Egan v. Canada

Egan v. Canada
Collection
Supreme Court Judgments
Date
1995-05-25
Report
[1995] 2 SCR 513
Case number
23636
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 23636
Decision Content
[1995] 2 S.C.R. Egan v. Canada 513
Version with page numbers (details) James Egan and John Norris Nesbit Appellants
v.
Her Majesty The Queen in Right of Canada Respondent
and
The Attorney General of Quebec, the Canadian Human
Rights Commission, the Commission des droits
de la personne du Québec, Equality for
Gays and Lesbians Everywhere, Metropolitan
Community Church of Toronto, Inter-Faith
Coalition on Marriage and the Family and the
Canadian Labour Congress Interveners
Indexed as: Egan v. Canada
File No.: 23636.
1994: November 1; 1995: May 25.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Equality rights -- Old age security legislation providing for allowance for spouse of pensioner -- Definition of "spouse" restricted to person of opposite sex -- Whether definition of "spouse" infringes s. 15(1) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- Old Age Security Act, R.S.C., 1985, c. O-9, ss. 2 , 19(1) .
The appellants are homosexuals who have lived together since 1948 in a relationship marked by commitment and interdependence similar to that which one expects to find in a marriage. When E became 65 in 1986, he began to receive old age security and guaranteed income supplements under the Old Age Security Act . On reaching age 60, N applied for a spousal allowance under s. 19(1) of the Act, which is available to
page 514
spouses between the ages of 60 and 65 whose combined income falls below a fixed level. His application was rejected on the basis that the relationship between N and E did not fall within the definition of "spouse" in s. 2 , which includes "a person of the opposite sex who is living with that person, having lived with that person for at least one year, if the two persons have publicly represented themselves as husband and wife". The appellants brought an action in the Federal Court seeking a declaration that the definition contravenes s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that it discriminates on the basis of sexual orientation and a declaration that the definition should be extended to include "partners in same-sex relationships otherwise akin to a conjugal relationship". The Trial Division dismissed the action. The Federal Court of Appeal, in a majority decision, upheld the judgment.
Held (L'Heureux-Dubé, Cory, McLachlin and Iacobucci JJ. dissenting): The appeal should be dismissed. The definition of "spouse" in s. 2 of the Old Age Security Act is constitutional.
Per Lamer C.J. and La Forest, Gonthier and Major JJ.: The analysis under s. 15 of the Charter involves three steps: the first looks to whether the law has drawn a distinction between the claimant and others; the second questions whether the distinction results in disadvantage, and examines whether the impugned legislation imposes a burden, obligation or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit which it grants others; the third step assesses whether the distinction is based on an irrelevant personal characteristic which is either enumerated in s. 15(1) or one analogous thereto. The first step is satisfied in this case, since Parliament has clearly made a distinction between the claimant and others. The second step is also satisfied: while it may be true that the appellants have suffered no prejudice because by being treated as individuals they have received considerably more in combined federal and provincial benefits than they would have received had they been treated as "spouses", there is nothing to show that this is generally the case with homosexual couples. Sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds. All that remains to be considered under the third step is whether the distinction made by Parliament is relevant. In assessing relevancy
page 515
for this purpose one must look at the nature of the personal characteristic and its relevancy to the functional values underlying the law. A form of comparative analysis must be undertaken to determine whether particular facts give rise to inequality. This comparative analysis must be linked to an examination of the larger context, and in particular with an understanding that the Charter was not enacted in a vacuum, but must be placed in its proper linguistic, philosophic and historical contexts.
The singling out of legally married and common law couples as the recipients of benefits necessarily excludes all sorts of other couples living together, whatever reasons these other couples may have for doing so and whatever their sexual orientation. What Parliament clearly had in mind was to accord support to married couples who were aged and elderly, for the advancement of public policy central to society. Moreover, in recognition of changing social realities, s. 2 was amended so that whenever the term "spouse" was used in the Act it was to be construed to extend beyond legal married couples to couples in a common law marriage. Marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions. But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.
Many of the underlying concerns that justify Parliament's support and protection of legal marriage extend to heterosexual couples who are not legally married. Many of these couples live together indefinitely, bring forth children and care for them in response to familial instincts rooted in the human psyche. These couples have need for support just as legally married couples do in performing this critical task, which is of benefit to all society. Faced with the social reality that increasing numbers choose not to enter a legal marriage but live together in a common law relationship, Parliament has
page 516
elected to support these relationships. Parliament is wholly justified in extending support to heterosexual couples like this, which is not to say, however, that it is obligated to do so and may not treat married and unmarried couples differently.
Neither in its purpose nor in its effect does the legislation constitute an infringement of the fundamental values sought to be protected by the Charter . None of the couples excluded from benefits under the Act are capable of meeting the fundamental social objectives thereby sought to be promoted by Parliament. While these couples undoubtedly provide mutual support for one another, and may occasionally adopt or bring up children, this is exceptional and in no way affects the general picture. Homosexual couples differ from other excluded couples in that their relationships include a sexual aspect, but this sexual aspect has nothing to do with the social objectives for which Parliament affords a measure of support to married couples and those who live in a common law relationship. The distinction adopted by Parliament is relevant here to describe a fundamental social unit to which some measure of support is given.
The impugned legislation, even had it infringed s. 15 , would have been upheld for the reasons given in McKinney v. University of Guelph and for those mentioned in the discussion of discrimination in this case.
Per Sopinka J.: The impugned legislation infringes s. 15(1) of the Charter , for the reasons given by Cory J. Such infringement, however, is saved under s. 1 . Government must be accorded some flexibility in extending social benefits and does not have to be pro-active in recognizing new social relationships. It is not realistic for the Court to assume that there are unlimited funds to address the needs of all. A judicial approach on this basis would tend to make a government reluctant to create any new social benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) . This Court has recognized that it is legitimate for the government to make choices between disadvantaged groups and that it must be provided with some leeway to do so. When the definition of "spouse" in the Old Age Security Act is measured against overall objectives of alleviation of poverty of elderly spouses, it should not be judged on the basis that Parliament has made this choice for all time. The history of the legislation shows an evolving expansion of the definition of the intended recipients of the benefits. The Attorney General of Canada has taken the
page 517
position that the means chosen does not have to be necessarily the solution for all time. Hence, since the impugned legislation can be regarded as a substantial step in an incremental approach to include all those who are shown to be in serious need of financial assistance due to the retirement or death of a supporting spouse, it is rationally connected to the objective. With respect to minimal impairment, the legislation represents the kind of socio-economic question in respect of which the government is required to mediate between competing groups rather than being the protagonist of an individual. In these circumstances, the Court will be more reluctant to second-guess the choice which Parliament has made. There is also proportionality between the effects of the legislation on the protected right and the legislative objective. The proper balance was struck by Parliament in providing financial assistance to those who were shown to be in the greatest need of assistance.
Per Cory and Iacobucci JJ. (dissenting): In determining whether a s. 15(1) right to equality has been violated, the first step is to determine whether, owing to a distinction created by the questioned law, a claimant's right to equality has been denied. During this first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics. The second step is to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others. Any search for either equality or discrimination requires comparisons to be made between groups of people. Whether or not discrimination exists must be assessed in a larger social, political and legal context. The resolution of the question as to whether there is discrimination under s. 15(1) must be kept distinct from the determination as to whether or not there is justification for that discrimination under s. 1 of the Charter . This analytical separation between s. 15(1) and s. 1 is important since the Charter claimant must satisfy the onus of showing only that there exists in the legislation a distinction which is discriminatory. Only after the court
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finds a breach of s. 15(1) does the government bear the onus of justifying that discrimination.
Since the law challenged draws a clear distinction between opposite-sex couples and same-sex couples, this case presents a situation of direct discrimination. As a result of the definition of a common law spouse as a "person of the opposite sex", homosexual common law couples are denied the benefit of the spousal allowance which is available to heterosexual common law couples. This distinction amounts to a clear denial of equal benefit of the law. In addition to being denied an economic benefit, homosexual couples are denied the opportunity to make a choice as to whether they wish to be publicly recognized as a common law couple because of the definition of "spouse" set out in the Old Age Security Act . The public recognition and acceptance of homosexuals as a couple may be of tremendous importance to them and to the society in which they live. To deny homosexual couples the right to make that choice deprives them of the equal benefit of the law.
The distinction in the Act is based on a personal characteristic, namely sexual orientation. Sexual orientation is analogous to the grounds of discrimination enumerated in s. 15(1) . The historic disadvantage suffered by homosexual persons has been widely recognized and documented. Sexual orientation is more than simply a "status" that an individual possesses: it is something that is demonstrated in an individual's conduct by the choice of a partner. Just as the Charter protects religious beliefs and religious practice as aspects of religious freedom, so too should it be recognized that sexual orientation encompasses aspects of "status" and "conduct" and that both should receive protection.
The distinction drawn by s. 2 of the Old Age Security Act on the basis of sexual orientation constitutes discrimination. The legislation denies homosexual couples equal benefit of the law not on the basis of merit or need, but solely on the basis of sexual orientation. The definition of "spouse" as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same manner as heterosexual couples. The appellants' relationship vividly demonstrates the error of that approach. The discriminatory impact cannot be deemed to be
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trivial when the legislation reinforces prejudicial attitudes based on such faulty stereotypes.
The impugned legislation is not saved under s. 1 of the Charter . While the objective of the spousal allowance, which is geared toward the mitigation of poverty among "elderly households", is of pressing and substantial importance, the allowance in its present form is not rationally connected to its legislative goals. A program which included the appellants would better achieve the intended goal while respecting the Charter rights of gays and lesbians. Nor is the denial of the appellants' s. 15 rights through the ineligibility for receipt of the spousal allowance minimally impaired simply because the appellants' joint income would have roughly been the same because of N's receipt of provincial support supplementing his income for a completely unrelated reason. The provincial and federal programs are clearly not co-extensive, and even if they were part of the same overlapping legislative scheme, this is not sufficient to ground a s. 1 justification. Finally, the attainment of the legislative goal is outweighed by the abridgment of the right in this case. The importance of providing relief to some elderly couples does not justify an infringement of the equality rights of the elderly couples who do not benefit for constitutionally irrelevant reasons. The definition of "spouse" in s. 2 of the Act should be read down by deleting the words "of the opposite sex" and reading in the words "or as an analogous relationship" after the words "if the two persons publicly represented themselves as husband and wife".
Per L'Heureux-Dubé J. (dissenting): A return to the fundamental purpose of s. 15 of the Charter is necessary in order to reconcile the divergent approaches taken by this Court in recent jurisprudence, as well as in the present case and in Miron and Thibaudeau. At the heart of s. 15 is the protection of, and respect for, basic human dignity. "Discrimination" must therefore be at the forefront of the court's analysis. In order for discrimination to be addressed and identified in all of its varied contexts and forms, it is preferable to focus on impact (i.e. discriminatory effect) rather than on constituent elements (i.e. the grounds of the distinction). Discriminatory effects must, moreover, be evaluated from the point of view of the victim, rather than from that of the state. Considerations of relevance are more properly viewed
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as justifications under s. 1 than as factors integral to the identification of discrimination in the first place.
The following factors must be established by a rights claimant before the impugned distinction will be found to be discriminatory within the meaning of s. 15 of the Charter : (1) there must be a legislative distinction; (2) this distinction must result in a denial of one of the four equality rights on the basis of the rights claimant's membership in an identifiable group; and (3) this distinction must be "discriminatory" within the meaning of s. 15 . A distinction is discriminatory within the meaning of s. 15 where it is capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration. The absence or presence of discriminatory impact should be assessed according to a subjective-objective standard -- the reasonably held view of one who is possessed of similar characteristics, under similar circumstances, and who is dispassionate and fully apprised of the circumstances. This determination is arrived at by considering two categories of factors: (1) the nature of the group adversely affected by the impugned distinction, and (2) the nature of the interest adversely affected by the impugned distinction. With respect to the first category, groups that are more socially vulnerable will experience the adverse effects of a legislative distinction more vividly than if the same distinction were directed at a group which is not similarly vulnerable. In evaluating the nature of the group affected by the impugned distinction, it is relevant to inquire into many of the criteria traditionally employed in the Andrews analysis, such as whether the impugned distinction is based upon fundamental attributes that are generally considered to be essential to our popular conception of `personhood' or `humanness', whether the adversely affected group is already a victim of historical disadvantage, whether this distinction is reasonably capable of aggravating or perpetuating that disadvantage, whether group members are currently vulnerable to stereotyping, social prejudice and/or marginalization, and whether this distinction exposes them to the reasonable possibility of future vulnerability of this kind. Membership in a "discrete and insular minority", lacking in political power and thus vulnerable to having its interests overlooked, is another consideration that may be taken into account. The absence or presence of some of these factors will not, however, be determinative of the analysis. However, awareness of, and sensitivity to, the realities of those experiencing the distinction is an
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important task that judges must undertake when evaluating the impact of the distinction on members of the affected group.
Similarly, the more fundamental the interest affected or the more serious the consequences of the distinction, the more likely that the impugned distinction will have a discriminatory impact even with respect to groups that occupy a position of advantage in our society. While the Charter is not a document of economic rights and freedoms, the nature, quantum and context of an economic prejudice or denial of such a benefit are important factors in determining whether the distinction from which the differing economic consequences flow is one which is discriminatory. The discriminatory calibre of a particular distinction cannot, however, be fully appreciated without also evaluating the constitutional and societal significance of the interests adversely affected. Tangible economic consequences are but one manifestation of the more intangible and invidious harms flowing from discrimination, which the Charter seeks to root out. In other cases, the prejudice will be to an important individual interest rather than to one that is economic in nature. Both categories of factors emphasize that it is no longer the "grounds" of the distinction that are dispositive of the question of whether discrimination exists, but rather the social context of the distinction that matters. An effects-based approach to discrimination is the logical next step in the evolution of s. 15 jurisprudence since Andrews.
Homosexual couples are denied the equal benefit of the law on the basis of the legislative distinction in s. 2 of the Old Age Security Act , which defines couples as relationships of "opposite sex". That the appellants are able to claim higher benefits as separate individuals does not alter the fact that they have been denied the benefits, both tangible and intangible, of filing for old age benefits as a couple. The impugned distinction excludes the rights claimants because they are homosexual. Consideration of both the nature of the group and the interest affected leads us to conclude that the distinction is discriminatory. Same-sex couples are a highly socially vulnerable group, in that they have suffered considerable historical disadvantage, stereotyping, marginalization and stigmatization within Canadian society. The distinction relates to a fundamental aspect of personhood and affects individuals who, in addition to being homosexuals, are also elderly and poor. Turning to the interest affected, the impugned legislation is a cornerstone in Canada's social security net, which is, in
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turn, a cherished and fundamental institution in our society.
The violation of s. 15(1) of the Charter cannot be salvaged by s. 1 , as it is not relevant to a proportionate extent to a pressing and substantial objective. While the objective of the legislation is pressing and substantial, the means chosen to achieve this objective fails all three branches of the proportionality test. The legislation excludes couples who would fill all of the other criteria in the Act except the requirement that they are of the opposite sex. To find that this distinction is rationally connected to the objective of the legislation requires us to conclude that same-sex couples are so different from married couples that it would be unreasonable to make the same benefits available to both. At best, the government has only demonstrated that this is its assumption. The presumption that same-sex relationships are somehow less interdependent than opposite-sex relationships is, itself, a fruit of stereotype rather than one of demonstrable, empirical reality. Nor is s. 15 minimally impaired. A reasonable alternative remedy is available: the discriminatory effect would be eliminated without prejudice to the rights or interests of any other group by extending coverage to same-sex couples who otherwise fulfil all of the other non-discriminatory criteria required in the Act. Deference under this branch of the s. 1 test is not appropriate when there is a reasonable alternative that is readily available, that is not the subject of conflicting social science views, and that could not result in a concomitant prejudice to another group. Finally, the deleterious effects of the impugned distinction outweigh its salutary effects.
Per McLachlin J. (dissenting): The reasons of Cory and Iacobucci JJ. were substantially agreed with. On the basis of the principles outlined in Miron v. Trudel, released concurrently, the impugned legislation infringes s. 15(1) of the Charter and the infringement is not saved under s. 1 .
Cases Cited
By La Forest J.
Referred to: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Miron v. Trudel, [1995] 2 S.C.R. 418; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Symes v. Canada, [1993] 4 S.C.R. 695; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Big M
page 523
Drug Mart Ltd., [1985] 1 S.C.R. 295; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Mahe v. Alta. (Gov't) (1987), 54 Alta. L.R. (2d) 212.
By Sopinka J.
Referred to: McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
By Cory and Iacobucci JJ. (dissenting)
R. v. Oakes, [1986] 1 S.C.R. 103; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; Symes v. Canada, [1993] 4 S.C.R. 695; Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Schachter v. Canada, [1992] 2 S.C.R. 679; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; R. v. Swain, [1991] 1 S.C.R. 933; Douglas v. Canada (1992), 58 F.T.R. 147; Haig v. Canada (1991), 5 O.R. (3d) 245 (Gen. Div.), aff'd (1992), 9 O.R. (3d) 495 (C.A.); Vriend v. Alberta (1994), 152 A.R. 1; Veysey v. Canada (Correctional Service) (1989), 44 C.R.R. 364; Brown v. British Columbia (Minister of Health) (1990), 42 B.C.L.R. (2d) 294; Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356; Leshner v. Ontario (1992), 16 C.H.R.R. D/184; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; R. v. Hess, [1990] 2 S.C.R. 906; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
By L'Heureux-Dubé J. (dissenting)
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Miron v. Trudel, [1995] 2 S.C.R. 418; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Turpin, [1989] 1 S.C.R. 1296; Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; R. v. Généreux, [1992] 1 S.C.R. 259; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; R. v. Hess, [1990] 2 S.C.R. 906; Schachtschneider v. Canada, [1994] 1 F.C. 40; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Symes v.
page 524
Canada, [1993] 4 S.C.R. 695; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Schachter v. Canada, [1992] 2 S.C.R. 679.
By McLachlin J. (dissenting)
Miron v. Trudel, [1995] 2 S.C.R. 418.
Statutes and Regulations Cited
B.C. Reg. 479/76, ss. 3(2), 10.
Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Constitution Act, 1982, s. 52(1) .
Guaranteed Available Income for Need Act, R.S.B.C. 1979, c. 158, s. 8.
N.B. Reg. 82-227.
Old Age Security Act, R.S.C. 1970, c. O-6, s. 2 [am. 1974-75-76, c. 58, s. 1].
Old Age Security Act, R.S.C., 1985, c. O-9, ss. 2 [am. c. 34 (1st Supp.), s.1 ], 19.
Resolution on Equal Rights for Homosexuals and Lesbians in the European Community, European Parliament, A3-0028/94.
Saskatchewan Assistance Act, R.S.S. 1978, c. S-8.
Sask. Reg. 78/66.
Social Welfare Act, R.S.N.B. 1973, c. S-11.
Welfare Assistance Act, R.S.P.E.I. 1988, c. W-3.
Welfare Assistance Act Regulations, EC746/84.
Authors Cited
Abella, Rosalie Silberman. Report of the Commission on Equality in Employment. Ottawa: Supply and Services Canada, 1984.
Bayefsky, Anne F. "A Case Comment on the First Three Equality Rights Cases Under the Canadian Charter of Rights and Freedoms : Andrews, Workers' Compensation Reference, Turpin" (1990), 1 Supreme Court L.R. (2d) 503.
Canada. House of Commons. Standing Committee on Health, Welfare and Social Affairs. Minutes of Proceedings and Evidence, June 12, 1975, p. 25:7.
Canada. House of Commons. Sub-Committee on Equality Rights. Equality For All: Report of the Parliamentary Committee on Equality Rights. Ottawa: Queen's Printer, 1985.
Duclos, Nitya. "An Argument for Legal Recognition of Same Sex Marriage". In Carol Rogerson, Family Law Cases and Materials 1991-92, vol. I. Faculty of Law, University of Toronto.
page 525
Eichler, Margrit. Families in Canada Today: Recent Changes and Their Policy Consequences, 2nd ed. Toronto: Gage, 1988.
Gibson, Dale. "Analogous Grounds of Discrimination Under the Canadian Charter : Too Much Ado About Next to Nothing" (1991), 29 Alta. L. Rev. 772.
Gibson, Dale. "Equality for Some" (1991), 40 U.N.B.L.J. 2.
Gibson, Dale. The Law of the Charter: Equality Rights. Toronto: Carswell, 1990.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.
House of Commons Debates, vol. I, 1st Sess., 31st Parl., October 22, 1979, p. 476.
Iyer, Nitya. "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1993), 19 Queen's L.J. 179.
Lepofsky, M. David. "The Canadian Judicial Approach to Equality Rights: Freedom Ride or Rollercoaster?" (1992), 1 N.J.C.L. 315.
Petersen, Cynthia. "A Queer Response to Bashing: Legislating Against Hate" (1991), 16 Queen's L.J. 237.
Québec. Commission des droits de la personne. Comité de consultation. De l'illégalité à l'égalité: Rapport de la consultation publique sur la violence et la discrimination envers les gais et lesbiennes. Montréal: La Commission, 1994.
Smith, C. Lynn. "Judicial Interpretation of Equality Rights Under the Canadian Charter of Rights and Freedoms : Some Clear and Present Dangers" (1988), 23 U.B.C. L. Rev. 65.
Smith, Carolyn Gibson. "Proud but Cautious": Homophobic Abuse and Discrimination in Nova Scotia. Nova Scotia Public Interest Research Group, July 1994.
Vanier Institute of the Family. Profiling Canada's Families. Ottawa: Vanier Institute of the Family, 1994.
APPEAL from a judgment of the Federal Court of Appeal, [1993] 3 F.C. 401, 103 D.L.R. (4th) 336, 15 C.R.R. (2d) 310, 153 N.R. 161, affirming a judgment of the Federal Court, Trial Division, [1992] 1 F.C. 687, 87 D.L.R. (4th) 320, 38 R.F.L. (3d) 294, 47 F.T.R. 305, dismissing the appellants' claim. Appeal dismissed, L'Heureux-Dubé, Cory, McLachlin and Iacobucci JJ. dissenting.
Joseph J. Arvay, Q.C., and Leah Greathead, for the appellants.
page 526
H. J. Wruck, Q.C., F. E. Campbell, Q.C., and L. M. Hitch, for the respondent.
Madeleine Aubé, for the intervener the Attorney General of Quebec.
William F. Pentney and J. Helen Beck, for the intervener the Canadian Human Rights Commission.
Hélène Tessier, for the intervener the Commission des droits de la personne du Québec.
Cynthia Petersen, for the intervener Equality for Gays and Lesbians Everywhere.
Charles M. Campbell and Susan Ursel, for the intervener Metropolitan Community Church of Toronto.
Peter R. Jervis and Iain T. Benson, for the intervener Inter-Faith Coalition on Marriage and the Family.
Steven Barrett and Vanessa Payne, for the intervener the Canadian Labour Congress.
The reasons of Lamer C.J. and La Forest, Gonthier and Major JJ. were delivered by
LA FOREST J. -- This appeal concerns the constitutionality of ss. 2 and 19(1) of the Old Age Security Act, R.S.C., 1985, c. O-9 , which accord to spouses of pensioners under the Act whose income falls below a stipulated amount, an allowance when they reach the age of 60, payable until they themselves become pensioners at age 65. The appellants maintain these provisions violate s. 15 of the Canadian Charter of Rights and Freedoms as discriminating against persons living in a homosexual relationship because the effect of the definition of "spouse" in s. 2 is to restrict the allowances to spouses in a heterosexual union, i.e. those who are legally married or who live in a common law relationship.
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My colleague, Justice Cory, has set forth the facts and judicial history as well as the applicable constitutional and statutory provisions. It will be sufficient for me, then, to refer only to such of this material as may be essential to an understanding of what follows.
The provision providing for the payment of the allowance is s. 19(1) , which reads as follows:
19. (1) Subject to this Act and the regulations, for each month in any fiscal year, a spouse's allowance may be paid to the spouse of a pensioner if the spouse
(a) is not separated from the pensioner;
(b) has attained sixty years of age but has not attained sixty-five years of age; and
(c) has resided in Canada after attaining eighteen years of age and prior to the day on which the spouse's application is approved for an aggregate period of at least ten years and, where that aggregate period is less than twenty years, was resident in Canada on the day preceding the day on which the spouse's application is approved.
That provision, without more, would be confined -- as the term "spouse" had been interpreted in the Act before the original enactment of s. 19(1) in 1975 -- to spouses in a legal marriage. At the time of the enactment of s. 19(1) , however, s. 2 of the Act was amended to define the term "spouse" for the purposes of the Act to include common law spouses described in the definition. The definition reads:
2. In this Act,
. . .
"spouse", in relation to any person, includes a person of the opposite sex who is living with that person, having lived with that person for at least one year, if the two persons have publicly represented themselves as husband and wife;
The effect of this new definition was to extend the allowances to spouses living in a common law relationship as well as those in a legal marriage.
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The appellants, James Egan and John Norris Nesbit, are homosexuals who have since 1948 lived together in a relationship marked by commitment and interdependence similar to that which one expects to find in a marriage. When Egan became 65 in 1986, he began to receive old age security and guaranteed income supplements under the Act. On reaching age 60, Nesbit applied for a spousal allowance under s. 19(1) , which as I mentioned is available to spouses as defined in the Act between the ages of 60 and 65 whose combined income falls below a fixed level. His application was rejected because the relationship between Nesbit and Egan did not fall within the Act.
The appellants' claim before this Court is that the Act contravenes s. 15 of the Charter in that it discriminates on the basis of sexual orientation. To establish that claim, it must first be determined that s. 15 's protection of equality without discrimination extends to sexual orientation as a ground analogous to those specifically mentioned in the section. This poses no great hurdle for the appellants; the respondent Attorney General of Canada conceded this point. While I ordinarily have reservations about concessions of constitutional issues, I have no difficulty accepting the appellants' contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds. As the courts below observed, this is entirely consistent with a number of cases on the point. Indeed, there is a measure of support for this position in this Court. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pp. 737-39, speaking for my colleagues as well, I observed that the analogous grounds approach in s. 15 was appropriate to a consideration of the character of "social groups" subject to protection as Convention refugees. These, I continued, encompass groups defined by
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an innate or unchangeable characteristic which, I added, would include sexual orientation.
The only difficulty I have with the Crown's concession is that it would seem difficult in the absence of more precise argument to consider the point mentioned by Gonthier J. in Miron v. Trudel, [1995] 2 S.C.R. 418, regarding the need to consider the nature of a ground, be it enumerated in s. 15 or analogous, as a basis for discrimination and its necessary limitation where the distinction drawn by legislation merely reflects or is the expression of a fundamental reality or value. I need not pursue this, however, since I do not think that, in the circumstances of this case, the appellants have suffered discrimination under s. 15 as that term has been defined by this Court.
The nature of discrimination within the meaning of s. 15(1) of the Charter was first discussed by this Court in the seminal case of Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. In the principal reasons in that case, McIntyre J., at p. 175, underlined the importance in a constitutional document, which is not easily modified, of achieving a workable balance that permits government to perform effectively its function of making ongoing choices in the interests of society and the work of the courts in ensuring protection for the equality rights described in s. 15 . As he stated, what we must do is "to provide a `continuing framework for the legitimate exercise of governmental power' and, at the same time, for `the unremitting protection' of equality rights". And he warned (see p. 168), as I did in my separate reasons, that not all distinctions resulting in disadvantage to a particular group will constitute discrimination. It would bring the legitimate work of our legislative bodies to a standstill if the courts were to question every distinction that had a disadvantageous effect on an enumerated or analogous group. This would open up a s. 1 inquiry in every case involving a protected group. As I put it in
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Andrews, at p. 194, "it was never intended in enacting s. 15 that it become a tool for the wholesale subjection to judicial scrutiny of variegated legislative choices in no way infringing on values fundamental to a free and democratic society".
What then is discrimination? There are several comments in the course of McIntyre J.'s remarks in Andrews that go a long way towards clarifying the concept. Thus, at p. 174, he stated:
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
This statement cannot, however, be looked at in isolation. It must be read in conjunction with McIntyre J.'s earlier comment, at p. 165, as follows:
In other words, the admittedly unattainable ideal [of equality] should be that a law expressed to bind all should not be