Tag Archives: Robert Leckey

Twitter RoundUp

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After Mandela

‏@RobsonConLaw Daily Quote: Obama on Mandela and “Formal Equality” http://bit.ly/J1ixHK 

‏@gilliancalder tweeted this piece from Joanne St. Lewis: Beautiful. @blogforequality http://www.bloggingforequality.ca/2013/12/a-dignified-warrior-for-peace-nelson_8.html … @firing_control

LGBT* Rights around the Globe

Russia

Leckey (McGill) reviews Kondakov (http://bit.ly/1iLcbfQ ) Scholarship in a Violent Time http://bit.ly/18fSk3Q  #lgbt #Russia @IReadJotwell

 

India

@PoojaaParmar

  • good to know govt interested in “legislative route” http://goo.gl/1D6ag5 
  • SC says legislature free to remove/ amend s. 377 IPC. Will any political party take this up? National elections next year!!

 

That time again….

 

Get yr exam-time pistachio needs filled in IFLS/Nthnsn suite. 3rd fl. Exit elevator. Turn L. While supplies last! pic.twitter.com/qZl8eWwhfb

Also: a nice place to sit. #morethanjustpistachios pic.twitter.com/ekYHATPkXx

 — Sonia Lawrence (@OsgoodeIFLS) December 9, 2013 

timely! #exams RT @BeckyBatagol: This is great! RT@WellnessForLaw: Healthy Lawyer: Stress Management @msjdtweets http://ms-jd.org/healthy-lawyer-stress-management …

Legal Education in Canada

 

Critical Resources

Don’t reinvent the wheel.  Other smart folk have done some of the work for you

Women of note

 

Conferences etc.

Yale Law School ‏@YaleLawSch

The 2013 Doctoral Scholarship Conference will explore the relationship between law and uncertainty. Learn more: http://ylaw.us/1bKsC8u 

 

December 6

Thank you, Osgoode Feminist Collective for reminding & memorializing. #dec6 #weremember #vaw pic.twitter.com/w452anRoIL

 

 

 

 

Eric & Lola Roundtable: Robert Leckey responds on choice

 

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

photo of guest blogger robert leckeyRobert 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:

 

 

Photo Stream-001HL:  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!

[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.

 

 

[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.

 

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).