Tag Archives: Bruce Ryder

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[Eric & Lola Roundtable] Margot Young: Liberty with a Vengeance

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

All the posts in our roundtable can be found here.  We started on Monday with Bruce Ryder, and heard from Hester Lessard on Wednesday and Robert Leckey on Friday. Margot Young wraps up on this question today:

Photo Stream-003MY:  I’m intrigued by Bruce’s metaphor of the psychiatrist’s couch and how to reference that way of framing our struggles to read the tea leaves of the Supreme Court of Canada’s latest equality jurisprudence.  (When challenged, mix metaphors.)  So, here are some “syndromes” I see in recurrent form in this and other equality cases under the Charter.

“Over-Responsibilization”

I think this point will emerge in later conversations, but I want to flag it now as something that plagues Charter jurisprudence generally, and section 15 case law in particular.  The assignment of critical agency to the rights claimant such that the state is removed from any constitutional obligation to address obvious disadvantage is packaged under the guise of respecting liberty and autonomy.  As the individual is put on the hook, the state is let off.  So, the move functions pointedly to “under-responsibilize” the state.  It is common to caution against “equality with a vengeance” in section 15 argument but I think we need to expand this concern to be wary of “liberty with a vengeance”.  Spivak has noted that classical liberal values are often that which we cannot not want, but, here, awareness of these values’ “double-edge” is also warranted.  In any case, the emphasis by Justice LeBel on liberty and autonomy is such as to overshadow equality as the soul of section 15.  It invokes, in unnecessary ways, the formally construed tension between liberty and equality for classical liberals.  I also worry that it packs too much into section 15 and risks failing to carve out sufficient distinction between section 7 and section 15.

Gender Blindness

I want to raise the issue of complainant group.  Clearly the legislation under challenge provides protection for individuals in some relationship forms—marriages and civil unions—and not for others from the economic vulnerability characteristic of many relationships.   Thus it is sensible to see this as a case of discrimination on the basis of marital status.  The shedding of the mirror comparator approach by Withler and the call for a more flexible juggling of group and individual characteristics should encourage the Court to contour its analysis with substantive notice of all of the identity features relevant to the circumstance under examination.   In this case, the gender of the parties and the age gap that encrusts this gender difference are so powerfully part of understanding what is at play.  Some comparison, despite the problems raised by commentators, seems necessarily part of an equality analysis as currently framed by the Court.  It should be done more explicitly and thus more carefully.  As well, while striving to avoid stating that it’s all gender stacked on gender, stacked on gender, I do think the marital status issues in this case are gender manifest.  Only Justice Abella comes close to acknowledging this.  True, social conditions of vulnerability and disadvantage co-occur and layer one atop the other, but “gender” configures social relations in many guises.  And, the Court has never been noted for its transformative and liberatory approach to gender discrimination under section 15.  This case is apiece with that history.

Anxiety

Certainly, section 15 doctrine triggers anxiety or unease in lower courts and litigators alike.  But, I think we can see Chief Justice McLachlin’s judgment from this perspective also.  I am not sure what the majority test for section 15 is after this case.  Chief Justice McLachlin is the swing vote.  She pledges allegiance to the version articulated by Justice Abella, yet then delivers an analysis that is more faithful to Kapp than support for Justice Abella’s reformulation would predict.  In addition, Chief Justice McLachlin’s judgment defaults at the section 1 stage in a somewhat inexplicable manner.  So, she pulls up short on really taking the Quebec policy to task under section 1 and, certainly, from following through on a commitment to Justice Abella’s modified test under section 15.  Substantive equality, properly realized, promises significant redistribution of resources and recognition.  I think this makes the Court as it attempts to mete out justice under section 15 anxious—and therefore cautious, even on occasion, bizarre.

 

 

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[Eric & Lola (3)] Robert Leckey: What they say v What they do

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

All the posts in our roundtable can be found here.  We started on Monday with Bruce Ryder, and heard from Hester Lessard on Wednesday.  Now, Robert Leckey:

photo of guest blogger robert leckeyRL:  I share Hester’s doubts about the solidity of the cluster that purported to endorse Abella J.’s s. 15 discussion. But I would persist—certainly in advocacy—in taking those judges at their word that theirs is a majority view. The length and pointedness of Abella J.’s and LeBel J.’s discussion on whether a successful claim must show stereotyping or prejudice hints that they, at least, think it matters.

I agree with Bruce that basing a claim on disadvantage rather than stereotyping might help claimants. For example, if the Supreme Court  grants leave in H.C. v. P.N., (Quebec Court of Appeal decision here) – Anne-France Goldwater’s challenge to the feds’ recognition of Quebec’s child-support guidelines for divorce purposes –  it might be much easier to show material deprivation on the part of divorced women and their children in Quebec than animus on the federal government’s.

I’m puzzled, though, by what it means to say that the equality analysis has “evolved substantially” (para 338 in Quebec v. A) such that Walsh need not be followed. At this point, a decade’s string of failed equality claims reveals more about the Court’s receptiveness to s. 15 claimants than does its formulation or reformulation of one test or another.

 

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[Eric & Lola (2)] Hester Lessard: Narrative Strategies of Smoke & Mirrors vs Dramatic Struggles

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

All the posts in our roundtable can be found here.

 

Photo Stream-001HL:   Alas, I think I am the one who could use a session on the couch.  Tracing the gyrations contained in the Quebec v. A decision has left me dizzy.   Here is how I think it spins out.

Lebel J. writes first, speaking for a group of four judges.   His equality analysis deploys a narrative frame in which the “about turns and mea culpas” that Bruce refers to are mere window dressing.  Indeed, LeBel J. is convinced that the Court’s understanding of substantive equality has remained fundamentally the same down through the years.   LeBel J. dismisses A.’s equality challenge to her total exclusion from financial remedies (both support and property division) on relationship breakdown.  Neither prejudice nor stereotype, the sine qua non of post-Kapp/Withler equality analysis, are to be found in the legislative design of the Québec family law regime – only legislative respect for A.’s free will.

But hope revives, for Abella J. writes next .   Abella J.’s equality analysis deploys a narrative frame of dramatic struggle.  Law dignity analysis, rigid comparison groups, deference to reasonable legislatures and their good intentions , Walsh’s paean to choice, and the confinement of substantive equality to the Kapp/Withler two pronged “prejudice or stereotype” inquiry  – in Abella J.’s story these are treacheries that have landed our aspirations for justice in danger.  Her sharp pen deconstructs and dispatches them all.  Legislative effects that perpetuate historic disadvantage, she declares, cannot be excused because  legislative attitudes, devoid of prejudice or stereotype, are benevolently concerned with respecting freely made choices.  Moreover, total exclusions cannot be minimally impairing and thus saved at s. 1, when there are clear, less equality violating, alternatives.

Although the only signatory to her reasons,  Abella J. is not alone, at least not completely.   Deschamps J., for a group of three judges, agrees with Abella J.’s equality analysis.   Although Deschamps J. partially upholds the legislation by preserving exclusive property rights at section 1, the story of equality jurisprudence as a struggle to realize our dreams of substantive justice is now in a “four to four” tie with LeBel J.’s story of “changes without a difference”.

McLachlin C.J. is the tiebreaker.  She deploys a narrative strategy that is all smoke and mirrors.  Her agreement with Abella J.’s equality analysis renders it the majority approach.  But in doing so, she re-introduces the reasonable rightsholder,  and the two step consideration of prejudice and stereotype,  paired with the Law contextual considerations, including “correspondence” with its focus on legislative design.  True, she makes much of the need to keep ss. 15 and 1 distinct – fine words, but they are in tension with these other aspects.  And turning to A.’s case, she finds both stereotype and historical prejudice are at play.  I think her equality analysis has as much affinity with LeBel J.’s as with Abella J.’s.

McLachlin C.J.’s approach, in the details, is rooted in an understanding of inequality as irrationality – as reliance on irrelevant considerations, or poor legislative tailoring, or uninformed ignorance, or outright hatefulness.  History teaches us that inequality can easily assume the appearance of reasonableness, of a common sense embrace of natural limits or of individual choices or abilities.   Abella J. has given us a fiercely skeptical approach to these disguises, urging us to keep our eyes on the social impacts of the perpetuation of disadvantagement.  I am uneasy with the characterization of Abella J.’s equality analysis as the majority position.  McLachlin C.J. ultimately rejects all aspects of A.’s claim under section 1, but only for now.

 

 

photo of Bruce RyderBruce Ryder’s comment appeared Monday.

 

 

 

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[Eric & Lola (1)] Bruce Ryder: Doctrinal Plasticity, continued

Sonia:  So, do you think that this case sets up a new approach to section 15 (again)?  What’ significant about the way that the section 15 analyses are carried out, compared to previous cases and the divergent decisions in this case?  What about the approach to the “line” between section 15 and section 1?

 

 

photo of Bruce RyderBR:  I see Quebec v A as the third installment of the Court’s efforts to revise its own recent jurisprudence to reduce the burdens on equality claimants. In Kapp, the Court jettisoned the human dignity test from Law. In Withler, it rejected the mirror comparator group requirement put forward in Auton and Hodge. In Quebec v A, Justice Abella’s majority opinion on s.15(1) rejected the requirement of proving the operation of prejudice or stereotype set out in Kapp and Withler, and refused to follow the Court’s ruling in Walsh. Justice Abella held that claimants should not have to meet the “unquantifiable” and “ineffable” burden of proving that governments were motivated by negative attitudes (paras 329-330). The focus of s.15(1) analysis, she affirmed, should be on the effects of a challenged law: if the law imposes adverse differential impact on a historically disadvantaged group, then it is discriminatory (para 332). The problem with the Court’s earlier ruling in Walsh is it shifted the focus of the s.15(1) analysis from effects to the validity of the legislative objective (paras 338-347).

Cumulatively these are potentially important adjustments to the s.15(1) jurisprudence. They ought to relieve the burdens on s.15(1) claimants and allow the analysis to move more quickly to s.1, where government should have to show why it cannot achieve its objectives without imposing adverse differential impact on historically disadvantaged groups on the basis of prohibited grounds. It all depends on whether the Court is willing to hold the government to a meaningful burden of justification under s.1.

We ought to be sceptical about whether the post-Kapp doctrinal revisions will produce different results. The McLachlin Court’s record on Charter equality rights is distinguished by two features: one is its doctrinal plasticity, the remarkable series of about turns and mea culpas described above; the other, that I’ve documented elsewhere, is its consistent record of dismissing Charter equality claims, regardless of the test applied. In this sense, there is nothing new about Quebec v A, it is just another example of the Court dismissing a Charter equality rights claim in a verbose, overwrought and angst-ridden set of opinions. By way of contrast, the Court has issued clear, confident and succinct rulings on statutory equality rights (eg, Meiorin; Moore). Why are the judges so anxious about Charter equality rights? I think we need to put the Court on the couch. I’m looking forward to my colleagues’ therapeutic insights.

Eric v Lola: an online roundtable

We’re excited to introduce the first IFLS roundtable, designed to make a space for legal scholars to have important & timely conversations without the formality of peer review, yet still allow them more control over content than direct engagement with traditional media often does. Hope you enjoy it!

When the decision in Eric v Lola, properly known as Quebec (Attorney General) v. A, 2013 SCC 5 came out January 25, 2013, it gave all those interested in family law, equality law, the Supreme Court of Canada, and even lifestyles of the rich and famous something to dive into.  “A” had challenged the exclusion of de facto spouses from the Civil Code of Quebec (see art 401 up to art 585, here) and claimed both spousal support and property division on the basis that the legislation violated section 15.

She lost.  But it took four hundred and fifty paragraphs, and it was a split decision!  To borrow a phrase, “it’s complicated”.

                    1.  Do arts. 401 to 430, 432, 433, 448 to 484 and 585 of the Civil Code of Québec, S.Q. 1991, c. 64, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answers:  McLachlin C.J. and Deschamps, Abella, Cromwell and Karakatsanis JJ. would answer yes.  LeBel, Fish, Rothstein and Moldaver JJ. would answer no.

2.  If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answers:  LeBel, Fish, Rothstein and Moldaver JJ. would answer that it is not necessary to answer this question.  McLachlin C.J. would answer yes.  Deschamps, Cromwell and Karakatsanis JJ. would answer that only art. 585 is not justified under s. 1.  Abella J. would answer no.

Other Coverage

Cristin Schmitz in the Lawyer’s Weekly said the ruling “muddied the waters” here.  Kirk Makin in the Globe and Mail wrote about it here.   The Montreal Gazette story was headlined “Common Law Couples do not have the same Protection, Top Court Rules” (here).  Here is the CBC. Law students took it on here (Ottawa’s Delara Emami) and here (Osgoode’s Stephanie Voudouris)   Macleans has a more…Macleansian take on the story, providing ample background in this December 2009 piece.

These stories give a flavour of the suit and the judgment(s).  While the case was essentially a section 15 challenge to the Quebec legislation which governs common law spouses after the relationship breaks down, it raiises a host of fascinating questions, about choice, about section 15, about Quebec – as I said, “complicated”.

IFLS Roundtable

So, to sort out or amplify the complexities of this case, I’m delighted to introduce the first IFLS online roundtable, and the four legal scholars who will be talking about Eric and Lola for the next few weeks.  Our panelists are Professors Hester Lessard (UVic), Bruce Ryder (Osgoode), Margot Young (UBC) and Robert Leckey (McGill).  More information about these four below.  They have agreed to submit responses to my questions, in a roundtable type format.  I will be posting the questions and responses as they happen, but the format is less “chat” like than a kind of exchange of short notes.    Huge thanks to the four panelists for agreeing to this experimental approach.
If you want to follow the postings you can check here, where I will collect all the posts.  Otherwise, if you are already signed up for the IFLS feed through email or through RSS (check the far right sidebar), they will come in your regular set of posts.

Here’s our panel.

Collage of professors Lessard, Leckey, Young and Ryder, first IFLS CaseChat panel

Hester Lessard joined the Faculty of Law at the University of Victoria in 1989 and was promoted to Associate Professor in 1994 and full Professor in 2007. She teaches: Constitutional Law; Feminist Legal Theories; Equality, Human Rights and Social Justice Law; and Legal Process. In addition, she teaches Legal Theory as part of the law school’s Graduate Program.  Her past and current research interests include feminist critiques of constitutional rights, the construction of family relations under the Charter of Rights, and the role of rights-based strategies and discourses in achieving progressive social change for women.

 

Bruce Ryder joined Osgoode Hall Law School’s faculty in 1987.  His research and publications focus on a range of contemporary constitutional issues, including those related to federalism, equality rights, freedom of expression, Aboriginal rights, and Quebec secession. He has also published articles that explore the historical evolution of constitutional principles and is currently researching the history of book censorship in Canada.

 

Margot Young began her teaching career at the Faculty of Law, University of Victoria in 1992 after doing graduate work at the University of California, Berkeley in the fields of feminist legal theory and reproductive technologies. Her focus quickly shifted to the areas of constitutional law, in particular, equality law and theory, and social welfare law. She has continued to teach and research widely in these areas. Professor Young is very involved in work with a number of non-governmental groups working on issues of women’s economic equality and justice. She has authoring alternative reports for the National Association of Women and the Law for the last two of Canada’s periodic reviews under the United Nations ICESCR and ICCPR. Recently she co-authored and presented to the United Nations CEDAW Committee in New York NGO reports on Canada’s and British Columbia’s failure to comply with obligations under the Women’s Convention.

 

Robert Leckey teaches constitutional law and family law, and conducts research in those fields as well as comparative law. He is working on a book tentatively titled Bills of Rights in the Common Law.  From 2002 to 2003, he served as law clerk for Justice Michel Bastarache of the Supreme Court of Canada.  He joined the Faculty of Law in July 2006 and was named a William Dawson Scholar by McGill University in 2011.  In 2010-2011, he served as director of research for the Inquiry Commission on the Process for Appointing Judges (the Bastarache Commission). He is the president of Egale Canada as well as the chair of its Legal Issues Committee.  Robert Leckey has received the Prix de la Fondation du Barreau du Québec (2007), the Canadian Association of Law Teachers’ Scholarly Paper Prize (2009), the McGill Law Students’ Association’s John W. Durnford Teaching Excellence Award (2009), the Canada Prize of the International Academy of Comparative Law (2010), and the Principal’s Prize for Excellence in Teaching (2010).