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Where am I now? Lawlink > Law 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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