[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.

 

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *