The Impact of the Supreme Court Decision in Egan v. Canada Upon Claims for the Equal Recognition of Same-Sex Relationships

September 17, 1997

1. Introduction
2. The Egan Case
   1. Background
   2. Arguments advanced in Egan
      1. Position of the Appellants
      2. Position of the supportive intervenors
      3. Position of the Attorney General of Canada
      4. Position of intervenors opposing the appeal
   3. Summary of findings of the Supreme Court of Canada
   4. Analysis of the Supreme Court judgment
      1. Analogous grounds
      2. Approach under Section 15
      3. Summary of principles under s.15
      4. Section 1 of the Charter
      5. Summary of principles under s.1
3. The effect of Miron v. Trudel
4. Life after Egan: next steps
   1. Rosenberg v. Canada
   2. M v. H
   3. Re Vogel and North
   4. Re Moore & Akerstrom
   5. Laessoe v. Air Canada
5. Strategic litigation options for the future
   1. Introduction
   2. The same-sex marriage case
   3. Other strategic litigation options
      1. Insurance Act claim
      2. Claims involving private relations
      3. Human Rights Act claims
      4. Cases which involve conflicts of laws or clear injustices
      5. Challenge use of "incrementalism" defence
      6. Limit "incrementalism" defence
      7. Revise basis for equality claims
      8. Other claims
6. Conclusion

1. Introduction

   The decision of the Supreme Court of Canada in Egan v. Canada dramatically altered the landscape of same-sex equality claims and s.15 analysis in general. The decision, released on May 25, 1995, binds all lower courts and tribunals. Despite its importance, the impact of the case is far from clear. In assessing the Supreme Court’s approach to equality issues reflected in the judgment, various commentators have described the Court as "splintered", "deeply divided" and as having "spoken with numerous and conflicting voices."

   Given that the Appellants lost their appeal, analysis of the decision is essential in order to assess the impact of the case, to identify what avenues remain open for future litigation, and to develop litigation strategies which will maximise the chances of success in other cases currently pending in the Courts.

   Accordingly, this report will set out the main arguments advanced before the Supreme Court in Egan, and will examine the Supreme Court’s ruling in detail. The decision will also be critically analysed in the context of other Supreme Court jurisprudence. Consideration will then be given to possible future approaches in the light of the Egan decision, and to identifiable trends in those cases which have been decided by Courts and Tribunals subsequent to the Supreme Court ruling. Finally, the impact of the case upon other relationship recognition cases will be considered.

2. The Egan case

   1. Background

      The Egan case was a Charter challenge to the spouse’s allowance provision of the Old Age Security Act. The appellants Jim Egan and Jack Nesbit were in a long-term same sex relationship. Upon meeting the statutory requirements (other than the requirement that his spouse be of "the opposite sex"), Mr. Egan applied for a spouse’s allowance for his partner. His application was denied on the basis that his partner was of the same sex.

      The spouse’s allowance is available to the spouse of a pensioner under the Old Age Security Act if their joint income falls below a fixed level and the spouse is between the ages of 60 and 64. "Spouse", as defined in the legislation, includes persons who are married as well as "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 publicly represented themselves as husband and wife."

      The appellants challenged the constitutionality of the definition of common-law spouse, claiming that it was discriminatory under s.15(1) of the Charter on the basis of sexual orientation. Both levels of the Federal Court dismissed the application, finding that the denial did not amount to discrimination under s.15.

      On appeal to the Supreme Court of Canada, a majority of the Court held that the denial was a violation of s.15(1), but a majority of the Court (differently constituted) also held that the legislation was saved under s.1 of the Charter.

   2. Arguments advanced in Egan

      Any analysis of the gains and losses involved in the Egan decision requires an understanding of the arguments advanced by counsel and the issues before the Court. In addition to the Appellants and the Respondent Attorney General of Canada, seven intervenors appeared before the Supreme Court. Supporting the appeal were EGALE, the Canadian Labour Congress, the Canadian Human Rights Commission, the Metropolitan Community Church of Toronto, and the Québec Human Rights Commission. Opposing the appeal were the Attorney General of Québec and the Inter-faith Coalition on Marriage and the Family.

      1. Position of the Appellants

         The Appellants argued that the exclusion of same-sex couples from the spouse’s allowance program was a direct violation of s.15 of the Charter of Rights. Same-sex couples, it was argued, fit equally within the purpose of the program, and evidence was led of the forty-eight year relationship of the Appellants, as well as their degree of commitment, caring and interdependency. The Appellants argued that sexual orientation is an analogous ground of discrimination, and that they suffered discrimination by the stigmatizing of their relationship due to lack of recognition. The Appellants further challenged the argument of the Attorney General of Canada that same-sex relationships are inherently "non-spousal" in nature.

      2. Position of the supportive intervenors

         The intervenors supporting the appeal presented a variety of perspectives. The Metropolitan Community Church of Toronto affirmed the equal validity of same-sex relationships. The Canadian Labour Congress examined the financial implications of extending the spouse’s allowance to same-sex couples and challenged the Attorney General of Canada’s assertion that the courts should defer to Parliament when it came to allocating scarce government resources. The Canadian Human Rights Commission and Quebec Human Rights Commission submitted that the government should respect the legitimate relationship choices of lesbians and gay men, and challenged the government’s assertion that the comparison in the case was between "spouses" and "non-spouses." EGALE placed the legislative inequality in the context of historical patterns of discrimination against lesbians and gay men, submitting that the essence of the discrimination lay in the stigmatizing consequences of the government’s decision to privilege opposite-sex relationships while reinforcing stereotypes about same-sex relationships.

      3. Position of the Attorney General of Canada

         The Attorney General of Canada identified three tests to be met before an impugned law can be held to violate s.15 of the Charter of Rights. It was submitted that the Appellants had to prove that:

         "(a) one of their four basic equality rights has been denied by a distinction in treatment based upon a personal characteristic of a class of individuals who share that common personal characteristic;

         (b) the distinction is based on an irrelevant personal characteristic which forms an enumerated or analogous ground of discrimination;

         (c) the denial amounts to discrimination in the circumstances."

         These criteria are largely drawn from the Andrews and Turpin cases, although the focus in step (b) on the alleged need for a personal characteristic to be "irrelevant" was strenuously contested by many of the intervenors as an unwarranted incorporation of s.1 principles into the s.15 analysis. This concern is discussed more fully herein. A further concern was the way in which the Respondent sought to apply all of the above principles to the case before the Court.

         In relation to (a), the Attorney General pointed out the need to apply a "contextual analysis" to the consideration of whether the appellants had been denied equality. Far from considering the broader "context" of the historical and systemic discrimination against same-sex relationships, however, the Attorney General argued that a "contextual analysis" required that the alleged violation of equality be considered only in the context of the specific statute, which, it was claimed, deals purely with economic needs. Accordingly, it was argued that the Appellants must show that "they are members of a discrete and insular minority which has suffered historic disadvantage in an economic way relevant to the economic statute in question." Lesbians and gays, it was argued, had not been proven to be economically disadvantaged, and evidence of social or historic disadvantage was claimed to be irrelevant to an economic statute.

         In relation to (b), whether "sexual orientation" is an analogous ground of discrimination, the Attorney General acknowledged that in some cases the Courts had held that "sexual orientation" is an analogous ground, but submitted that "grounds identified as analogous in some circumstances may not be analogous in other circumstances. ... While the Attorney General of Canada does not dispute that sexual orientation may be an analogous ground in some circumstances, ... it is submitted that sexual orientation is not an analogous ground in this instance." The Attorney General claimed support from this position from a comment in R v. Turpin to the effect that the finding that province of residence was not an analogous ground in that case did not mean that province of residence could never be an analogous ground of discrimination. Thus, the Attorney General argued, if a ground were not analogous in one case, but could be in another, it also followed that just because a ground such as sexual orientation had been held to be analogous in previous cases, it did not follow that sexual orientation would be an analogous ground of discrimination in every case.

         The Attorney General acknowledged that the identification of an analogous ground requires consideration of "whether the group characteristic is one on which political and social prejudice, stereotyping or historical disadvantage has been, is, or may be based", but argued that there must be a causal connection between the historic disadvantage and the impugned statute, i.e. that gays and lesbians must prove historic economic disadvantage.

         The Attorney General also considered that there was no discrimination under the third limb of the s. 15 test. The aim of the statute was not discriminatory since it had the worthy State objective of supporting "near-elderly spouses ... based upon traditional patterns of economic dependence in heterosexual relationships."

         Nor was the effect of the legislation discriminatory, it was argued, since the legislation did not exclude homosexuals, it excluded "non-spouses." Homosexual relationships were excluded not because of sexual orientation, but because a homosexual relationship by definition could not be "spousal" in nature. According to the Attorney General, the concept of "spouse" was not created by the legislation, it had a distinct social meaning, which simply did not apply to those in same-sex relationships. Furthermore, there was no discrimination against gays and lesbians, because many other categories of "non-spouse" were equally excluded, such as siblings, friends, flatmates etc.

         The Attorney General then submitted that if the Court found a breach of s.15, the restriction of the Appellants’ rights was justified under s.1 of the Charter of Rights.

         The Attorney General relied upon McKinney v. University of Guelph to assert that the Court should defer to legislative choices in situations where the legislation represents "a balancing of competing interests in determining who gets a limited benefit." The asserted objective of the spouse’s allowance program was to aid spouses of Old Age Security recipients who were dependent upon their partner "because of societal patterns of relationships."

         It was argued that the government must have freedom to allocate financial resources and that it had chosen to "recognize the unique nature of the heterosexual spousal relationship and the well-known traditional structure with its resultant financial consequences for women."

         Finally, the Attorney General submitted that there was simply no information available to support the assertion that similar patterns of dependence exist within same-sex relationships.

         In summary, the Attorney General of Canada challenged the Appellants’ claim on every conceivable basis. It was argued that there was no denial of the equal benefit of the law, that sexual orientation was not an analogous ground of discrimination, that there was no discrimination, and that any discrimination was justified under s.1 of the Charter. The refusal to acknowledge that sexual orientation was an analogous ground of discrimination was particularly disturbing in view of the fact that the Attorney General had conceded the point in the same case in the Courts below and in numerous other cases.

      4. Position of intervenors opposing the appeal

         The Attorney General of Québec also opposed the appeal, arguing that social rights and responsibilities adhere only to those in opposite-sex relationships. The other group intervening in opposition to the appeal, the Inter-faith Coalition on Marriage and the Family stated explicitly what the Attorneys General of Canada and Québec were only willing to hint at—heterosexuals, and only heterosexuals, form relationships worthy of state recognition:

         "Heterosexual spouses have been recognized through our social, political and philosophical traditions, as fulfilling a unique and essential role in the very fabric of our social structure through the procreation, nurturing and raising of children, and require continued social and legislative support."

         The Attorney General of Canada, by making oblique references to "traditional patterns of heterosexual relationships" and "the recognized social and legal institution of marriage", was appealing to the Court to apply historic patterns of discrimination to maintain ongoing discrimination against gays and lesbians. The Interfaith Coalition was at least straightforward enough to directly challenge the legitimacy of same-sex relationships and to invite the Court to explicitly identify heterosexual relationships as the only social structures worthy of State support. By contrast, the Attorney General of Canada was inviting the Court to adopt heterosexist and stereotypical attitudes in an indirect fashion.

   3. Summary of findings of the Supreme Court of Canada

      On May 25, 1995, the Supreme Court released its decision in the Egan case. The appellants’ claim for the spouse’s allowance benefit was rejected by the Court. Four members of the Court reasoned that the impugned legislation did not infringe s.15(1) of the Charter of Rights; they were joined by a fifth judge, Mr. Justice Sopinka, in ruling that the legislation was in any event saved by s.1 of the Charter.

      In other words, a majority of the Court held that the exclusion of same-sex couples from the spouse’s allowance program violated the s.15 equality guarantees of the Charter of Rights, but a majority of five judges also concluded that this violation was saved under s.1. It is significant, however, that all nine judges agreed that sexual orientation is an analogous ground of discrimination under s.15 of the Charter.

      The positions of all nine Supreme Court judges may be summarized as follows:

      Judge	Is "sexual orientation" an analogous ground of discrimination?	Does the "opposite sex" definition of "spouse" violate s.15 of the Charter?	Is any s.15 violation justifiable under s.1 of the Charter?
      Lamer CJ	Yes	No	Yes
      La Forest J	Yes	No	Yes
      Gonthier J	Yes	No	Yes
      Major J	Yes	No	Yes
      Sopinka J	Yes	Yes	Yes
      Cory J	Yes	Yes	No
      Iacobucci J	Yes	Yes	No
      McLachlin J	Yes	Yes	No
      L’Heureux-Dubé J	Yes	Yes	No

      
      

   4. Analysis of the Supreme Court judgment

      1. Analogous grounds

         The Supreme Court judgment can only be described as a mixed blessing, involving a number of gains as well as some less than progressive approaches to equality. For the first time, the Supreme Court unanimously ruled that "sexual orientation" is an analogous ground of discrimination, putting beyond question the ability of gays and lesbians to rely upon the equality guarantees of the Charter of Rights.

         Even within the analogous grounds framework, however, there is a marked difference in the reasoning between those judges who upheld the s.15 violation and those judges who rejected it. La Forest J wrote the judgment on behalf of the four judges who considered that s.15 had not been violated. In his judgment, La Forest J acknowledges support for sexual orientation as an analogous ground because "whether or not sexual orientation is based on biological or physiological factors, 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."

         Central to La Forest J’s analysis is the assumption that "sexual orientation" must be shown to have a degree of "immutability" before it can be considered an analogous ground. There are a number of difficulties inherent in requiring that sexual orientation be regarded as an "immutable" characteristic. First and foremost, it does not necessarily correspond to the actual experience of a number of gays and lesbians. While opinions within the gay and lesbian communities diverge on this point, some do consider their sexual orientation a matter of social construction or personal or political choice rather than biological determinism. Some authors suggest that this perspective is particularly prevalent within the lesbian community. A second concern is that scientific evidence on this point is not yet conclusive, and it would be most unfortunate if future courts were to revisit the issue in the light of as yet unpredictable outcomes of future research. Finally, as one author notes, inherent in the suggestion that "we can’t help being this way ... is the implication that if we could help it, we would." More important than a formalistic enumeration of what makes an analogous ground "like" the other enumerated ground is a consideration of the purpose of equality guarantees and the extent to which identifying a particular group as "analogous" will advance the values underlying s.15.

         Of equal concern is La Forest J’s obiter comment that "it would seem difficult in the absence of more precise argument to consider ... [the] necessary limitation [of a ground] where the distinction drawn by the 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 circumstance of this case, the appellants have suffered discrimination...."

         Although the meaning of this remark is far from clear, La Forest J appears to be suggesting that in some circumstances "sexual orientation" will not be considered an analogous ground if the legislative distinction merely expresses "a fundamental reality or value." This seems to support the Attorney General’s submission that a ground might be considered analogous in some circumstances but not in others.

         More consistent with a purposive interpretation of equality rights is the approach taken by Cory J, who was writing for the majority on this point. Justice Cory is at pains to point out that although identifying a group’s status as a "discrete and insular minority" may be useful in helping to determine whether an analogous ground exists, it is not a prerequisite. Rather, "the fundamental consideration underlying the analogous grounds analysis is whether the basis of distinction may serve to deny the essential human dignity of the Charter claimant." In making this determination, it is helpful to examine "any indication that the group has suffered discrimination arising from stereotyping, historical disadvantage or vulnerability to political and social prejudice."

         Cory J refers to and explicitly rejects the submission of the Attorney General of Canada that the Appellants were required to show a specific form of economic disadvantage which had been exacerbated by the legislation in question. Instead, consideration must be given to the entire social, political and legal context. He then extensively articulates the historical stereotyping of gays and lesbians, evidence of violence and gay-bashing, discrimination in employment, accommodation and other areas, and the systemic refusal to accord equal validity to same-sex relationships.

         This analysis does not require an excluded group to show they are "like" an enumerated group in order to claim protection on an analogous ground. The focus is not on whether sexual orientation is biological, immutable or otherwise, but rests squarely on an assessment of the historical discrimination perpetrated against lesbians and gays and the corresponding need for this group to be able to avail themselves of the equality protections of the Charter of Rights. It must be emphasized that Cory J was writing for the majority of the Court on this point, and the Egan case therefore represents a clear rejection of the Attorney General’s submission that lesbians and gays cannot assume they will always be able to invoke the equality provisions of the Charter.

      2. Approach under Section 15

         Linked to the analogous grounds consideration is the Court’s approach to s.15. Once again, La Forest J was joined by Chief Justice Lamer and Justices Gonthier and Major in finding that there was no s.15 violation. La Forest J was willing to accept that the legislation draws a distinction which results in disadvantage for the appellants, but adds that "Parliament is in the business of making choices." He then turned to consider whether the distinction is discriminatory. This, he suggests, requires a determination of whether the distinction drawn by Parliament is "relevant." In assessing relevancy, "one must look at ‘the nature of the personal characteristic and its relevancy to the functional values underlying the law’ ."

         What is deeply concerning about this approach is that it imports a new criterion of "relevancy" into the s.15 analysis, and this criterion seems to leave the door wide open to subjective judicial pronouncements on such vague factors as the "functional values" underlying the law. Indeed, La Forest J proceeds directly to a discussion of his view of the objective of the legislation, which he describes as "both obvious and deeply rooted in our fundamental values and traditions", namely the protection of the institution of heterosexual marriage:

         "Suffice it to say that 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. 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."

         La Forest J sweeps aside arguments that many lesbians and gays are in fact raising children, and that many heterosexuals who qualify for the benefit do not have children:

         "I am not troubled by the fact that not all these heterosexual couples in fact have children. It is the social unit that uniquely has the capacity to procreate children and generally cares for their upbringing, and as such warrants support by Parliament to meet its needs."

         Somewhat incredibly, the Appellants’ claim is rejected for reasons which are completed unrelated to the legislation or program being challenged. The spouse’s allowance program under the Old Age Security Act has nothing to do with children or procreation, but is available to all qualifying heterosexual couples, regardless of whether they have children. Nor is access to the benefit dependent upon marriage, but is equally available to both married and unmarried heterosexual couples.

         This approach is explicitly challenged by Cory J in his majority reasons. Indeed, he starts his judgment by rejecting as "inaccurate and misleading" the submission of the Attorney General that a finding in favour of the Appellant would "change fundamentally the essential meaning of the societal concept of marriage."

         Cory J goes on to identify the core principles underlying a s.15 inquiry, relying largely upon the analyses established in the leading cases of Andrews v. Law Society of British Columbia and R v. Turpin. He draws attention, in particular, to the need identified in Turpin to keep s.15 and s.1 of the Charter analytically distinct and to ensure that s.1 factors are not permitted to creep into the s.15 analysis.

         Cory J then indirectly disputes the assertions of both the Attorney General of Canada and the judges who concurred with La Forest J by emphasizing that "the Act makes no reference to children", is not "designed to benefit only women" and "has nothing to do with the recognition of the contribution made by the couple in raising children nor has it anything to do with the gender of the spouse." He has no difficulty in finding that the legislation creates a distinction based on an analogous ground which disadvantages and is discriminatory to gay and lesbian couples. He explicitly rejects the notion put forward by the Attorney General of Canada that "discrimination" requires proof of economic disadvantage, focusing instead on the consequences of stigmatization and the denial of the opportunity to make equal relationship choices:

         "Cohabiting heterosexual persons have the right to make a choice as to whether they wish to be publicly recognized as a common law couple. Homosexual couples, on the other hand, are denied the opportunity because of the definition of ‘spouse’ set out in the challenged 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."

         For Cory J, the essence of a s.15 violation lies in the intangible affront to human dignity rather than the more formalistic requirement of specific economic disadvantage proposed by the Attorney General of Canada. To illustrate his argument, Cory J uses the analogy of a benefit denied to couples of different races or religions: "The public outcry would, I think, be immediate and well-merited."

         Cory J also rejects the argument that other "non-spousal" couples, such as siblings, roommates etc are equally excluded from the legislation. Such an argument, he says, is circular and self-defeating, since it avoids consideration of the discriminatory definition of "spouse" simply by redefining lesbian and gay relationships as "non-spousal." Cory J further identifies the discrimination in this case not merely as "adverse effect" discrimination, which has an adverse impact on a disadvantaged group, but as "direct" discrimination, where the law draws a clear discriminatory distinction on its face.

         In the result, Cory J concludes that all components of a s.15 violation have been established. It is also important to note the following significant obiter comment which he makes:

         "In this case, a great deal of time was spent demonstrating the nature of the warm, compassionate, caring relationship that very evidently existed between the appellants. In passing, it is, I think, worth mentioning that this need not be done in every case. It is not necessary that the evidence demonstrate that a homosexual relationship bears all the features of an ideal heterosexual relationship for the relationship of many heterosexual couples is far from ideal. ... In this case, it would have sufficed to prove that the homosexual relationship had existed for more than one year during which time the partners had publicly indicated their relationship and that their combined income was below the statutory limit. This is the same evidence that would be sufficient to qualify a heterosexual common law couple for the spousal allowance."

         Thus it is not necessary to idealize same-sex relationships or relationship structures generally in order to sustain a s.15 claim. Many lesbian and gay equality claimants have felt the need to romanticize traditional family structures and attempt to depict their relationships in equally idealized terms in order to assimilate their own relationship into the status quo. This tactic serves both to set the standards for an equality claim unrealistically high and also conceals the reality that for many, relationships and traditional family structures can be the source of domestic violence, emotional cruelty and abuse. As Cory J usefully underlines, all that is required is that claimants demonstrate they have met the minimum qualifications required of any relationship by the statute in question.

         Cory J’s judgment was concurred in by Iacobucci, McLachlin and Sopinka JJ. L’Heureux-Dubé J wrote a separate concurring judgment in which she revisits the principles underlying s.15 and, in particular, challenges the need for an enumerated or analogous grounds approach, ultimately joining with the majority in finding that the legislation violates s.15 of the Charter of Rights.

         One important feature of L’Heureux-Dubé J’s judgment is a critique and rejection of "relevance" as a requirement under s.15. As previously discussed, introducing into s.15 the concept of the "relevance" of the legislative distinction was central to La Forest J’s finding that the exclusion of same-sex couples was a relevant (i.e. non-discriminatory) distinction in order to advance the legislative goal of supporting marriage. L’Heureux-Dubé J rejects relevance as a criterion for a number of reasons. First, she expresses concern that relevance can only be evaluated against the purpose of the impugned legislation, which fails to take into account the possibility of legislation with a discriminatory effect. Second, she points out that it is little use for a distinction to be relevant to a statutory purpose if that purpose is itself discriminatory. Here, for example, La Forest J asserts that it is "relevant" to exclude same-sex couples in order to meet the legislative goal of supporting heterosexual couples only. It is submitted that such a legislative goal is clearly discriminatory in and of itself. L’Heureux-Dubé J expresses further concern at the lack of clarity concerning what degree of "relevance" is required to avoid a s.15 violation and points out that a "relevancy" standard introduces an internal restriction into s.15 which "does not arise naturally from its plain language" and which can only be considered, if at all, under s.1.

         Finally, both L’Heureux-Dubé and Cory JJ emphasize that whether or not there is discrimination is a determination that can only be made from the point of view of the person affected. While Cory J simply states that "the question as to whether or not there is discrimination should be addressed from the perspective of the person claiming a Charter violation", L’Heureux Dubé J proposes a mixed "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." The purpose of this approach, she maintains, is to avoid assessing the absence or presence of discriminatory impact according to the standard of the "reasonable, secular, able-bodied, white male" while simultaneously seeking to avoid holding the State to the unreasonably high expectations of its "most sensitive" citizens.

         The need to place oneself in the claimant’s shoes is an often overlooked but fundamental component of lesbian and gay equality claims. Discrimination which is clear and obvious to any member of the lesbian and gay communities is often justified by reference to systemic beliefs about the structure of "traditional relationships." In Egan, for example, La Forest J was concerned only with maintaining the unquestioned social superiority of heterosexual relationships. No sincere attempt was made to consider the detrimental impact of these patterns of historical discrimination upon members of the lesbian and gay communities. As soon as the question is examined from a lesbian or gay perspective, however, the focus of the inquiry properly shifts from the need to maintain the dominance of heterosexual structures to the discriminatory effects flowing from the ongoing subjugation of same-sex relationships..

      3. Summary of principles under s.15

         Overall, the Court’s judgments on s.15 demonstrate a clear rejection of the Attorney General’s attempts to limit the Court to a narrow and formalistic analysis confined within the four corners of the legislation without regard to the broader social context of discrimination.

         In summary, the following principles may be drawn from the judgments:

         (a) The exclusion of same-sex couples from a spousal benefit amounts to a denial of equality not only because the economic benefit is lost, but also because of the non-recognition of the relationship, which may have a serious detrimental effect upon the sense of self-worth and dignity of lesbians and gay men.

         (b) Sexual orientation is an analogous ground under s.15(1). The enumerated or analogous grounds analysis may be considered a tool for determining whether there has been discrimination—i.e. whether the distinction undermines s.15’s fundamental purpose of fostering human dignity.

         (c) Sexual orientation includes aspects of status and conduct—both should receive protection. Sexual orientation is demonstrated in a person’s choice of life partner, and "it follows that a lawful relationship which flows from sexual orientation should also be protected."

         (d) There is overwhelming evidence that lesbians and gay men, whether individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage.

         (e) It is not necessary that the evidence demonstrate that a same-sex relationship bears all the features of an ideal heterosexual relationship but simply that the same-sex relationship has existed for the qualifying period of time, during which time the partners publicly represented themselves as a couple.

         (f) A challenge to the constitutionality of excluding same-sex couples from the definition of common law spouse does not amount to a challenge to the legal or social concept of marriage, nor to a challenge to the constitutionality of excluding non-spouses from the benefit.

         (g) The government’s justifications for the exclusion, such as the purpose of the benefit and the offsetting provincial benefits, as well as the "relevance" of the impugned distinction, are not proper considerations under s.15 and belong under s.1.

         (h) The determination of whether or not the impugned provision is discriminatory must be addressed from the perspective of the person claiming the rights violation.

         (i) The denial of the spousal allowance to same-sex couples is discriminatory. The definition of spouse as someone of the opposite sex reinforces the stereotype that lesbians and gay men cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same manner as heterosexual couples.

      4. Section 1 of the Charter

         It is less easy to ascertain coherent principles from the Supreme Court’s analysis under s.1 of the Charter. There is no clear majority of the Court on the approach to be taken under s.1. La Forest J, still writing for three other judges, simply states his s.1 position in a single sentence:

         "Had I concluded that the impugned legislation infringed s.15 of the Charter, I would still uphold it under s.1 of the Charter for the considerations set forth in my reasons in McKinney, especially at pp. 316-18, some of which are referred to in the reasons of my colleague Justice Sopinka, as well as for those mentioned in my discussion of discrimination in the present case."

         There is no analysis of the s.1 arguments, however, nor is such an analysis required, since La Forest J and the other judges concurring with him rejected the appeal under s.15.

         This leaves many questions unanswered. The reference to the reasons "mentioned in my discussion of discrimination" suggests that La Forest J would have advanced as a state objective under s.1 the need to preserve and protect heterosexual marriage. But an objective which is itself discriminatory cannot be upheld as valid under s.1, and no consideration appears to be given by La Forest J to the circular nature of justifying the exclusion of homosexuals from a benefit program simply by asserting the need to support heterosexuals.

         Moreover, in the Andrews case the Supreme Court of Canada emphasized the need for the Government to present cogent and compelling evidence in order to discharge its obligation of justifying legislation which is found to have violated s.15:

         "Given that s.15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on government to justify the type of discrimination against such groups is appropriately an onerous one."

         It is noteworthy that in the Egan case, no evidence whatsoever was filed to suggest that extending relationship recognition to lesbians and gays will have any harmful consequences. Nor does La Forest J indicate how the other s.1 hurdles would be overcome. Presumably, in order to prove rational connection, minimal impairment and proportionality, it would at least be necessary to demonstrate how the goal of fostering heterosexual relationships and encouraging procreation will be furthered by a government program which accords benefits to particular elderly persons, and how excluding same-sex couples from such a program is necessary to further this object.

         As Iacobucci J so pointedly underlines in his own analysis of the s.1 issues in this case:

         "... it eludes me how according same-sex couples the benefits flowing to opposite sex couples in any way inhibits, dissuades or impedes the formation of heterosexual unions. Where is the threat? In the absence of such a threat, the denial of the s.15 rights of same-sex couples is anything but proportional to the policy objective of fostering heterosexual relationships."

         La Forest J’s reference to the McKinney case is equally problematic. In McKinney, La Forest J emphasized that the impugned provisions were constitutionally valid because "[t]he Legislature sought to provide protection for a group which it perceived to be most in need and did not include others for rational and serious considerations that, it had reasonable grounds to believe, would seriously affect the rights of others."

         It is difficult to accept La Forest J’s willingness to apply this reasoning directly to Egan. Even if one accepts the needs to promote heterosexuality at all costs, it is hard to see how changing the "opposite sex" definition of "spouse" would "seriously affect the rights of others." Certainly, there was no evidence to this effect before the Court. Nor do the pages referred to in McKinney address other components of the Oakes test, such as rational connection or minimal impairment.

         The remainder of the passage from McKinney invoked by La Forest J deals with judicial deference and the need for Courts to respect Government’s ability to advance equality on an incremental basis. These considerations formed the centrepiece of Sopinka J’s judgment. Ultimately, it was Sopinka J’s analysis of s.1 which led to the defeat of the appeal, since Sopinka J had joined with Cory J and the other judges supporting the appeal in finding a violation of s.15. It was Sopinka J’s decision to "switch sides" and uphold the legislation under s.1 which enabled the four other judges led by La Forest J to form a majority in deciding that the legislation did not violate the Charter of Rights.

         This makes Sopinka J’s judgment pivotal to the s.1 determination. Yet the judgment itself is among the briefest of the substantive opinions of the Court and makes very little effort to identify clear principles pursuant to which a s.1 analysis should take place.

         Sopinka J starts by expressing his agreement with the Attorney General of Canada that the government must be accorded "some flexibility" in extending social benefits and does not have to be proactive in recognizing "new social relationships." He then goes on to express concerns about Courts requiring governments to make decisions which have financial implications, and stresses that the Court cannot assume that there are "unlimited funds to address the needs of all."

         Sopinka J relies heavily upon McKinney to justify a need for judicial deference to legislative choices. He cites passages from McKinney which recognize that "a Legislature should not be obliged to deal with all aspects of a problem at once", it must be permitted to take "incremental measures", and must be given "reasonable leeway to deal with problems one step at a time."

         Sopinka J also cites in full La Forest J’s comments in McKinney that:

         "... the courts should not lightly use the Charter to second-guess legislative judgment as to just how quickly it should proceed in moving forward towards the ideal of equality. The courts should adopt a stance that encourages legislative advances in the protection of human rights. Some of the steps adopted may well fall short of perfection, but as earlier mentioned, the recognition of human rights emerges slowly out of the human condition, and short or incremental steps may at times be a harbinger of a developing right, a further step in the long journey towards full and ungrudging recognition of the dignity of the human person."

         The key difficulty with reliance on this passage is that it can be invoked in any circumstances to justify a refusal to extend equality. The tenor of the passage is that Courts should refrain from being too proactive in challenging denials of equality, and should recognize that the protection of human rights "emerges slowly out of the human condition." Applied broadly, this approach could result in an almost total abdication of a Court’s responsibilities under the Charter of Rights.

         Sopinka J goes on to apply these considerations to the facts in Egan. He emphasizes that the exclusion of same-sex couples from the Old Age Security Act "should not be judged on the basis that Parliament has made this choice for all time," and cites the Attorney General’s submission that "the means chosen does not have to be necessarily the position for all time. Rather, there may always be a possibility that more acceptable arrangements can be worked out over time." He then summarizes his conclusions by stating that:

         "... 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 therefore rationally connected to the objective.

         With respect to minimal impairment, the legislation in question 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 are serious difficulties with this approach. For one thing, Sopinka J makes no attempt to explain how this is a case of the government being forced to "mediate between competing groups." No evidence was led to suggest that the government would incur any particular difficulties in extending the benefit to same-sex couples, nor was there any suggestion that extending the benefit would have such substantial consequences that the benefit would have to be withdrawn from some other group.

         Moreover, it must be remembered that the s.1 analysis was being conducted in the context of a finding that a fundamental equality right has been violated, in a way that a has a discriminatory impact on an already disadvantaged community. Sopinka J seems to accept that this position is untenable in the long term and emphasizes that Parliament’s choice has not been made "for all time." However he offers no timelines or parameters within which Parliament must act. He points to no substantive issues of policy which would justify Parliament’s refusal to extend same-sex benefits. He makes no reference to any government evidence which could support a s.1 claim. He identifies no concrete financial implications of extending benefits, nor any competing policy considerations. In essence, he seems to be saying that there is discrimination, but that the Court will look the other way for a while.

         Particularly noteworthy is his comment that:

         "It may be suggested that the time has expired for the government to proceed to extend the benefits to same-sex couples and that it cannot justify a delay since 1975 to include same-sex couples. While there is some force in this suggestion, it is necessary to keep in mind that only in recent years have lower courts recognized sexual orientation as an analogous ground, and this Court will have done so for the first time in this case ... Given the fact that equating same-sex couples with heterosexual spouses, either married or common law, is still generally regarded as a novel concept, I am not prepared to say that by its inaction to date the government has disentitled itself to rely on s.1 of the Charter."

         These comments are revealing for two reasons. Firstly, Sopinka J seems to be explicitly according government some breathing room, while equally clearly heralding a day when government inaction disentitles it from relying upon a s.1 defence. Thus, he appears to be saying that the government can avail itself of s.1 for only so long as it can demonstrate that it is moving in the right direction towards the equal recognition of same-sex relationships. Precisely how long the courts will tolerate an ongoing situation of discrimination against the lesbian and gay communities is not articulated. Apparently the twenty years "since 1975" do not constitute sufficient delay to undermine the government’s s.1 defence.

         The second remarkable aspect of Sopinka J’s comments is his belief that a s.1 defence can be maintained if the claim is "novel." This is an extraordinary limitation to read into Charter jurisprudence. It imports into s.1 considerations which are simply not there, and seems to fly in the face of previous Supreme Court jurisprudence. For example, in R v. Keegstra, the Court stated:

         "Obviously, a practical application of s.1 requires more than an incantation of the words ‘free and democratic society.’ These words require some definition, an elucidation as to the values they invoke."

         The values underlying a free and democratic society were articulated by Dickson CJ in the Oakes case:

         "The Court must be guided [under s.1] by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonably and demonstrably justified."

         Particularly noteworthy is the comment of Wilson J in R v. Turpin:

         "The argument that s.15 has not been violated because departures from its principles have been widely condoned in the past and the consequences of finding a violation would be novel and disturbing is not, in my view, an acceptable approach to the interpretation of Charter provisions."

         Although these statements were made in the context of s.15, they clearly reflect concerns of general application. As L’Heureux-Dubé J comments, almost disparagingly, in Egan:

         "There is a first time to every discrimination claim. To permit the novelty of the appellants’ claim to be a basis for justifying discrimination in a free and democratic society undermines the very values which our Charter, including s.1, seeks to preserve."

         In fact, L’Heureux-Dubé J specifically distances herself from the approach taken by Sopinka J, saying "it goes without saying that I cannot agree with the novel approach to s.1 taken by Sopinka J in this case."

         Similarly, Iacobucci J, writing the s.1 analysis for himself, Cory and McLachlin JJ indicates that since preparing his own judgment he has "read the reasons of my colleague Justice Sopinka" and critiques Sopinka J’s extensive reliance upon McKinney, noting that "the context of McKinney is wholly distinguishable from the present appeal." He then goes on to say:

         "However, what causes me greater concern is my colleague’s position that, because the prohibition of discrimination against gays and lesbians is ‘of recent origin’ and ‘generally regarded as a novel concept,’ the government can be justified in discriminatorily denying same-sex couples a benefit enuring to opposite-sex couples. Another argument he raises is that the government can justify discriminatory legislation because of the possibility that it can take an incremental approach in providing state benefits.

         With respect, I find both of these approaches to be undesirable. Permitting discrimination to be justified on account of the ‘novelty’ of its prohibition or on account of the need for governmental ‘incrementalism’ introduces two unprecedented and potentially undefinable criteria into s.1. It also permits s.1 to be used in an unduly deferential manner well beyond anything found in the prior jurisprudence of this Court. The very real possibility emerges that the government will always be able to uphold legislation that selectively and discriminatorily allocates resources. This would undercut the values of the Charter and belittle its purpose."

         Suffice it to say that the claim may be "novel" to Mr. Justice Sopinka. It is unlikely, however, that the appellants considered their 48-year relationship to be a recent phenomenon, and Canadian courts have now been dealing with same-sex relationship recognition cases for over twenty years.

         Iacobucci J also makes the point that many of the concerns expressed by Sopinka J, rather than being used to justify discrimination, should more properly inform the question of remedy. For example, concerns that government should be given latitude to redress discrimination over time could be met by temporarily suspending the effect of the Court’s order in accordance with Schachter, so that the government might have time to bring its legislation into conformity with the Charter of Rights.

         Iacobucci J’s own s.1 analysis follows closely the now traditional tests laid out in Oakes. He begins by identifying the legal tests to be met under s.1, namely the identification of a pressing and substantial legislative objective, and, secondly, the need for the means adopted to be reasonable and demonstrably justifiable in a free and democratic society. This second requirement itself involves three criteria:

         (i) the rights violation must be rationally connected to the aim of the legislation;

         (ii) the impugned provision must minimally impair the Charter guarantee; and

         (iii) there must be a proportionality between the effect of the measure and its objective so that the attainment of the goal is not outweighed by the abridgement of the right.

         Finally, Iacobucci J emphasizes the burden of proof on the government to prove in all cases that the violation is justifiable on a balance of probabilities.

         In applying these principles, Iacobucci J identifies the objective of the legislation as the mitigation of poverty in elderly households, and upholds this objective as valid. Although he acknowledges that the large majority of those who receive the spouse’s allowance are women, he rejects the suggestion that the legislation is geared specifically towards the needs of elderly women, primarily because the spouse’s allowance is currently available to any person who meets the statutory criteria, irrespective of their gender. He also notes that "given that the allowance is available after simply one year of cohabitation, it does not appear tailored to remedying the disempowered position of women flowing from the dynamic of long-term traditional heterosexual relationships, since a woman need not be in such a relationship in order to qualify for the benefit."

         Iacobucci J proceeds to conclude that the legislation is not rationally connected to its objective, but has been implemented in a discriminatory manner that excludes an equally deserving group for no sound reason of policy. He challenges the financial consequences of extending the program, and quotes the Chief Justice’s comments in Schachter that "this Court has held, and rightly so, that budgetary considerations cannot be used to justify a violation under s.1." He does, however, appear to qualify his rejection of financial considerations by adding that "[t]his is certainly the case when the financial motivations are not ... supported by more persuasive arguments as to why the infringement amounts to a reasonable limit."

         Iacobucci J further concludes that there is no minimal impairment of the appellants’ rights and that unrelated provincial legislation cannot be used to shore up the discriminatory impact of a federal exclusionary program.

         Finally, Iacobucci J considers that the legislation also fails the third limb of the Oakes test, since the attainment of the legislative goal is outweighed by the abridgment of the right. He adds that the only way this aspect of the test might be met is if the purpose of the legislation could be construed as "ameliorating the situation and fostering the existence of elderly heterosexual couples only." He notes that EGALE had submitted that this was indeed the government’s purpose in restricting the program to opposite sex couples only, and he acknowledges that, if so, it would be a wholly discriminatory and constitutionally invalid purpose. It is worth noting, however, that this is the very basis on which La Forest, Major, Gonthier JJ and Lamer CJ seek to uphold the legislation, namely the State interest in fostering and promoting heterosexual relationships and only heterosexual relationships.

         In rejecting this position, Iacobucci J quotes the following comments of L’Heureux-Dubé J in Mossop:

         "It is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional families may equally advance true family values."

         In the result, Iacobucci J and those concurring with him would have struck the words "of the opposite sex" from the definition of "spouse" in the Old Age Security Act, read in a suitable phrase to encompass those in same-sex relationships, and suspended the declaration for a year to enable Parliament to enact constitutionally acceptable alternatives if it so chose.

      5. Summary of principles under s.1

         In summary, Egan is a complex and challenging case. Although there is a clear majority that the exclusion of same-sex couples from the spouse’s allowance program violates s.15, there is no clear or coherent position adopted by the Court under s.1, even though it is s.1 considerations which are dispositive of the appeal. Although together La Forest and Sopinka JJ’s reasons under s.1 constitute a majority to uphold the legislation, their reasons are very different. Ultimately, it is Sopinka J’s reasons which constitute the "deciding vote", yet his decision remains the judgment of only one judge, and is explicitly rejected by four other judges as constitutionally unsound and lacking any basis in precedent. Moreover, even if one accepts Sopinka J’s reasoning, no coherent principles are articulated for analysing similar claims in future. The government succeeds, we are told, because the claim is "novel." But how often do the lesbian and gay communities need to advance similar claims in future before they cease to be "novel"? Further, writes Sopinka J, the government is entitled to act "incrementally" on equality rights provided, he hastens to add, it does not move too slowly. But how many years must we wait before the government will be deemed to have "disentitled itself by its inaction" from relying on s.1?

         In addition, the s.1 analysis of the four judges led by La Forest J is of little further assistance in identifying a basis in principle for assessing future cases. Their s.1 analysis is technically obiter since they rejected the appeal under s.15. As a result, s.1 is dealt with in a single paragraph which contains no reasoning other than a general reference to McKinney. The suggestion that the recognition of only heterosexual relationships could be a valid legislative purpose under s.1 is clearly untenable once s.15 is found to be violated since it is founded on the notion that heterosexual relationships are inherently superior. Such an argument is "fundamentally repugnant because it would justify the law upon the very basis upon which it is attacked for violating" the Charter right.

         The concern facing the development of lesbian and gay equality jurisprudence is that lower courts will now, in the absence of clear guidance from the Supreme Court, feel obliged to routinely reject lesbian and gay Charter challenges by mechanically applying the result in Egan without critical analysis. The challenge which therefore becomes essential to the development of a national lesbian and gay litigation strategy is to identify means of applying the Egan decision constructively to further the equality principles identified, while finding means to distinguish future cases sufficiently to avoid the application of the elusive and circular reasoning which ultimately led to the rejection of the appeal.

3. The effect of Miron v. Trudel

   For a complete understanding of the Egan decision, it is necessary to also examine the Supreme Court’s decision in Miron v. Trudel. This judgment was released on the same day as Egan, and contains similar analyses of s.15 equality rights, this time as applied to unmarried heterosexual couples, as well as a discussion on the role of marriage in Canadian society.

   John Miron and Jocelyne Valliere lived together in an unmarried common law relationship with their children. In 1987, Miron was injured while he was a passenger in a car owned and operated by the respondents, neither of whom was insured. Because he could no longer work following the accident, Miron made a claim for accident benefits against Ms. Valliere’s insurance policy, which extended such benefits to the "spouse" of the policy holder. The insurance company denied his claim on the basis that since they were not legally married, Miron could not be described as a "spouse" under the standard automobile policy terms prescribed by the Insurance Act.

   Miron and Valliere sued the insurer, who in turn brought a preliminary motion to determine whether the word "spouse", as used in the applicable portions of the policy, included unmarried common law spouses. The motions court judge found that "spouse" meant a person who is legally married, and this decision was upheld by the Ontario Court of Appeal.

   Miron and Valliere appealed to the Supreme Court of Canada, where the issues were whether the appellants were "spouses" under the policy and, if not, whether the policy terms prescribed by the Insurance Act violated the equality guarantees of the Charter.

   The Supreme Court of Canada found that the term "spouse" had not been intended to apply to unmarried couples, but nonetheless allowed the appeal, finding that the denial of equal benefits to unmarried common law couples violated s.15 and could not be saved under s.1 of the Charter.

   McLachlin J wrote the primary reasons in favour of the appellants, with Cory, Iacobucci and Sopinka JJ concurring. L’Heureux-Dubé authored separate but concurring reasons for judgment. Gonthier J wrote the dissent, which was concurred in by Lamer CJ, La Forest and Major JJ. The focus of Gonthier J’s dissent is very similar to the finding of the same four judges in Egan that "relevancy" is a "core" component of the s.15 analysis. Just as in Egan, these judges held that a distinction based on an enumerated or analogous ground will not necessarily be discriminatory if it is "relevant as merely reflecting a fundamental reality or value." Gonthier J then went on to hold that the benefit was not designed to support families of financial interdependence in the event of an accident, but instead is inextricably linked to the institution of marriage—"a basic institution of our society intimately related to its fundamental values." The exclusionary distinction was therefore treated as "relevant" (and non-discriminatory) because "the functional value of the benefit is not to provide support for all family units living in a state of financial interdependence, but rather, ... to assist those couples who are married."

   The fundamental difference between this case and Egan is that here McLachlin, Cory, Iacobucci, L’Heureux-Dubé and Sopinka JJ constitute a clear majority of the Court, not just under s.15 but also in the result, including the approach to be taken under s.1. Their reasoning in Miron v. Trudel is therefore extremely important in helping to shape the way in which some of the issues left open in Egan are to be resolved by lower courts.

   McLachlin J’s majority reasons in Miron endorse the two-step equality rights analysis first set out by the Supreme Court in Andrews. Particularly important is the finding in Miron that "to establish discrimination, the claimant must bring the distinction within an enumerated or analogous ground. In most cases, this suffices to establish discrimination."

   This makes it very clear that a legislative distinction which is based on an enumerated or analogous ground will almost always violate the purpose of s.15, leaving all issues of justification up to the State as part of the s.1 analysis. Put simply, historical patterns of disadvantage have created such inequalities that if the State is going to base legislative distinctions upon one of these grounds, it needs to have a good reason for it and be prepared to justify that distinction under s.1.

   McLachlin J underscores the appropriateness of this analysis, noting that:

   "...[i]t places the duty of adducing proof upon the parties who are in the best position to adduce it. It is for the claimant to show that he or she has been denied a benefit or suffers a disadvantage compared with another person. It is also for the claimant to show the basis for imposing the burden or withholding the benefit. These matters are within the knowledge of the claimant. Once these have been made out, the burden shifts to the state. It is the state’s law that has violated the individual’s equality on suspect grounds, and it is the state that most appropriately defends the violation. To require the claimant to prove that the unequal treatment suffered is irrational or unreasonable or founded on irrelevant considerations would be to require the claimant to lead evidence on state goals, and often to put proof of discrimination beyond the reach of the ordinary person."

   McLachlin J rejects Gonthier J’s assertion that "discrimination under s.15(1) is conclusively rebutted by a finding that the ground on which the equal treatment is denied is relevant to the legislative goal or functional values underlying the impugned law", noting that relevance "is only one factor in determining whether a distinction on an enumerated or analogous ground is discriminatory in the social and political context of each case." She concludes:

   "A finding that the distinction is relevant to the legislative purpose will not in and of itself support the conclusion that there is no discrimination ... If the basis of the distinction on an enumerated or analogous ground is clearly irrelevant to the functional values of the legislation, then the distinction will be discriminatory. However, it does not follow from a finding that a group characteristic is relevant to the legislative aim that the legislator has employed that characteristic in a manner which does not perpetuate limitations, burdens and disadvantages in violation of s.15(1). This can be ascertained only by examining the effect or impact of the distinction in the social and economic context of the legislation and the lives of the individuals it touches."

   Significantly, McLachlin J explicitly refers to and rejects the reasoning of La Forest J in Egan. She criticizes the "circular" reasoning inherent in using relevance as a criterion and then states:

   "La Forest J characterizes the functional value of the [Old Age Security Act] as meeting the need to support married couples who are elderly. Because, in his view, marriage is ‘firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate,’ Parliament may use the relevant ground of sexual orientation as a basis for distinguishing who should receive benefits under the Act. By defining the legislative aim in terms of the alleged discriminatory ground, namely married couples, the relevance of the ground is assured. On the assumption—misplaced in my view—that this relevance suffices to negate discrimination, s.15(1) is said to be met without examining the actual impact of the legislation on members of groups who may be disadvantaged by the distinction."

   McLachlin J further cautions that "the danger of using relevance as a complete answer to the question of whether discrimination is made out, and thus of losing sight of the values underlying s.15(1), is even more acute when one is dealing with so-called ‘biological differences’ ", drawing a parallel between La Forest J’s reasoning in Egan and the Supreme Court ruling in the now notorious Bliss decision (in which the Court denied benefits to pregnant women under the Unemployment Insurance Act on the basis that the legislative distinction was based on ‘relevant’ biological differences). She points out that:

   "Much as this Court did in Bliss, La Forest J relies on the biological differences between heterosexual and homosexual couples to find that the Old Age Security Act does not discriminate on the basis of sexual orientation. Following the lesson of Brooks, I would respectfully suggest that more is required; if we are not to undermine the promise of equality in s.15(1) of the Charter, we must go beyond biological differences and examine the impact of the impugned distinction in its social and economic context to determine whether it, in fact, perpetuates the undesirable stereotyping which s.15(1) aims to eradicate."

   In considering whether "marital status" is an analogous ground of discrimination, McLachlin J notes various tests that have been applied in the past, such as historical disadvantage, a finding that the group is a discrete and insular minority, distinctions founded upon personal characteristics, immutability, and similarity to the grounds enumerated. While all these tests may be useful indicators to help identify an analogous ground, it does not follow, she stresses, that any or all of them must be present to find an analogous ground. Instead, the unifying principle is said to be larger: "the avoidance of stereotypical reasoning and the creation of legal distinctions which violate the dignity and freedom of the individual, on the basis of some preconceived perception about the attributed characteristics of a group rather than the true capacity, worth or circumstances of the individual."

   McLachlin J concludes that marital status is an analogous ground, and challenges the insurer’s assertion that "marriage is a good and honourable state and hence cannot serve as a ground for discrimination." The phrasing of the question, she points out, is invalid: "The issue is not whether marriage is good, but rather whether it may be used to deny equal treatment to people on grounds which have nothing to do with their true worth or entitlement due to circumstance." She then cites the comments of L’Heureux-Dubé J in Mossop in the context of same-sex families: "It is not anti-family to support protection for non-traditional families."

   Having found a violation of s.15, McLachlin J then goes on to consider the approach to be taken under s.1. She reaffirms the validity of the Oakes test, requiring the identification of a pressing and substantial legislative objective, rational connection between this objective and the means adopted, minimal impairment of the right infringed, and overall proportionality. After acknowledging the legitimacy of the statutory goal of sustaining families when one of their members is injured in an automobile accident, she goes on to conduct an interesting analysis of what constitutes "rational connection."

   According to McLachlin J, rational connection may be assessed by inquiring whether the legislator has adopted a good or poor "marker" for drawing the distinction. A "poor marker" chosen by the legislator is one which excessively impairs equality rights by excluding many who, given the goal of the legislation, should not be excluded. In contrast, a "good marker" excludes most people who should be excluded, and only a few who should not. The standard is reasonableness, not perfection. On the other hand, if the number of anomalies is so high as to significantly undermine the relevance of the group marker, or if more reasonable markers are available, the law may be invalid.

   On balance, she finds that marital status is not a reasonable or relevant marker of those who should obtain accident benefits in order to accomplish the purpose of the benefit. McLachlin J also takes the opportunity to comment on the suggestion that "the Legislature’s choice of an inappropriate marker for family accident benefits can be defended on the ground that the legislation was passed in a period of rapidly changing family norms." She refers to the comment of La Forest J in McKinney that:

   "... a Legislature should not be obliged to deal with all aspects of a problem at once. It must surely be permitted to take incremental measures. It must be given reasonable leeway to deal with problems one step at a time ..."

   Significantly, this is the same passage relied upon by Sopinka J to reject the appellants’ claim in Egan. Although McLachlin J states that she "agree[s] with these sentiments", she goes on to say that "the need for legislative leeway is of little assistance in the case at bar. Marital status was not a reasonable criterion even in 1980, and the alternatives adopted in the years that followed belie the suggestion that the failure to adopt a more relevant criterion in the years between 1980 and 1987 can be attributed to the time required for legislative response."

   In so finding, she supplies what Sopinka J failed to provide in Egan: a criterion (however broad) for determining when legislative inaction can be justified under s.1. Her reference to "the time required for legislative response" suggests that "incrementalism" can only be a basis for justifying discriminatory legislation if government inaction is restricted to that required to frame the necessary legislative response.

   It must be emphasized that whether incrementalism is an appropriate s.1 consideration at all is questionable: certainly Iacobucci J described this criterion as "unprecedented" and "potentially undefinable" when critiquing Sopinka J’s reasoning in Egan. However, to the extent that incrementalism is used as the foundation for a s.1 justification, it is clear that there must be some defining or limiting parameters. A governmental delay in order to complete necessary policy analyses and develop effective legislation in a timely manner might be justifiable; inaction due to cold feet, indecision or lack of commitment to remedying the discrimination would not be.

   In the context of sexual orientation claims, it is relevant to note that at this time the federal government has never even expressed a commitment to recognizing same-sex couples equally. Indeed on October 16, 1996 the Prime Minister commented that he was "not very comfortable with" equal benefits for same-sex couples, that he "[doesn’t] know how that works in a society" and that marriage is "a contract between two individuals according to the Canadian tradition of different sexes sharing a family life together."

   The actual position of the Government was not in evidence in Egan. If it had been, it seems that, in the absence of even the barest commitment to extend equal benefits to same-sex couples, it would be extremely difficult for the Government to claim that it was acting incrementally and was delaying for only the time necessary to frame a legislative response to redress the discrimination.

   Interestingly, none of the majority judges in Miron express concern about the financial implications of extending benefits to common law heterosexual couples, a consideration that very much occupied the Court in the context of extending same-sex benefits in Egan.

   All in all, Miron v. Trudel is an extremely significant case which sheds substantial light on many of the issues raised in Egan. In particular, a clear majority of the Court rejects "relevance" as a limiting factor under s.15 and explicitly rejects La Forest J’s reasoning in Egan. McLachlin J’s majority decision in Miron was concurred with by the same judges who concurred with Cory J in Egan, and Gonthier J’s dissent in Miron was concurred with by the same judges who concurred with La Forest J in Egan. The difference between Miron and Egan is Sopinka J’s position. By concurring with the majority in Miron, he agrees with McLachlin J’s specific rejection of La Forest and Gonthier JJ’s approach. This places beyond any doubt that the four judges who took the position that the fundamental importance of marriage justifies the exclusion of common law and same sex spouses from the benefits at issue in these cases are in the minority.

   Finally, the majority in Miron reaffirms the need for rigorous judicial scrutiny of any alleged justifications under s.1. Sopinka J’s use of "novelty" and "incrementalism" as a basis for s.1 justifications were explicitly critiqued by the minority in Egan, and some parameters are identified by the majority in Miron to restrict unfettered use of the "incrementalist" approach as a means to circumvent proper judicial scrutiny under s.1.

4. Life after Egan: next steps

   Although Egan was a loss in the Supreme Court, it was by no means a defeat. "Sexual orientation" has now been recognized as a prohibited ground of discrimination and the reasons in Egan, taken together with the Miron analysis, make it clear that the refusal to accord equal benefits to same-sex relationships violates s.15 of the Charter.

   In addition, at least four judges do not support the government’s attempts to justify such exclusions under s.1, and even Sopinka J did not base his rejection of the claim on a perceived need to maintain the sanctity of heterosexual marriage, but instead left the door squarely open for future challenges to governmental inaction.

   On the other hand, Egan saw a severe watering-down of the standards to be applied under s.1, in a way which, if not redressed, will likely result in the substantial erosion of the protections afforded to all equality communities, as the government seeks to avoid its s.15 responsibilities simply by pointing to the need for judicial deference to difficult legislative choices under s.1.

   The very real challenge now facing the lesbian and gay communities is to develop litigation strategies which will limit the negative impact of the Egan decision while cementing in place the gains that were made. The approach taken in several cases released subsequent to Egan will now be examined, following which some suggestions for future directions and possibilities will be advanced.

   Cases subsequent to the Egan decision

   1. Rosenberg v. Canada

      One important case, which involves a direct application of the Egan decision, is the decision of the Ontario Court (General Division) in Rosenberg v. Canada. This decision demonstrates the pitfalls of Egan to the fullest. The applicants in this case were two employees of the Canadian Union of Public Employees (CUPE), which provides a number of benefits to its members and their spouses. The union also provides a pension plan which every full time employee is required to join. The plan provides for spousal survivor benefits. The applicants sought to have their partners recognized as spouses for the purpose of entitlement to the survivor benefits. CUPE agreed and amended the definition of "spouse" in its pension plan so as to include same-sex couples.

      Pension plans must be registered under the Income Tax Act for employees’ and employers’ contributions to the plan and the plan’s earnings to benefit from tax deferral. The Income Tax Act requires that for a pension plan to be registered, survivor benefits may be payable only to a spouse, former spouse or dependant. "Spouse" is defined as including married and common law opposite sex spouses only. When CUPE sought the approval of Revenue Canada for its new inclusive definition of spouse, their request was denied. As a result, the CUPE union joined with the individual applicants in seeking a declaration that the "opposite sex" definition of "spouse" in the Income Tax Act was unconstitutional as it applies to pension plans.

      Charron J of the Ontario Court (General Division), following Egan, held that the opposite sex definition of spouse did violate s.15 of the Charter but was saved under s.1. In applying the Supreme Court’s decision in Egan, Charron J discussed the difficulty that resulted from the division of the Court, noting:

      "If one considers the strict application of the doctrine of stare decisis, it is debatable whether courts of inferior jurisdiction, in a subsequent case which cannot be distinguished, are bound by the finding made by five of the nine justices on the s.15(1) issue since only one of these five justices formed part of the ultimate majority who governed the final outcome of the case."

      Charron J does, however, go on to conclude that, when taken together with the reasons in Miron v. Trudel, the principles of law articulated by the majority of the Court under s.15 lead one to the conclusion that "the definition of spouse, in restricting spousal status to persons of the opposite sex, infringes s.15(1) of the Charter."

      Charron J then goes on to consider the application of Egan to a s.1 analysis. She acknowledges that four of the five judges who rejected the appeal in Egan found that there was no s.15 violation, and that therefore "strictly speaking, their ruling in this respect constitutes obiter dicta." Nonetheless, she considers that as "a considered opinion of the majority of the court", their views on s.1 are "authoritative and binding."

      In view of this finding, the crucial question then became whether the case could be distinguished from Egan. After rejecting several factors which were advanced by counsel for the applicants to distinguish the case, Charron J concludes with a single paragraph:

      "I am unable to distinguish this case from the principles set out in Egan within the context of this constitutional debate. The facts and the issues are too closely related. My own views on the matter are irrelevant. I am bound to follow the same result and rule that the infringement of the applicants’ s.15(1) rights is justified under s.1 of the Charter. Consequently, the impugned legislation is constitutionally valid and the application is dismissed."

      What is alarming about this decision is that Charron J does not appear to consider lower courts bound by the majority ruling in Egan that the refusal to recognize same-sex relationships violates s.15 of the Charter (although she does herself reach that conclusion), but she does consider the Court bound by Egan to reject the claim under s.1. This opens up the possibility of future courts reconsidering the s.15 issues and substituting their own views of same-sex relationships for those of the majority in Egan which found a violation of s.15. At the same time, the rigid application of the Egan approach to s.1 would mean that all discrimination in cases which "look like" Egan, will be justified under s.1, even though it is in relation to s.1 that it is almost impossible to discern any coherent principle from the Egan judgments.

      Of particular concern is that s.1 is supposed to place a high onus on the government to justify legislation which violates equality rights. Each piece of impugned legislation must be examined in light of its own objectives. Consideration must be given to factors such as rational connection, minimal impairment and proportionality. Compelling evidence is supposed to be presented by the government to back up its alleged s.1 justifications.

      In Rosenberg, Charron J made no effort to conduct a s.1 analysis. No government evidence was presented or discussed. No attempt was made to discuss the objectives of the registration provisions of the Income Tax Act and the rationale for excluding same-sex couples. No attempt was made to identify any principles advanced in Egan for dealing with s.1 claims, nor to apply any such principle to the case before the Court. No consideration was given to the fact that four of the five judges in Egan finding a s.1 justification made no effort to analyse the legislation, but simply commented in a single paragraph that they would have upheld the legislation under s.1. Even Sopinka J’s wide-open "incremental" approach was not applied to see whether the legislature had in fact been making incremental advances in this area or had exceeded a reasonable time-frame in which to fashion a legislative response to changing social needs.

      The CUPE case is now on appeal to the Ontario Court of Appeal. EGALE and a broad coalition of other equality-seeking groups are intervening on the basis that the approach adopted by the Court, far from securing "the unremitting protection of equality rights in the years to come", would wholly undermine the promise of equality held out by s.15 of the Charter.

   2. M v. H

      A more constructive application of the Egan decision may be found in M v. H, which deals with support obligations between same-sex couples on relationship breakdown.

      In M v. H, M challenged the constitutional validity of the opposite sex definition of "spouse" in the Family Law Act of Ontario, which enables only opposite sex couples to seek spousal support in the event of relationship breakdown. It was recognized by the parties and the court that M’s claim involved a two-step process: firstly, whether a lesbian or gay partner had any legal basis for a support application, and secondly, if so, whether the applicant was actually entitled to support payments on the facts of this case. The application proceeded as a determination on a point of law to resolve the preliminary constitutional question, leaving the determination of the particular financial circumstances between the parties for another day.

      Epstein J of the Ontario Court (General Division) concluded that the opposite sex definition of spouse in the Family Law Act did violate s.15 of the Charter and could not be saved under s.1. Although she conducted an independent analysis, she drew heavily upon the reasoning in Egan to find that the legislation violated s.15 of the Charter because it drew a distinction resulting in disadvantage on the basis of an analogous ground. She then moved on to the s.1 analysis, setting out the requirements as identified in Oakes. Epstein J explicitly rejected the suggestion of the Attorney General of Ontario that the objective of the support provisions is to recognize the special role of marriage in society and to benefit women, who are more likely to be in situations of financial dependence. Instead, she identified the goal of the legislation as "to protect those who have become economically dependent upon a relationship marked by marriage or intimate cohabitation, and who require assistance in becoming self-sufficient upon the breakdown of that relationship."

      Having found this goal to be pressing and substantial, she found that the legislation failed all three limbs of the Oakes proportionality test. She applied McLachlin J’s analysis in Miron to conclude that the marker chosen by the Legislature was a poor one, not rationally connected to furthering the legislative goal. Since there were other options available more consistent with the legislative goal and since the rights violation was "clear and direct", she also concluded that there was no minimal impairment or proportionality to the impugned provision.

      Epstein J then proceeds to an interesting discussion of judicial deference, which she acknowledges as a theme in Egan, although she also admits that it is less clear where the principle of deference fits into the s.1 analysis. She considers extensively Sopinka J’s remarks in Egan, but concludes that "with all due respect, I am of the view that Mr. Justice Sopinka’s comments in Egan are specific to that case and particularly to the nature of the impugned legislation."

      She refers to Mr. Justice Sopinka’s repeated assertions that one of the reasons for deference is that "social benefits legislation costs money." While she disputes that cost consequences are a proper s.1 consideration, since "we should not as a society turn a blind eye to discrimination simply because it is expensive to rectify", she nonetheless distinguishes M v. H from both Egan and Rosenberg on the basis that "this case deals with the rights and obligations of private parties" rather than the relationship between the individual and the State.

      Finally, Epstein J considers the comments of McLachlin J in Miron, concluding that the concepts of incrementalism and judicial deference "may apply simply to accommodate the time the government requires to respond to demands arising from changing social needs. It takes time for the legislature to identify the need, gather information about it, craft the appropriate response, and, on occasion, test the will of the people. It may be that in appropriate circumstances a s.15 violation should be tolerated in anticipation of, and to allow for, future amendments necessary to further the legislative intent."

      However, Epstein J considered that this was not the case before the Court. Far from demonstrating a legislative willingness to frame appropriate legislation over time, the Attorney General of Ontario had reversed its position after the election of the Conservative government in Ontario, and had strenuously resisted M’s claim. There could be no defence of incremental progress "when it is clear that the Ontario legislature cannot (or will not) move forward with such an initiative." Indeed, as Epstein J points out, far from unduly deferring to legislative inaction, it is precisely when governments because of political constraints do not act in an area which they perceive to be unpopular that it falls to the Courts to uphold the principles of the Constitution.

      On December 18, 1996, the decision of Epstein J was upheld by a two to one majority of the Ontario Court of Appeal. Charron J, writing for herself and Doherty J, had no difficulty finding that the inability to seek spousal support under the Family Law Act violated M’s right to equality under s.15 of the Charter. She begins by pointing out that comparisons with a heterosexual married couple were not useful given that same-sex couples "do not have the present legal means to marry." Charron J then expresses her view that the legislation clearly draws a distinction on the ground of sexual orientation and notes:

      "... this usually suffices to establish discrimination and it is only in exceptional cases that the denial of equality on an analogous ground will not violate the purpose of s.15(1)."

      Charron J then goes on to consider whether the discrimination can be justified under s.1 of the Charter. She rejects the Respondent’s submission that the Egan ruling is dispositive of the appeal, noting that she is bound to conduct an independent analysis of the objectives of the Family Law Act. In considering the purpose of the legislation, she states:

      "I have considered whether the statement of objective should be couched in terms which exclude same-sex couples, a position implicitly advanced by counsel for the Attorney General on this appeal. For example, should the purpose be defined in terms of providing ‘for the equitable resolution of economic disputes that arise when intimate relationships between individuals of the opposite sex ... break down’? I have concluded that it should not be so defined because a consideration of the purpose in such terms would inevitably lead to circular reasoning and would not provide a vehicle for the meaningful assessment of M’s claim to unequal treatment."

      In the result, Charron J concludes that no basis was identified for justifying the discriminatory treatment under s.1. She considers H’s submission that same-sex relationships should not be assimilated to heterosexual norms, and comments that "it is not surprising that many gay men and lesbians would reject any assimilation to such a model [based on ‘traditional’ gender roles] since it would in effect require that they abandon the very identity they seek to protect, their sexual orientation towards a person of the same gender." Nonetheless, she considers that just as the Family Law Act applies to a wide variety of heterosexual relationship structures, so long as there is a situation of dependency giving rise to a need for support, so too same-sex relationships need not fit any particular mould in order to fall within the ambit of the Act. Finally, she rejects the Attorney General’s argument that the Court should defer to the Legislature’s policy choice to make incremental advances in family law reform, noting that "the Attorney General might have been in a better position to make this argument if the Legislature had indeed made some policy choices with a view to redressing the discrimination. But it did not. It chose inaction."

      The M v. H case therefore represents an interesting application of the Egan decision, in which government inaction itself served as a basis for circumventing the deferential approach favoured by Sopinka J by calling into question the government’s commitment to remedying the discrimination in either the short or long term.

   3. Re Vogel and North

      The Vogel ruling was also released shortly after the decision of the Supreme Court in Egan. Chris Vogel is an employee of the Government of Manitoba who sought dental, health and superannuation benefits for his same-sex partner. Having been denied the benefits, he brought a claim of sexual orientation discrimination against the provincial Government under the Manitoba Human Rights Code. An adjudicator initially dismissed the claim, as did the Manitoba Court of Queen’s Bench. Vogel appealed to the Manitoba Court of Appeal, which allowed the appeal.

      Helper and Scott JJ held that Egan had now resolved the question of whether the ground "sexual orientation" encompassed discrimination based upon the denial of equal benefits to those in same-sex relationships. Although the appeal court hearing in Vogel took place before the release of the Egan decision, Helper and Scott JJ noted that, as a result of Egan, it is "unnecessary to review the arguments presented in this court. Cory J’s extensive analysis of the meaning of discrimination under s.15(1) of the Charter is applicable to the interpretation of s.9 of the [Manitoba Human Rights] Code."

      Helper and Scott JJ did reject the adjudicator’s opinion that each ground of discrimination must be dealt with separately, emphasizing instead that grounds of discrimination often overlap. In the result, however, they sent the case back to the adjudicator to be determined on its merits in light of their ruling.

      Philp J agreed, although he took the opportunity to mourn the Court’s need to "intrude into the legislative sphere" and "decide questions the legislature has ducked." He summarized Egan by saying:

      "[S]ame-sex couples have been granted spousal status under the law by the slimmest of possible majorities, with all the attendant (but as yet undefined) rights and responsibilities. ... As a result of the decision in Egan, it may no longer be necessary for human rights tribunals and the courts to struggle with such words and phrases as ‘family’, ‘common law spouse’, ‘family status’, ‘marital status’, ‘marriage’, ‘dependent’ and ‘conjugal status,’ and to give those words meanings they were never intended to convey. The Supreme Court’s re-definition of the word ‘spouse’ to include both ‘opposite-sex couples’ and ‘same-sex couples’ opens the door to the reassessment of the biological and social realities that have been, until now, fundamental to the family or marital status. ... The Court, nearly thirty years after the decriminalization of ‘homosexual’ sexual activity between consenting adults, has wandered back into the bedrooms of the nation in order to set apart gay and lesbian couples from all the other relationships which are denied spousal benefits."

      In the result, Philp J grudgingly accepted that the appeal court was bound by the decision in Egan, but also chose to send the case back to the adjudicator for further assessment.

   4. Re Moore & Akerstrom

      Very similar to the Vogel case, Moore & Akerstrom deals with the responsibility of the federal government to extend equal relationship benefits to its lesbian and gay employees. Moore and Akerstrom were each federal government employees whose same-sex spouses were denied a range of employment benefits available to the spouses of employees in opposite sex relationships. They laid a complaint of sexual orientation discrimination under the Canadian Human Rights Act, which was unanimously upheld by a three-person Human Rights Tribunal. The Tribunal had no difficulty finding that "sexual orientation" had been read into the Act by the Haig case, and noted the recent passage of Bill C-33 adding sexual orientation explicitly as a ground.

      The Tribunal then went on to consider whether the denial of spousal benefits to same-sex partners constitutes sexual orientation discrimination under the Act. The Tribunal considered the Egan decision, citing the reasons of Cory J, and noting that those reasons were concurred in by four other judges, thus making it a majority ruling of the Court. Unlike Charron J in Rosenberg, the Tribunal did not question the finding of the majority of judges in Egan who found a s.15 violation, on the basis that they did not form the final majority in the outcome. Indeed the Tribunal concluded:

      "It is now crystal clear that the law is that denial of the extension of employment benefits to a same-sex partner that would otherwise be extended to opposite-sex common law partners is discrimination on the prohibited ground of sexual orientation.

      It is equally clear from the reading of these cases that the inclusion of a definition of "spouse" which excludes same-sex partners in legislation or collective agreements or regulations by the government so as to deny such benefits offends the Charter and the Canadian Human Rights Act and constitutes discrimination prohibited by both."

      The Government Respondent submitted that the Tribunal should nonetheless defer to the government and give it time to bring its policies and practices into line with the Human Rights Act. It relied upon Sopinka J’s decision in Egan to advocate in favour of an incremental approach. The Tribunal rejected those arguments, emphasizing that whatever deference is due to Parliament in its role as legislator is not appropriate when dealing with government in its role as employer:

      "Here, we are dealing with an employer who happens to be the government. ... This case is not a Charter case. The defences available to the Respondent are the defences provided in the Act. Section 1 of the Charter is not one of those defences."

   5. Laessoe v. Air Canada

      Less successful was the complainant’s claim in Laessoe v. Air Canada. This Human Rights Tribunal decision dealt with a similar issue to that raised in Rosenberg, namely the obligation of an employer to provide same-sex pension benefits on an equal basis. Whereas Rosenberg directly challenges the "opposite sex" definition of "spouse" in the Income Tax Act, however, Laessoe argued that until the Income Tax Act is amended, employers have an obligation to set up alternative or parallel pension plans for lesbian and gay employees, so that these employees can receive equality of result, albeit under a separate scheme, without jeopardizing the employer’s ability to register the main pension plan under the Income Tax Act.

      The Tribunal rejected this contention, adopting an extraordinarily restrictive interpretation of the impact of the Egan decision:

      "It is our view that the recognition of sexual orientation as a prohibited ground of discrimination under the Human Rights Act can only be made to the extent that such ground was recognized in Egan, supra. That is to say that, although the Supreme Court of Canada found that sexual orientation was an analogous ground under the Charter, such Court further found that a definition of spouse which excluded a same sex spouse for the purposes of pension benefits could continue. As such the introduction of sexual orientation as a prohibited ground of discrimination in the Canadian Human Rights Act by reason of Egan is limited by the findings in Egan and thus, when a fact situation, similar to that found in Egan is before us we are bound to find that a similar definition of spouse contained in the respondent’s pension plan is not discriminatory."

      By adopting Egan as a single global unit, the Tribunal failed to recognize the majority ruling that an opposite-sex definition of spouse is discriminatory, and sought to incorporate into the Canadian Human Rights Act the whole of the Egan analysis under s.1, totally overlooking the fact that there is no s.1 defence available under the Human Rights Act.

      The above cases demonstrate that lower courts and tribunals are able to find whatever they are looking for in the Egan decision. In the absence of a clear direction from the Supreme Court, those lower court judges who wish to be proactive in advancing equality are able to draw on the positive aspects of the decision, while those judges inclined to be more restrictive seem equally capable of applying the decision to suit their own ends.

5. Strategic litigation options for the future

   1. Introduction

      It is apparent from the above analysis that while the Egan decision is "a good start", it is far from the final word on lesbian and gay equality claims. The central findings of the decision, as well as the way in which it has subsequently been applied, suggest several options for future strategic litigation.

      One reality at the Supreme Court level must be faced at the outset. It unfortunately seems likely that Chief Justice Lamer, and Justices La Forest, Major and Gonthier have made up their minds that same-sex relationship recognition undermines marriage as an institution. These judges are unlikely to change their position, regardless of how the legal claims are fashioned. They concluded in Egan and again in Miron v. Trudel that the State will always be entitled to privilege heterosexual marriage, since they see heterosexual marriage as a sacred social institution deserving of special status. Their approach builds the concept of "relevance" directly into the s.15 analysis, and their application of that approach will always find that discrimination against same-sex relationships is "relevant" to the legislative goal, since the legislative goal is framed (by definition) not just as providing particular benefits to needy couples, but as providing particular benefits to needy married couples.

      Conversely, Cory, Iacobucci, McLachlin and L’Heureux Dubé JJ appear to require no convincing that discrimination against those in same-sex relationships cannot be justified under the Charter, and they have already explicitly rejected the approach of Justices such as Gonthier, La Forest and Sopinka.

      Two factors might conceivably tip the balance in favour of equality for those in same-sex relationships in future. One is that Justice La Forest is retiring from the Supreme Court bench, and it may be hoped that his replacement will be less inclined to view opposite-sex relationships as deserving social recognition which is denied to same-sex relationships. Secondly, it may be that Sopinka J can be persuaded to abandon his cautious approach based upon the "novelty" of same-sex relationships as a social concept. Sopinka J did suggest in his reasons in Egan that judicial deference was not unlimited, and that government might not be able to maintain discriminatory legislation for all time.

      The very narrow balance in the current make-up of the Court makes it essential to develop strategic litigation options which will advance the equality issues raised by the Egan case.

   2. The same-sex marriage case

      The issue of same-sex marriage provides a good example of the need for strategic planning on equality issues. On its face, the marriage case is well-founded: heterosexuals are legally entitled to marry their partners, lesbians and gays are not. It is difficult to see how this could be anything other than sexual orientation discrimination.

      It must be acknowledged that many lesbians and gays would not choose to marry, viewing the institution of marriage as a tool by which some relationships are inappropriately privileged over others, as well as a primary means by which the role of women has been subordinated to men. Nonetheless, many lesbians and gays would choose to marry, but are denied the range of relationship options available to heterosexuals because of the prohibition on same-sex marriage. The Supreme Court has held that the denial of choice in and of itself constitutes the denial of the equal benefit of the law.

      In many of the reported cases, however, judges have expressed concern that recognition of same-sex benefit claims may ultimately lead to same-sex marriage. A Charter challenge to the federal common law prohibition on same-sex marriage was before the Courts in the case of Layland v. Ontario. The claim was rejected by the Ontario Court (General Division) by a two-to-one majority. In one of the less enlightened examples of judicial reasoning, Southey J wrote for the majority:

      "The law does not prohibit marriage by homosexuals, provided it takes place between persons of the opposite sex. Some homosexuals do marry. The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of law."

      When the applicants’ relationship ended, new plaintiffs were added and the case was appealed as Schouwerwou and Shannon v. Ontario. Although that case was started well before the release of the Supreme Court decision in Egan, it became clear from Egan that the Supreme Court was unlikely to look upon a marriage challenge favourably. In the face of conflicting community responses, EGALE hosted Court Challenges Program consultations in October of 1995 to solicit feedback on the strategic implications of the same-sex marriage case. The strong message from those community members and lawyers present at that meeting was that it was strategically inadvisable to proceed with the same-sex marriage case at that time. As a result, the Appellants and their Counsel agreed to put their appeal indefinitely on hold.

      Those who supported the appeal proceeding expeditiously made the following points:

      • although not everyone would choose to marry, that is a choice which should be available to each couple to decide for itself;

      • same-sex marriage challenges homophobic stereotypes that same-sex relationships are uncommitted or unworthy of recognition;

      • even in the event of a loss, a same-sex marriage challenge affords the opportunity to educate the public and the media about the realities of lesbian and gay lives and the quality of our relationships;

      • since the case involved a challenge to federal common law rather than statute law, there was less room for the argument advanced in Egan that the Courts should defer to Parliament in matters of social policy;

      • the case was not a "benefits" case, but concerned the "status" of marriage, and therefore did not involve financial considerations such as those advanced in Egan;

      • the case had received much community and public support, and had also been the subject of favourable media attention;

      • the case reflected an international trend towards challenging prohibitions on same-sex marriage, e.g. in Hawaii, Washington D.C. and Europe;

      • there was a strong dissenting judgment before the Ontario Court (General Division) and the flawed reasoning of the majority should not be allowed to stand.

      Those with concerns about the case proceeding fell into roughly two groups: those with concerns about the philosophy of same-sex marriage as a goal, and those who supported same-sex marriage as a goal, but had strategic concerns about whether the case could succeed at this time. Perhaps in an effort to maximise common ground, most comments focused on strategy and timing issues and the following points were made:

      • If the Supreme Court was unwilling to extend old age security benefits in Egan, it would be extremely unlikely to recognize same-sex marriage;

      • four Supreme Court judges explicitly stated that marriage is reserved for heterosexuals, even though the Egan case did not concern same-sex marriage. Sopinka J., the fifth judge to rule against Egan, would almost certainly not support same-sex marriage if he could not support old-age security benefits. Even the four supportive judges were at pains to point out that their decision did not require a ruling in favour of same-sex marriage; it therefore seemed highly probable that a same-sex marriage challenge could not succeed before the Supreme Court as it is currently constituted;

      • the public education gains of bringing a same-sex marriage challenge would be outweighed by the negative consequences of a loss; a loss would reinforce the message of the right-wing that same-sex relationships are inherently inferior to opposite-sex relationships;

      • although there have been a number of successful lower court and tribunal decisions, the Supreme Court has never ruled in favour of a lesbian or gay equality claim. It is preferable to secure gains before the Court in cases which will be easier to win before asking the Court to rule on same-sex marriage;

      • the Supreme Court binds all lower courts and tribunals. An adverse ruling would halt the steady advance of successes accumulating before the lower courts;

      • a marriage case might well be sufficiently threatening to the Supreme Court to make it retreat from the positive findings made under s.15 in Egan. This would undermine the gains made in that case and could have a negative impact on all equality-seeking groups.

      Overall, there were concerns that the case would set back equality jurisprudence by establishing unrealistically high thresholds for s.15 of the Charter in an attempt to avoid ruling in favour of the Appellants. Once certain key principles had been established by the Supreme Court, it would then be appropriate to bring the case forward again. It was to the credit of the Appellants and their Counsel that they were willing to engage in the process of strategic community consultation. Although a decision was ultimately made not to proceed at this time, the case provides a good example of the way in which constructive community dialogue can help shape the legal challenges which are brought forward in the hope of maximising the chances of success before the Courts.

   3. Other strategic litigation options

      The preceding discussion suggests a range of other options for strategic litigation to develop the legal understanding of same-sex equality claims. Specific possibilities include the following:

      1. Insurance Act claim

         Possibly the ideal test case would be a challenge under the Insurance Act to discriminatory terms in the prescribed automobile policy. The Supreme Court of Canada has already considered essentially the same case in Miron v. Trudel, and a majority of judges, including Sopinka J, have already identified the legislative objective for s.1 purposes in broad terms as the need "to sustain families when one of their members is injured in an automobile accident ... to reduce economic dislocation and hardship." Since the objectives are equally applicable to those in same-sex relationships and since the Court was not prepared in that case to show judicial deference to Parliamentary choices, it would be extremely difficult for the Court to avoid applying these same conclusions to lesbian and gay couples. Interestingly, a same-sex equality claim under the Insurance Act has recently arisen in Toronto and is being pursued through the Courts. Apparently, the Ontario government is seeking to distinguish Miron v. Trudel on the basis that Miron v. Trudel involved a heterosexual couple whereas it is easier to justify discrimination against same-sex couples. This position throws into stark relief the inequities inherent in the current legal refusal to recognize same-sex relationships, and provides a good focal point for challenging the impugned legislation.

      2. Claims involving private relations

         Another way to limit excessive judicial deference to Parliament is to advance claims which do not create an adversarial relationship between the citizen and the State. M v. H is a good example of a case where the challenged legislation regulates private relations between two individuals, and the legal question involves the extent of the rights and responsibilities between the parties rather than individuals looking to the State to extend a particular program. In fact, extension of support obligations would reduce the dependence of individuals on the State upon relationship breakdown. While such an outcome might be unappealing to sectors of the lesbian and gay communities because of the increased dependence this would create upon ex-partners, the M v. H case might well circumvent Sopinka J’s concerns about the Government’s difficult role in making policy choices concerning which groups should be covered by particular programs in a time of scarce financial resources. Indeed, it may be that one of the reasons Sopinka J was more willing to support the claim in Miron v. Trudel is that by extending the definition of "spouse" in the Insurance Act, it was not the State which was required to extend benefits but a private insurer.

      3. Human Rights Act claims

         Another strong case would be a same-sex benefits claim brought under a federal or provincial Human Rights Act, which did not involve a Charter challenge. Five of the nine Supreme Court judges have already found the denial of benefits to be discriminatory, and such a case would not permit them to defeat the claim by invoking s.1, since s.1 of the Charter is not applicable to a Human Rights Act case. This would have the effect of establishing a clear Supreme Court precedent in favour of the extension of same-sex benefits, which would limit the ability of lower courts to attempt to circumvent such claims. Cases like Vogel and Moore have already demonstrated that this appears to be a sound and workable strategy in the lower Courts.

         The only difficulty with this option is that most Human Rights Act claims are either settled by the relevant Commission or decided at the Tribunal stage. The federal government usually accepts adverse rulings to avoid negative precedents by higher Courts, and private employers are unlikely to want to waste the resources fighting such a case all the way to the Supreme Court of Canada. One means of overcoming this difficulty might be to sue one of the more recalcitrant provincial governments, which might be inclined to defend the claim to a higher level of Court.

      4. Cases which involve conflicts of laws or clear injustices

         The Supreme Court’s reluctance to overturn legislation using s.1 of the Charter might be overcome in a particularly clear case where the effects of maintaining a discriminatory law create an undeniable ongoing hardship for the lesbian or gay litigant. In particular, as provincial governments begin to take steps of their own recognizing same-sex relationships, an increasing number of inequalities are likely to arise as a result of same-sex couples being recognized for some purposes but not others.

         One example is the case of Brian Ritchie and Joshua Gavel. Joshua Gavel is HIV-positive and requires a number of expensive medical treatments. His enhanced medical insurance benefits had been covered by the British Columbia Ministry of Social Services. The government of British Columbia chose to recognize his same-sex relationship with Brian Ritchie and canceled his benefits on the grounds that it was Mr. Ritchie who was responsible for his health care needs. Usually, a heterosexual caring for a dependent partner is able to claim these medical expenses against their federal income tax. The federal government refused to recognize the same-sex relationship, however, so that Mr. Ritchie was unable to claim the federal tax credit available to heterosexuals who care for a dependent partner.

         Cases like this involve ongoing hardship where a same-sex relationship is recognized by one level of government for the purpose of imposing a burden, but ignored by another level of government in order to deny a corresponding benefit. Such a case might well persuade the Court that the cost of maintaining discrimination contrary to s.15 of the Charter is disproportionate to any legitimate State objective under s.1.

      5. Challenge use of "incrementalism" defence

         In any future Supreme Court case which does involve a Charter challenge, it will be necessary to address Sopinka J’s concerns about incrementalism. There are a number of ways of doing this. One way is to challenge the appropriateness of "incrementalism" as a s.1 consideration directly. Before lower Courts and tribunals it can be pointed out that Sopinka J was in a minority of one in expressing his unusual approach to s.1, which was described by Iacobucci J in Egan as without precedent. As Epstein J points out in M v. H, it is difficult to see how Sopinka J’s concerns fit into the s.1 analysis. In addition, numerous Supreme Court judgments have stressed the need for cogent and compelling s.1 evidence before the State can justify ongoing discrimination against a disadvantaged community. As Justice McLachlin wrote in RJR-MacDonald Inc v. Canada (Attorney-General):

         "... the State must show that the violative law is ‘demonstrably justified.’ The choice of the word ‘demonstrably’ is critical. The process is not one of mere intuition, nor is it one of deference to Parliament’s choice. It is a process of demonstration. ... [The Courts must] insist that before the State can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning."

         Significantly, every judge who has used judicial deference to defeat a same-sex equality claim has relied upon generalised observations rather than applying the various steps in the Oakes analysis. It may be also that the effect of Sopinka J’s comments can be minimised by limiting incrementalism to the proportionality limb of the Oakes analysis, thus requiring that legislation still be scrutinised under the other limbs of the test.

         Lower Courts can therefore be encouraged to follow through every step of the Oakes tests to ensure that judges hold impugned legislation up to the rigorous standards of rational connection and minimal impairment.

      6. Limit "incrementalism" defence

         If a Court insists upon applying the incrementalism standard, a secondary strategy would be to develop parameters which limit the application of the test. For example, McLachlin J in Miron v. Trudel suggested that deference to government inaction might only be maintained for so long as the government required reasonable time to bring its legislation into conformity with Charter standards. The government might fail to meet this test in a wide variety of ways. Most importantly, like any other s.1 standard, the onus must be placed on the government to demonstrate on a balance of probabilities that it is indeed moving incrementally towards the goal of Charter conformity. Presumably this might be held to require some concrete plan of action, a timetable, an explanation of why the government has been unable to act sooner. At the very least, government must be able to demonstrate that it has a basic commitment to treating same-sex couples equally, and that it sincerely intends to translate that commitment into action. Even Sopinka J, citing McKinney, speaks of incremental advances as "a further step in the long journey towards full and ungrudging recognition of the dignity of the human person." Presumably a government can hardly claim it is acting incrementally "towards full and ungrudging recognition of the dignity of the human person" if in fact it refuses to articulate any basic commitment to treating those in same-sex relationships equally at all.

         Furthermore, even under Sopinka J’s standards, if a Legislature has "stalled" in developing a particular area, it would presumably be disentitled to rely upon the incrementalism approach. It is interesting to note that Sopinka J seems to consider that incrementalism does not involve incremental advances in the field of lesbian and gay rights so much as it involves expanding the pool of recipients of a particular benefit to include previously-excluded groups (even if that pool has not yet expanded to encompass same-sex couples). For example, he points out in the context of the Old Age Security Act that recipients of the spouse’s allowance have been expanded over time from married spouses, to common law spouses, to certain widowed spouses, and finally to all widows and widowers who had not remarried. It is perfectly possible that such a development has not taken place in particular fields of legislative endeavour, in which case presumably the incrementalism defence will not be available.

      7. Revise basis for equality claims

         Another approach would be to advance a more deconstructionist model, challenging the basis upon which benefits are allocated to those in relationships. It might be argued that equality on the basis of "marital status" requires recognition of the basic needs of all individuals, regardless of relationship status. This approach has certain attractions in principle, even though it may be more threatening to a Court than a basic "assimilationist" approach. Now that the Supreme Court has recognized "marital status" as an analogous ground of discrimination in Miron, presumably the door is open to advancing equality for a variety of family forms, including single individuals.

      8. Other claims

         Of course, it might also be possible to bring forward other lesbian and gay equality claims which do not deal with same-sex relationships and therefore give the Court time to become more comfortable with the issues and establish more positive precedents without being challenged by an issue which it appears to find quite threatening. Examples of such cases might include Vriend v. Alberta, which deals with whether the Charter requires that "sexual orientation" be read into the Alberta Individual Rights Protection Act, as well as the Little Sisters case which deals with systemic discrimination against lesbian and gay bookstores by Canada Customs.

         Needless to say, it is neither fair nor just for equality claims to be stalled because of judicial discomfort; on the contrary, one would hope that in the equality field judges would strive to be more than usually sensitive to how their own backgrounds and values might bias their decision. As Egan demonstrates, however, this is often not the case.

6. Conclusion

   As the above discussion illustrates, there remains scope for future cases to develop the issues raised in a preliminary fashion in Egan. At both the federal and provincial levels, discriminatory legislation is increasingly being challenged before the Courts.

   Unfortunately, many judges remain reluctant to overturn discriminatory legislation, and judicial deference is often used as a substitute for principle. It is submitted that it is essential for judicial education programs to be developed and expanded to include an analysis of lesbian and gay issues. Only through increased understanding of the realities of lesbian and gay existence can judges apply the equality guarantees of the Charter of Rights to ensure that those in same-sex relationships do receive the equal benefit of the law to which they are constitutionally entitled.

   One thing is certain: the cases will not go away, and it will not be long before the Supreme Court is required to address the issue of relationship recognition once again.

Egale Canada ©2011

Égale Canada est l'organisme national de défense des droits des personnes LGBT, voué à la promotion de l'égalité, de la diversité, de l'éducation et de la justice.