Egan v. Canada

Egan v. Canada, [1995] 2 S.C.R. 513, was one of a trilogy of equality rights cases published by a very divided Supreme Court of Canada in the spring of 1995. It stands today as a landmark Supreme Court case which established that sexual orientation constitutes a prohibited basis of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms.

Background
James Egan and John Norris Nesbit, the plaintiffs, were a gay couple who had been in a conjugal relationship since 1948. Upon reaching age 65 in 1986, Egan became eligible to receive old age security and a guaranteed income supplement from the government under the Old Age Security Act.

The Old Age Security Act provides that a spouse of the pensioner may receive a spousal allowance should their combined income fall below a certain amount. When Nesbit reached 65, he applied to the Department of National Health and Welfare for a spousal allowance. However, he was refused on the basis that spouse, defined in section 2 of Old Age Security Act, did not include a member of the same sex.

Egan and Nesbit delivered a motion for a declaration of unconstitutionality to the Federal Court of Canada (Trial Division). They alleged that the definition of "spouse" under the Old Age Security Act constituted an infringement of their right to the equal protection and equal benefit of the law, entrenched in section 15 of the Canadian Charter of Rights and Freedoms, and that such an infringement was discriminatory on the basis of sexual orientation. Furthermore, they alleged that the section 15 violation could not be saved under Section 1. Nesbit and Egan petitioned the Court to remedy the alleged Charter violation by reading the definition of spouse so as to include same-sex couples.

Judgment of the Federal Court of Canada, Trial Division
The Trial Judge held that although the definition of spouse, as defined in section 2 of the Old Age Security Act, created a distinction it was merely a distinction between spouses and "non-spouses" (e.g. siblings), the latter being a group which Parliament had allegedly not intended to confer similar benefits upon. The Trial Judge asserted that the distinction between spouses and "non-spouses" had nothing to do with sexual orientation and, therefore, could not constitute discrimination on the basis of sexual orientation. The application was dismissed. This decision was appealed by the plaintiff to the Federal Court of Appeal.

Judgment of the Federal Court of Appeal
On April 29, 1993, the Federal Court of Appeal, by 2-1 vote, affirmed the judgment of the Trial Judge and dismissed the appeal.

Reasons of Robertson, J.A.
Robertson held that the definition of "spouse", as defined by section 2 of the Old Age Security Act, did not discriminate against the appellants, Egan and Nesbit, by virtue of the fact that the definition merely created a "distinction" between spouses and non-spouses. Robertson contends that the issue in the case was not solely concerned over the question of who may receive spousal allowances, but was in actuality "an indirect challenge to the common law and statutory concept of marriage." Our "present understanding of the law of discrimination", Robertson argued, precludes the conclusion that "the common law limitations of marriage to persons of the opposite sex" constitutes discrimination under Section 15 of the Charter.

Reasons of Mahoney, J.A
Mahoney, in a concurring judgment, adopts the reasoning of the Trial Judge, asserting that the definition of "spouse" in the Old Age Security Act does not discriminate against the appellants. Mahoney notes that there are a broad range of "non-spouses" who live together. They too are denied a spousal allowance, but on the basis of their "non-spousal status". The Charter challenge, Mahoney argues, is misplaced: the discrimination the appellants allege is, in fact, due to "the failure of the definition to comprehend the concept of common law marriage between persons of the same sex" and not on the basis of their sexual orientation.

Reasons of Linden, J.A.
Linden, in a dissent, accuses the other two justices of engaging in exercises of circular reasoning:
 * The issue before this Court is whether the definition of spouse in the Old Age Security Act creates a distinction in the distribution of benefits which is discriminatory on the basis of sexual orientation. That issue cannot be resolved simply by stating that the distinction drawn by the Act is based on the definition of spouse rather than on sexual orientation. It is, after all, the definition of spouse that is being attacked as discriminatory.

Linden concludes that the definition of "spouse", as per Old Age Security Act, creates a distinction between heterosexuals and homosexuals which constitutes discrimination on the basis of sexual orientation. Linden, furthermore, concludes that the exclusion of same-sex couples from the definition of "spouse" did not minimally impair the appellants' Section 15 rights.

Judgment of the Supreme Court of Canada
The Supreme Court of Canada in a 4-1-4 vote dismissed the appeal and upheld the constitutionality of the impugned definition of "spouse" in the Old Age Security Act.

Plurality reasons
Writing for the plurality (Lamer, La Forest, Gonthier and Major), La Forest held that the exclusion of same-sex couples from the definition of "spouse" in the impugned Act did not violate Section 15 of the Canadian Charter of Rights and Freedoms. The controlling issue in Section 15 cases, La Forest argued, is whether a legislative distinction (based on a protected ground) is "irrelevant" to the objective of the legislation in question and therefore discriminatory. The objective of the 'Old Age Security Act', he declares, is the "support and protection of legal marriage." An institution which he describes as:


 * firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.

Given the alleged "heterosexual" nature of marriage, La Forest argued that sexual orientation is inextricably relevant to the objective of the impugned Act and is not, therefore, tantamount to discrimination under Section 15 of the Charter.

Obiter, La Forest added that had he found the impugned definition discriminatory he would uphold it under Section 1 of the Charter "for the considerations set forth in my reasons in McKinney, supra, especially at pp. 316-18 . . . ."

Concurring reasons
Sopinka, concurring only in result, registers his disagreement with the plurality's reasoning that Section 2 of the Old Age Security Act is not discriminatory, and endorses the Section 15 analysis performed by Cory. However, Sopinka argues that the Canadian Government must be afforded some "flexibility in extending social benefits." The Government need not, he wrote, be "pro-active in recognizing new social relationships":


 * It is not realistic for the Court to assume that there are unlimited funds to address the needs of all. A judicial approach on this basis would tend to make a government reluctant to create any new social benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) of the Charter.

Sopinka cites McKinney v. University of Guelph in defence of his reasoning, noting that there are situations in which Legislatures may take an "incremental" approach to address novel issues.

Dissenting reasons
The remaining four Justices dissented, all rejecting the "irrelevance" approach as articulated by La Forest and the "incremental" doctrine suggested by Sopinka.

Cory and Iacobucci
Cory and Iacobbucci, JJ., wrote a joint reason, in which Cory articulated a Section 15 analysis closely following the approach laid out in Andrews. Iacobbucci, in turn, wrote the Section 1 analysis.

In his Section 15 analysis, Cory disputes that this was a case revolving around the concept of "adverse effect discrimination", that is a neutral law which discriminates against a group only by the effect of the same application. Rather, Cory contends that the law being challenged, the definition of "spouse" in lieu of section 2 of the Old Age Security Act "is, quite simply, not facially neutral" at all. Rather, since the impugned Act defines a spouse only in opposite sex terms, it "draws a clear distinction between opposite-sex couples and same-sex couples."

To be discriminatory within the meaning of Section 15 of the Charter, Cory argues that the distinction only has to be made on an enumerated or analogous ground protected by Section 15. As such, the appellant does not have to prove that the distinction on such a basis is irrelevant to the objective of the legislation.

In this case, Cory asserts, there "can be no doubt that the distinction is related to the personal characteristic of sexual orientation":

"It may be correct to say that being in a same-sex relationship is not necessarily the defining characteristic of being homosexual. Yet, only homosexual individuals will form a part of a same-sex common law couple. It is the sexual orientation of the individuals involved which leads to the formation of the homosexual couple. The sexual orientation of the individual members cannot be divorced from the homosexual couple. To find otherwise would be as wrong as saying that being pregnant had nothing to do with being female. The words 'of the opposite sex' in the definition of 'spouse' specifically exclude homosexual couples from claiming a spousal allowance."

This distinction, Cory argues, is not based on anything other than the appellants' sexual orientation and is therefore clearly discriminatory.

With respect to the Section 1 analysis, Iacobbucci identifies the objective of the impugned legislation as the "the alleviation of poverty in elderly households." He holds this to be a "pressing and substantial" government objective under the Oakes Test. However, Iacobbucci argues that the Section 15 violation (the exclusion of same-sex couples from the definition of "spouse") is not rationally connected to that goal:

"If there is an intention to ameliorate the position of a group, it cannot be considered entirely rational to assist only a portion of that group. A more rationally connected means to the end would be to assist the entire group, as that is the very objective which is sought."

Moreover, Iacobbucci balks at the notion that the cost of extending such monetary benefits may be justified as a reasonable limitation. To that end he deplores the evidence adduced in support of this notion as "highly speculative and statistically weak" at best. Regardless, he endorses the view in Schachter that "budgetary considerations cannot be used to justify a violation under s. 1".

Finally, Iacobbucci asserts that the suggestion that there is precedent for an "incremental approach" as a misrepresentation of the Court's view in McKinney. He points out that the Court's decision in McKinney was far more complex, having the potential to affect "the entire composition of the workforce; the ability of younger people to secure jobs; access to university resources; promotion of academic freedom, excellence and renewal; collective bargaining rights; and the structure of pension plans." The case at bar, he contends, offers no such predicament. In addition, he argues that the "incremental" approach, offered by Sopinka, introduces "two unprecedented and potentially undefinable criteria into s. 1 analysis." Such a level of deference to the legislatures, he asserts, has the potential to completely undermine the effectiveness of the Canadian Charter of Rights and Freedoms.

L'Heureux-Dubé
L'Heureux-Dubé wrote her own dissent expounding on what she thought ought to be the appropriate approach in both the Section 15 and Section 1 analyses. First and foremost, she is extremely critical of the "irrelevance" approach expounded by La Forest. She contends that the approach defeats the very purpose of the equality rights in Section 15 of the Charter, noting that the objective of the Act in question may be discriminatory per se, but would survive constitutional scrutiny.

L'Heureux-Dubé argues that, for the purpose of the Section 15 analysis, the appellant also need not prove that the distinction is made on one of the enlisted grounds in Section 15 or an analogous ground thereof:


 * It is plain from the language of s. 15 that its fundamental purpose is to guarantee to all individuals a certain kind of equality: equality without discrimination. By implication, where "discrimination" is not present, then the Charter guarantee of equality is satisfied. The nine "grounds" enumerated after this basic guarantee of freedom from discrimination are particular applications and illustrations of the ambit of s. 15. They are not the guarantee itself.

Rather, L'Heureux-Dubé preferred an approach giving substantial judicial discretion, in which the appellant must demonstrate that there is (1) "a legislative distinction", (2) that this distinction leads to a denial of any equality right as per Section 15, and (3) that the distinction is "discriminatory". That is if the distinction is:


 * capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.

In her analysis, L'Heureux-Dubé registers her accord with Cory's finding that there is a legislative distinction being made. Furthermore, she concludes that the distinction denies the appellants the equal benefit of the law as a couple. Regarding the status of the appellants, she agrees with Cory that they are clearly part of a "highly socially vulnerable group, in that they have suffered considerable historical disadvantage, stereotyping, marginalization and stigmatization within Canadian society." As for the nature of the interest affected, L'Heureux-Dubé asserts that the appellants have been "directly and completely excluded, as a couple, from any entitlement to a basic shared standard of living for elderly persons cohabiting in a relationship analogous to marriage." She characterizes the interest involved as "an important facet of full and equal membership in Canadian society." The message this denial gives, L'Heureux-Dubé argues, seems undeniable:


 * Given the marginalized position of homosexuals in society, the metamessage that flows almost inevitably from excluding same-sex couples from such an important social institution is essentially that society considers such relationships to be less worthy of respect, concern and consideration than relationships involving members of the opposite sex.

She finds, therefore, that the exclusion of same-sex couples is indeed discriminatory and in violation of Section 15 of the Charter.

Regarding the Section 1 analysis, L'Heureux-Dubé registers her agreement with the analysis of Iacobucci and characterizes the "incremental" approach, suggested by Sopinka, as undermining the values that Section 1 sought to protect.

McLachlin
McLachlin wrote a succinct dissent registering her "substantial agreement with the reasons of Justices Cory and Iacobucci".

Victory for gay rights
Although the Supreme Court of Canada dismissed the appeal, Egan v. Canada created an important precedent for gay rights activists. The Court unanimously held that sexual orientation is an analoguous ground under Section 15 of the Charter and is therefore a prohibited ground of discrimination. Writing for the plurality, La Forest noted:


 * I have no difficulty accepting the appellants' contention 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 s. 15 protection as being analogous to the enumerated grounds.

This excerpt has been frequently cited by the Courts in the fallout of Egan. The Supreme Court of Canada in particular has explicitly quoted it with approval in M. v. H. and in Vriend v. Alberta, and has similarly referred to it in Little Sisters Book Store v. Canada, Trinity Western University v. British Columbia College of Teachers, and Chamberlain v. Surrey School Board.

The Ontario Court of Appeal also cited this passage in Halpern v. Ontario.

Confusion surrounding the conflicting approaches in Egan
While it is normally true that plurality reasons are usually controlling under the doctrine of stare decisis (precedent), Egan v. Canada would appear to be an exception. The "irrelevance" approach which prevailed by plurality in Egan was also rejected by the majority of the Supreme Court in Miron v. Trudel, [1995] 2 S.C.R. 418, in which the more "orthodox" Andrews approach prevailed by plurality.

The difficulty in determining the ratio decidendi that Egan established is illustrated by the case Re Rosenberg et al. v. Attorney General of Canada. The case is virtually identical:

Nancy Rosenberg, the plaintiff, challenged the definition of "spouse" in the Income Tax Act, R.S.C. 1985, c. 1, as a violation of Section 15 of the Canadian Charter of Rights and Freedoms. Counsel for the Attorney General of Canada conceded that the definition of "spouse" in the Income Tax Act, in light of Egan, violated Section 15 of the Charter. Nonetheless, they contended that since Egan could not be distinguished from the case at hand, the violation must be upheld under Section 1 of the Charter as matter of stare decisis. The plaintiffs, by contrary, argued that Iacobucci's Section 1 analysis was controlling, pointing out that the plurality in Egan had only addressed the Section 1 issue obiter and it was, therefore, not binding under the doctrine of stare decisis. The Court held that Section 15 was indeed violated, but was nonetheless saved by Section 1 of the Charter.

On appeal, however, the Ontario Court of Appeal unanimously held that Egan clearly established that the exclusion of same-sex couples from the definition of "spouse" was a Section 15 violation. In addition, the Court held that Vriend served as the deathblow to the "incremental" approach suggested by Sopinka. Therefore, the violation could not be saved under Section 1 of the Charter and it was no longer necessary to consider whether the Trial Judge had erred in her application of stare decisis.

Confusion surrounding the conflicting approaches laid out in Egan has subsided with the formulation of a new Section 15 analysis established by a unanimous Supreme Court in Law v. Canada (Minister of Employment and Immigration).

Dissenting reasons adopted
In a landmark decision, M. v. H., the Supreme Court of Canada employed the new Law doctrine. Like Egan, it was contended that the exclusion of same-sex couples from a similar definition of "spouse", as per Section 29 of the Family Law Act, R.S.O. 1990, c. F.3, was a Section 15 violation. The Court held, 8-1, that the exclusion of same-sex couples in the definition of "spouse" was indeed a Section 15 violation and could not be saved under Section 1 of the Charter.