Equality rights, ratio identification, and the un/predictable judicial path not taken: Quebec (Attorney General) v. A. and R. v. Ibanescu.
In the first six months of 2013, amongst its other case law, the Supreme Court of Canada issued a verbose 450-paragraph four-opinion judgment presenting its latest take on equality rights (1) and a laconic four-paragraph unanimous judgment in which it incidentally rewrote its approach to stare decisis and identification of the ratio detidendir In this article, we seek to examine the intersecting dimension of these two cases and, in particular, to consider what ratio comes from the equality rights case on subsection 15(1) of the Charter (3) for future cases, with the stare decisis case helping to illuminate some of the real struggles inherent in the former question. Our aim is to comment on what rule now properly applies to subsection 15(1), but the near-simultaneous decision on ratio decidendi quite frankly complicates what rule one extracts from the equality rights case. Thus, we will not pursue a traditional case comment on either of these cases. (4) Rather, we will use the case speaking to principles on ratio to help illuminate the important question of what ratio applies in the equality rights case on subsection 15(1). This question obviously matters immensely to lower courts attempting to apply it and to anyone trying to understand equality rights jurisprudence in Canada.
What the Supreme Court of Canada has said on subsection 15(1) matters because lower courts within our system are legally obligated to apply the ratio from its decision. The principle of stare decisis, which "promotes several important values including consistency, certainty, and predictability in the law", (5) has a key role in our legal system aptly described in a recent decision of the Saskatchewan Court of Appeal: "The concept of binding precedent occupies a central place in judicial decision-making. Often referred to as the doctrine of stare decisis ('to stand by settled matters'), the principle requires that courts make decisions consistent with the prior decisions of higher courts." (6)
The former of rhe two Supreme Court of Canada judgments we will consider, known officially as Quebec (Attorney General) v A (and informally as the "Eric and Lola" case), (7) offers no majority judgment. To determine what rules from it actually bind a lower court, it is instead necessary to turn to those rules of legal reasoning that apply to the construction of a legal rule from an appellate judgment with no majority. The latter case, R v Ibanescu, (8) sees the Court offering one simple principle for how to approach that task, but we will ultimately argue that it is an approach that is not consistent with established patterns of the Canadian approach to stare decisis. In the meantime, though, there is an argument to be made that the Court's determination on the approach to ratio was in fact required for the decision in the case, which concerned the effect of past decisions on straddle evidence, (9) and thus amounts in turn to its ratio.
In this article, we examine these interactive developments. In Part II, we seek to show a larger set of approaches to ratio identification within classical approaches to stare decisis, and we argue that the rule offered in Ibanescu does reflect one possible approach to ratio identification, but not the one that is best rooted in stare decisis. In Part III, we consider what the rule is in Quebec v A based on the different possible approaches to ratio identification discussed in Part II, and we show that the Ibanescu approach may even fail to yield any rule whatsoever out of the case, while traditional approaches may yield a rule out of the case at odds with a possible first impression of the case, as will another less traditional but nonetheless appealing approach that moves away from the stricter positivism of the traditional approach.
Two results, discussed in Part IV, potentially follow. First, lower courts have thus far seemed to take a variety of different reads of the ratio of Quebec v A. (10) We will show that lower courts may well be justified in taking an approach to section 15 after Quebec v A at odds with what some might have assumed, with the rule stated by LeBel J quite possibly being the ratio. Second, lower courts might also properly question the Ibanescu rule on ratio identification, given its possible unworkability in at least some cases. Both cases call into question elements of the authority of what the Supreme Court of Canada may have been attempting to do, and that raises some further matters for thought, to be discussed in Part IV of the paper. In other words, we begin by trying to apply the law on ratio determination, including the Supreme Court of Canada's latest pronouncement on this matter, to the Court's leading new equality rights case. Doing so, however, also illuminates, in the end, some points about ratio determination more broadly.
For the sake of clarity, we should raise several foundational points at the outset. First, to be clear, the Quebec v A case may be analyzed in terms of ratio, despite its origins in a civil law jurisdiction within Canada, because precedent does apply to the constitutional issue in the case, which is the matter on which it potentially provides a rule. Second, we do not, of course, suggest that the case need contain only one ratio, but we do argue that on a particular legal issue, it must have one ratio or another (at least if it is to be useful as a precedent, with those cases not embodying any rule being of little interest within our legal systems long-standing methodology). Third, in taking the approach that we do, we do not adhere to any inherently "positivist" position. We do adhere to a position in which there is a form of legal reasoning, based on past case law, which differs from merely deciding anew each case based on judicial preferences. In so saying, our position admittedly is not compatible with certain versions of legal realism or critical legal theory that assume that all judicial decision making is politically ideological. However, it is entirely compatible with a range of legal theories that ascribe some relevance to precedent, including both more strictly positivist accounts and those that adhere to some blend of precedent and other considerations as appropriately affecting judicial decision making. (11)
II. CANADIAN APPROACHES TO PRECEDENT
In the past, there had been a very strong focus on questions of precedent within the Anglo-Canadian common law tradition. What emerged from a particular case that bound other courts mattered enormously to the ongoing development of the law. In this introduction, to set the stage for the argument to come, we will begin by briefly reviewing the key elements of that tradition. We will then turn to identify briefly the emergent American discourse on precedent that this tradition had not anticipated. Finally, we will suggest that the modern Canadian discourse on the point has entered into a phase filled with inconsistencies, setting the stage for a real debate on what principles continue to apply to ratio identification and the use of ratios.
The Canadian common law system of precedent followed directly from the traditional English approach. (12) This approach involved a strong system of precedent so as to provide for certainty in the law. As stated by Oxfords professor of jurisprudence from 1931 to 1951, Arthur L. Goodhart, "English justice, if it were not to remain fluid and unstable, required a strong cement. This was found in the common law doctrine of precedent with its essential and peculiar emphasis on rigidity and certainty." (13) This system always distinguished carefully between what the court had actually used as a rule to decide the issue in the case (presumed to have been contemplated more fully) and what it merely pronounced upon in passing. The former was ratio, and the latter obiter dicta. As stated by Vaughan CJ in 1673, "[a]n opinion given in Court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or a contrary, opinion had been broach'd is no judicial opinion, nor more than a gratis dictum." (14) Only the ratio of past cases is binding on lower courts.
This significant differentiation between ratio and obiter led to various significant efforts to offer a definitive methodology for drawing the distinction between the two. Through much of the 20th century, a method proposed by Goodhart had a great deal of sway; this method looked to an identification of "the material facts as seen by the judge" and then the construction of a rule out of the judge's conclusion on those material facts. (15) But Goodhart was by no means alone in seeking to analyze the matter, and other jurisprudential scholars also wrote on the matter over time. (16) It was of course also important to the courts, and there were authorities on such matters as the effect of situations where no majority was in favour of any specific ratio decidendi, with these authorities stating that the narrower of the two bases would have binding force. (17) Goodhart supported this latter view based on the presumption against identifying broad principles of law where it is not necessary to do so. (18)
Within the English discussion, the question ofstare decisis was always assumed to be less crucial in the United States, where the courts frequently dealt with constitutional matters. (19) As put by Lord Wright, there would be less attention to stare decisis in the United States because "a rigid method of precedents is inappropriate to the construction of a constitution, which has to be applied to changing conditions of national life and public policy." (20) Interestingly, however, one of the seminal writers on precedent, Eugene Wambaugh, who wrote in the American context, was later relied on by English courts. (21) He offered the classic description that "the ratio decidendi ... must be a general rule without which the case must have been decided otherwise." (22) This American academic influence on English approaches to precedent perhaps foreshadowed what has more recently become a greater American attention to the problem, at the very time when the English system has begun to appear more fragile, both in the context of very rapid change effected to it internally (23) and later via accession to European Union processes. (21)
Perhaps not despite the constitutional context but because of it, the important nature of what American cases have or have not decided has led to major discussions of stare decisis. On some issues, members of the United States Supreme Court have relied upon the force of stare decisis as a major reason to stand by past controversial decisions. (25) Indeed, the Court has engaged at length concerning in what circumstances it will or will not give force to its own past decisions and how to interpret the constitutional ratio of those past decisions. (26) Moreover, the United States Supreme Court's significant number of recent plurality decisions with a majority result but no majority reasoning, with some 200 such judgments over the past 30 years, (27) has led to much discussion in American case law and American scholarly literature of the problems of ratio identification in such circumstances. (28)
By contrast, there has been significantly less discussion of such issues in Canada. There have been a few cases that have engaged with the question of when it is appropriate for the Supreme Court of Canada to overturn its own precedents (29) and others where it has simply done so without much prior discussion whatsoever. (30) But there have been very few discussions of how to identify the ratio out of a divided decision. (31) This difference from the United States is probably in large part due to a smaller caseload and smaller scholarly community. Some may take the view that precedent has become less important, especially in constitutional contexts. (32) But the American experience belies any general suggestion to that effect and, indeed, the effects of Supreme Court of Canada precedents are entirely crucial to the lower courts. There is in Canada simply a relatively general and unfortunate lack of attention to important questions of the operation of precedent in the creation of binding rules. (33) The unfortunate nature of this lack of attention is perhaps most visible in the now widely varying approaches of the lower courts to questions of so-called "anticipatory overruling" and its question of when a lower court may and may not disregard existing precedent from a higher court. (34) In its recent jurisprudence, the Supreme Court of Canada has not addressed itself as significantly to detailed questions of the operation of precedent, although those decisions in which it has addressed related issues, such as the discussion in R v Henry (35) on when obiter is and is not binding, have also not necessarily received as much attention as they should have.
To the extent that it shows the Supreme Court of Canada speaking to ratio identification, the Ibanescu decision will be one of the more interesting four-paragraph judgments one will ever encounter, albeit based mainly on two sentences near the end of the first paragraph. The Court, writing per curium, states: "In our view, a statement of a legal principle that is accepted by a majority of the Court constitutes the opinion of the Court with respect to that legal principle. This is so even if some of the members of the Court who endorse that legal principle dissent from the majority's disposition of the appeal." (36)
This brief statement essentially affirmed what the Quebec Court of Appeal had seemingly done in the case, although a divided set of reasons there ironically complicates to what extent the Court of Appeal based its decision on this principle. In any event, despite a possible reading otherwise, we view this statement as clearly enunciating an approach to ratio identification. The opinion of the Court with respect to a legal principle is in fact the rule coming from the case and thus what would traditionally have been thought of as the ratio. (37) The statement that it can arise from a combination of majority and dissenting judges will not strike every reader as surprising. Indeed, one might even think that this is the way we already think about the issue of ratio identification. However, to think so would be to neglect richer traditions of stare decisis and, indeed, to take on board what is actually a controversial academic standpoint on ratio identification but while doing so in a way that misses some of the richness of that standpoint. To establish this claim, we examine four different approaches to ratio identification for which some basis can be found in the Canadian context: (1) a plurality-driven approach, (2) a classical stare decisis approach paralleling the American Marks rule, (38) (3) a "predictive" model of judging, and (4) an "evaluative" approach. We situate the Ibanescu approach ultimately within a so-called "predictive" model of judging, while questioning that model.
One (rather unreflective) approach to identification of a ratio in the context of a plurality opinion would be simply to take the largest plurality opinion within the majority as reflective of the binding opinion of the Court. Stated this bluntly, this position may well not seem particularly attractive in the first instance and, indeed, there may seem to be very few examples of such an approach. Indeed, in one English case directly on point, the Court of Appeal was tempted by but ultimately rejected exactly this approach, concluding that it would not use the reasoning of the "majority of the majority" because it ultimately amounted to minority reasoning. (39) Nonetheless, commentators do in fact implicitly take this account more often than one might first think. To mention just one example, consider the following paragraph from the treatise of Professor Hogg:
Does security of the person go beyond health and safety? In Morgentaler, three of the five majority judges were willing to find a deprivation of security of the person, not only in the risk to the woman's health created by the law-related delays, but also in the loss of her control over the termination of the pregnancy. On this basis, security of the person would include some requirement of personal autonomy, at least with respect to medical treatment. (40)
The paragraph slides from an acknowledgment of a position of three out of seven judges to an implication that such a position actually becomes a legal rule from the case. Although we do not necessarily ascribe this approach to Hogg in general, in this instance, his next paragraph goes on to describe how a later case "confirmed" this position, suggesting that it was in fact already the legal position based on the three-judge plurality. (41) The position that the largest plurality opinion states the rule thus does at least seemingly emerge in commentators' readings of cases, at least on occasion.
This approach also sometimes appears to influence judges, or at least to tempt them. For example, in a case engaging with a complex combination of section 15 cases, Charron J (as she then was) in the Ontario Court General Division ended up reasoning that "[i]f one considers the strict application of the doctrine of stare decisis, it is debatable whether courts of inferior jurisdiction, in a subsequent case which cannot be distinguished, are bound by the finding made by five of the nine justices on the subsection 15(1) issue since only one of these five justices formed part of the ultimate majority who governed the final outcome of the case", (42) with this reasoning then tending to indicate a preference for the view of the majority within the majority, although that reading is complicated by further dimensions within the case. Our point is that traces of this approach are sometimes evident in discussion of cases but that it ultimately falls short.
Ultimately, this approach has grave weaknesses. In the Morgentaler example referenced earlier, the implication of this approach would be that the position adopted by three judges--and rejected (or, at least, not accepted by four judges)--has somehow become the law. But that would imply that something can become the law precisely through not being accepted by the majority of the judges, a plainly wrong result. Moreover, it would yield an ambiguous result in the instance of a four-to-four-to-one decision. (43) Thus, although this approach has a certain simplicity and a certain hold, we turn quickly to other approaches.
CLASSICAL APPROACH TO STARE DECISIS AND IMPLICATIONS FOR RATIO IDENTIFICATION
A second possible approach to ratio identification in the context of non-majority opinions is to look for the narrowest reasoning that reaches the majority result. Such an approach flows naturally from the classical Anglo-derived conception of precedent. The binding rule from a case, within this conception, is the minimal content required for the ruling that a court reached. (44) Neil MacCormick's classic definition of ratio decidendi is the "ruling expressly or impliedly given by a judge which is sufficient to settle a point of law put in issue by the parties' arguments in a case, being a point on which a ruling was necessary to his justification (or one of his alternative justifications) of the decisions in the case." (45)
This view is embodied in the dominant American approach adopted by the United States Supreme Court in its 1977 decision Marks v United States. (46) The Marks approach has become so central in the United States that at least one scholar has actually suggested that it must form an integral part of any legal education curriculum. (47) The Marks rule states as follows: "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds"'. (48)
One might note, at once, the presence of ambiguities in this rule. If there were a difference between what one might term a "subjective" version of the narrowest rule (one actually found in a concurring judgment) and an "objective" version of the narrowest rule (one somehow bridging several judgments and not found in the same form in any specific judgment), one would have to face what the rule does or does not actually mean on this point. Similarly, in an instance where there is no simple "narrowest" rule, particularly likely to arise in the context of judgments that vary simultaneously on more than one dimension, the rule does not yield any simple result. (49)
The complications of identifying whether there is a "narrowest" rule arguably suggest a preference for a subjective version of the test, looking for the narrowest ground of commonality between the majority judges, provided that this ground is capable of supporting the result (in the absence of which, there is arguably no identifiable rule). The underlying principles of stare decisis might have encouraged an objective read on the rule. There is a very close fit between that version of the Marks rule and MacCormick's definition set out above. However, the subjective version grapples better with the possibility of there being more than one dimension at issue in the case. In any event, the rule is arguably very much in conformity with the underlying principles of stare decisis, so it would not be surprising to find it applied in Canada as well.
Explicit discussion of the Marks rule is absent from Canadian jurisprudence. However, there are cases that exemplify its implicit application. For example, in R v Gomboc, (50) the Supreme Court of Canada issued three separate judgments in a search and seizure case: a four-judge opinion that found no breach of a reasonable expectation of privacy, while avoiding use of contractual provisions to make this determination; a three-judge opinion that similarly found no breach, while making explicit use of the contractual provisions as determinative; and a two-judge dissent. In a recent application of Gomboc, the Ontario Court of Appeal said that "[a]s Gomboc demonstrates, it is necessary to look at the controlling contractual and legislative provisions when determining whether a person has a reasonable expectation of privacy in information that a third party service provider has given to the police." (51) This application of Gomboc, making use of the contractual provisions, implicitly prefers the three-judge concurring opinion to the four-judge concurring opinion, with the three-judge opinion being the narrower opinion insofar as it bases its conclusions on the contractual arrangements in particular circumstances. There is no discussion of this point by the Ontario Court of Appeal, but one may nonetheless arguably take this case as a Canadian example of an application of a rule analogous to the American Marks rule.
Again, this approach of looking to the narrowest rule necessary to the result in the case has significant support in the classical approach to stare decisis. It draws upon the traditional distinction between ratio decidendi and obiter dicta and applies the underlying presuppositions of that distinction to the question of ratio determination. In our view, this approach represents the traditional approach within Anglo-derived Canadian law.
PREDICTIVE MODEL OF JUDGING
The Ibanescu principle differs from the classical approach. It looks not only to what principles are necessary to the majority result, which is where one would traditionally seek to find the ratio decidendi, but is also ready to look in a crosscutting way at both the judgments constituting the majority and dissenting judgments. As put explicitly by the Court, "a statement of a legal principle that is accepted by a majority of the Court constitutes the opinion of the Court with respect to that legal principle. This is so even if some of the members of the Court who endorse that legal principle dissent from the majority's disposition of the appeal." (52)
We will go on to associate this principle with so-called "predictive models" in American legal scholarship. (53) Such models are not premised on literal "predictions" but on the notion that one can add up judges across the majority and minority of a court on the result in terms of their views on some particular issue X and then call whichever view holds a majority on issue X the ratio on issue X. That statement is, of course, too simple. The metaphorical prediction is based on how the different rules bearing on issue X add up across judges in applying to some variation of issue X. Sometimes, the rules of different judges may be simply narrower or broader (and thus subject to representation in terms of concentric circles) but sometimes they may intersect in more complex ways (as overlapping circles on a Venn diagram). In either case, the question of how a particular set of facts plays out could be thought of in terms of what area of overlap as between different formulations of the rule represents appropriately a view of a majority of individual judges.
The interpretation of what Ibanescu is saying concerning such overlap might initially be alleged to be more complicated and to rest upon a larger view on the issues within the case. However, our point is actually that the very brief judgment at the Supreme Court of Canada enunciates a rule on stare decisis without any particular attention to the technical issues in the case concerning disagreements about the probative value of evidence and acceptance of the admissibility of straddle evidence in impaired driving contexts. These notions simply do not figure in the Supreme Court of Canada's analysis, which is concerned, rather, with interpreting a rule out of a 2008 case, R v Gibson? (54) In Ibanescu, the Court adopts a rule that was used by both LeBel J and Deschamps J in Gibson. (55) What is interesting is that in the Gibson case, a 4-judge plurality judgment written by Charron J was concurred on in the result by LeBel J, writing for three judges, and Deschamps J was actually dissenting for two judges. However, in Ibanescu, the rule is that which was common to LeBel J and Deschamps J, who together held for five judges on the point, even though identifying that rule involves looking in a crosscutting way at a non-plurality judgment that was part of the majority result and a dissenting judgment. In other words, Ibanescu, both in the principle that it states and in what it actually does, directly endorses the idea of a "crosscutting majority" where the majority is constructed partly out of those judges who dissented from the result.
The possibility of so-called "crosscutting majorities" has in fact been a subject of discussion in American legal scholarship. (56) The fundamental problem arises in situations such as where judgment A and judgment B together reach a majority result but judgment A's legal principles differ from those of judgment Bs and are in fact the same as those found in a dissenting judgment, C, that actually ends up differing only on a different reading of the application to the facts. (57) Were another case to come before the same court evoking legal principles in the same area, an argument runs, it would be imprudent to suggest to a client the use of a rule out of judgment B, even if preferred over one of the other approaches to precedent, if the judges from judgments A and C together form a majority favouring the legal principles they have stated. (58) One could predict that the majority of the court would apply the A/C legal principles rather than the B principles. And, the argument runs, because one could make that prediction, a lower court determining by what rule it is bound should similarly not favour the B principles but the A/C principles supported by a crosscutting majority.
American case law manifests some prominent examples of such crosscutting majorities, and they have generated much frustration. (59) Canadian law, too, provides other examples outside the Gibson/Ibanescu discussion of cases with crosscutting majorities, with Ontario Hydro v Ontario (Labour Relations Board), (60) a division of powers case on labour relations, being perhaps the most interesting such case. In Ontario Hydro, Lamer CJC wrote alone and broke a tie between the two other judgments by supporting the statement of law found in the judgment of Iacobucci and Cory JJ, but then applying that law to reach the same result as found in La Forest J's judgment. (61) On the specific issue in the case, La Forest J held that Ontario Hydros nuclear plants were subject to federal labour jurisdiction based on federal jurisdiction under both its declaratory power, which was appropriately read broadly, and its Peace Order and Good Government (POGG) power. In their dissenting judgment, Cory and Iacobucci JJ held against the use of the POGG power and held, instead, that uses of the declaratory power should be read narrowly and here did not extend to labour relations. In his judgment, Lamer CJC accepted the approach of Cory and Iacobucci JJ on the legal points but applied their approach to reach the same result as La Forest J. In a later case, Westcoast Energy, (62) when confronted with statements from La Forest J's judgment, however, the Court did not explicitly describe La Forest J's reasoning as minority reasoning but instead attempted to narrow the reading of his comments and to identify them as obiter dicta, (63) thus arguably effectively accepting the reasoning of Cory and Iacobucci JJ as that of a crosscutting majority.
However, the role of Supreme Court of Canada obiter has been contested at times, with suggestions during the same era of case law that Supreme Court of Canada obiter were in fact meant to be followed. (64) If that were the case, then dismissing La Forest J's reasoning as obiter would actually not be sufficient, and it would have been preferable for the Court to have said it did not reflect the majority reasoning, unless it was actually implicitly and unreflectively clinging to the sort of plurality driven analysis we discussed earlier. Today, a different approach applies to obiter, following Henry and its statement that distinguishes between different obiter:
Beyond the ratio decidendi which, as the Earl of Halsbury L.C. pointed out, is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding" in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience. (65)
Here, though, without rejecting La Forest J's opinion in Ontario Hydro as minority reasoning, one would still need to explain the nature of the obiter at issue in this part of his judgment. What to do in the subsequent use of legal principles enunciated within a judgment manifesting a crosscutting majority is not straightforward, unless one does turn to the Ibanescu principle that would instead isolate the minority reasoning and construct a crosscutting majority. (66)
However, difficulties arise almost at once. The Ibanescu principle leads to a circumstance where the actual result of the case has nothing to do with the rule that it embodies, which is surely a far cry from traditional common law methodology. It places more emphasis on what one would predict as the result in a next case than on an objective interpretation of what actually happened in the decided case. Obviously, of course, this is not "prediction" in a literal sense--judges may change how they approach cases--but it may be described as "predictive" in construing the past judgment in the future context.
However, if transpositive prediction as to the next case based on the past votes of the individual judges on the legal principles at issue is the methodology at play, then one has actually abandoned stare decisis. First, one is then assuming that the judges who found themselves in the minority will not change their votes in future cases based on classical principles of stare decisis, when past Canadian practice has in fact been for judges to do exactly that. Second, and even more disturbingly, one would also effectively legitimize a very different analytical approach in the context of a situation where some of the personnel of a particular court were to change. If one were authorized to determine ratio based on predictions arising from past votes, then, on the same principles, one might reasonably look to past court of appeal votes of new Supreme Court of Canada members in determining the ratio of a past Supreme Court of Canada case.
The Ibanescu principle may be the way many people think about stare decisis, but if it is, then stare decisis is now dead on the shores of a perverse version of legal realism. The Ibanescu approach is in line with some American scholarly writing, and has its implicit appeal, but it is frankly not in accord with classical approaches to ratio determination or, indeed, with the traditional principles of stare decisis. The Ibanescu principle would, of course, appear to have been necessary to the result in the Ibanescu case itself, suggesting that stare decisis principles now identify it as binding ratio, but we will return in the concluding section to issues on whether stare decisis can consume itself in this way.
AN EVALUATIVE APPROACH
The three approaches thus far share in common that they look to relatively formal properties of the judgment at issue. A fourth possible approach would consider a combination of the degree of support in the court's opinion for a particular rule and the workability of that rule, thus engaging with not just the formal result of the court's decision but also the substantive viability of that decision. Such an approach is arguably less present in case law, but it is certainly viably grounded within some legal theory writing. In particular, for Ronald Dworkin, the interpretive task of each judge ends up combining fit with past case law and soundness of the potential result, even in cases where there are majority precedents bearing on the issue. (67) Dworkin famously described the challenge for each judge in terms of contributing the next chapter to a chain novel. (68) In doing so, he or she must write a new chapter that fits with prior chapters but that makes of the whole work to that point the best that it can be and thus that enunciates legal rules in as sound a manner as possible in light of the chain novel exercise.
Transposing the judicial exercise to the interpreter tasked with identifying the rules arising from a particular case, the assumption within this model would be that the judge was attempting to enunciate a rule that both fit with prior cases and was the best rule possible. In the case of a multi-member court, one would expect the same of it, at least on certain assumptions. This approach begins from a different starting point than the "predictive" approach in thinking of what comes from the court not so much in terms of a summative result of individual judges but as a more cohesive jurisprudential endeavour by the court as a multi-member institution in which those members are engaged in an active exercise together. In so doing, it is aligned with views of legal decision-making bodies as engaged in a reasoned endeavour other than the summation of individual votes. (69)
On such a conception, where the task of judicial decision makers is imbued with substantive considerations, then the traditional ratio identification rules are appropriately applied if applying them achieves some substantively important result, such as greater certainty and legal stability, but there becomes reason to weigh those considerations against the closely associated substantive reasons for or against the original judgment being used as a precedent. If, for example, the ratio that emerges from a case on the traditional rules does not actually advance certainty because it is itself filled with ambiguity, there may be more reason to prefer another rule from the case on the basis of its fundamental soundness, albeit without abandoning fit with the precedent and without abandoning the judicial mandate to pursue the aims of the doctrine of stare decisis.
Such an approach could become all the more justifiable in the context of the absence of a majority decision, in which case the later court would simply be reconsidering the substantive reasons in the context of the lack of a prior majority decision on those substantive reasons. If precedent counts because it expresses the majority opinion of a court, this approach would simply acknowledge that the lack of a majority decision undermines the weight given to precedent.
In saying this much as to "evaluative" approaches to precedent, we do not purport to offer a fully developed account of this different sort of approach to precedent. Nor do we suggest that Dworkin himself would follow such an account, as we think he resisted doing so. But we do suggest we have sketched enough about a set of possible approaches that could flow from Dworkinian-style arguments so as to make some particular claims about the task of ratio identification in the section 15 context at issue within the present article. Within a spectrum of possible approaches to ratio, evaluative approaches speak to a set of less technically oriented approaches that continue to recognize meaningful weight attached to precedent and that continue to operate within the doctrine of stare decisis. (70) But we will suggest that even someone moving toward such arguments will not get away from our main conclusion on the meaning of the case at issue.
III. SECTION 15 RATIO IDENTIFICATION
In the Quebec v A case, the Supreme Court provided four separate sets of reasons with no clear binding rule. The facts of the case will first be outlined, followed by a summary of the reasoning and holding of each separate opinion in the case. The models of ratio identification discussed in Part II will then be applied to the fragmented opinions in the case, showing how, depending on the model applied, the ratio of the Quebec v A case significantly differs. A case may, of course, have ratios on each of several independent issues, together making up the set of results on different issues in the case. Here, we are concerned with the ratio of the case on the future rule for the application of subsection 15(1).
FACTS OF THE CASE
The case concerned two de facto spouses who, after living together for 7 years, separated. They had three children together. Ms. A, the petitioner, filed a motion in the Quebec Superior Court for custody of the parties' children, child support, a lump sum, the use of the family residence, spousal support, partition of the family patrimony, and the partnership of acquests--a legal matrimonial regime in Quebec. (71)
She also challenged the constitutionality of several provisions of the Quebec Civil Code (72) that provide different benefits to married spouses than they do to de facto spouses. (73) These were articles 401-30, 432, 433, 448-84, and 585. All of these provisions deal with property division except for article 585, which states: "Married or civil union spouses, and relatives in the direct line in the first degree, owe each other support." (74) This spousal support provision would end up causing the most controversy in the lower courts in Quebec and in the Supreme Court of Canada.
In July of 2009, Hallee J of the Quebec Superior Court found that the impugned provisions did not violate subsection 15(1). (75) Ms. A appealed this constitutional ruling. The Quebec Court of Appeal (QCCA) allowed her appeal in part. Dutil JA and Giroux JA declared that article 585 of the Quebec Civil Code (the spousal support provision) violated subsection 15(1) and was of no force or effect, but upheld the constitutionality of the challenged provisions concerning property division. (76)
The respondent, Mr. B, and the Attorney General of Quebec appealed the QCCA's finding that article 585 violated subsection 15(1) of the Charter and could not be saved under section 1. Ms. A cross-appealed the QCCA's decision that the other challenged Civil Code provisions were constitutionally valid. (77) The Supreme Court heard the case in January of 2012 and released its decision in January of 2013.
THE FOUR OPINIONS
Four separate opinions were released in the case, written by LeBel J (Fish, Rothstein, and Moldaver JJ concurring), Deschamps J (Cromwell and Karakatsanis JJ concurring), AbellaJ, and McLachlin CJC.
LEBEL J (FISH, ROTHSTEIN, MOLDAVER JJ CONCURRING)
In his expansive 282-paragraph opinion, LeBel J ultimately held that none of the challenged provisions of the Civil Code violated subsection 15(1) of the Charter, thus allowing the appeal of the Attorney General of Quebec and Mr. B while dismissing Ms. As appeal. (78) After synthesizing the approaches taken in Andrews, (79) Law, (80) Kapp, (81) and Withler, (82) he stated the test for finding a violation of subsection 15(1): "The claimant must therefore prove on a balance of probabilities (a) that the law creates an adverse distinction based on an enumerated or analogous ground and (b) that the disadvantage is discriminatory because (i) it perpetuates prejudice or (ii) it stereotypes." (83) This phrasing is essentially identical to that of some paragraphs in Withler, such as this statement of the section 15 test: "(1) Does the law create a distinction based on an enumerated or analogous ground? and (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?" (84) However, it is appropriate to acknowledge that Withler had not been wholly consistent in its wording on the requirement of disadvantage through perpetuating prejudice or stereotyping. Other paragraphs in Withler variously describe the search for "discriminatory impact in terms of prejudicing or stereotyping", (85) which can be established by showing there is either perpetuation of "prejudice and disadvantage to members of a group on the basis of personal characteristics" or "that the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group". (86) There are also several other descriptions that are not textually consistent in what combination of disadvantage, prejudice, and/or stereotyping are required for the identification of illegal discrimination. The inconsistencies of past statements set the stage for the debate in the present case.
In applying his test to Ms. A's claim, LeBel J quickly concluded that the impugned provisions "draw a distinction based on the analogous ground of marital status." (87) That distinction can result in a disadvantage. (88) However, LeBel J found that the Quebec legislature had not conveyed any negative message against de facto spouses, as it simply required mutual consent before imposing legal restrictions on spouses. (89) He also found that the legislation was not based on a stereotype, since the parties had failed to present any clear evidence showing that the policy of freedom of choice favoured by the Quebec legislature did not correspond to the reality of their situation. (90) Justice LeBel ultimately held that there was no subsection 15(1) violation at all, and thus did not consider any justifications under section 1.
In her separate opinion, Abella J disagreed with LeBel J almost entirely. She took a different approach to the subsection 15(1) test than LeBel J did. Though she restated the test from Kapp and Withler, she argued that prejudice and stereotyping are two indicia that may be useful in demonstrating a violation of substantive equality, but "they are not discrete elements of the test which the claimant is obliged to demonstrate". (91)
This approach, in accord with some theories of equality rights, (92) distances a discrimination determination from any need to establish intention or attitude, or any factor that restricts the identification of discrimination based on any effects on attitudes. In her analysis, Abella J ultimately held that the exclusion of de facto spouses "perpetuates historic disadvantage against them based on their marital status",93 but went on to state that "[tjhere is no need to look for an attitude of prejudice motivating, or created by, the exclusion of de facto couples from the presumptive statutory protections". (94) She distinguished perpetuation of historic disadvantage from prejudice, suggesting that only one needs to be established in order to establish a subsection 15(1) violation. In other words, Abella J suggested that showing stereotyping or prejudice is unnecessary to establish a subsection 15(1) violation--the perpetuation of historic disadvantage is sufficient to meet the requirements for discrimination. This is a fundamental change that seeks to apply the equality rights clause without any restriction based on requirements of effects on attitudes but that simply provides protection against any perpetuation of historic discrimination. Some will see this as a move forward in the jurisprudence, but we will return when considering evaluative approaches to the judgments to some real challenges this approach creates.
In applying the subsection 15(1) test, Abella J found that the Quebec legislation did draw a distinction based on the analogous ground of marital status, and that it imposed a disadvantage because it denied de facto spouses access to economic remedies that were granted to married and civil union spouses in substantially similar situations. (95) This was enough to find a subsection 15(1) violation. (96) She ultimately held that the law was not minimally impairing under section. (97) Justice Abella thus allowed Ms. As appeal while dismissing the appeals of the Attorney General and Mr. B.
DESCHAMPS J (CROMWELL AND KARAKATSANIS JJ CONCURRING)
Justice Deschamps took a different approach from that taken by both LeBel J and Abella J. She differentiated the provisions on property divisions from the provision on spousal support, and analyzed each separately based on the fact that while the dependence that results from cohabitation may develop unconsciously, the decision to acquire property in the course of a relationship is a conscious and deliberate act. (98) She concurred with Abella J's section 15 analysis, finding that the exclusion of de facto spouses from the marital regime in the Civil Code perpetuated a disadvantage based on the analogous ground of marital status. (99) All of the provisions thus violated subsection 15(1) and had to be justified under section 1. She concurred with Abella J that the spousal support provisions failed the minimal impairment step, (100) but concurred with LeBel J and McLachlin CJC that the property division provisions were constitutional. (101)
Chief Justice McLachlin wrote the fourth and final opinion in the case. She concurred with LeBel J in the ultimate holding that the provisions at issue were constitutional, but concurred with Abella J and Deschamps J that both the spousal support and property division provisions violated subsection 15(1) of the Charter. (102)
Chief Justice McLachlin found that the Quebec regime did draw a discriminatory distinction, affecting the equality rights of de facto spouses. It drew a distinction based on the analogous ground of marital status, giving rise to a disadvantage because it denied de facto spouses the protections available to married and civil union spouses in similar situations. (103) This distinction was discriminatory because, from the point of view of a reasonable person in Ms. As situation, the law "perpetuates the effects of historical disadvantage rooted in prejudice and rests on a false stereotype of choice rather than on the reality of the claimant's situation." (104) This was enough to amount to a subsection 15(1) violation. (105) She ultimately held that the impugned legislation was justified under section 1. (106)
SUMMARY OF THE HOLDING
As the above discussion indicates, there is a majority holding in the case. The majority of the Court upheld both the property division provisions and the spousal support provision as constitutional. On the constitutionality of the property division provisions, this majority is formed by joining LeBel J (with three judges concurring), Deschamps J (with two judges concurring), and McLachlin CJC to form an 8-1 majority upholding the provisions (Abella J dissenting). On the constitutionality of the spousal support provision, the majority is formed by joining LeBel J's bloc with McLachlin CJC for a 5-4 majority upholding the provision (Abella, Deschamps, Cromwell, and Karakatsanis JJ dissenting).
The rule emerging from the case regarding the subsection 15(1) test, however, is not so easy to identify, especially because the majority diverged on whether the provisions at issue violated section 15. Each of the approaches to ratio identification outlined above will be applied to the divided opinions in the Quebec v A case, leading to some perhaps surprising results. (107)
THE PLURALITY-DRIVEN APPROACH
The first approach, admittedly one subject to challenge, is the plurality-driven approach, where the ratio is identified as the largest group of judges reaching the majority result. The plurality itself might not be the majority, but as the holding with the largest concurrence of judges within the case, it is treated as the binding opinion of the court.
In this case, the plurality-driven approach would identify the ratio of the case in LeBel J's opinion. Though he wrote for only four judges and did not command a majority of the Court, his four-judge bloc was the largest of the four opinions while reaching the majority result, this with McLachlin CJC based on different reasons and with Deschamps J joining in upholding the constitutionality of the property division provisions only. Justice LeBel held that the whole regime was constitutional because it did not violate subsection 15(1) of the Charter. The test that he applied requires the claimant to prove on a balance of probabilities that the disadvantage suffered was discriminatory because the law, in purpose or effect, perpetuated prejudice or stereotyped. (108)
Prejudice or stereotyping are thus crucial factors in proving discrimination, and one or both must be established in order to establish a subsection 15(1) violation. (109) Prejudice will be found where a law "denotes an attitude or view concerning a person that is at first glance negative and that is based on one or more of the personal characteristics enumerated in subsection 15(1) or on characteristics analogous to them." (110) This may occur directly, or may be an entirely unintentional effect of a seemingly neutral law. (111) Stereotyping can be shown where "the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group." (112)
He considered the legislature's public policy rationale for the regime as relevant to the determination of prejudice or stereotyping under the subsection 15(1) test, which raised vehement disagreement among the other judges. The use of legislative justifications at the subsection 15(1) stage was not explicitly endorsed by LeBel J, but it implicitly appeared throughout his analysis and ultimately was the main reason why he found no violation of subsection 15(1). The law did not perpetuate prejudice, since it did not favour any form of union over another, but instead respected the personal autonomy and freedom of all types of spouses to choose the legal regime governing their relationship. (113) He found no stereotyping because the evidence did not establish that the policy of freedom of choice underlying the regime did not correspond to the reality of de facto spouses. (114)
Thus, the plurality-driven approach would identify the ratio of the case in LeBel J's opinion. The ratio of Quebec v A would be roughly as follows: in order to find a violation of subsection 15(1), the claimant must prove three elements on a balance of probabilities: (l) that the law draws a distinction based on an enumerated or analogous ground; (2) that distinction gives rise to a disadvantage, and (3) that disadvantage is discriminatory because it (i) promotes prejudice, or (ii) is based on a stereotype. Either prejudice or stereotyping (though not necessarily both) must be shown in order to find a subsection 15(1) violation. In evaluating whether a law promotes prejudice or is based on stereotypes, the purpose of the law is relevant at the subsection 15(1) stage.
The difficulty with this ratio is quite evident. Only four of nine judges agreed that either prejudice or stereotyping must be shown, and only four of nine agreed that legislative justifications should be considered at the subsection 15(1) stage. Yet based on the plurality-driven approach, this ratio--ultimately endorsed by only a minority within the full Court--would end up being the binding rule from the case. In classic conceptions of precedent, a rule endorsed by only a minority of the court should not be the binding rule emanating from the case. However, this is the result of the plurality-driven approach.
THE CLASSICAL APPROACH
The classical approach to precedent is the same as that reflected in the American Marks rule:115 the ratio of the case is the narrowest ground on which the members of the majority concurred. In Quebec v A, the majority consisted of LeBel J and McLachlin CJC, with Deschamps J joining in upholding the constitutionality of the property division provisions only. There are two possible approaches to the Marks rule in this case: one treats only LeBel J and McLachlin CJC as the majority, since they were the only ones to fully concur in the holding of the case. The other treats LeBel J, McLachlin CJC, and Deschamps J as the majority on issue one (the constitutionality of the property division provisions) and LeBel J and McLachlin CJC as the majority on issue two (the constitutionality of the spousal support provisions). Subtle differences emerge in the ratio under the Marks rule depending on what one perceives the majority in this case to be.
The first approach treats only LeBel J and McLachlin CJC as the majority--thus the narrowest point of agreement between them constitutes the binding rule from the case. The difficulty in identifying the narrowest point of agreement comes from the rather unfortunate way that McLachlin CJC decided to word her opinion: she stated that she "agree[d] with the s. 15 analysis set out in Abella J.'s reasons" before actually engaging in a section 15 analysis that arguably more closely resembled the one applied by LeBel J. (116) Justice LeBel, Abella J, and McLachlin CJC all repeated the Kapp articulation of the section 15 test: "(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or false stereotyping?" (117)
The four opinions differed on the meaning of the second step. Justice LeBel interpreted it to mean that either prejudice or stereotyping must always be shown and, because neither could be demonstrated in this case, there was no subsection 15(1) violation. (118) Chief Justice McLachlin preferred a more contextual approach, referring to prejudice and stereotyping as "useful guides" but not exhaustive in identifying a subsection 15(1) violation. (119) Yet in applying the section 15 test, she considered only prejudice and stereotyping in determining whether the disadvantage imposed was discriminatory. (120) Thus, while disagreeing in their mandatory application, she still applied these two factors as determinative. Both LeBel J and McLachlin CJC thus agreed that showing prejudice or stereotyping is the primary means of proving discrimination. (121)
The two disagreed on the outcome of the application of the section 15 test. Justice LeBel emphasized that the provisions did not perpetuate prejudice because the disadvantage historically experienced by de facto spouses no longer exists, (122) and because the legislation did not create any sort of hierarchy between types of spouses, instead providing a number of choices of legal regimes for couples to which they were free to consent. (123) He found no stereotyping because there was no evidence that the policy of freedom of choice underlying the impugned provisions did not correspond to the reality of de facto spouses in Quebec. (124)
Chief Justice McLachlin, in contrast, found that the law both perpetuated prejudice and rested on a false stereotype. She held that, since de facto spouses were initially excluded from the Quebec family law regime based on societal disapproval of unmarried spouses, and since de facto spouses continued to be excluded, the exclusion at issue perpetuated the historic disadvantage suffered by de facto spouses. (125) She also found that the provisions rested on a false stereotype, namely the assumption that de facto spouses have voluntarily chosen their relationship status in order to avoid the mandatory legal regime imposed on married and civil union spouses. (126) Since this was not the reality of As situation, McLachlin CJC found that the law rested on a stereotype. (127)
Justice LeBel and McLachlin CJC appeared to agree on the subsection 15(1) test, but disagreed on the application of that test to the facts. However, since McLachlin CJC held that the law was justified under section 1, they both agreed on the ultimate outcome of the case. Their narrowest point of agreement is thus that the subsection 15(1) test has remained the same since Kapp: to find a violation of subsection 15(1), a law must create a distinction based on an enumerated or analogous ground that gives rise to a disadvantage by perpetuating prejudice or false stereotyping. Prejudice and stereotyping are the main factors to consider, but they may not be the only factors. While they agreed on the outcome of the case, they did not agree on anything else besides this test.
If one adds Deschamps J's opinion to the mix, it becomes even more difficult to identify a binding ratio. This is for two main reasons: first, her extremely cursory subsection 15(1) analysis makes it difficult to identify precisely where she agrees with LeBel J and McLachlin CJC; and second, she only found the property division provisions to be constitutional while striking down the spousal support provisions. Deschamps J appeared to agree with Abella J on the applicable section 15 test. (128) This would amount to an agreement with LeBel J and McLachlin CJC on the continuing relevance of the Kapp test. However, she found that the exclusion of de facto spouses from the Civil Code regime "perpetuates a historical disadvantage" (129) without any explanation of why or how it does so. Since McLachlin CJC made this same finding, this would amount to an agreement with McLachlin CJC within the majority. This was enough to find a section 15 violation for Deschamps J. She went on to uphold only the property division provisions under section 1.
Neither McLachlin CJC nor LeBel J considered the property provisions separately from the spousal support provisions, making it almost impossible to precisely identify the points of agreement between their opinions with that of Deschamps J. The fact that she, like McLachlin CJC, outwardly concurred with Abella J on the subsection 15(1) test but still applied the historical disadvantage factor as crucial to the subsection 15(1) test indicates that her opinion leans more toward LeBel J's approach. The historical disadvantage factor was applied by as part of the prejudice factor. (130) The fact that it was applied by Deschamps J as well indicates that she considered the prejudice factor as relevant, even if this consideration was implicit. (131) The narrowest point of outward agreement between the three is that the Kapp test is still relevant. Implicitly, though, the three all agreed that perpetuating historic disadvantage is a relevant factor in establishing a subsection
15(1) violation. There is no agreement on whether it is a mandatory factor though. The narrowest point of agreement, then, is that the Kapp test is still relevant, and something beyond simple disadvantage must be shown in order to find a subsection 15(1) violation. There was no consensus on what that something is.
Thus the ratio differs under the Marks rule depending on whether Deschamps J's opinion is included in the majority or not. If it is not, then the ratio from Quebec v A is that the Kapp test is still valid, and either prejudice or stereotyping should be established in order to find discrimination, though other factors can be considered to establish discrimination. This is an affirmation of the test from Withler. If Deschamps J is included, then the ratio is simply that the Kapp test is still valid and something beyond disadvantage must be shown in order to find discrimination. This ratio would have the effect of broadening the test from Kapp and Withler, since it seems to hold that only one of the contextual factors listed in Withler need be established in order to find a subsection 15(1) violation.
THE PREDICTIVE MODEL
The predictive model, as outlined in the Ibanescu decision, is a model that cuts across majority and minority opinions to identify the legal principles endorsed by a majority of the court, regardless of whether that majority endorsed the actual holding in the case. This has both positive and negative implications in the case oi Quebec v A. On the positive side, it avoids the problem with Deschamps J's judgment encountered in the Marks approach as to whether she is part of the majority or not. On the negative side, it may lead to a ratio from the decision that is not reflected in the holding of the case.
In determining the ratio under the Ibanescu approach, there are two main issues: Must prejudice or stereotyping be established in order to establish a violation of section 15, and when should legislative purpose be considered? On the first issue, LeBel J and arguably McLachlin CJC held that either prejudice or stereotyping must be established. But if a different reading of McLachlin CJC's reasons is taken, the ratio changes. She had stated that prejudice and stereotyping are "useful guides", but what ultimately constitutes discrimination requires a contextual analysis taking into account a number of factors beyond prejudice and stereotyping. (132) She applied prejudice and stereotyping as authoritative, but did not endorse them as so. If one takes what she says rather than what she does as the ratio from her opinion, then, joined with Deschamps J's implicit rejection of the prejudice and stereotyping factors and Abella J's explicit rejection of them, (133) prejudice or stereotyping need not be established in order to establish a subsection 15(1) violation.
The other point on which Abella J, Deschamps J, and McLachlin CJC all clearly agreed is that considerations of legislative purpose are not properly invoked at the subsection 15(1) stage, but are better used at the section 1 stage where the burden shifts to the government to show that the restrictions it has imposed are demonstrably justified. Thus, depending on one's reading of McLachlin CJC's judgment, the ratio from Quebec v A based on the predictive model is that, in order to establish a violation of subsection 15(1), a claimant need only demonstrate a distinction, a disadvantage, and the existence of one or more of the contextual factors from Withler without establishing either prejudice or stereotyping, and that the legislature's purpose in enacting that law should not be considered in determining whether the law violates the claimant's equality rights.
Interestingly, this ratio would be a departure from the decisions in both Kapp and Withler, which all four opinions endorsed as authoritative, and no judge purported to modify. In the Kapp test quoted and endorsed by all four judges, the second part of the test explicitly states that the distinction must "create a disadvantage by perpetuating prejudice or stereotyping". (134) The Court affirmed in Withler that there are two ways to establish a section 15 violation: by showing that "the impugned law, in purpose or effect, perpetuates prejudice and disadvantage to members of a group on the basis of personal characteristics within s. 15(1)", (135) or "by showing that the disadvantage imposed by the law is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group." (136) While the Court did note in Withler that the analysis is "contextual", (137) those contextual factors are used in establishing whether a distinction either perpetuates disadvantage or prejudice, or is based on false stereotypes. (138) To hold that a claimant need not prove either prejudice or stereotyping, as Abella J, Deschamps ], and possibly McLachlin CJC seem to hold, actually modifies the Kapp test, placing an easier burden on claimants in establishing discrimination.
However, this ratio depends entirely on one's reading of McLachlin CJC's reasons. Without her vote, there is a clear 4-4 tie within the Court on the proper subsection 15(1) test. Justice LeBel's four-judge opinion reads the Kapp test as establishing that either prejudice or stereotyping must be proven in order to find discrimination, while Deschamps J's three-judge opinion and Abella J's dissenting opinion read Withler as establishing that neither prejudice nor stereotyping must be proven before discrimination is found. In order to establish a cross-majority ratio, then, McLachlin CJC's vote is crucial. In applying the contextual factors, she focused on two in reaching her holding on the outcome of the subsection 15(1) test: first, that the law perpetuates a pre-existing disadvantage, and second, that the law rests on a false stereotype that de facto spouses have freely chosen to forego the protections of the Quebec regime. (139) The former is similar to LeBel J's description of prejudice--and indeed McLachlin CJC actually described it as perpetuating "the effects of historical disadvantage rooted in prejudice" (140)--while the latter is obviously the stereotyping factor. Both were essential to her finding of a subsection 15(1) violation.
Because she treated both as essential, her application of the subsection 15(1) test is closer to LeBel J's than it is to Abella J's, even though she disagreed with LeBel J on the outcome of the subsection 15(1) test. The principles applied by McLachlin CJC more closely accord with those applied by LeBel J. As such, she should arguably be considered to have endorsed a similar principle to LeBel J, forming a 5-4 majority under the predictive approach to the effect that either prejudice or stereotyping must generally be established in order to establish a subsection 15(1) violation, though the contextual factors listed in Withler are relevant to any finding of discrimination. This ratio would thus be identical to the classical ratio identified above if only McLachlin CJC and LeBel J are considered the majority in the case.
THE EVALUATIVE MODEL
Each of these approaches has now pointed toward the decision of LeBel J, rather than that of Abella J, as expressing the binding rule from the case. With respect, we suggest that the reading of LeBel J as expressing the rule does not change if one were to consider the substantive dimensions of the decisions, in the absence of a majority judgment, to arrive at a more workable approach. As stated by Regimbald and Newman, "it is important that there be a definition of discrimination for purposes of section 15(1), something which LeBel J. maintains, and Abella J.'s approach comes dangerously close to a subjective approach of simply identifying discriminatory impact without utilizing any predictable legal standard." (141) Justice Abella's opinion, as argued above, appears to modify the Kapp test in a manner such that the sole requirement for the establishment of discrimination is the perpetuation of historic disadvantage. But from the beginning, section 15 analysis moved away from a concept of discrimination amounting solely to disadvantage, because such an approach puts too many pieces of legislation at issue and puts too much equality analysis into the section 1 context. Justice Abella's opinion, with respect, does not provide a standard that can be predictably applied but, rather, a relatively indeterminate identification of disadvantage--particularly evident in the fact that judges could differ over whether the legislation at issue here actually perpetuated disadvantage or whether it created different options and choices. With respect, the opinion of Abella J simply does not establish enough definition to the concept of discrimination so as to make it workable in the hands of those with less knowledge of discrimination than she herself has, with such greater definition being a necessity for the lower courts extracting a rule from the case. The opinion of LeBel J provides a clearer test and makes for more predictability and certainty. Looking, then, as the evaluative approach recommends, to the merits of the different rules in advancing the goals of stare decisis, even this untraditional approach to precedent also recommends the opinion of LeBel J as that expressing the ratio of the decision.
We have highlighted here two major points. First, the Supreme Court of Canada's recent pronouncement in Ibanescu on the identification of precedent in the absence of a majority opinion has some arguments for it but does not cohere with the classical approach to precedent. With respect, that sort of a change ought to have received more analysis than the very rapid pronouncement contained within the Ibanescu decision. Although there is not ultimately a divergence in the case under discussion, there would be other cases where the Ibanescu approach's results would indeed diverge from classical stare decisis, so the issue deserved more than the few paragraphs given it. We would suggest that the Court needs to revisit this issue in future case law and engage more seriously with the considerations weighing in favour of different possible approaches to precedent prior to latching on to this unconventional approach.
Second, the proper reading of the binding rule on subsection 15(1) in the Quebec v A decision is actually different than it may first appear. Although a number of lower courts have assumed, without proper analysis of stare decisis principles, that the opinion of Abella J is that of the Court, (142) that assumption does not stand. On each of the approaches to precedent we have analyzed, it is actually LeBel J's opinion in Quebec v A that offers the binding rule from the case.
Interestingly, the decision was released on 25 January 2013. Justice Deschamps had retired on 7 August 2012. The 6-month window within which she could participate in decisions expired on 7 February 2013, with the decision thus coming out within only a few days of her removal from the case. If the Court made sure the judgment was out to avoid her absence from the case (a plausible course of action when she was authoring a three-judge opinion), it may not have advanced clarity by doing so. On our view, LeBel J's opinion would still have provided the ratio from the case. But to the extent that elements of the case would have ended in a tie, the Court might have been tempted to a rehearing. This would no doubt have been an inconvenience for the parties--though the well-known "Eric" and "Lola" could have afforded it, and it might have significantly advanced the clarity of the law in this area, given the apparent divisions in what emerged. As with the point on precedent, we would similarly suggest that the Court now needs to revisit subsection 15(1) to undo the confusion it has caused. The case has become just one further example of the ongoing saga of confusion around subsection 15(1).
Fortunately, these were not the Courts only two decisions of early 2013, but they are two problematic ones, for interconnected reasons that we have sought to highlight in our analysis. Careless approaches to precedent cause confusion generally and are currently causing confusion in the context of equality rights. There are many challenging issues present, and this paper does not claim to be the last word on any of them, but a serious conversation must be opened within the Court and Canadian legal community about these issues.
(1) Quebec (Attorney General) v A, 2013 SCC 5,  1 SCR 61 [Quebec v A].
(2) R v Ibanescu, 2013 SCC 31,  2 SCR 400 [Ibanescu]. In the key statement in the case, the Court held that "a statement of a legal principle that is accepted by a majority of the Court constitutes the opinion of the Court with respect to that legal principle. This is so even if some of the members of the Court who endorse that legal principle dissent from the majority's disposition of the appeal" (ibid at para 1).
(3) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
(4) A case comment would appropriately consider the broader historical, sociological, and comparative context of the Quebec policy at issue in Quebec v A, supra note 1, but this is not our purpose or approach. Others will carry out such analyses of the case. Our purpose is to examine the meaning of its legal determination.
(5) R v Saskatchewan Federation of Labour, 2013 SKCA 43 at para 30, 361 DLR (4th) 132 [Federation of Labour] leave to appeal to SCC granted, 35423 (October 17, 2013), citing David Polowin Real Estate Ltd v Dominion of Canada General Insurance Co (2005), 76 OR (3d) 161, 255 DLR (4th) 633 (CA).
(6) Federation of Labour, supra note 5 at para 29.
(7) Quebec v A, supra note 1. The personages involved, whose actual names are other than "Eric" and "Lola", are actually well known in Quebec but subject to a publication ban.
(8) Supra note 2.
(9) For longer discussion, see the Court of Appeal decision in Re Ibanescu, 2011 QCCA 2304,  JQ no 18752 (QL). Although its reasons are ironically somewhat divided, the Quebec Court of Appeal appears to follow the reasoning on the issue of how to approach divided majorities that was enunciated in a past Quebec decision, R v Burnham, 2009 QCCQ2469,2009 CarswellQue 2621 (WL Can).
(10) Some seem to have assumed that the judgment of Abella J is the majority judgment. See e.g. Peart v Ontario (Community Safety and Correctional Services), 2014 HRTO 611 at para 334,  OHRTD no 625 (QL); Garrie v Janus Joan Inc, 2014 HRTO 272 at para 69,  OHRTD no 281 (QL); Kasyanov v Russian Student Association (RSA) at University of Toronto, 2014 HRTO 260 at para 58,  OHRTD no 266 (QL); Inglis v British Columbia (Minister of Public Safety), 2013 BCSC 2309 at para 521, 298 CRR (2d) 35; R v Chambers, 2013 YKTC 77 at para 157,296 CRR (2d) 111;Rv Adamo, 2013 MBQB 225 at paras 125-27, 296 Man R (2d) 245; Scott v Canada (Attorney General), 2013 BCSC 1651 at para 93, 293 CRR (2d) 330; RC v District School Board of Niagara, 2013 HRTO 1382 at para 45,  OHRTD no 1388 (QL); Gichuru v Law Society of British Columbia, 2013 BCSC 1325 at para 84,286 CRR (2d) 234; R v TMB, 2013 ONSC 4019 at para 56, 4 CR (7th) 378; Nash v Canada (Attorney General), 2013 FC 683 at para 42, 286 CRR (2d) 1; Gyorffy v Drury, 2013 ONSC 1929 at para 39, 116 OR (3d) 387; First Nations Child and Family Caring Society of Canada v Canada (Attorney General), 2013 FCA 75 at para 18, 444 NR 120 [First Nations]; R v Hall, 2013 ONSC 834 at para 12, 114 OR (3d) 393; AB v Toronto (City) Police Services Board, 2013 HRTO 447 at para 61,  OHRTD no 422 (QL) [Toronto Police]; MacLennan v Ontario (Minister of Transportation), 2013 HRTO 714 at para 15,  OHRTD no 732 (QL) [MacLennan]. But some have cited parts of LeBel J's opinion as if they were the statement of the rule. See e.g. Jewish Family and Child Services of Toronto v JZ, 2014 ONCJ 119 at para 168, 304 CRR (2d) 211; Joseph v Dzawada'enuxw (Tsawataineuk) First Nation Band Council, 2013 FC 974 at para 41, 1 CNLR 149; Tabingo v Canada (Minister of Citizenship and Immigration), 2013 FC 377 at para 74, 281 CRR (2d) 257; R v Bidal, 2013 ONCJ 287 at para 22,  OJ no 2835 (QL).
(11) Ronald Dworkin's classic account in Ronald Dworkin, Law's Empire (Cambridge, Mass: Belknap Press, 1986) looks to a blend of fit with legal materials and moral soundness of the decision, but with a clear place for precedent as part of what enters decision making. But even full-fledged natural law theorists like John Finnis have a clear place for precedent, as do pragmatists like Richard Posner. See e.g. John Finnis, "Natural Law and Legal Reasoning" in Robert P George, ed, Natural Law Theory: Contemporary Essays (Oxford: Clarendon, 1992) 134; Richard Posner, Overcoming Law (Cambridge, Mass: Harvard University Press, 1995) at 142.
(12) See generally Edouard Lambert & Max J Wasserman, "The Case Method in Canada and the Possibilities of Its Adaption to the Civil Law" (1929) 39 Yale LJ 1.
(13) Arthur L Goodhart, "Precedent in English and Continental Law" (1934) 50:1 Law Q Rev 40 at 62.
(14) Bole v Horton (1673), 124 ER 1113 at 1124, Vaugh 360.
(15) Arthur L Goodhart, "Determining the Ratio Decidendi of a Case" (1930) 40 Yale LJ 161 at 169. There was a fierce debate over these theories in subsequent years.
(16) See e.g. JL Montrose, "Ratio Decidendi and the House of Lords" (1957) 20:2 Mod L Rev 124; JL Montrose, "The Ratio Decidendi of a Case" (1957) 20:6 Mod L Rev 587; AWB Simpson, "The Ratio Decidendi of a Case" (1957) 20:4 Mod L Rev 413; Julius Stone, "The Ratio of the Ratio Decidendi" (1959) 22:6 Mod L Rev 597; Neil MacCormick, "Why Cases Have Rationes and What These Are" in Laurence Goldstein, ed, Precedent in Law (New York: Oxford University Press, 1987) 155. See generally Rupert Cross, Precedent in English Law (Oxford: Clarendon Press, 1961). Subsequent editions of the Cross book have appeared over the years, later with JW Harris, and they are a key source on the doctrine of precedent. See also Geoffrey Marshall, "What is Binding in a Precedent?" in D Neil MacCormick & Robert S Summers, eds, Interpreting Precedents: A Comparative Study (Aldershot, UK & Brookfield, Vt: Ashgate & Dartmouth, 1997) 503.
(17) See Gold v Essex County Council,  1 KB 293 at 298,  2 All ER 237 (CA), considering Hillyer v Governors of St Bartholomew's Hospital,  2 KB 820,  WN 189 (CA).
(18) Arthur L Goodhart, Essays in Jurisprudence and the Common Law (Cambridge, UK: Cambridge University Press, 1931) at 21.
(19) For an American assertion to similar effect but for slightly different reasons, see Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge, Mass: Harvard University Press, 2009) (stating that "[t]he extraction of the ratio decidendi is a much more important issue in Great Britain than in the United States, because under traditional British appellate practice ... there is no requirement that there be a single majority opinion or opinion of the court. The three or five or more judges who hear a case typically will each give his own individual opinion" at 53, n 30). Schauer acknowledges, however, that "an increasingly divided [United States] Supreme Court appears to be moving in that direction" (ibid).
(20) Rt Hon Lord Wright, "Precedents" (1943) 8:2 Cambridge LJ 118 at 134.
(21) See e.g. Jacobs v London City Council,  AC 361 at 369,  1 All ER 737 (HL(Eng)).
(22) Eugene Wambaugh, The Study of Cases: A Course of Instruction in Reading and Stating Reported Cases, Composing Head-Notes and Briefs, Criticising and Comparing Authorities, and Compiling Digests, 2nd ed (Boston: Little, Brown, and Company, 1894) at 18.
(23) Practice Statement (Judicial Precedent),  3 All ER 77,  1 WLR 1234 (HL (Eng)) (changing practice so the House of Lords is no longer bound by its own past decisions).
(24) See e.g. various references to the replacement of common law approaches in Adrian Briggs, The Conflict of Laws, 2nd cd (Oxford: Oxford University Press, 2008).
(25) See e.g. Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 112 S Ct 2791 (1992) (major discussion of stare decisis in the context of standing by past abortion precedents) [Casey],
(26) In addition to Casey, ibid, see also Grutter v Bollinger, 539 US 306, 123 S Ct 2325 (2003) (significant discussion of the meaning of past affirmative action decisions).
(27) Michael L Eber, "When the Dissent Creates the Law: Cross-Cutting Majorities and the Prediction Model of Precedent" (2008) 58:1 Emory LJ 207 at 207. See also Adam S Hochschild, "The Modern Problem of Supreme Court Plurality Decision: Interpretation in Historical Perspective" (2000) 4 Wash UJL & Poly 261.
(28) See e.g. Maxwell L Stearns, "The Case for Including Marks v. United States in the Canon of Constitutional Law" (2000) 17:2 Const Commentary 321 (discussing the great significance of the issue, in the context of some of the case law to engage with it).
(29) See e.g. United States v Burns, 2001 SCC 7,  1 SCR 283. See also the opinion of Rothstein J in Ontario (Attorney General) v Eraser, 2011 SCC 20,  2 SCR 3 (major discussion of Casey, supra note 25, calling for revisiting of recent precedents and explaining why).
(30) See e.g. R v Kapp, 2008 SCC 41,  2 SCR 483 [Kapp], where the Court suddenly changed s 15 jurisprudence, with the case primarily focused on the s 15(2) test but paragraph 22 containing just a few lines of reasoning by the Court itself and citing to dozens of academic articles without any explicit engagement with them. Some may take the Court as having adopted the academic criticisms, and others may take the view that it did not choose to explain its reasons as fully as it might have. Cf Guy Regimbald & Dwight Newman, The Law of the Canadian Constitution (Markham, Ont: LexisNexis, 2013) at 674-75.
(31) There are, obviously, heavily divided decisions, in some cases so divided that there may be virtually no way to construct a rule. See e.g. Euro-Excellence Inc v Kraft Canada, 2007 SCC 37,  3 SCR 20.
(32) For an interesting related discussion, see Joseph J Arvay, Sheila M Tucker & Alison M Larimer, "Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?" (2012) 58 SCLR (2d) 61. Eric Adams has also commented on this context in work that remains unpublished to this point.
(33) For one recent exception to the lack of attention to precedent, see Debra Parkes, "Precedent Unbound? Contemporary Approaches to Precedent in Canada" (2007) 32 Man LJ 135. Parkes, however, does not consider the issue of constructing ratio in the context of a divided court. Although that point has unfortunately been less addressed in the Canadian literature, there have been some important considerations of related points. See especially the sophisticated analysis of Tom Irvine, "The Case of the Evenly Divided Court" (2001) 64 Sask L Rev 219.
(34) For examples of courts that have recently engaged in such anticipatory overruling, see e.g. Bedford v Canada (Attorney General), 2010 ONSC 4264, 102 OR (3d) 321, aff'd in part 2012 ONCA 186, 109 OR (3d) 1, aff'd 2013 SCC 72,  3 SCR 1101 (with the Supreme Court of Canada seeming to authorize some degree of such anticipatory overruling at paras 42-44); Carter v Canada (Attorney General), 2012 BCSC 886, 287 CCC (3d) 1. However, for a strong rejection of anticipatory overruling, see Saskatchewan v Saskatchewan Federation of Labour, 2013 SKCA 43 at paras 49-50, 6 WWR 453, leave to appeal to SCC granted,  SCCA No 257,  CSCRno 257 (QL).
(35) 2005 SCC 76 at paras 52-59,  3 SCR 609 [Henry].
(36) Ibanescu, supra note 2 at para 1.
(37) We do not disagree, though, with the proposition that there might be legal material in a Supreme Court of Canada case other than the ratio that is legally binding. For example, Henry, supra note 35, makes clear that some obiter from the Supreme Court of Canada verges toward being binding. To mention an example offered to us by an anonymous commentator, no serious analysis of Calder v British Columbia (Attorney General),  SCR 313, 34 DLR (3d) 145, would say that its most important conclusion was the ratio, which was arguably a procedural point. Rather, the significant part would be that six judges endorsed the possibility of Aboriginal title claims, even if three thought the claim extinguished on the facts of the case, resulting in the claim losing because of one judge who decided on a procedural matter. However, it is a different matter to say that that is important obiter than to say that it is the binding ratio. The Ibanescu focus is actually on the "legal principle coming from the case" in the sense of the ratio. The role of broader bodies of legal materials from Supreme Court of Canada cases would of course be worthy of a further study of its own.
(38) Marks v United States, 430 US 188, 97 S Ct 990 (1977) [Marks].
(39) Harper v National Coal Board,  QB 614,  2 All ER 441 (CA).
(40) Peter W Hogg, Constitutional Law of Canada, 2010 Student Edition (Toronto: Carswell, 2010) at 47-13 .
(42) Rosenberg v Canada (Attorney General) (1995), 25 OR (3d) 612, 127 DLR (4th) 738 (Gen Div), rev'd (1998), 38 OR (3d) 577, 158 DLR (4th) 664 (CA).
(43) A major example is Reference re Assisted Human Reproduction Act, 2010 SCC 61,  3 SCR 457.
(44) Cf. Schauer, supra note 19 ("[according to the traditional distinction, the holding of a case consists of what is necessary to support the result in that case" at 180-81 [emphasis in original; footnotes omitted]).
(45) MacCormick, supra note 16 at 170, quoting Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1978) at 215.
(46) Marks, supra note 38.
(47) Stearns, supra note 28.
(48) Marks, supra note 38 at 193, quoting Gregg v Georgia, 428 US 153 at 169, n 15, 96 S Ct 2909 (1976).
(49) For a discussion of the implications of multi-dimensional issues in this context, see David S Cohen, "The Precedent-Based Voting Paradox" (2010) 90 BUL Rev 183.
(50) 2010 SCC 55,  3 SCR 211 [Gomboc].
(51) R v Ward, 2012 ONCA 660 at para 95, 112 OR (3d) 321.
(52) Ibid at para 1.
(53) See Eber, supra note 27.
(54) 2008 SCC 16,  1 SCR 397 [Gibson].
(55) Ibanescu, supra note 2 at para 2.
(56) See Eber, supra note 27.
(57) Cf. ibid at 208-09.
(58) See ibid.
(59) See e.g. Rapanos v United States, 547 US 715, 126 S Ct 2208 (2006) [Rapanos]. For examples of the frustration felt after the decision, see e.g. United States v Robison, 521 F Supp (2d) 1247, 2007 US Dist LEXIS 83537 (ND Ala 2007) [cited to F Supp] (the Coutt stating of Rapanos that "I will not compare the 'decision' to making sausage because it would excessively demean sausage makers" at 1249, n 5); Kenneth W Starr, "The Roberts Court Gets Down to Business: The Business Cases" (2007) 34:Special Issue Pepp L Rev 599 (saying Rapanos has the result that "now the planning commissioners, real estate developers, home owners, and the Sierra Club are left to languish in uncertainty" at 606).
(60) Ontario Hydro v Ontario (Labour Relations Board),  3 SCR 327, 107 DLR (4th) 457 [Ontario Hydro].
(62) Westcoast Energy Inc v Canada (National Energy Board),  1 SCR 322 at para 84,156 DLR (4th) 456.
(63) /feW at para 84.
(64) The so-called Sellars principle supposed that majority obiter from the Supreme Court of Canada was nonetheless meant to be followed. The original statement in Sellars itself was a description of what appeared to be such an instance: "As it does from time to time, the Court has thus ruled on the point, although it was not absolutely necessary to do so in order to dispose of the appeal" (Sellars v The Queen,  1 SCR 527 at 529, 110 DLR (3d) 629). This was read in various cases to say that Supreme Court of Canada majority obiter was binding. See Henry, supra note 35 at para 55, citing Re Haldimand-Norfolk Regional Health Unit and Ontario Nurses' Association (1981), 31 OR (2d) 730, 120 DLR (3d) 101 (CA); R v Sansregret (1983),  1 WWR720, 25 Man R (2d) 123 (CA); R v Barrow (1984), 65 NSR (2d) 1, 147 APR 1 (SC); Clark v Canadian National Railway Co (1985), 62 NBR (2d) 276, 17 DLR (4th) 58 (CA); Scarffv Wilson (1988), 55 DLR (4th) 247, 33 BCLR (2d) 290 (CA); Moses v Shore Board Builders Ltd (1993), 106 DLR (4th) 654,  1 WTO 112 (BCCA); Friedmann Equity Developments Inc v Final Note Ltd (1998), 41 OR (3d) 712,112 OAC 253 (CA); Cardella v R, 2001 FCA 39, 268 NR 168. Other cases are more critical: R v Chartrand (1992), 74 CCC (3d) 409, 81 Man R (2d) 81 (CA); R v Hynes (1999), 177 Nfld & PEIR 232, 26 CR (5th) 1 (CA); R v Vu, 2004 BCCA 230, 184 CCC (3d) 545; McDiarmid Lumber Ltd v God's Lake First Nation, 2005 MBCA 22, 251 DLR (4th) 93. A different read of the Sellars principle, however, was put in Douglas Lambert, "Ratio Decidendi and Obiter Dicta" (1993) 51:5 Advocate 689, and Mathieu Devinat, "L'autorite des Obiter Dicta de la Cour Supreme" (1998) 77:1-2 Can Bar Rev 1.
(65) Henry, supra note 35 at para 57.
(66) Ibanescu, supra note 2 at para 1.
(67) For Dworkin's leading and highly influential account, see generally Dworkin, supra note 11. For an insightful comment on the role of precedent within Dworkin's theory, see David Pannick, "A Note on Dworkin and Precedent' (1980) 43:1 Mod L Rev 36.
(68) Dworkin, supra note 11 at 228-38.
See generally Michael S Pardo, "Group Agency and Legal Proof; or, Why the Jury is an 'It'", 56 Wm & Mary L Rev [forthcoming in 2015].
(70) There would be potential for someone to develop an account that departed further from the values underlying precedent itself, putting those up for balancing as against other considerations altogether. We do not pursue that kind of approach here because we are concerned with the tasks properly awaiting courts that purport to follow the doctrine of precedent, as opposed to those who overthrow it in light of other considerations altogether. That said, there remains much room for further discussion of precedent and its place within the legal system, appropriately pursued on a broader basis than here.
(71) Quebec v A, supra note 1 at paras 5-6.
(72) Civil Code of Quebec, LRQ, c C-1991.
(73) Quebec v A, supra note 1 at paras 6-7.
(75) Quebec v A, supra note 1 at paras 16-19- Hallee J's reasoning was based on two main grounds: first, that A had not shown that the distinction drawn between de facto and married spouses by the Civil Code gave rise to any discriminatory effects, nor that de facto spouses are subject to any disadvantage or stereotyping. Second, she held that the Supreme Courts decision in Nova Scotia (Attorney General) v Walsh, 2002 SCC 83,  4 SCR 325 [Walsh], on substantially similar issues was dispositive of A's case. She followed the decision in Walsh and dismissed Ms. A's Charter arguments.
(76) Quebec v A, supra note 1 at para 9.
(77) Ibid si para 10.
(78) Ibid at para 282.
(79) Andrews v Law Society of British Columbia,  1 SCR 143, 56 DLR (4th) 1. See Quebec v A, supra note 1 at paras 142-45.
(80) Law v Canada (Minister of Employment and Immigration),  1 SCR 497, 170 DLR (4th) 1. See Quebec v A, supra note 1 at paras 150-59.
(81) Kapp, supra note 30. See Quebec v A, supra note 1 at paras 161-79.
(82) Withler v Canada (Attorney General), 2011 SCC 12,  1 SCR 396 [Withler]. See Quebec v A, supra note 1 at paras 161-79.
(83) Ibid at para 186.
(84) Withler, supra note 82 at 61.
(85) Ibid at para 34.
(86) Ibid at paras 35-36.
(87) Quebec v A, supra note 1 at para 241.
(88) Ibid at paras 242-43.
(89) Ibid at 256.
(90) Ibid at paras 272-75.
(91) Ibid at para 325.
(92) For general discussion of the theoretical underpinnings of adverse effect discrimination, see e.g. DG Reaume, "Harm and Fault in Discrimination Law. The Transition from Intentional to Adverse Effect Discrimination" (2001) 2:1 Theoretical Inquiries in Law 349.
(93) Quebec v A, supra note 1 at para 356.
(94) Ibid it para 357.
(95) Ibid at paras 348-49.
(96) Ibid at para 357.
(97) Ibid at paras 365-76.
(98) Ibid at para 393.
(99) Ibid at para 385.
(100) Ibid at para 399.
(101) Ibid at paras 400-06.
(102) Ibid at para 415.
(103) Ibid at para 423.
(104) Ibid [emphasis in original].
(105) Ibid at para 428.
(106) Ibid at paras 435-50.
(107) We are concerned principally with the rule or ratio on the test for s 15(1) for use in subsequent cases, though we will in the course of matters touch upon the ratio on each of the different issues in the case. Although some would differ from this claim, and we do think it could be worthy of further analysis elsewhere, we proceed on the tentative assumption that it makes sense to have a ratio on each issue, at least in many cases (where one kind of decision on one issue does not determine another issue). The issues could have been addressed separately in separate cases, and the fact that they are joined in one case does not undermine the fact that there will be the use of a legal principle on each. Orthodox thinking on ratio identification would actually potentially allow two ratios on the same issue. See Bebrens v Bertram Mills Circus Ltd,  2 QB 1 at 24-25,  1 All ER 583, Devlin J (as he then was). So, there is really no problem inherent in having a ratio on each issue, and indeed lower courts will typically look for such. That said, like many points here, there could of course be much longer discussions to be had, so we make this only as a tentative assumption on which to operate rather than a definitive universalized claim.
(108) Quebec v A, supra note 1 at para 186.
(109) Ibid at para 243. Despite the objections of the other judges, this was actually affirmed in Withler. See Withler, supra note 82 at paras 34-37. In that case the Court expressly stated that the law must either in purpose or effect "[perpetuate] prejudice and disadvantage" (ibid at para 35) or that the claimant must show that the distinction imposed by the law "is based on a stereotype that does not correspond to the actual circumstances and characteristics of the claimant or claimant group" (ibid at para 36). While the Court did go on to endorse a contextual approach with the application of a number of factors, that contextual approach was endorsed for the purpose of showing perpetuation of disadvantage, prejudice, or stereotyping. See ibid at paras 38-39.
(110) Quebec v A, supra note 1 at para 193.
(111) Ibid at paras 196-98.
(112) Ibid at para 201, quoting Withler, supra note 82 at para 36.
(113) Quebec v A, supra note 1 at para 267.
(114) Ibid at para 272.
(115) Marks, supra note 38.
(116) Quebec v A, supra note 1 at para 416.
(117) Ibid at para 418.
(118) Ibid at paras 256-57, 272.
(119) Ibid at para 418.
(120) Ibid at para 423.
(121) While LeBel J tends to apply the prejudice and stereotyping factors as mandatory, he describes them as "crucial" but not the only factor to be considered: see ibid at para 185. This is actually quite similar to McLachlin CJC's application, as she described them as "useful guides" that require consideration of other contextual factors: see ibid at para 418. Their wording may differ, but the idea is the same: prejudice and stereotyping are the main factors to be established in finding discrimination, but they are not the only factors to be considered.
(122) Ibid at para 248.
(123) Ibid at paras 256-57.
(124) Ibid at para 272.
(125) Ibid at para 427.
(126) Ibid at para 428.
(128) Ibid at para 385. Abella J endorsed the Kapp test at para 324.
(129) Ibid at para 385.
(130) For LeBel J, see ibid ("the legislature's traditional hostility seems to have changed into acceptance of the de facto union.... As we have seen, the distinction [between types of spouses] continues to exist in the context of relations between the spouses themselves, within their conjugal relationship, where there is still a will to preserve the possibility of choosing between various types of conjugality" at para 250). For McLachlin CJC, see ibid ("[u]ntil the enactment of the family law reform in 1980, the legislation actively discouraged and marginalized de facto spousal relationships .... While the legislative animus that underlay those measures has disappeared, the present law continues to exclude de facto spouses from the protective schemes of Quebec family law" at para 427). While LeBel J emphasized the legislative purpose behind that continued exclusion as a material fact in finding no prejudice, McLachlin CJC found that the continued exclusion itself was prejudicial, no matter the purpose behind that exclusion.
(131) A similar approach was taken by Abella J. She stated that the exclusion of de facto spouses "perpetuates historic disadvantage against them based on their marital status" (ibid at para 356), but went on to state that "[t]here is no need to look for an attitude of prejudice motivating, or created by, the exclusion of de facto couples from the presumptive statutory protections" (ibid at para 357). She distinguished perpetuation of historic disadvantage from prejudice, holding that only one needs to be established in order to establish a s 15(1) violation.
(132) Ibid at para 418.
(133) She stated that "[p] rejudice and stereotyping are two of the indicia that may help answer that question [of whether discrimination exists]; they are not discrete elements of the test which the claimant is obliged to demonstrate": ibid at para 325. If the claimant is not obliged to demonstrate them, then discrimination can be established without establishing prejudice or stereotyping.
(134) Kapp, supra note 30 at para 17.
(135) Withler, supra note 82 at para 35.
(136) Ibid at para 36.
(137) Ibid at para 37.
(138) Ibid at paras 65-66.
(139) Quebec v A, supra note 1 at paras 427-28.
(140) Ibid at para 423.
(141) Regimbald & Newman, supra note 30 at 678.
(142) See e.g. First Nations, supra note 10 at para 18; R v Hall, supra note 10 at para 12; Toronto Police, supra note 10 at para 61; MacLennan, supra note 10 at para 15.
MICHELLE BIDDULPH ([dagger]) & DWIGHT NEWMAN ([double dagger])
[dagger]) BA (Saskatchewan), JD (Saskatchewan), Law Clerk, Saskatchewan Court of Appeal, 2014-15.
([double dagger]) BA (Regina), JD (Saskatchewan), BCL, MPhil, DPhil (Oxford); Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan. We thank the Foundation for Legal Research for funding for the project from which this article stems. This research has also been completed, in part, with funding from the Canada Research Chairs Program. We thank Jennifer Koshan, Pat Paradis, Michael Plaxton, and the anonymous referees for their helpful comments.
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|Author:||Biddulph, Michelle; Newman, Dwight|
|Publication:||University of British Columbia Law Review|
|Date:||Jan 1, 2015|
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