Tag Archives: choice

on Bedford (four things)

pic of bike helmet

Having spent the day mulling it over, I‘m haven’t fully decided about Bedford. I do consider it a victory on the facts and for this cause.  I mean that I haven’t decided on the map the court used to get there – what does it mean for the future on this issue and the ones that will follow.  Below are a list of four things that I think we should be thinking about – followed preceded by a very small round up of links.

I haven’t done an overview here. I can’t even begin (for reasons of time but also volume) to collect all the commentary that has come out today.  But I will say that along with the commentary – including law profs Brenda Cossman , Angela Campbell and  Michael Plaxton in the Globe, Carissima Mathen in the Ottawa Citizen, PIVOT’s summary (PIVOT is a Vancouver social change legal organization which intervened on the case against the government) NWAC’s press release (Native Women’s Association of Canada, who intervened against striking down the challenged laws), mentions of Canada in US law blawgs (here, from Canada-phile @robsonconlaw) and @cmathen’s twitter feed all day long –   you should read the decision.  It is not a monster. It is, as these things go, a model of clarity and guidance (with caveat below).  Find it here.

1.  Suspension

The last three paragraphs of the case (full text here) might be the most troubling.  Having accepted and described the harms that these laws cause – having raised the spectre of Pickton in that analysis – the Court via the Chief sets up the opposite side.  That is, a “concerned public”.   She does not, here, describe precisely what those “many Canadians” would be greatly concerned about.  But it is enough to justify “increased risk” to prostitutes [para 168], apparently because although “neither alternative is without difficulty”, the declaration of invalidity is suspended. [169]

Alright, @cmathen, you are correct of course.  My point is not so much that the Court should not have done this – but rather let’s talk about what is really going on in that three sentence paragraph 169.  Why take this approach?  Is this pragmatism?  I see no one on social media or in op eds raising the thought of section 33 (the override).  The “dialogue” that a suspended declaration is usually said to create is one way of mitigating claims about activist courts usurping the role of the legislature.  It is useful to think more about the extra-doctrinal reasoning, the reasons not provided, because clearly there is something wrong with the doctrinal logic of this suspension.

2.  Choice

My favourite trope in Charter cases: Choice!  And here we see the court taking on facile arguments about choice in wonderful ways [para 79 through 92].   The AG’s (Ontario and Canada) take a bit of a beating for their positions about the causal connection between the law and the harms the court is recognizing.

[79]     The Attorneys General of Canada and Ontario argue that prostitutes choose to engage in an inherently risky activity.  They can avoid both the risk inherent in prostitution and any increased risk that the laws impose simply by choosing not to engage in this activity.  They say that choice — and not the law — is the real cause of their injury.

Paragraph 86 represents a relatively complete picture of the complexity of choice and sex work.  It is, in many ways, this picture which makes debates over sex work so fraught within feminist communities.  Some choose it – others cannot be said to do so.

[86]                          …., while some prostitutes may fit the description of persons who freely choose (or at one time chose) to engage in the risky economic activity of prostitution, many prostitutes have no meaningful choice but to do so.  Ms. Bedford herself stated that she initially prostituted herself “to make enough money to at least feed myself” (cross-examination of Ms. Bedford, J.A.R., vol. 2, at p. 92). As the application judge found, street prostitutes, with some exceptions, are a particularly marginalized population (paras. 458 and 472).  Whether because of financial desperation, drug addictions, mental illness, or compulsion from pimps, they often have little choice but to sell their bodies for money.  Realistically, while they may retain some minimal power of choice — what the Attorney General of Canada called “constrained choice”  (transcript, at p. 22) — these are not people who can be said to be truly “choosing” a risky line of business (see PHS, at paras. 97-101).

Here is another piece of the fraught feminism around choice and sex work, referenced in para 87, which also contains the greatest SCC analogy (another of my hot button issues!) of all time or at least of 2013:

[87]                          Second, even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.  The causal question is whether the impugned laws make this lawful activity more dangerous.  An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier.  The challenged laws relating to prostitution are no different.

Actually, there is of course another piece of the choice puzzle, and that’s the choice and role not of the seller but the buyer – but that was not at issue in this case. It will, of course, be unavoidable in the debate over what to do next.

My interest in choice goes beyond this case. It’s been a discourse that the Court has used in a number of cases to sink section 15 challenges.  Seeing it taken on so clearly here – treated as a complex issue – is a relief.

3.  Appointments & Mr. Harper

I can’t make this point any more clear than Osgoode student Avnish Nanda did via twitter:

That’s not the whole story – but it’s a big part of it.  We’re not at defcon 5 (Bush v. Gore style) yet with this Court, not even close.

To have a unanimous decision like this will make consensus builder McLachlin C.J. happy.  But this doesn’t look like a  “split the difference, everyone gets something” consensus, unless you see the suspension as the split difference.   This looks like a clear message to Parliament about lines and limits.

4. Stare Decisis & Deference to  Trial Judges on Social & Legislative Facts

There is much to be said about what happens starting at para 38, as we examine whether conclusions in earlier cases can be “revisited” [41] or “departed from” [39] (hmmm, not “overruled”?).  It’s a sign, perhaps, that we’ve had the Charter a while now that the Court now must say both:

[38]  Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.

and

[42] ….Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

Likewise, the CJC notes that the SCC’s position on deference to the Trial Judge on social and legislative facts (starts at para 48) has shifted as we entered the Charter era:

[53]  As the Attorney General of Canada points out, this Court’s decision in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, suggested that legislative fact findings are owed less deference.  However, the use of social science evidence in Charter litigation has evolved significantly since RJR-MacDonald was decided.  In the intervening years, this Court has expressed a preference for social science evidence to be presented through an expert witness (R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571, at paras. 26-28; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 68).  The assessment of expert evidence relies heavily on the trial judge (R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 62-96).  This is particularly so in the wake of the Ontario report by Justice Goudge, which emphasized the role of the trial judge in preventing miscarriages of justice flowing from flawed expert evidence (Inquiry into Pediatric Forensic Pathology in Ontario: Report, vol. 3, Policy and Recommendations (2008)).  The distinction between adjudicative and legislative facts can no longer justify gradations of deference.

This makes me think about the incredible burden that many critical cases place on litigants and lawyers.  There was voluminous evidence in this case – bravo to the lawyers and others who put this all together, and to the Trial Judge (a former Deputy AG Ontario, Justice Susan Himel) who wrote a decision that could stand up to all the scrutiny, that carefully detailed how she weighed the evidence.  Have a look at a case like Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309 – again, a long decision, significant evidence, written by a judge no stranger to this kind of evidence (I understand Justice Carol Ross has a background in sociology – she also wrote the original decision in Victoria v. Adams 2008 BCSC 1363).  Consider the 1416 paragraph BCSC decision in Carter, the right to die case) by Justice Lynn Smith (hmmm, lots of women judges here).  At any rate, these aren’t cases that walk into your office one day.  They are cases put together piece by painstaking piece.  It’s a long road to justice this way around, folks.

 


 

The last thing I need to think about, of course, is  – is there a way that the doctrines created here will be applied that I need to start worrying about?  At this point, I’m just anticipating the next ten years as a slow retreat from this high water mark of rights-protection.  I’m a bit of a pessimist.

 

I’m not, here, really writing about the substance of the case.  I do completely agree with the basic theory as captured by the helmet analogy (see bottom of this post).  And like many others, I was struck by the fierce language the CJC uses to illustrate the very real harm done by these laws, by the references to Grandma’s House (para 64, and especially 136 “A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets, is a law that has lost sight of its purpose”) by the assertion that the ability to “screen” through direct communication is relevant if the practice “could have prevented one woman from jumping into Robert Pickton’s car” (para 158).    I admit that during this case, I was sometimes made uncomfortable by the variety of things which were being asserted through reference to the desperate and deadly situation in Vancouver’s DTES during the time Pickton was murdering women he picked up there.  I heard these arguments made in ways that seemed to me sensationalized – almost exploitative, and I felt uncomfortable with them – but I also heard them made with despair and rage.  In this judgment, I see these arguments accepted because of the way that the women who died at Pickton’s hand are women who might have been saved but for these laws – women with rights, women whose chances to save themselves mattered then, and now.  That’s something.

 

 

An analogy could be drawn to a law preventing a cyclist from wearing a helmet.  That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier.  The challenged laws relating to prostitution are no different. [para87]

Eric & Lola Roundtable (actually, let's call it Quebec v. A): Margot Young on Consent, sexism, ignorance and gender

 

All the posts in our Eric & Lola AKA  Quebec (Attorney General) v. A, 2013 SCC 5 roundtable can be found HERE.

 Thanks to Simon Fodden over at slaw.ca for the shout out for this roundtable – who knew that there were readers!

Sonia asked:  Can we read this case, and the reaction of the Supreme Court, as more or equally “a case about Quebec” than an “ordinary” Charter challenge, that is, a case which raises the federal principle?  Is Quebec’s divergent trajectory in terms of the prevalence of marriage and in terms of the development of legal regimes relevant?

“Après le jugement de la Cour suprême sur Eric et Lola, c’est comme si tout le monde s’était dit: «ouf», puis était retourné à ses occupations. “ 

(Guillaume Bourgault-Côté, Conjoints de fait – Eric et Lola n’ont pas éclairé les Québécois, Le Devoir, 21 mars 2013)

Margot Young

Photo Stream-003A recent conversation with Prof. Louise Langevin of Faculté de droit, Université Lavel provided these insights into the case.  First, to the point of consent and ignorance.  Despite widespread media coverage in Quebec about the issues and outcome of Quebec v A, it appears that the messages about the consequences of de facto intimate partnerships have yet to sink in.  A March 2013 study by the Quebec Chambre des notaries shows that the rights and obligations attendant upon separation by these couples remains badly understood.  Myths persist.  Many (46%) continue to belief incorrectly that after a number of years living together, they obtain the same legal status as married persons.  The study showed that 62% of the respondents believed that all goods acquired during the de facto relationship must be divided equally upon relationship breakdown. About 42% of the respondents did not know that if one partner is the sole owner of the family home, that home can be sold without the other partner’s consent.  Clearly, it is not the case that much meaningful consent to the situation in which A found herself is going on.  And, this argument about consent sits independent of larger concerns about gendered power that are also importantly a piece of the analysis of consent.

Second, to gender and sexism.  The origin of this nickname for this case, Eric v Lola, appears to have been a weekly Quebec news show.  I’m uncomfortable with the designation.  The name “Lola” packs gendered baggage, at least for Anglophones.  The popular music hall song “Whatever Lola Wants, Lola Gets” adds a particular and, I would argue, stereotypical and sexist flavour to A’s claims for support and property division.   Can’t find anything to account for the choice of “Eric”.  Anyone else?  Also, as a sidenote, the designation Eric v Lola isn’t much in circ

painting of Lola Montez

ulation out west.  When I first heard the reference, I panicked that I had somehow missed a significant equality case out of the SCC!

[Sonia:  I didn’t know the Whatever Lola Wants, Lola Gets song, the lyrics of which Margot provides below (Simon Fodden also referenced it),

although I think I’ve heard the Natacha Atlas version now that you mention it.  I only thought of the Kinks song (which also clearly racializes “Lola”, and involves dancing, but has a very different point) and a set of  stereotypes about Latinas as physically attractive seductresses which have a clear effect given the facts of this case.    None of which stopped me from gleefully adopting it  the ever present danger of trying to grab attention, which inevitably involves hooking on to tropes of what is interesting.  SEX!  Perhaps I need to treat this case as I try to treat  Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, which I will not call “the spanking case”, because of the way that turns the case name into the decision.]

Whatever Lola wants, Lola gets
And little man, little Lola wants you
Make up your mind to have (make up your mind to have)
No regrets (no regrets)
Recline yourself, resign yourself, you’re through

I always get what I aim for
And your heart and soul is what I came for
Whatever Lola wants (Lola wants), Lola gets (Lola gets)
Take off your coat, don’t you know you can’t win
(Can’t win, you’ll never, never win)
You’re no exception to the rule
I’m irresistable you fool
Give in (Give in, you’ll never win)

Whatever Lola wants, Lola gets

I always get what I aim for
And your heart and soul is what I came for
Whatever Lola wants (Lola wants), Lola gets (Lola gets)
Take off your coat, don’t you know you can’t win
(Can’t win, you’ll never, never win)
You’re no exception to the rule
I’m irresistable you fool
Give in (give in, you’ll never win)
Give in (give in, you’ll never win)
Give in.

 

Sonia asked:  Can we read this case, and the reaction of the Supreme Court, as more or equally “a case about Quebec” than an “ordinary” Charter challenge, that is, a case which raises the federal principle?  Is Quebec’s divergent trajectory in terms of the prevalence of marriage and in terms of the development of legal regimes relevant?

Robert Leckey

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This judgment can’t be fully understood without attention to its Quebec specificity. By that I mean not only the distinctive features of Quebec civil law’s regulation of the family, but also the Supreme Court justices’ sensitivity to the dynamics of provincial politics.

Hester wished there had been more account in the reasons of feminist organizing. Quebec feminism has unfolded differently than elsewhere in the country. Until recently, the Conseil du Statut de la Femme (http://www.csf.gouv.qc.ca/) opposed ascribing spousal status to unmarried cohabitants under the private law. I imagine that the judges were hesitant to overturn a regime on the basis of a rights claim that didn’t appear to be significantly supported by its principal beneficiaries. (There was just one intervener from Quebec in favour of finding unjustified discrimination, the Fédération des associations de familles monoparentales et recomposes du Québec (http://www.fafmrq.org/).)

Aware of the outrage occasioned by prior decisions upholding the Charter right to freedom of religion or to minority-language schooling, was the Chief Justice saving her powder, so to speak, for a claim advanced with obvious support from the vulnerable group in question?

I agree with Hester that the Chief Justice’s discussion under section 1 is unnerving. It’s not unprecedented to see political sensitivity to Quebec surface in section 1 analysis in a way for which the Oakes test didn’t prepare us. In a challenge to the federal government’s use of Quebec’s child-support guidelines for Divorce Act cases (http://www.canlii.org/en/qc/qccs/doc/2011/2011qccs2662/2011qccs2662.html, overruled by the Court of Appeal on the basis that there was no infringement of s. 15), the trial judge found a limitation of the right to equality. But she upheld it under section 1 on the basis of co-operative federalism (!).

Hester Lessard

I feel that this case is haunted by a number of issues – Québec’s distinctiveness, the relationship between federalism and Charter issues, and the weight to be given to democratic engagement in relation to the rights issues.   The story of legislative reform told by LeBel J., at great length, certainly amplifies the singularity of Québec’s history and approach.  However, I was interested to hear, in his earlier post, the comment by Robert (wearing his hat as a Québec family lawyer) that LeBel J.’s account overlooks the fact that “reading Québec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades.”  It would seem, with such a rich historical and legislative record, that there are a number of ways to fashion the narrative.  LeBel J.’s reasons pursue a very clear thread in this complicated weave, highlighting the insistence, in 1973, of the Québec Conseil du Statut de la Femme that “choices” made by members of de facto unions should not be subject to legislative override but should be respected as the “true recognition of the equality and autonomy of individuals” (para 107).   The link between the story’s shape and LeBel J.’s conclusion that rights have not been violated is not made explicitly, yet it clearly facilitates his conclusion that there is no stereotyping or prejudice involved on the part of the Québec legislature, just respect for choice.

The Chief Justice, in contrast, is very explicit.  Her abrupt reversal of position at section 1 is couched in the language of deference to Québec.  She directly invokes federalism and the “federal values of distinctiveness, diversity and experimentation” as considerations in relation to the minimal impairment analysis.  I am uneasy with an approach that uses the “limitation on rights” role of section 1 to cement into place too simplistic an opposition between rights concerns, and diversity and democracy concerns.  Something is wrong with a picture that portrays women’s equality rights as violated, with devastating social and economic consequences, but that then invokes the democratic will to conclude that the violation is reasonable.   This analytical move seems to erase women’s voices from democratic deliberations, locating their concerns on the “rights” side of the equation, where they can speak only of their injuries and never of their claims as fully enfranchised members of a political community.  I would rather see the democratic engagement issue as a more explicit theme at both the rights analysis and limitation stages.  To this extent, I appreciate LeBel J.’s willingness to take up a lot of space with the historical details of legislative changes.  I would like, however, to see more evidence of competing stories.  As it stands, his account overshadows all others simply because of its length.  Are judges too quick to treat legislative history and political actions as mere background, a “blank” that someone must fill in before getting down to the real business of abstract, normative analysis?

More particularly, I would like to see more attention to feminist and women’s movement involvement with the nub of the rights issue.  I agree with Reva Siegel’s notion that social movements play a “jurisgenerative” role in relation to rights (“Jurisgenerative Role of Social Movements” found here).  She argues, albeit in the U.S. context,  that social movement interventions are not mere supplements to judicial deliberations but rather claims on constitutional meaning in their own right (“Text in Contest” at 299 found here).  This “jurisgenerative” role of social movements in shaping the content of rights protections was crucial in the Insite case (found here).  However, the intensity of grassroots political engagement around harm reduction approaches to addiction that led to the Insite litigation is only vaguely gestured at in the judicial reasons, and thus similarly “haunts” the decision.  I think we must confront this unhappy ghost and develop more inclusive, politically grounded conceptions of how meaning is given to rights.

 

Robert Leckey: May 28:   I think that Margot, by agreeing with LeBel J. (on one thing, at least), overstates the irony of Abella J.’s invocation of opting-out. Opting-in and opting-out are distinguishable from the perspective of someone skeptical of liberal ideas of choice. A consensual opting-out from inclusive default rules provides a moment at which the more powerful spouse must persuade the other to conclude a transaction, what the civil law calls a juridical act. In turn, there are legal tools for scrutinizing the integrity of the opting-out – not just the common law’s doctrines of duress, mistake, and unconscionability, but also more searching judicial review under some provinces’ family legislation. Or a rule that independent legal advice is strongly advisable. So there is at least a hook, in the law, for interrogating the conditions in which a “choice” was ostensibly made and given legal effect.

Margot Young: Robert’s comments here illustrate well the failure of judges other than those signed on to Justice Abella’s judgment to “open the box”—that is to unwrap the package of marriage law and reveal the reasons for the particular property and support protections mandated for married and civil status partners.  Justice Abella herself notes this—her analysis operates more substantively reflecting the social and economic reasoning that underpins the legislative regime.  And, then, her analysis nicely notes that this analysis pertains equally to those in relationships akin to Eric and Lola’s.

Robert also highlights the inconsistency in rationale across public and private law.  These sorts of inconsistency are revealing—often they signal the tip of a larger ideological iceberg. Here, one wonders about the gender, class, and social norms that inform Justice LeBel’s assumptions about the meaningfulness or the availability of choice in intimate relationships.  Indeed, Justice LeBel seems to understand the position that choice is not a meaningful gauge for relationship legitimacy as itself a harmful stereotype, one that his judgment proudly rejects.

We see in this case the persistence of legal liberalism, that is, a particular shaping of the “justice-worthy subject” and the preeminence of choice as agency-anchor and legitimator of social and political oppression.   In contrast,  “…a left political orientation begins with a…focus on the social powers producing and stratifying subjects that liberalism largely ignores.” (Wendy Brown and Janet Halley “Introduction” in Wendy Brown & Janet Halley, eds, Left Liberalism/Left Critique (Durham: Duke University Press, 2002) 1 at 6.)  For example, “male dominance”.

There is an irony to both sides in this case.  Justice Abella in rejecting the adequacy of consent, then relies on it to constitute her “opt out” scheme.  Justice LeBel points this out:

My colleague Abella J. adopts a position that would require these spouses to perform positive acts to opt out of a regime they did not intend to adopt. She would thus require them to exercise a freedom of choice whose validity and relevance she nonetheless denies in the context of opting for a particular form of conjugality. (para 261)

Choice is a distraction from the real question.

However, equally, Justice LeBel is subject to this same critique—only in mirror image.  He too accepts imposition regardless of consent for the obligations in marriage and civil unions.,  Yet, he denies its relevance to de facto couples, despite similar larger contexts.   It seems to me that the way out of this box is to look to the justice of the status quo that persists independent of consent for de facto couples for each scheme.  For LeBel, it is the unregulated but long (otherwise) acknowledged state of gendered unfairness.  For Justice Abella, it is the state regulated insistence on mutual property and support obligations as remediation of such gendered unfairness and disempowerment.  Choice is a distraction from the real question.

 

Margot Young’s comments respond to Robert Leckey’s post – which you can find either here, with all our other Eric & Lola posts, or below.

Robert Leckey:  Hester has nicely set out the different takes on choice (see below for Hester Lessard’s post). Wearing my hat as a Quebec family lawyer, what disappoints me is that the judges other than Abella J. signed onto accounts of choice that don’t square with the contested positive law.

LeBel J. accepts Quebec’s claim that protecting unmarried partners’ freedom of choice is its key aim. But reading Quebec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades. That’s the only way of understanding the decision to shield married spouses’ sharing of the family home’s and pension plans’ gains during the marriage from contracting out.

Deschamps J. does better with her division, under section 1, between support and property. But the idea of conscious, acquisitive transactions fails to distinguish the “property” regimes from the concerns underlying support. The property regimes include measures protecting the family home, which I’ve argued elsewhere are alimentary in character.   And automatic pension or RRSP contributions off every paycheque or a home’s appreciation in value are hardly conscious transactions.

The key point about choice lies at private and public law’s intersection. Quebec already assimilates unmarried to married spouses for purposes such as taxation, workers’ compensation, public pensions, and welfare. Good or bad for a couple, there is no “opting out” from that treatment.

The unanswerable reason that excluding unmarried couples from the private law’s obligation of support is unjustifiably discriminatory is that public laws already claw back benefits on the irrebuttable presumption that cohabitants support one another (thanks on this point to Rod Macdonald).

If Quebec were serious about the justifications it advanced for its private law—preserving a zone of autonomy for informed, rational unmarried couples to shape their destinies—it would allow cohabitants to opt out from public law’s spousal designation.

 

 

Robert was responding to Hester’s post & my question, which are set out below:

 

 

HL:  Satisfactory?  Well, at least we get more choices about what the choice to tie the knot, or not, means.   

LeBel J. aligns the “knot, or not” choice with “personal autonomy and freedom,” (para 267).  This broad principle, we find out elsewhere, concerns the “freedom of those who wish to organize their patrimonial relationships outside the mandatory framework” (para 256).  The plural possessive is deceiving, for it is B.’s patrimonial relationship that gets “freely” organized.  It turns out that A. alone has made what is primarily a “marital status” choice, namely to live “with a spouse who refuses to marry,” a choice that, for LeBel J., is on a par with the choice of “a spouse who gives in to insistent demands to marry” (para 260).  LeBel J. concedes that the A.s of the world will likely end up in financially precarious positions when relationships end, but, he points out, each conjugal form has disadvantages for “one” of the spouses (para 242).  The marriage disadvantage presumably refers to those who, unlike B., cave to “insistent demands” and find they must submit to the protective regime.  And so, in LeBel J.’s judgment, choice language is the “ideological glue” (see H. Lessard Charter Gridlock:  Equality Formalism and Marriage Fundamentalism” in Sheila McIntyre and Sanda Rogers, Diminishing Returns:  Inequality and the Canadian Charter of Rights and Freedoms (LexisNexis 2006)291-316 at 316 – not available online, sorry!) binding the twin pillars of classical liberalism – formal equality and negative liberty – to a conception of conjugality and property rights rooted in a conservative and patriarchal tradition.

For Deschamps J., choice need not masquerade as liberal principle; rather it is, quite unapologetically, economic self-interest.  The purpose of the legislative protections (more precisely, the lack of protections for defacto spouses) is “to ensure the autonomy and fairness for couples who have been able to, or wanted to, accumulate property” (para 392).  Oh foolish A., for seeking to “bridal” this freedom!   Deschamps J. further explains that it makes sense to speak of decisions about property as “choices” because property acquisition, of necessity, involves a transactional moment, what she calls a “conscious act,” unlike “a plan to live together” that can evolve gradually into “a relationship of interdependence over which one of the parties has little or no control…” (para 393).  And preserving choice for the propertied by upholding the patrimonial protections would not compromise economic justice because Deschamps J. would remove A.’s exclusion from support remedies.

Abella J. seems aware of the treachery that choice language can wreak, locating it some distance from “principle” by relegating it to the status of legislative policy, and even then reluctantly (para 358).  When talking of conjugal relationships, she prefers the language of “mutual decision” (para 375), underscoring the fact that “knot, or not” choices involve a two way negotiation structured by inequality that is too often gendered.   Like all her other colleagues, she sees the ultimate choice at stake in terms of contractual freedom, but, for her alone, equality and economic justice should prevail without qualification.  A less impairing regime, she offers, would apply property and support provisions presumptively to all, allowing couples to “opt out.”   Bargaining for financial security would be thereby untethered from marital status, rendering conjugal “choice” less illusory (para 376).

McLachlin C.J.’s intervention is profoundly conflicted.   She embraces Abella J.’s view that marital status is emphatically not about choice and that the exclusions violate substantive equality, but then upholds the entire regime in the name of the public interest in a “state free zone” of private choice.  She rejects Abella J.’s less equality-impairing “opt out” alternative because it is more choice-impairing. Not even the “ideological glue” of choice language can hold this judgment together!

Question 3 

I feel that this case is haunted by a number of issues – Québec’s distinctiveness, the relationship between federalism and Charter issues, and the weight to be given to democratic engagement in relation to the rights issues.   The story of legislative reform told by LeBel J., at great length, certainly amplifies the singularity of Québec’s history and approach.  However, I was interested to hear, in his earlier post, the comment by Robert (wearing his hat as a Québec family lawyer) that LeBel J.’s account overlooks the fact that “reading Québec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades.”  It would seem, with such a rich historical and legislative record, that there are a number of ways to fashion the narrative.  LeBel J.’s reasons pursue a very clear thread in this complicated weave, highlighting the insistence, in 1973, of the Québec Conseil du Statut de la Femme that “choices” made by members of de facto unions should not be subject to legislative override but should be respected as the “true recognition of the equality and autonomy of individuals” (para 107).   The link between the story’s shape and LeBel J.’s conclusion that rights have not been violated is not made explicitly, yet it clearly facilitates his conclusion that there is no stereotyping or prejudice involved on the part of the Québec legislature, just respect for choice.   

The Chief Justice, in contrast, is very explicit.  Her abrupt reversal of position at section 1 is couched in the language of deference to Québec.  She directly invokes federalism and the “federal values of distinctiveness, diversity and experimentation” as considerations in relation to the minimal impairment analysis.  I am uneasy with an approach that uses the “limitation on rights” role of section 1 to cement into place too simplistic an opposition between rights concerns, and diversity and democracy concerns.  Something is wrong with a picture that portrays women’s equality rights as violated, with devastating social and economic consequences, but that then invokes the democratic will to conclude that the violation is reasonable.   This analytical move seems to erase women’s voices from democratic deliberations, locating their concerns on the “rights” side of the equation, where they can speak only of their injuries and never of their claims as fully enfranchised members of a political community.  I would rather see the democratic engagement issue as a more explicit theme at both the rights analysis and limitation stages.  To this extent, I appreciate LeBel J.’s willingness to take up a lot of space with the historical details of legislative changes.  I would like, however, to see more evidence of competing stories.  As it stands, his account overshadows all others simply because of its length.  Are judges too quick to treat legislative history and political actions as mere background, a “blank” that someone must fill in before getting down to the real business of abstract, normative analysis? 

 More particularly, I would like to see more attention to feminist and women’s movement involvement with the nub of the rights issue.  I agree with Reva Siegel’s notion that social movements play a “jurisgenerative” role in relation to rights (“Jurisgenerative Role of Social Movements” found here).  She argues, albeit in the U.S. context,  that social movement interventions are not mere supplements to judicial deliberations but rather claims on constitutional meaning in their own right (“Text in Contest” at 299 found here).  This “jurisgenerative” role of social movements in shaping the content of rights protections was crucial in the Insite case (found here).  However, the intensity of grassroots political engagement around harm reduction approaches to addiction that led to the Insite litigation is only vaguely gestured at in the judicial reasons, and thus similarly “haunts” the decision.  I think we must confront this unhappy ghost and develop more inclusive, politically grounded conceptions of how meaning is given to rights. 

 

 

Eric & Lola Roundtable: Leckey Responds

 

All the posts in our Eric & Lola AKA  Quebec (Attorney General) v. A, 2013 SCC 5 roundtable can be found HERE.

Robert Leckey responds May 28:   I think that Margot, by agreeing with LeBel J. (on one thing, at least), overstates the irony of Abella J.’s invocation of opting-out. Opting-in and opting-out are distinguishable from the perspective of someone skeptical of liberal ideas of choice. A consensual opting-out from inclusive default rules provides a moment at which the more powerful spouse must persuade the other to conclude a transaction, what the civil law calls a juridical act. In turn, there are legal tools for scrutinizing the integrity of the opting-out – not just the common law’s doctrines of duress, mistake, and unconscionability, but also more searching judicial review under some provinces’ family legislation. Or a rule that independent legal advice is strongly advisable. So there is at least a hook, in the law, for interrogating the conditions in which a “choice” was ostensibly made and given legal effect.

pic of iceberg - most of it underwaterMargot Young: Robert’s comments here illustrate well the failure of judges other than those signed on to Justice Abella’s judgment to “open the box”—that is to unwrap the package of marriage law and reveal the reasons for the particular property and support protections mandated for married and civil status partners.  Justice Abella herself notes this—her analysis operates more substantively reflecting the social and economic reasoning that underpins the legislative regime.  And, then, her analysis nicely notes that this analysis pertains equally to those in relationships akin to Eric and Lola’s.

Robert also highlights the inconsistency in rationale across public and private law.  These sorts of inconsistency are revealing—often they signal the tip of a larger ideological iceberg. Here, one wonders about the gender, class, and social norms that inform Justice LeBel’s assumptions about the meaningfulness or the availability of choice in intimate relationships.  Indeed, Justice LeBel seems to understand the position that choice is not a meaningful gauge for relationship legitimacy as itself a harmful stereotype, one that his judgment proudly rejects.

We see in this case the persistence of legal liberalism, that is, a particular shaping of the “justice-worthy subject” and the preeminence of choice as agency-anchor and legitimator of social and political oppression.   In contrast,  “…a left political orientation begins with a…focus on the social powers producing and stratifying subjects that liberalism largely ignores.” (Wendy Brown and Janet Halley “Introduction” in Wendy Brown & Janet Halley, eds, Left Liberalism/Left Critique (Durham: Duke University Press, 2002) 1 at 6.)  For example, “male dominance”.

There is an irony to both sides in this case.  Justice Abella in rejecting the adequacy of consent, then relies on it to constitute her “opt out” scheme.  Justice LeBel points this out:

My colleague Abella J. adopts a position that would require these spouses to perform positive acts to opt out of a regime they did not intend to adopt. She would thus require them to exercise a freedom of choice whose validity and relevance she nonetheless denies in the context of opting for a particular form of conjugality. (para 261)

Choice is a distraction from the real question.

However, equally, Justice LeBel is subject to this same critique—only in mirror image.  He too accepts imposition regardless of consent for the obligations in marriage and civil unions.,  Yet, he denies its relevance to de facto couples, despite similar larger contexts.   It seems to me that the way out of this box is to look to the justice of the status quo that persists independent of consent for de facto couples for each scheme.  For LeBel, it is the unregulated but long (otherwise) acknowledged state of gendered unfairness.  For Justice Abella, it is the state regulated insistence on mutual property and support obligations as remediation of such gendered unfairness and disempowerment.  Choice is a distraction from the real question.

 

Margot Young’s comments respond to Robert Leckey’s post – which you can find either here, with all our other Eric & Lola posts, or below.

Robert Leckey:  Hester has nicely set out the different takes on choice (see below for Hester Lessard’s post). Wearing my hat as a Quebec family lawyer, what disappoints me is that the judges other than Abella J. signed onto accounts of choice that don’t square with the contested positive law.

LeBel J. accepts Quebec’s claim that protecting unmarried partners’ freedom of choice is its key aim. But reading Quebec family law as a whole, protecting individuals from the vulnerability arising from conjugality has outweighed choice for decades. That’s the only way of understanding the decision to shield married spouses’ sharing of the family home’s and pension plans’ gains during the marriage from contracting out.

Deschamps J. does better with her division, under section 1, between support and property. But the idea of conscious, acquisitive transactions fails to distinguish the “property” regimes from the concerns underlying support. The property regimes include measures protecting the family home, which I’ve argued elsewhere are alimentary in character.   And automatic pension or RRSP contributions off every paycheque or a home’s appreciation in value are hardly conscious transactions.

The key point about choice lies at private and public law’s intersection. Quebec already assimilates unmarried to married spouses for purposes such as taxation, workers’ compensation, public pensions, and welfare. Good or bad for a couple, there is no “opting out” from that treatment.

The unanswerable reason that excluding unmarried couples from the private law’s obligation of support is unjustifiably discriminatory is that public laws already claw back benefits on the irrebuttable presumption that cohabitants support one another (thanks on this point to Rod Macdonald).

If Quebec were serious about the justifications it advanced for its private law—preserving a zone of autonomy for informed, rational unmarried couples to shape their destinies—it would allow cohabitants to opt out from public law’s spousal designation.

 

 

Robert was responding to Hester’s post & my question, which are set out below:

 

 

HL:  Satisfactory?  Well, at least we get more choices about what the choice to tie the knot, or not, means.   

LeBel J. aligns the “knot, or not” choice with “personal autonomy and freedom,” (para 267).  This broad principle, we find out elsewhere, concerns the “freedom of those who wish to organize their patrimonial relationships outside the mandatory framework” (para 256).  The plural possessive is deceiving, for it is B.’s patrimonial relationship that gets “freely” organized.  It turns out that A. alone has made what is primarily a “marital status” choice, namely to live “with a spouse who refuses to marry,” a choice that, for LeBel J., is on a par with the choice of “a spouse who gives in to insistent demands to marry” (para 260).  LeBel J. concedes that the A.s of the world will likely end up in financially precarious positions when relationships end, but, he points out, each conjugal form has disadvantages for “one” of the spouses (para 242).  The marriage disadvantage presumably refers to those who, unlike B., cave to “insistent demands” and find they must submit to the protective regime.  And so, in LeBel J.’s judgment, choice language is the “ideological glue” (see H. Lessard Charter Gridlock:  Equality Formalism and Marriage Fundamentalism” in Sheila McIntyre and Sanda Rogers, Diminishing Returns:  Inequality and the Canadian Charter of Rights and Freedoms (LexisNexis 2006)291-316 at 316 – not available online, sorry!) binding the twin pillars of classical liberalism – formal equality and negative liberty – to a conception of conjugality and property rights rooted in a conservative and patriarchal tradition.

For Deschamps J., choice need not masquerade as liberal principle; rather it is, quite unapologetically, economic self-interest.  The purpose of the legislative protections (more precisely, the lack of protections for defacto spouses) is “to ensure the autonomy and fairness for couples who have been able to, or wanted to, accumulate property” (para 392).  Oh foolish A., for seeking to “bridal” this freedom!   Deschamps J. further explains that it makes sense to speak of decisions about property as “choices” because property acquisition, of necessity, involves a transactional moment, what she calls a “conscious act,” unlike “a plan to live together” that can evolve gradually into “a relationship of interdependence over which one of the parties has little or no control…” (para 393).  And preserving choice for the propertied by upholding the patrimonial protections would not compromise economic justice because Deschamps J. would remove A.’s exclusion from support remedies.

Abella J. seems aware of the treachery that choice language can wreak, locating it some distance from “principle” by relegating it to the status of legislative policy, and even then reluctantly (para 358).  When talking of conjugal relationships, she prefers the language of “mutual decision” (para 375), underscoring the fact that “knot, or not” choices involve a two way negotiation structured by inequality that is too often gendered.   Like all her other colleagues, she sees the ultimate choice at stake in terms of contractual freedom, but, for her alone, equality and economic justice should prevail without qualification.  A less impairing regime, she offers, would apply property and support provisions presumptively to all, allowing couples to “opt out.”   Bargaining for financial security would be thereby untethered from marital status, rendering conjugal “choice” less illusory (para 376).

McLachlin C.J.’s intervention is profoundly conflicted.   She embraces Abella J.’s view that marital status is emphatically not about choice and that the exclusions violate substantive equality, but then upholds the entire regime in the name of the public interest in a “state free zone” of private choice.  She rejects Abella J.’s less equality-impairing “opt out” alternative because it is more choice-impairing. Not even the “ideological glue” of choice language can hold this judgment together!