Tag Archives: Withler

[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.


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.


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 & 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.




[Eric & Lola (1)] Bruce Ryder: Doctrinal Plasticity, continued

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?



photo of Bruce RyderBR:  I see Quebec v A as the third installment of the Court’s efforts to revise its own recent jurisprudence to reduce the burdens on equality claimants. In Kapp, the Court jettisoned the human dignity test from Law. In Withler, it rejected the mirror comparator group requirement put forward in Auton and Hodge. In Quebec v A, Justice Abella’s majority opinion on s.15(1) rejected the requirement of proving the operation of prejudice or stereotype set out in Kapp and Withler, and refused to follow the Court’s ruling in Walsh. Justice Abella held that claimants should not have to meet the “unquantifiable” and “ineffable” burden of proving that governments were motivated by negative attitudes (paras 329-330). The focus of s.15(1) analysis, she affirmed, should be on the effects of a challenged law: if the law imposes adverse differential impact on a historically disadvantaged group, then it is discriminatory (para 332). The problem with the Court’s earlier ruling in Walsh is it shifted the focus of the s.15(1) analysis from effects to the validity of the legislative objective (paras 338-347).

Cumulatively these are potentially important adjustments to the s.15(1) jurisprudence. They ought to relieve the burdens on s.15(1) claimants and allow the analysis to move more quickly to s.1, where government should have to show why it cannot achieve its objectives without imposing adverse differential impact on historically disadvantaged groups on the basis of prohibited grounds. It all depends on whether the Court is willing to hold the government to a meaningful burden of justification under s.1.

We ought to be sceptical about whether the post-Kapp doctrinal revisions will produce different results. The McLachlin Court’s record on Charter equality rights is distinguished by two features: one is its doctrinal plasticity, the remarkable series of about turns and mea culpas described above; the other, that I’ve documented elsewhere, is its consistent record of dismissing Charter equality claims, regardless of the test applied. In this sense, there is nothing new about Quebec v A, it is just another example of the Court dismissing a Charter equality rights claim in a verbose, overwrought and angst-ridden set of opinions. By way of contrast, the Court has issued clear, confident and succinct rulings on statutory equality rights (eg, Meiorin; Moore). Why are the judges so anxious about Charter equality rights? I think we need to put the Court on the couch. I’m looking forward to my colleagues’ therapeutic insights.

IFLS Profile: Prof. Daphne Gilbert, U Ottawa

This is a new semi-regular IFLS feature which will profile Canadian legal feminists. I got the idea when I was reading the Supreme Court of Canada’s latest section 15 (constitutional equality) decision.  Daphne’s quite critical work is cited twice! How did she do it? I wanted to know. So I sent her a set of questions (developed with my colleague Kate Sutherland) and here’s the result! Enjoy. I think we can learn a lot by learning some of what’s behind the scholarship, how it happens, and how we connect our scholarship with other aspects of our feminist identities.  I hope these features help us get to know each other, even though we’re separated by some pretty fearsome distances.

In this installment,Daphne tells us who we should be reading, what she should be reading, and lets us in on what co authoring with Diana Majury is like.   Next up, U Vic’s Maneesha Deckha.

What’s on your desk?

On my desk [at home] as I answer your questions (in no particular order and suggesting no order at all):  A cup of chocolate-mint tea, photos of my kids, my iPhone binging away with texts and emails (not exactly a distraction-free zone!), a pile of clean soccer clothes to put back in the soccer backpack, a birthday card I am overdue at writing (just like all of my other overdue deadlines!), a football that needs to be pumped up for the ten-year-old-son, a box of chocolates for I allow myself one for every two straight hours I sit at my desk, two journal articles I mean to read someday, a package of gum I confiscated from my seven-year-old’s backpack, and a posted note affixed to my monitor that says (in faded ink):  “NO EMAILING BEFORE NOON” (ignored from day one).

[i asked for details and Daphne said the articles were Reva Siegel and Neil Siegel, Pregnancy and Sex-Role Stereotyping, From Struck to Carhart,70 OHIO ST. L.J. 1095 (2009) and Shannon Sampert, Let Me Tell You a Story: English- Canadian Newspapers and Sexual Assault Myths, (2010) 22 CJWL, vol. 2, 301.  “I actually have the entire volume of the CJWL sitting on my desk but the Sampert piece is the last one I have to read!  I loved that conference in honour of Jane Doe— it was such a fantastic positive space”]

Fiction book you read in last 12 months that you recommend?

I loved “The Guernsey Literary and Potato Peel Pie Society” by Mary Ann Shaffer.

Tell us about the birth and development of the ideas in the articles that the SCC cited:

Gilbert, Daphne.  “Time to Regroup:  Rethinking Section 15 of the Charter” (2003), 48 McGill L.J. 627.

Gilbert, Daphne, and Diana Majury.  “Critical Comparisons:  The Supreme Court of Canada Dooms Section 15” (2006), 24 Windsor Y.B. Access Just. 111.

Time to Regroup” was a follow-up piece to my first published article on section 15, which itself was part of a tribute to Justice Claire L’Heureux-Dube.  In that first article, I had described her approach to section 15 and her emphasis on groups and de-centering of a grounds-based analysis.  As I wrote that piece, I found I had more to say and so “Time to Regroup” was born.  I was particularly intrigued by the idea that a focus on groups could highlight the unique experience of those historically disadvantaged in our society.  Grounds, as described in section 15 and by the SCC, are “neutral” in content (with the exception of the ground of “disability”).  I liked the idea that groups were more fluid, multi-dimensional and welcoming to an intersectionality analysis.

The piece Diana and I co-wrote was a post-Hodge contemplation on the rising role of comparator groups and the corresponding demise of substantive equality in the Supreme Court’s section 15 jurisprudence.  It was born out of a meeting organized by LEAF.  Feminist academics and activists from across the country met in Ottawa for a workshop on how to move forward in a post-Nancy Law era of equality rights.  The role of comparator groups was one of the issues discussed at that workshop and Diana and I planned a three part article series (shoot for the stars!).  “Critical Comparisons” was the first part, outlining the problems with the Hodge approach to comparator groups.  We were concerned at how narrow and formulaic the Court’s approach to comparison was becoming, as evidenced in particular by Hodge and Auton. Part II of our planned trilogy was supposed to be a larger “think” piece on the contextual role of comparison in equality analysis.  We wanted to take one of the concluding paragraphs of “Critical Comparisons”, wherein we name-dropped some alternate approaches, and expand that into a more contextual and broader discussion on the role of comparison.  We then planned a third piece on what the Court could do differently, specifically within a section 15 rubric, but considering our more theoretical musings from part II.  And so… as you can see, we landed firmly on earth in our “shoot for the stars” goal of three comparison-centred articles!  We got seriously mired in part II, reading philosophy, sociology and comparative legal analyses. In the end, we couldn’t work ourselves out of the “conundrum of comparison” (our working title for part II). When I sat down to work on the factum for LEAF’s intervention in the Withler case, I really bemoaned our failure to write the theoretical analysis.  I could have used it as we tried to craft a post-comparator-group option for the Supreme Court.

How do you describe your feminism?

I think my politics align with the second wave feminist spirit, but my feminism is not just a political statement.  Feminism infuses my career, the friendships I hold most dear, my relationship, my parenting… and so it is difficult to describe in the abstract.  I am grateful that my job allows me space to write and teach about feminism, so that the constant, underlying foundation of my life is made manifest in an active


Name the course you took in law school that you think about most now and why.

I always joke with my students that I can lay honest claim to those stereotypical complaints:  “In my day, we walked to school.  Uphill.  Both ways.”  : ) I went to law school at the University of Manitoba at a time when both first and second year were a prescribed set of courses.  As a result I took classes like tax and business organizations, that I might never have taken otherwise, and it was a healthy challenge!  Perhaps not surprisingly though, the course that most influenced my career was “Gender and the Law” with Karen Busby.  It was my first exposure to an out feminist teaching about feminist issues.  I realized academia could be the place to do really interesting work.

Qualities you appreciate most in your students?

I love teaching.  It is my favourite part of the job.  I love students who are enthusiastic and passionate about law school.  I love it when they dive into the whole experience and really challenge themselves by taking courses outside their comfort zones.  On the one hand, I really applaud the students who come in with a firm sense of direction.  But on the other hand, I celebrate those who find their heart in law school and head off on a new adventure, different from the life they had charted for themselves.  Law school can be just such a turning point for so many students, and I love being part of that journey.

[Image is of three of Daphne’s most difficult students – her kids]

Qualities you appreciate most in your colleagues?

I appreciate the dedication and innovative spirit that so many of my colleagues bring to teaching and other faculty projects.  So many of my colleagues are making a huge public impact with their work in technology law, environmental law, international law, and of course the feminist-equality rights advocacy that our faculty is known for.

Name one Canadian academic whose work inspires you and who could be more widely known/read/loved.

Only one?!  I am a big fan of Maneesha Deckha’s work on animal rights issues and feminism.


How do you think your professional roles – scholar, lawyer, activist, feminist, teacher –   relate to each other? Do they ever all come together?  Have I left some out? Are there ways in which they don’t fit together very comfortably?

I feel pretty comfortable about the way all of those roles have combined in my professional life.  It is my work on the legal committee of LEAF that has really given fruition to my lawyer role, and I love that I can bring an academic eye to the litigation LEAF engages in.  My work on the Withler intervention was one of the most rewarding professional activities of my career (and it allowed me to simultaneously add and then check “appearing before the SCC” off my bucket list—an aspiration that hadn’t even made it on, I considered it so unlikely!)  Our faculty at uOttawa has such a strong feminist cohort, so it is easy to bring my feminism into teaching and activist work within the community.  That same feminist community also enabled my scholarly work by ensuring I both attended and presented at feminist legal conferences early in my career.  From the beginning of my appointment, I had so many feminist mentors in my own faculty, giving me the strength in numbers to feel secure in teaching and writing with a strong feminist focus.

What is your process for co authoring with Diana?

The setting is important and so you need to picture it:  a beautifully warm and sunny backroom with a roaring woodstove in the winter, Diana’s cuddly dog Ella (now sadly passed away) hogging one end of the couch, two pairs of feet propped up on the coffee table, and mugs of fabulous coffee at hand with sweet treats (my only contribution) for I can’t work without sugar (see the list of what is on my desk).  We usually tried to stick to a “gossip for an hour and then get right to work” rule, but with mixed success.  We talk our arguments out for hours together, and then divide up the writing.  We each write portions of the piece, but usually not entire sections on our own.  I may take the first half of an argument, for example, with Diana rounding it out.  Our articles aren’t severable into distinct “hers and mine” parts, but rather are totally integrated.  We don’t sit down and write together, but by the time the piece is done, it is truly a joint writing experience.  We go over the final draft together and work on the nuances of language.

[the image is of the cake Daphne made for Diana, in honour of Diana’s hon doc from the Law Society of Upper Canada.  Diana spoke to newly called lawyers using the Wizard of Oz as her theme]

Did you imagine when you were writing them that you might be writing for an audience of judges?  The title of the co authored piece does suggest that you didn’t!

We did not think the Court would ever cite our piece!  As a former clerk, it behooves me to say that I assumed judges might read our work.  I did not think however, that it would be cited.  Our co-authored piece “Critical Comparisons:  The Supreme Court of Canada Dooms Section 15” does draw its title right from the language that Justice Binnie uses in Hodge to describe the conundrum of comparator groups, so we felt a little less provocative in using the word “doom” then we might otherwise have felt.  I was really glad to see the Supreme Court cite so many great feminist authors in its Kapp decision, even if it didn’t use that opportunity to flesh out the arguments (or more specifically the critique) that we were offering.

Which section 15 case are you looking forward to and/or What’s your fantasy section 15 case – the case you think would be winnable, important, fabulous, but no one’s bringing it?

I am so disheartened by the Withler decision that I can’t say I feel optimistic either about section 15 or about fantasy cases.  A case I liked, that I thought was bravely written, was the Falkiner decision at the Ontario Court of Appeal.  I appreciated the recognition that “receipt of social assistance” could be an analogous ground.  I think poverty challenges are unwinnable at the Supreme Court of Canada (think Gosselin!) but they are so important.  Welfare, homelessness, mental health, child poverty, education rights… all of these issues and more haunt the true realization of section 15’s potential.