Tag Archives: Hester Lessard

Eric & Lola Roundtable: Hester Lessard – Knotted & Glued

Thanks everyone for that first round – thanks a lot.  I’m more worried than I was before! Your comments were not comforting, except in the sense of confirming some of my fears.  Why can’t we recognize this is gendered (Margot)?  Where is the discussion about stereotyping going (Robert)?  Is Abella J’s strong section 15 position really the going forward majority (Hester)? And what’s with all the angst from the judges (Bruce)?  Apologies for reducing all your thoughtful comments to confirmatory moments for me.

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

Here’s my second question to the four of you.

The judgments here seem to me to represent a much more satisfactory effort to grapple with the notions of choice and autonomy than we saw in 2002’s Walsh.  What kinds of approaches to these questions do you see ascendant here, and how do you see this playing out going forward?  How might this relate to Abella J’s suggestion at para 379 (discussed by the Chief Justice at para 443) that an “opting in” approach might have saved these provisions at section 1?

wire heart gluing knotHL:  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 Photo Stream-001illusory (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!

[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.