Marriage Drama

A row about civil and religious marriage in Québec is quite unnecessary

In early February, Québec’s Superior Court delivered what should have been a fairly routine judgment dismissing a weak constitutional challenge to provisions of the province’s Civil Code that have usually ― although not always ― been regarded as requiring a person celebrating a marriage to notify the registrar of civil status. Instead, Justice Alary’s decision, Droit de la famille — 16244 has, not unlike some trivial incidents in a couple’s life, sparked a furious row. The row is, as usual, meaningless ― though it can make us reflect on the institution of marriage.

The case before Justice Alary involved a man who objected to the financial consequences of a divorce, and argued that he had been unconstitutionally compelled to enter into a civil as well as a religious marriage. Unbelievers, he said, have the option of simply cohabiting if they do not wish their relationship to have the legal and economic consequences the law attaches to a marriage. People of the “Judeo-Christian faith” (his terminology) lack that option, as their religion requires them to get married in order to live together. So the legal consequences of a marriage are, in his view, an infringement of the believers’ freedom of religion and of their equality rights. They should have the option of getting married religiously without incurring the legal consequences of a civil marriage.

Justice Alary easily dismissed this argument. She held that while the plaintiff’s belief that he had to be (religiously) married to cohabit with his (formerly) beloved was sincere, he had not shown that the state had interfered with this belief.  “The impugned provisions,” she observed, “certainly [did] not prevent [him] from holding beliefs having a nexus with religion. Nor did they prevent him from ‘engaging in a practice’ having to do with religion, that is to say, from getting married.” [45; translation mine] Indeed, the reason for the plaintiff’s objections is not so much his faith as his economic assessment of the family law regime. As a result, there is no infringement of freedom of religion. Subsequently, Justice Alary also finds that there is no infringement of equality rights.

This strikes me as quite obviously correct. When the law forces a person to do something that his or her religion prohibits, or prohibits him or her from doing something religion requires, that person’s religious freedom is infringed. But nothing of the sort is happening here. As Justice Alary notes, neither the plaintiff or anyone else is prevented from entering into a religious marriage. Nor is anyone required to do so. What’s happening here is that the law attaches some (unpleasant) consequences to the plaintiff’s choice to do something ― namely, to get married. This choice is religiously determined, to be sure, but I don’t think that law can take notice of that, any more than it could take notice of the fact others might get married simply because their prospective spouse pressures them to do so and they feel that they have no meaningful choice. The law simply does not look into people’s reasons for getting married. The plaintiff’s argument is identical to a religious person’s claim to a tax rebate on the ground that he or she is required, by his or her faith, to spend money on charity or tithes while non-believers need not do so. The believer chooses to comply with religious obligations, and has to live with the civil consequences of that decision.

Perhaps unfortunately, Justice Alary was not content with this conclusion. She went further and, in an obiter, opined that a religious officer who celebrates a religious marriage need not perform a simultaneous civil ceremony and notify the registrar of civil status. A religious marriage can be purely religious ― without civil consequences. It is this obiter that provoked ― about a month after the decision was published! ― furious reactions in large sections of Québec’s legal community, which saw it as exposing women and children to detrimental consequences. Some are even calling for the notwithstanding clause of the Canadian Charter of Rights and Freedoms and its provincial equivalent to be invoked to defend “Québec’s family law” and the “collective values of Québec’s society” (translation mine).

I find these reactions perplexing. Religious marriages without civil consequences are not exactly a shocking, unheard-of thing. As Yves Boisvert pointed out in a (somewhat flippant, but fundamentally correct) column in La Presse, there are all manner of religious groups in Québec. Some of them may perform marriage ceremonies that do not comport with the Québec Civil Code’s requirements for authorizing religious officers to perform civil marriages, and these ceremonies will, then, result in religious marriages without civil consequences. Before same-sex marriage was recognized by law, some religious groups blessed same-sex unions. (Indeed, one such group was a plaintiff in the case of Halpern v. Canada (Attorney general), in which the Court of Appeal for Ontario struck down the opposite-sex definition of marriage.) Such marriages also could not have any civil consequences. As Anne-Marie Savard asks in a thoughtful post over at À qui de droit, “why must we regard this possibility as nothing more than a way for men to avoid their civil obligations,” (Translation mine) rather than a way for couples to organize their own affairs as they wish? As for calls for the notwithstanding clause to be invoked, they simply ignore the fact that Justice Alary found no infringement of freedom of religion. It is difficult to avoid the impression that the issue is simply being used, the facts be damned, by a cadre of nationalist jurists who seek for other reasons to break the existing taboos on the resort to the notwithstanding clause.

All that said, we can take the occasion for reflecting on the relationship between state, religion, and marriage. To me at least, it illustrates the folly of entangling the state in intimate relationships between men, women, and God (not all three being necessarily involved, of course). Why exactly do we need to attach civil consequences to marriage ― the sacrement, the ceremony that is? If it is the case that intimate relationships or cohabitation invariably produce unique dependency and require legal protections for their vulnerable members, then these protections should attach to cohabitation ― as indeed they already do in every province other than Québec. If this it is not the case that people involved in such relationships are incapable of meaningful choice, as Québec believes, then they should be free to contract into, or perhaps out of, an optional legal regime based on cohabitation. (For what it’s worth, I prefer the Québec position, but that doesn’t really matter now.) Either way, there is no need, and no reason, to attach civil consequences to a ceremony, whatever its name, and whether performed by a civil servant or a religious officer. If people believe that God attaches importance to a ceremony, that’s their right of course. But civil marriage simply has no raison d’être.

Attempts to point out to parties to a family row that they are fighting over trifles and should stand down seldom end well. I don’t suppose that my own belated intervention in this debate is going to change anything. Still, I thought that it was important take a calm look into what is going on.

NOTE: My apologies for the lack of posting in the last few weeks. I do have something to show for it though. More on that in a few days, hopefully.

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.

Vies Communes

Il y a quelques jours, je parlais des promesses que l’État peut ou ne peut pas exiger de gens à l’occasion de leur mariage. Cependant, dans les faits, les provinces de common law n’exigent pas que les gens qui se marient civilement promettent quoi que ce soit au sujet de leur vie future. Le Québec, lui non plus, n’exige pas de promesses ― il impose tout simplement les règles. Suivant l’alinéa 1 de l’article 374 du Code civil, « [l]e célébrant [d’un mariage] fait lecture aux futurs époux, en présence des témoins, des dispositions des articles 392 à 396 », qui réglementent « les droits et les devoirs des époux ». Or, il y a lieu, selon moi, de se demander si ces règles sont constitutionnelles.

C’est l’article 392 du Code civil qui est probablement le plus important ici, les suivants en étant, en partie, une sorte d’élaboration. Cet article dispose que

Les époux ont, en mariage, les mêmes droits et les mêmes obligations.

Ils se doivent mutuellement respect, fidélité, secours et assistance.

Ils sont tenus de faire vie commune.

Si le législateur avait sans doute le pouvoir d’adopter le premier alinéa, qui met en oeuvre, dans le contexte du régime juridique du mariage, le droit à l’égalité garanti par la constitution, les deuxième et troisième alinéas me semblent plus douteux.

Ainsi, il me semble qu’imposer un devoir de « respect » heurte le droit à la liberté de la pensée et d’opinion protégé par l’article 2(b) de la Charte canadienne des droits et libertés. Le gouvernement pourrait certes tenter de justifier cette atteinte en vertu de l’article premier de la Charte, au nom de quelque chose comme la promotion de l’harmonie familiale, mais je ne suis pas sûr qu’un objectif aussi vague justifie le contrôle non seulement d’actes, mais aussi de la pensée des individus.

L’imposition d’un devoir de fidélité me semble aussi constitutionnellement douteuse, comme je l’ai dit dans mon précédent billet.  Le droit à la liberté protégé par l’article 7 de la Charte ne s’étend pas seulement à la liberté physique. Comme l’a conclu la Cour suprême dans Blencoe c. Colombie-Britannique (Human Rights Commission), 2000 CSC 44, [2000] 2 R.C.S. 307, au par. 49, il « est en cause lorsque des contraintes ou des interdictions de l’État influent sur les choix importants et fondamentaux qu’une personne peut faire dans sa vie ». Comme l’explique la Cour suprême dans les paragraphes suivants, ces choix importants et fondamentaux incluent, par exemple, l’éducation et les soins que les parents donnent à leurs enfants, la décision d’une femme d’avorter (une position d’abord défendue par la seule juge Wilson dans R. c. Morgentaler, [1988] 1 R.C.S. 30) ou même le choix de « flâner » dans un certain lieu. Il me semble plutôt évident que les choix qu’une personne fait dans sa vie sexuelle et amoureuse en font également partie, et que, par conséquent, l’imposition d’un devoir de fidélité porte atteinte à l’article 7 de la Charte. Comme de telles atteintes ne sont pratiquement jamais justifiables en vertu de l’article premier, elle est inconstitutionnelle.

Il en va de même, selon moi, de l’obligation « de faire vie commune » imposée par le 3e alinéa de l’article 392 du Code civil. L’expression « vie commune » pourrait peut-être avoir un sens abstrait aussi bien que concret, mais le texte anglais de cette disposition (« [the spouses] are bound to live together ») et peut-être aussi la référence au choix commun de la résidence familiale à l’article 395 me semblent indiquer que c’est bien le second que le législateur lui donne. (En pratique, cette disposition semble surtout être invoquée comme motif de nullité de mariage par lesquels un des époux visait, à l’insu de l’autre, d’acquérir le statut de résident permanent au Canada, un contexte qui ne nous renseigne pas nécessairement sur son sens précis.) Or, l’État peut-il forcer des personnes de « faire vie commune », c’est-à-dire de vivre ensemble? Encore une fois, il me semble qu’il s’agit d’un de ces choix importants, fondamentaux et personnels avec lesquels il ne peut interférer. Un arrêt de la Cour suprême, Godbout c. Longueuil (Ville)[1997] 3 R.C.S. 844, est pertinent ici. La Cour y a conclu à l’invalidité d’un règlement qui obligeait les fonctionnaires de Longueuil à résider dans la municipalité. La Cour a unanimement conclu que le règlement violait l’article 5 de la Charte des droits et libertés de la personne (qui s’applique évidemment au Code civil), qui protège le droit à la vie privée. Trois juges ont également conclu que le règlement violait l’article 7 de la Charte canadienne (les autres ont préféré ne pas se prononcer sur la question). La question n’est pas tout à fait identique, mais je crois que si l’État ne peut dicter à un fonctionnaire vivre, il ne devrait pas pouvoir dicter à des citoyens qu’il doivent vivre avec leur époux. Certes, la grande majorité des couples mariés choisira de vivre ensemble. Cependant, les circonstances personnelles peuvent varier, surtout dans ce monde où les gens doivent souvent se déplacer pour le travail ou les études. Le législateur n’a aucun droit de regard sur les choix que font les gens dans ce contexte.

Ce qui me semble être l’inconstitutionnalité plutôt claire de certaines obligations imposées par le Code civil au époux illustre le que, si le droit est souvent, et à juste titre, le reflet des pratiques courantes de la société, il ne peut l’être toujours. On ne peut toujours ériger la normalité (entendue dans un sens sociologique, mathématique, de la pratique du plus grand nombre) en norme. Il ne faut pas régler la vie commune sur les vies communes.

Ask Not

I have written more than enough about the oath of allegiance to Queen that would-be Canadian citizens have to take, but I have thought of an analogy that I like and which just might help us think the matter through. The Canadian citizenship is like marriage ― not necessarily in some romantic or esoteric way, though there is perhaps that too ― but in that it is a legal status into which anyone who fulfills some conditions prescribed by law is entitled to enter upon making a solemn, public statement before an official. For citizenship, the statement in question is the oath of allegiance. For marriage, it is the exchange of vows. The text of both the oath and the vows (for civil marriage) is prescribed by statute.

So let’s assume that the vows prescribed for civil marriage include a promise of fidelity, as the vows prescribed for religious marriages do. And imagine a couple of swingers who want to get married ― but keep their swinging lifestyle. The state tells them they must promise to be faithful to each other ― otherwise, no marriage. Would they be justified in challenging the constitutionality of the vows the state imposes on them, arguing that they could not in good conscience keep their preferred lifestyle after making such vows? (I am assuming that swinging in itself would be constitutionally protected by the liberty guarantee of s. 7 of the Charter ― just as “loitering” is: see R. v. Heywood, [1994] 3 S.C.R. 761.) Some might say that the vows of fidelity, properly understood, do not preclude a swinging lifestyle with the consent of the other spouse. But, as I explained yesterday, the Supreme Court has held that courts must respect people’s understandings of their conscientious duties. That holding, in Syndicat Northcrest v. Amselem2004 SCC 47, [2004] 2 S.C.R. 551, was in a religious context, but I’m not sure that there ought to be a difference here. What we are talking about is a solemn vow, not just a business contract (for which a court can impose its own interpretation on a party). I, for one, would be inclined to think that the such a constitutional challenge should succeed.

Now as it happens, the solemn statement required of a party to a civil marriage in a Canadian province contains no promise of fidelity or indeed any other vow. (Ontario’s, which seems fairly typical of common law provinces, only says “I do solemnly declare that I do not know of any lawful impediment why I, AB, may not be joined in matrimony to CD.”) I know very little about family law, so I have no idea whether there is a particular reason why, unlike the religious vows, this statement does not contain any promises, but perhaps this is for the reason I am trying to get at with my analogy: the state should not extract any promises from citizens, beyond of course a standing undertaking to keep the law. Since there is no law against swinging or adultery (and if there were, such a law would surely be unconstitutional), the state would not be justified in demanding that people forbear from it as a condition for acquiring a status that is otherwise open to them.

I think it is the same for citizenship. Since not feeling “true allegiance” to the monarchy is not against the law, the state should not be imposing it as a condition for acquiring it. Whether or not you like swingers and republicans, there are things you ought not to be demanding of them.

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.

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!