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Reform Commission > Publications
> The Hon Madame Justice Claire L’Heureux-Dubé, Relationship
Recognition: The Search for Equality
SEMINAR PAPERS: A Discussion
Forum on Relationships and the Law (Sydney, 7 July
2000)
The Hon
Madame Justice Claire L’Heureux-Dubé, Relationship Recognition: The Search
for Equality
[My thanks to my law clerk, Michelle
Flaherty, for her invaluable assistance in the research and preparation
of this paper. A longer version of this paper was recently published in
(2000) 25 Queen's Law
Journal 401, under the title: "The
search for equality: a human rights issue".] From time immemorial, human beings have thirsted for
justice. Our pursuit of this ideal has necessarily translated into a long
and difficult search for truth, impartiality, and, ultimately, equality.
For, as Alexis de Tocqueville has said, equality is the foundation upon
which all other rights are built.1
Equality’s intimate link to human rights, justice, and impartiality makes
it the premier instrument for the recognition of rights.
Many of the cases that come before our
countries’ highest courts have really been about equality. In recent
years, appeals relating to parental rights, assisted suicide, mandatory
retirement age, aboriginal rights, damages for sexual assault, and
partnership recognition have all come before courts in both our countries.
In Canada, these appeal do not always involve direct equality challenges
under the Charter of Rights and
Freedoms, yet the parties and
intervenors in these cases have all challenged our courts to revisit
equality considerations.
It seems to me that these cases underscore the
fact that equality is not a static notion. Even in the span of my career,
equality has evolved to take on different meanings and has matured as the
societies we live in become increasingly self-aware. Indeed, as we become
more and more cognizant that the constituent elements of society do not
conform to the conventional values and power structures, the notion of
equality is constantly being recast.
In many countries such as Australia and Canada,
the paradigm of equality now extends far beyond the traditional human
rights domain. It offers us new understandings in family law, employment
law, taxation law, criminal law, and so on. It affects how we look at
contract law and torts, and it influences our approach to the poor, the
elderly, and other marginalized members of society. Equality is changing
the way we approach sexual orientation, sexual assault, disability,
freedom of expression, and pornography, among others.
In this sense, the task of rooting out
inequality and injustice from our society is now advancing to a higher
stage. Increasingly, inequality and discrimination stem not from positive
intentions on the part of any given individual, but rather from the
effects of often innocently motivated-actions. It is to this elevated
plane that the debate has now shifted.
Consider, for example, the Universal Declaration. The rights it sets out are built upon the foundation of equality.
For the Universal
Declaration defines nothing short of
the conditions necessary for full and equal participation in society. It,
and the numerous international human rights instruments that have built on
its ideas and its spirit, are beacons that remind us of what is needed for
all
citizens to enjoy an equal opportunity to flourish and to realize dreams.
The message is one of peace and justice, and equality. Indeed, the human
rights laid out in the Universal
Declaration are yardsticks against
which all people must measure their conduct and that of their governments
and public officials, and against which the global community as a whole
must measure its progress.
However, the international community quickly
realized that broad human rights statements like the Universal Declaration
are inadequate to truly eradicate inequality. It created more detailed
conventions on specific issues and began to put enforcement mechanisms
into place. A number of instruments followed the Universal Declaration, and many of them have important implications for equality. In
particular, the International Covenant
on Civil and Political Rights expands
upon many of the basic rights contained in the Universal Declaration, and
contains a mechanism to make complaints to the U.N. Human Rights
Committee. Perhaps most significant is article 25, which guarantees that
all persons are equal before the law and guarantees “equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.” This principle guaranteeing equality
without discrimination is critical to ensuring that all other rights have
meaning and are respected.
While the Universal Declaration marked the
great strides in the recognition of human rights, at the same time, it and
other human rights treaties are symbols of our past failures. Building as
they did on the horrors of the past, these treaties attest to how much
further we must go before equality and human rights are universally
respected. As we read these treaties and consider human rights, we cannot
help but be filled with an awesome sense of responsibility for both our
past and our future.
In the world as a whole, the challenges and the
failures are staggering. In recent and not so recent years, we have seen
the tragedies of the Holocaust, Armenia, war and genocide in the former
Yugoslavia and in Rwanda, and now East Timor, to mention but a few. The
inability of the international community to stop these deadly
manifestations of intolerance, mean that what was never to happen again is
happening before our very eyes. The inequality between developed and
developing countries, and the vastly different opportunities and standards
of living available to people in different parts of the world show us that
there is much to be done before the rights of the Universal Declaration
and of other international conventions are truly available to everyone.
The number of places where people are jailed for expressing their
political beliefs, where attacks are made on peaceful demonstrators, where
torture is rampant, and where people live in fear of the authorities are
signs of the monumental task before us. For many, freedom and human rights
are still just words on a distant page, words that have not yet come to
have meaning in their daily lives.
Even in the developed world, there are numerous
reminders of what remains to be done. Crises of homelessness, of
unemployment, and of poverty remind us of how the rights to a home, to
work, and to an adequate standard of living have not fully developed. The
unequal pay and job opportunities available to women, sexual and racial
harassment and discrimination, and hate crimes committed against gays and
lesbians, are just some of the problems that international human rights
law implores us to confront.
It is crucial that, in speaking of relationship
recognition, we reflect on these ideas and responsibilities. Why have we,
as a society and as an international community, so often failed to
consider partnerships in terms of true equality? How should we respect
individual choices regarding domestic relationships? Equality is the key
to answering these questions.
All
relationships are of fundamental importance. When I speak of
relationships, I refer not only to primary partnerships, but also to our
relations with friends, family, colleagues, and community members. In this
sense, relationships are the very building blocks of our society. For what
is a society if not a community of relationships?
Given the critical importance of relationships,
one may question why we have traditionally chosen to value and provide
support to some types of partnerships, while we have disdained others. In
failing to recognize and support partnerships, traditional or otherwise,
are we not doing violence to the very fabric of our community? Compared to
traditional couples, are non-traditional partners any less deserving of
emotional and financial support as they cope with old age, the dissolution
of a relationship or the death of a partner?2
In fact, in denying them this support are we not doing a disservice to
ourselves, to important members of our community, and to our society as a
whole?
Equality is closely associated with the notions
of dignity and respect. As Justice McIntyre stated in one of the Supreme
Court of Canada’s early equality decision, Andrews v. Law Society of British Columbia, “The promotion of equality entails the promotion of a
society in which all are secure in the knowledge that they are recognized
at law as human beings equally deserving of concern, respect and
consideration.”3
In the same vein, in Egan v.
Canada [1995] 2 S.C.R. 513 at 543, I
remarked that,
Equality, as that concept is enshrined
as a fundamental human right within s. 15 of the Charter, means nothing
if it does not represent a commitment to recognizing each person's equal
worth as a human being, regardless of individual differences. Equality
means that our society cannot tolerate legislative distinctions that
treat certain people as second-class citizens, that demean them, that
treat them as less capable for no good reason, or that otherwise offend
fundamental human dignity. Indeed, the notions of equality, dignity, and
respect warrant freedom of choice regarding intimate association. True
equality means respect for this deeply personal and individual
decision.4
It is
shortsighted for even those of us who are advantaged to assume that it is
in our interest to preserve the systems and institutions that perpetuate
our advantage at the expense of the relative disadvantage of others.
People are interdependent, and the health and dignity of our society
depends on the way we treat all of its members. When
individuals or governments refuse to recognize or respect differences, the
cost is the fostering of intolerance in our society. And this ultimately
imposes costs on us all.
It is also important to recognize that the law
may at times promote inequality by not rooting out or even finding
entrenched biases and stereotypes. The law is one of the important
architects of social norms. At times, it can be a tool to solves problems,
eradicate inequalities, and advance the rights of the disadvantaged. At
other times, the law is an anchor and a constraint upon social and
ideological advances. With regards to equality and non-traditional
partnerships, it seems that law falls into this latter category.
Why, then, does the law distinguish between
partnerships? Why must it value some relationships and reject others? In a
society where we purport to value equality, why do our laws approach
partnerships without regard for this critical ideal?
Martha McCarthy and Joanna Radbord have
provided some insight into answering these questions. They write, “The odd
thing about the evolution of our law in this area is that we have
proceeded in this incremental fashion without really tackling the
issues.”5 We have gradually recognized that the individual and
fundamental human rights of non-traditional partners must be respected.
Yet we have done this without shifting our paradigm, and without
recognizing that there are important consequences to ostracizing gay,
lesbian, and other non-traditional partnerships. We have acknowledged a
series of rights without touching the values that lie at the very heart of
the question: freedom, equality, respect, and dignity. Until we understand
that true equality encompasses all of these values, and until we apply
this understanding, inequalities will continue to rage rampant.
In both of our countries, there have been
important developments in the area of partnership recognition of late.
Indeed, the advancements we have made in recognizing relationships have
played an fundamental role in promoting the larger goal of equal
protection and benefit of the law for all minorities and disadvantaged
groups.
In Australia and New South Wales in particular,
many of the advancements in relationship recognition have been a product
of discussion and law reform initiative. In Canada, while our law reform
commissions have been actively recommending changes to the law’s approach
to partnership recognition, much of the evolution in this area is the
product of court challenges to existing litigation. As Reg Graycar and
Jenni Millbank suggest, this difference may, in part, be attributed to the
fact that while the Canadian Charter of
Rights constitutionally guarantees a
right to equality, there is no such guarantee in Australia.6
Just over a year ago, the Supreme Court of
Canada’s judgment in M v.
H.7 was released. In an
8-1 judgment, our Court held that denying members of same-sex couples
access to Ontario’s spousal support legislation was a violation of the
guarantee of equality contained in the Canadian Charter of Rights and Freedoms. The majority of the Court emphasized the significant pre-existing
disadvantage experienced by gays and lesbians, and pointed out that
exclusion from legal regimes such as the Ontario Family Law Act
contributes to their marginalization and invisibility to the law. As noted
by Cory and Iacobucci JJ., writing for the majority,
The exclusion of same-sex partners...
promotes the view that M., and individuals in same-sex relationships
generally, are less worthy of recognition and protection. It implies
that they are judged to be incapable of forming intimate relationships
of economic independence as compared to opposite-sex couples, without
regard to their actual circumstances. As the intervener EGALE submitted,
such exclusion perpetuates the disadvantages suffered by individuals in
same-sex relationships and contributes to the erasure of their
existence.8
This judgment reflected developments in Canadian
equality law that have taken place over the past several years. In the
recent case of Law v.
Canada,9
our Court emphasized a conception of equality that focuses on the effects of
legislation on individuals or groups differentially treated by government
action, and which finds that equality rights are violated when the human
dignity of the claimant is affected. The Court unanimously emphasized the
role of s. 15 of the Charter in protecting those who
are vulnerable, disadvantaged, or marginalized, as well as the importance
of a contextual analysis that focuses on the perspective of those affected
by legislative distinctions. Writing for the Court, Iacobucci J.
emphasized the importance of a purposive approach to s. 15 of the
Charter, and defined that purpose broadly, as follows:
the purpose of s. 15(1) is to prevent
the violation of essential human dignity and freedom through the
imposition of disadvantage, stereotyping, or political or social
prejudice, and to promote a society in which all persons enjoy equal
recognition at law as human beings or as members of Canadian society,
equally capable and equally deserving of concern, respect and
consideration.10
This goal of making our society one where everyone is
treated with the same consideration and respect is what underlies the
importance of ensuring that our law does not marginalize, exclude, or
devalue individuals in same-sex relationships. Indeed, recognizing the
equality rights of members of same-sex couples is part of the larger goal
that all minorities and disadvantaged groups must receive the equal
protection and benefit of the law without discrimination.
The Court’s judgment in M. v. H. was the
culmination of several years of considerable change in Canadian law and
society’s treatment of non-traditional relationships. Only six years
earlier, in Mossop v.
Canada,11
a majority of our Court held that Canada’s Human Rights Commission erred
in finding that the denial of bereavement leave to a gay man to attend the
funeral of his partner’s father, when he would have been entitled to such
leave had his partner been female, was discrimination on the basis of
family status. In 1995, a majority of the Court, in Egan v. Canada, found that it
was acceptable for the government to deny pension benefits to members of
same-sex couples when they were given to opposite sex couples.
More recent claims have seen considerably more
success. In the spring of 1998, the Court released its decision in
Vriend v. Alberta.12
The Alberta government had explicitly refused to include discrimination on
the basis of sexual orientation in its human rights code. The Court
unanimously held that this omission was a violation of equality rights,
and read protection against sexual orientation discrimination into the
act. The majority emphasized the harm that discrimination in society
causes to gays and lesbians and criticized the message sent by the
legislation, which was that gays and lesbians were not worthy of
recognition or protection under the province’s laws.
Changes have not come only at the Supreme Court
level. In lower courts across the country, when gays and lesbians have
challenged legislation that gives benefits to opposite-sex cohabiting
couples but not members of same-sex couples, nearly all courts have
allowed these claims. Definitions of “spouse” that exclude members of
same-sex partnerships have been consistently overturned. The most
significant examples in recent years include the Ontario Court of Appeal’s
judgment in Rosenberg v.
Canada,13
where the Court held that the failure of the Canada Pension Plan to give tax
exemptions to private pension plans that included benefits for same-sex
spouses violated equality rights, and the decision of the Ontario Court
Provincial Division in Re
K.,14
where the Court held that the failure to allow members of same-sex couples
to jointly adopt children was also a violation of equality rights.
While recognition of the equality rights of
members of same-sex couples is coming about quickly, the changes have not
come about without considerable social and political controversy and
upheaval. Indeed, rights for non-traditional partners have led to some of
the most heated disputes in the Canadian media and political arena that
this country has seen in recent years, and these have led to considerable
discussion about the judicial role in overturning legislation.
The Law Commission of Canada is currently
studying issues related to non-traditional partnerships. Last October, I
delivered an address at a conference, which I understand is a key part of
that study. In discussing the issues related to partnerships and benefits,
Roderick A. Macdonald of the Law Commission of Canada recently
explained:
And now, because the law has invested so
much policy significance in the concept of marriage, it has made the
definition of marriage and not the policy goals themselves the focus of
the political debate.... Yet, because previous extensions of benefits
beyond married couples have always been an ad hoc response to particular
situations, governments have never really had to rethink the policy
bases in question.15
As Professor Macdonald suggests, it will
be important to debate the broad issues of partnerships. Perhaps we should
revisit the very policy of tying the entitlement of benefits to
individuals’ domestic arrangements. Should a person’s entitlement to
pensions, old age security, parental leaves, and support payments hinge on
his or her marital status or domestic partnership? Is it still realistic
to link benefits to domestic or sexual choices? What would be the
consequences of a more broad-minded policy? And what of children?
Ultimately, should they be the only beneficiaries of state support? These
questions and others remain unanswered.
The last ten years have seen a tremendous
change in the recognition of the legal status of non-traditional
relationships and, more generally, in the approach taken to equality
rights by the courts in Canada.
As you reflect on relationships recognition and
its implications, consider the manner in which the notion of equality has
evolved. I also invite you to think about the effects these developments
will have on the future. In a short period of time, we have made much
progress in recognizing equality rights. Where must we go now, and how can
we get there? How can we ensure that we continue to make progress in the
recognition of equality rights, not only for those in non-traditional
partnerships, but for every human being who has ever been disadvantaged or
marginalised within society?
In answering these questions, I ask you to keep
this in mind: where equality is concerned, each and every one of us has a
role to play. Equality must not only be part of our thinking, it must be
part of our living. And if equality is to become a decisive part of our
culture, each of us we must not lose sight of the challenges we face, and
we must not waver from this, our vision of equality for every member of
society.
FOOTNOTES
1. Alexis de Tocqueville, Democracy in America, 10th ed.,
vol. 1 at 41.
2. Ryder, “Equality Rights and Sexual Orientation: Confronting
Heterosexual Family Privilege” (1990) 9 Can. J. Fam. L. 39.
3. [1989] 1 S.C.R. 143 at 171.
4. Karst, “The Freedom of Intimate Association” (1980) 89
Yale L.J. 624.
5. Martha A. McCarthy and Joanna L. Radbord, “Family Law for Same
Sex Couples: Chart(er)ing the Course”, 15 (1998) Canadian Journal of Family Law, 101 at 111.
6. R. Graycar and J.Millbank, “The Bride Wore Pink... To the
Property (Relationships) Legislation
Amendment Act: Relationship Law Reform
in New South Wales” (2000) 17 Canadian
Journal of Family Law 227.
7. [1999] 2 S.C.R. 3.
8. Ibid., at para. 73
9. [1999] 1 S.C.R. 497.
10. Ibid., at para. 88.
11. [1993] 1 S.C.R. 554.
12. [1998] 1 S.C.R. 493.
13. (1998) 38 O.R. (3d) 577 (C.A.).
14. (1995) 23 O.R. (3d) 679 (Ont. Ct. Prov. Div.)
15. Law Commission of Canada, News Release (June 24,
1999).
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