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:
MY: 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.
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.
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.
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.