I. Grounds of Discrimination

AuthorRobert J. Sharpe - Kent Roach
ProfessionCourt of Appeal for Ontario - Faculty of Law, University of Toronto
Pages362-380

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So far, we have discussed section 15 of the Charter in terms of its analytical parts. In what follows, we take a more contextual and holistic approach by examining the reasoning, outcomes, and remedies in section 15 cases in some of the most important contexts of potential discrimination.

1) Discrimination against Gays and Lesbians

In Egan v Canada,109the Supreme Court unanimously accepted sexual orientation as an analogous ground of discrimination. Justice La Forest stated: that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of section 15 protection as being analogous to the enumerated grounds.

Justice Cory stressed the historical disadvantage and prejudice suffered by gays and lesbians and the decisions to include sexual orientation as a prohibited ground of discrimination in most human rights codes. Justice La Forest, with the concurrence of three other judges, however, held that the exclusion of same-sex couples from old-age security benefits did not violate section 15 of the Charter because the exclusion of such couples was relevant to the purposes of the legislation. Justice Cory, with the concurrence of three other judges, held that the exclusion of same-sex couples constituted unjustified discrimination. Justice Sopinka provided the decisive fifth vote. He held that the exclusion violated section 15 of the Charter but was justified under section 1 because the government was entitled to deference in deciding whether to extend benefits to same-sex couples. He noted that this was the Court’s first case to recognize sexual orientation as an analogous ground of discrimination and concluded that "given the fact that equating same sex couples with heterosexual spouses, either married or unmarried, is still generally regarded as a novel concept, I am not prepared to say that by its inaction to date the government has disentitled itself to rely on s 1 of the Charter."110

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In Vriend v Alberta,111the Supreme Court held that the omission of protection against discrimination on the basis of sexual orientation from Alberta’s human rights code constituted unjustified discrimination against gays and lesbians. Although the human rights code regulated private conduct and the discrimination was in the form of a legislative omission, the Court held that the Charter still applied to the decision of the Alberta legislature to exclude sexual orientation. The omission of sexual orientation imposed burdens on gays and lesbians by making them vulnerable to private discrimination on the basis of sexual orientation in a manner that heterosexuals were not exposed to discrimination. The Court strongly stated: "[T]he exclusion sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation."112With one judge dissenting, the Court decided that the appropriate remedy was to read sexual orientation into Alberta’s human rights code as opposed to striking the entire code down subject to a suspended declaration of invalidity.

A year later in M v H,113the Supreme Court applied the Law analysis to hold that the limitation of support provisions in Ontario’s family law legislation to opposite-sex partners was an unjustified violation of section 15 of the Charter. The Court held that the law imposed a differential burden on same-sex partners who could not avail themselves of court-ordered support payments. Following Egan and Vriend, this differential treatment was on the analogous ground of sexual orientation. Finally, the differential treatment resulted in substantive discrimination because it was based on stereotypes that same-sex partnerships could not be as lasting or as meaningful as heterosexual partnerships. The majority of the Court rejected the idea that an ameliorative purpose of ensuring the fair treatment of women after the breakup of a common law partnership justified the exclusion of same-sex partners. The Court declared the Ontario law to be invalid subject to a six-month period of suspension during which the Ontario legislature responded by adding the category of "same-sex partners" to much of its legislation conferring spousal benefits and obligations.

In Little Sisters Book and Art Emporium v Canada (Minister of Justice),114which came a year after M v H, the Court found that customs authorities had violated section 15 and discriminated on the basis of sexual orientation by targeting the imports of a gay and lesbian book-

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store when they did not target the imports of "so-called XXX sex shops that specialize in hard core heterosexual material even though, unlike in the case of Little Sisters, little if any of their stock is found routinely on display in the Vancouver Public Library."115The Court found that this discrimination on the basis of sexual orientation was the result of the actions of customs officials, and it was not authorized in customs legislation allowing officials to detain obscene material. The majority of the Court determined that the appropriate remedy was a declaration that section 15 rights had been violated. A minority of the Court felt this was not a strong enough remedy given the systemic problems with the administration of the legislation. The minority would have struck down the customs legislation subject to an eighteen-month period of suspension.

The most important development in this area has been debate concerning same-sex marriage. The best-known decisions were those of the Courts of Appeal of British Columbia116and Ontario117and a trial-level decision in Quebec,118all of which struck down the traditional common law opposite-sex definition of marriage. The reasoning of the Court of Appeal for Ontario is illustrative. The court identified an 1866 English decision as the source of opposite-sex definition of marriage at common law. In that early case, Lord Penzance wrote: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."119The Court of Appeal rejected the argument that the word "marriage," as used in the Constitution Act, 1867, constitutionally entrenched the legal definition of marriage that existed at the time of Confederation as contrary to the notion of the constitution as a "living tree" capable of growth and change over time. The court also declined to find that the issue engaged freedom of religion under section 2(a) of the Charter, holding that "[t]his case is solely about the legal institute of marriage. It is not about the religious validity or invalidity of various forms of marriage."120Turning to section 15(1), the Court of Appeal applied the Law test in a straightforward manner. It

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found that the opposite-sex definition of marriage created a formal distinction between opposite-sex couples and same-sex couples on the basis of their sexual orientation. Finally, it found that an analysis of the contextual factors pointed to the conclusion that the opposite-sex definition of marriage resulted in substantive discrimination. Unlike the Quebec and British Columbia courts, which had delayed their declarations of invalidity, the Ontario Court of Appeal refused to grant a temporary suspension of invalidity and struck down the opposite-sex definition of marriage immediately.

What happened next is interesting from the point of view of legal process. The Liberal government voiced its support for gay marriage and its intention to pass legislation enshrining a neutral definition. Rather than appeal any of the lower court decisions, it directed a reference to the Supreme Court asking about the constitutionality of proposed legislation stating (1) that marriage for civil purposes is the lawful union of two persons to the exclusion of all others and (2) that nothing about that definition would affect the freedom of religious officials to refuse to perform marriages that conflict with their religious beliefs. The Supreme Court held that the first part of this legislation was within the jurisdiction of Parliament under section 91(26) of the Constitution Act, 1867, but not the second, since only the provinces are able to legislate exemptions to existing requirements regarding the solemnization of marriage. The Court then held that the proposed definition of marriage was consistent with the Charter. The Court found that it did not trench upon the equality rights or the freedom of religion of groups who oppose gay marriage. With respect to equality rights, the Court found that the new definition did not draw any distinctions nor did it withhold any benefits or impose burdens on a differential basis. For that reason, the section 15 challenge to the new definition failed on the first step of Law. With respect to freedom of religion, the Court held that no conflict had been shown to exist between the new definition and the section 2(a) rights of those who opposed same-sex marriages. The Court also found that freedom of religion would protect religious officials from being compelled by the government to perform same-sex marriages contrary to their religious beliefs.

The Supreme Court, however, declined to answer arguably the most important of the reference questions: whether the opposite-sex requirement for marriage was consistent with the Charter. The Court held that it would be "unwise and inappropriate to answer the question"121be-cause the government had said it intended to proceed to amend the

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marriage definition regardless of the answer. It also refused to answer because...

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