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.
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”.
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.
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).