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.
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?
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!