1 judgment of supreme court of canada
1.1 majority reasons
1.2 concurring reasons
1.3 dissenting reasons
1.3.1 cory , iacobucci
1.3.2 l heureux-dubé
1.3.3 mclachlin
judgment of supreme court of canada
the supreme court of canada in 4-1-4 vote dismissed appeal , upheld constitutionality of impugned definition of spouse in old age security act.
majority reasons
writing majority (lamer, la forest, gonthier , major), la forest held exclusion of same-sex couples definition of spouse in impugned act did not violate section 15 of canadian charter of rights , freedoms. controlling issue in section 15 cases, la forest argued, whether legislative distinction (based on protected ground) irrelevant objective of legislation in question , therefore discriminatory. objective of old age security act , declared, support , protection of legal marriage , institution described as:
firmly anchored in biological , social realities heterosexual couples have unique ability procreate, children product of these relationships, , cared , nurtured live in relationship. in sense, marriage nature heterosexual.
la forest argued sexual orientation inextricably relevant objective of impugned act given heterosexual nature of marriage, , not, therefore, tantamount discrimination under section 15 of charter.
obiter, la forest added had found impugned definition discriminatory, uphold under section 1 of charter considerations set forth in reasons in mckinney, supra, @ pp. 316-18 ...
concurring reasons
sopinka, concurring in result, registers disagreement plurality s reasoning section 2 of old age security act not discriminatory, , endorses section 15 analysis performed cory. however, sopinka argues canadian government must afforded flexibility in extending social benefits. government need not, wrote, pro-active in recognizing new social relationships :
it not realistic court assume there unlimited funds address needs of all. judicial approach on basis tend make government reluctant create new social benefit schemes because limits depend on accurate prediction of outcome of court proceedings under s. 15(1) of charter.
sopinka cites mckinney v. university of guelph in defence of reasoning, noting there situations in legislatures may take incremental approach address novel issues.
dissenting reasons
the remaining 4 justices dissented, rejecting irrelevance approach articulated la forest , incremental doctrine suggested sopinka.
cory , iacobucci
cory , iacobbucci, jj., wrote joint reason, in cory articulated section 15 analysis closely following approach laid out in andrews. iacobbucci, in turn, wrote section 1 analysis.
in section 15 analysis, cory disputes case revolving around concept of adverse effect discrimination , neutral law discriminates against group effect of same application. rather, cory contends law being challenged, definition of spouse in lieu of section 2 of old age security act is, quite simply, not facially neutral @ all. rather, since impugned act defines spouse in opposite sex terms, draws clear distinction between opposite-sex couples , same-sex couples.
to discriminatory within meaning of section 15 of charter, cory argues distinction has made on enumerated or analogous ground protected section 15. such, appellant not have prove distinction on such basis irrelevant objective of legislation.
in case, cory asserts, there can no doubt distinction related personal characteristic of sexual orientation :
it may correct being in same-sex relationship not defining characteristic of being homosexual. yet, homosexual individuals form part of same-sex common law couple. sexual orientation of individuals involved leads formation of homosexual couple. sexual orientation of individual members cannot divorced homosexual couple. find otherwise wrong saying being pregnant had nothing being female. words of opposite sex in definition of spouse exclude homosexual couples claiming spousal allowance.
this distinction, cory argues, not based on other appellants sexual orientation , therefore discriminatory.
with respect section 1 analysis, iacobbucci identifies objective of impugned legislation alleviation of poverty in elderly households. holds pressing , substantial government objective under oakes test. however, iacobbucci argues section 15 violation (the exclusion of same-sex couples definition of spouse ) not rationally connected goal:
if there intention ameliorate position of group, cannot considered entirely rational assist portion of group. more rationally connected means end assist entire group, objective sought.
moreover, iacobbucci balks @ notion cost of extending such monetary benefits may justified reasonable limitation. end deplores evidence adduced in support of notion highly speculative , statistically weak @ best. regardless, endorses view in schachter budgetary considerations cannot used justify violation under s. 1 .
finally, iacobbucci asserts suggestion there precedent incremental approach misrepresentation of court s view in mckinney. points out court s decision in mckinney far more complex, having potential affect entire composition of workforce; ability of younger people secure jobs; access university resources; promotion of academic freedom, excellence , renewal; collective bargaining rights; , structure of pension plans. case @ bar, contends, offers no such predicament. in addition, argues incremental approach, offered sopinka, introduces 2 unprecedented , potentially undefinable criteria s. 1 analysis. such level of deference legislatures, asserts, has potential undermine effectiveness of canadian charter of rights , freedoms.
l heureux-dubé
l heureux-dubé wrote own dissent expounding on thought ought appropriate approach in both section 15 , section 1 analyses. first , foremost, extremely critical of irrelevance approach expounded la forest. contends approach defeats purpose of equality rights in section 15 of charter, noting objective of act in question may discriminatory per se, survive constitutional scrutiny.
l heureux-dubé argues that, purpose of section 15 analysis, appellant need not prove distinction made on 1 of enlisted grounds in section 15 or analogous ground thereof:
it plain language of s. 15 fundamental purpose guarantee individuals kind of equality: equality without discrimination. implication, discrimination not present, charter guarantee of equality satisfied. 9 grounds enumerated after basic guarantee of freedom discrimination particular applications , illustrations of ambit of s. 15. not guarantee itself.
rather, l heureux-dubé preferred approach giving substantial judicial discretion, in appellant must demonstrate there (1) legislative distinction , (2) distinction leads denial of equality right per section 15, , (3) distinction discriminatory . if distinction is:
capable of either promoting or perpetuating view individual adversely affected distinction less capable, or less worthy of recognition or value human being or member of canadian society, equally deserving of concern, respect, , consideration.
in analysis, l heureux-dubé registers accord cory s finding there legislative distinction being made. furthermore, concludes distinction denies appellants equal benefit of law couple. regarding status of appellants, agrees cory part of highly socially vulnerable group, in have suffered considerable historical disadvantage, stereotyping, marginalization , stigmatization within canadian society. nature of interest affected, l heureux-dubé asserts appellants have been directly , excluded, couple, entitlement basic shared standard of living elderly persons cohabiting in relationship analogous marriage. characterizes interest involved important facet of full , equal membership in canadian society. message denial gives, l heureux-dubé argues, seems undeniable:
given marginalized position of homosexuals in society, metamessage flows inevitably excluding same-sex couples such important social institution society considers such relationships less worthy of respect, concern , consideration relationships involving members of opposite sex.
she finds, therefore, exclusion of same-sex couples indeed discriminatory , in violation of section 15 of charter.
regarding section 1 analysis, l heureux-dubé registers agreement analysis of iacobucci , characterizes incremental approach, suggested sopinka, undermining values section 1 sought protect.
mclachlin
mclachlin wrote succinct dissent registering substantial agreement reasons of justices cory , iacobucci .
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