, eventually all the way up to the Federal Court of Appeal.

One of Mr. Martin’s claims was that the statute, properly understood, entitled both him and his wife to the full 35 weeks of benefits. The Court rejected it, saying that such an interpretation would fly in the face of Parliament’s intent, which was not to provide a benefit for, or contribute towards expenses associated with, the birth of a child, but to compensate a parent’s loss of income due to taking time off work.

Mr. Martin’s second argument was that the Act, if it did not provide double benefits to parents of newborn twins, was unconstitutional, because treating such parents as if they had a single child was a violation of the Charter‘s equality guarantee. The Court applied the familiar framework set out in  R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483. The Court proceeded did not address the first question, whether the impugned law created a distinction on the basis of a prohibited or analogous ground, but proceeded on the assumption that it was affirmative. As I suggested above, the gist of Mr. Martin’s challenge wasn’t really that the law was making an undue distinction―on the contrary, it was that the law failed to make a necessary one. But the Court seems to assume that there is no difference between the two sorts of complaints.

In both cases, then, the second question to address is whether the distinction (or lack thereof!) is discriminatory―whether it created a disadvantage by perpetuating prejudice or stereotyping. It is here, said the Court, that Mr. Martin’s challenge failed. Analyzing the contextual factors which can indicate that a legislative distinction is discriminatory, it observed, first, “that  that there was no evidence demonstrating that parents of twins were subject to unfair treatment in society and that they had consequently experienced historical disadvantage, stereotyping, vulnerability or prejudice based on their status” (par. 116). Nor was the legislative scheme drawn on the basis of stereotypes unrelated to the real needs of the claimant and those in his position. The legislative scheme is not intended to meet anyone’s individual needs. Indeed, “it is impossible for” it to do so, given the variety of individual and family circumstances that can arise (par. 124). The third factor, the law’s ameliorative effect, was agreed to be irrelevant. Finally, the Court agreed that the fourth and last factor, the nature of the interest at stake, weighed against Mr. Martin, since his interest was a purely economic one. His fundamental status in Canadian society is not called into question by Parliament’s failure to grant parents of twins additional benefits.

This all seems straightforward enough. The case isn’t the most interesting when it comes to the application of the equality test, but I thought I’d highlight the fact that it applies the test normally used in “treating like cases alike” claims in a “treating different cases differently” one.

Vive la Différence!

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!

Difference without Discrimination

The Québec Court of Appeal delivered an important decision last Friday, Droit de la famille ― 139, 2013 QCCA 13, upholding the constitutionality of Québec’s child-support guidelines, despite the fact that their application results, in many cases, in substantially lower child-support awards than that of the federal guidelines which, in one way or another, now apply in the other provinces. The appellants argued that the difference amounted to discrimination contrary to the equality guarantee of s. 15(1) of the Canadian Charter of Rights and Freedoms. At trial, the judge agreed that it did, but held that the infringement of s. 15(1) was justified by s. 1 of the Charter. Now, in a judgment signed by the entire five-judge panel, the Court of Appeal held that there is no s. 15(1) infringement at all.

The reason for the existence of the two separate sets of guidelines is the somewhat messy division of powers over family matters between Parliament and the provincial legislatures. Pursuant to s. 91(26) of the Constitution Act, 1867, Parliament has competence over “marriage and divorce” ― which includes the child-support obligations of divorcing parents. Provinces (in addition to a competence over the “solemnization of marriage” (s. 92(12)), have power over “property and civil rights in the Province” (s. 92(13)), which includes the child-support obligations of parents who are not divorcing because they had never married in the first place. The upshot is that children of never-married couples in every province faced a different legal regime than those of their counter-parts in other provinces and those of divorcing couples in the same provinces. Now my knowledge of family law is very limited indeed, but I don’t suppose any of that would have struck anyone as problematic in 1867, if such questions would even have crossed anyone’s mind at a time when divorce was all but impossible and “bastard” children were very much second class citizens. But while our views of justice in the family realm have changed, the constitutional division of powers hasn’t, so Parliament and the provinces have had to work around it.

The solution they came up with was for Parliament to enact (or rather, to delegate to the Governor-in-council the power to enact) a set of child-support guidelines that would apply in divorce cases, which provinces could make applicable to never-married parents; alternatively, a province could come up with its own set of guidelines, which the federal government would, on some conditions, make applicable in divorce cases in that province. Either way, the legal regime applicable to support obligations for all children in the same province would be the same―but there could be differences between provinces. Most provinces chose the first option, using the federal guidelines for all cases. But Québec opted for the alternative, coming up with its own set of guidelines, which the federal government then made applicable to divorcing parents in Québec. In some ways, Québec’s guidelines were similar to the federal ones, but there were also significant differences in the factors taken into account to determine the amount of child support, often resulting in lower amounts being awarded under the Québec guidelines.

Hence the complaint of discrimination. But not any difference in the way the law treats people or groups amounts to discrimination pursuant to s. 15(1) of the Charter. The difference must be based on one of the grounds (such race, gender, religion, etc.) enumerated in that provision or an “analogous ground” (such as citizenship and sexual orientation). The relationship of the difference complained of and a prohibited ground of discrimination is the central issue in this case.

The appellants argued that they were being discriminated against on the basis of their place of residence (that, Québec as opposed to the rest of the country). But, as the Court of Appeal pointed out, the Supreme Court has always rejected claims that place of residence was an “analogous ground” for the purpose of s. 15(1). Perhaps the most dramatic such case was Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, where the appellant had been prevented from voting in Québec’s referendum on the Charlottetown Accord because he had not lived in the province for 6 months at the time of the vote and in the referendum on the same issue organized by the federal government in the other provinces because he was now living in Québec. The only “exception” to this rule concerned the status of off-reserve Indians, who, as the Supreme Court pointed out, face much more intractable choices than other Canadians when it comes to choosing their place of residence. Theirs is a special situation that does not bear on this case. Furthermore, said the Court of Appeal, in a federal country such as Canada the equality guarantee must be interpreted in light of the federal principle and of the fact that it can result in different legal regimes being applicable to similarly situated persons in different parts of the country. “Thus, differential treatment depending on the province of residence cannot, a priori, be suspect from the standpoint of the right to equality” (par. 62, translation mine). Even when differential treatment results from the application of the same federal statute (rather than from a comparison between the laws of two different provinces), it is not constitutionally suspect.

I think that’s the right decision. Provinces have different needs and different values; they are distinct political communities. The Charter should not become a means of preventing them from making different choices. And, because of the entanglement of federal and provincial responsibilities, which only becomes more complex as society changes and becomes increasingly different from that of 1867, we need co-operative federalism, including federal laws that create, or incorporate by reference to provincial law, different rules for different provinces. The Court of Appeal recognized this reality.

What You Don’t Know

The BC Court of Appeal delivered an important decision this week, holding that the Charter does not protect the right of persons conceived with donor sperm (or egg) to “know their past”―that is, to know the identity and medical and social history of the donors whose biological offspring they are. The decision is Pratten v. British Columbia (Attorney General), 2012 BCCA 480. The plaintiff argued that legislation which allowed people who had been adopted to obtain this information, without making similar provision for “donor offspring” such as the plaintiff, was a violation of her equality rights protected by s. 15(1) of the Charter. She also argued that the “right to know one’s past” was protected by s. 7 of the Charter. The Court of Appeal rejected both these claims.

The ruling has been criticized: over at The Court, Nikita Rathwell blames the s. 7 holding on the courts’ “usual timidity,” while writing in the Globe and Mail, Juliet Guichon, a professor of medicine at the University of Calgary, calls it “an ignoble step backward.” But as a matter of law, I think it is exactly right; indeed, this case demonstrates the limitations of judicial review as a means of changing social policy.

The trial judge found that donor offspring face a number of problems due to not knowing the medical history of their biological parents. It is more difficult and takes longer to diagnose medical conditions from which they suffer. And the gaps in their identity and history cause them anxiety, frustration, and other psychological difficulties. They also “commonly, and legitimately, fear inadvertent consanguinity. ” (par. 17). Their situation is essentially similar to that of adoptees. These findings were not challenged on appeal. The government’s argument was rather that they were not constitutionally problematic.

The first issue is that of s. 15 of the Charter. S. 15, on the one hand, prohibits discrimination on the basis of a number grounds, such as race, age, gender, etc., and other similar ones (subs. 15(1)).  On the other, it explicitly authorizes “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups” (subs. 15(2)). And as the Supreme Court held in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at par. 41,  subs. 15(2) means that

[a] program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.

The parties agreed, as did the Court, at least for the sake of argument, that “manner of conception” of an individual is one of those similar and thus protected grounds. But while the plaintiff contended that allowing adoptees but not donor offspring to access information about their biological parents amounted to discrimination on the basis of their manner of conception, the government argued that the provisions it had made for adoptees were designed to remedy the disadvantages of adoptees, who, as the trial judge found, “ha[d] historically, if not currently, been subject to negative social characterization” (par. 38). The Court accepted this claim; in its view, “[t]he purpose of the impugned provisions is to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents” (par. 37). Under the Kapp test, this is enough to save the law from scrutiny under subs. 15(1). The Supreme Court clarified that test in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  [2011] 2 S.C.R. 670, 2011 SCC 37, holding that subs. 15(2) protected only measures that “in a real sense serve or advance the ameliorative goal” pursued by the government. The plaintiff argued that the distinction between adoptees and donor offspring did not serve such a purpose. But the Court rejected this submission. In its view, the disadvantages the adoptees faced and which the legislature sought to redressed resulted from the change in their legal relationship with the biological and adoptive parents, and the legislation was tailored to address that problem. Since donor offspring did not face it―they never had a legal relationship with their donor biological parents to begin with―their exclusion from the scope of the legislation is justified.

I think that’s the right outcome. There are real differences in the way relationships between adoptees and donor offspring and their biological parents arise and are severed; in particular, the state intervenes in the relationship between the adoptee and his or her biological parents in the way it does not in the relationship of donors with their offspring. It is not obvious that these groups must be treated identically, and s. 15(2), as the Supreme Court held in Cunningham, permits differences in the remedial measures offered to various disadvantaged groups.

The second issue in Pratten was the existence of a “right to know one’s past” under s. 7 of the Charter. The trial court did not accept the plaintiff’s position on this point; nor did the Court of Appeal. The plaintiff argued that s. 7 should be expanded not only to prevent deprivations of life, liberty, or security of the person effected by the state, but also to require the state to provide these benefits―a proposition which the Supreme Court rejected, albeit narrowly, in Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429. The Court refuses to expand s. 7 in this way. It points out that “the right to know one’s past” is not generally regarded as fundamental in Canada. Neither the decisions of Canadian courts nor the interpretations of international conventions to which Canada is a party have recognized such a right. The Court also notes that

the rights in s. 7 are guaranteed to “everyone.”  Accordingly, recognition of what can be called the right “to know one’s past” would have implications reaching well beyond adoptees and donor offspring.  Further, it is pure speculation to suggest that only minimal resources would be needed to give effect to such a right.

The s. 7 claim is rejected.

Rightly so. For one thing, it is not open to the Court of Appeal to disregard Supreme Court precedent as the plaintiff invited it to do. For another, it is indeed difficult to regard a right which neither legislatures nor courts have ever recognized as a general one as fundamental to the workings of the Canadian legal system. And the Court is right to point out that recognizing it as such would extend it to every person however conceived. Exactly how this right could be enforced for the benefit of individuals conceived the natural way, without a medical record, is not clear at all―such enforcement would require invasions of privacy on a scale difficult to imagine. But rights are rights are rights. Which means that they should not be extended lightly.

This case highlights the deficiencies of judicial review as a means to change social policies where multiple interests are at stake. It 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. The donor offspring have good reasons to want to know “their past.” But it may well be that many donors would not have donated sperm or eggs without the benefit of anonymity. Which, of course, would mean that infertile couples would not be able to have children. There are thus at least three groups of citizens―none of them, I should note, so numerous or powerful as to use its strength to dominate the political process at the expense of the others―whose interests must be taken into account and balanced. Legislatures can and ought to do that. Courts cannot, and should not try.