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Liberty rights, the family and constitutional politics.


Two quite distinct conceptions of liberty have structured Canadian jurisprudence. (1) The tension between them reflects a broader tension between classical liberalism and conservative ideologies. In recent times, the entrenchment of the Charter has rendered more explicit the legal discourse concerning the nature of liberty. Particularly prominent as the focal point for discussion has been section 7 of the Charter which specifically guarantees "everyone ... the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Legal analysis of the nature of liberty and of its classical liberal and conservative versions has been further complicated by parallel currents in the Charter jurisprudence, most notably the ongoing tension between classical conceptions of formal equality and more modern conceptions of substantive equality in the jurisprudence relating to the section 15 equality guarantee. However, the constitutional liberty jurisprudence, although not immune to contemporary revisions of classical liberal values, has been less receptive to them than the equality jurisprudence. This relative intractability of classical notions of negative liberty may lie in their foundational nature. Negative liberty encapsulates on an individual level the definitional opposition between the state and the citizen which permeates the liberal vision of the political community. Thus, under section 7, the older tension between traditional conservative ideologies and classical liberalism continues to play an important role in structuring the scope and character of the liberty protection.

In this essay, I set out to examine the tension between conservative and classical liberal ideologies in the context of the jurisprudence on the liberty rights of parents. I will use as my two main examples the Supreme Court of Canada decisions in Jones v. The Queen (2) and in B.(R.) v. Children's Aid Society. (3) Both of these cases reveal a Court that is deeply divided in its approach to the relationship between individual rights protections and family relationships. The division is rooted, in part, in the difficulty of melding the individual rights framework of the Charter--so vigourously liberal in its design--with conservative family values. In both Jones and B.(R.), the Court failed to achieve majority support for any of the various approaches to resolving this difficulty. However, in the latter case, a plurality of four judges came together in support of what I have called a neoconservative synthesis. In short, the B.(R.) plurality somewhat awkwardly fused conservative conceptions of the family onto the fundamentally liberal design of the liberty rights protection. Most of this essay is taken up with plotting this ideological map of judicial politics; namely, the tension between conservativism and classical liberalism, as it is played out in the two cases.

Although the labels classical liberalism, modern liberalism, conservativism and neoconservatism evoke sharply opposed systems of political thought, I refer to them as porous and shifting clusters of values rather than rigid categories. A focus on the Charter inevitably places a discussion of liberty within the boundaries of contemporary liberalism and generates a set of alternative visions of liberty rights that are reconfigurations of, rather than divergences from, liberal principles and a given set of constitutional rules and concepts. Thus my claim to "plot a map" is slightly artificial and risks oversimplification. Nevertheless, the tension in constitutional doctrine between liberal and conservative values is sufficiently distinct to yield a useful, if broadly drawn, template of ideological and normative commitments. The template provides a sense of what is at stake politically in this area of judicial decisionmaking. As well, the process of developing the template offers an opportunity to unpack the resonances and contradictions that underlie the jurisprudential version of the popular discourse of neoconservatism.

My focus on parental liberty rights automatically eliminates the large number of section 7 cases that have been concerned with the fairness and procedural propriety of individual interactions with the state. The bulk of the cases under the liberty prong of section 7 have been challenges to criminal or penal law that rely on a relatively straightforward meaning of liberty as freedom from state-imposed detention or incarceration. As a consequence, the discussion in these latter cases has concerned the second stage of analysis; namely, whether the deprivation of liberty--understood as the risk of incarceration or detention--was consistent with the principles of fundamental justice. This jurisprudence has had a significant impact on the criminal and penal justice system in Canada, in particular on the rules of evidence and the procedures whereby an accused is brought to trial and tried. (4) However, most of these cases have shed very little light on the content of the liberty interest in the first part of the right beyond a rudimentary notion of physical liberty defined negatively as nondetention. (5) Parental liberty rights now form an important thread in a small but developing section 7 jurisprudence on privacy rights or, more specifically, "rights to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference." (6) Among the rights included under this "negative privacy" rubric, parental liberty rights raise most directly questions about the nature of family and its place in the constitutional order.

In the first half of the essay, I set out the basic premises of the classical liberal and conservative approaches to liberty rights followed by an examination of how they manifest themselves in Jones, the first Supreme Court of Canada case to address the constitutional dimension of parental liberty claims. I then move to a discussion of the resonances between the neoconservative literature of family values and the expansion of judicial support for a parental liberty right textured by traditional notions of the family and family relationships. This latter point will be developed using the B.(R.) case. In the conclusion of the essay, I summarize two recent cases--G.(J.) v. New Brunswick (7) and Winnipeg Child and Family Services v. K.L.W. (8)--which, in the aftermath of the unresolved divisions in B.(R.) provided solid constitutional grounds for parental rights claims under the security prong of section 7. In respect to these later cases, I discuss briefly another synthesis in the parental liberty jurisprudence, one which is rooted in the tension found more prominently, as mentioned earlier, in the equality case-law; namely, the tension between classical liberalism and more contemporary conceptions of the nature of liberal commitments.

Before embarking on the discussion set out above, I deal with a few preliminary points. In particular, I explain how the focus of this essay fits within the basic framework of analysis for section 7. I also note the key holdings relating to the potential scope of section 7 developed in the early years of Charter litigation.


A. The Framework of Analysis

Section 7 states:
 Everyone has the right to life, liberty and security of the person,
 and the right not to be deprived thereof except in accordance with
 the principles of fundamental justice.

The two-part structure of the guarantee--the articulation of three core values in the first part and the reference to fundamental justice in the second--immediately presents interpretive issues concerning the relationship between the two parts as well as among the values in the first part. The Supreme Court has held that the three introductory values inform each other and must therefore reinforce rather than contradict each other, and that none is paramount to the other. (9) Furthermore, the Supreme Court has stated that it prefers to keep the three branches of section 7 "analytically distinct to the extent possible." (10) The Court has found, in addition, that the two parts of the overall guarantee do not create separate freestanding rights but rather dictate a two-stage analysis in making out a single claim. (11) In other words, the right to liberty cannot be viewed apart from the fundamental justice qualifier, and in fact the two parts are frequently taken to modify each other. The seriousness of the interest invoked under the first "three values" part of the provision will be a factor often in determining what standard of fundamental justice applies under the second part. (12) Indeed, in practice, the analysis often proceeds sequentially, starting with consideration of the values in the first part before moving on to the discussion of fundamental justice. (13) As I hope to show in this essay, the two-part structure of section 7 analysis has facilitated the otherwise awkward integration of socially conservative views of the family into an organizing framework that is explicitly and vigorously liberal in its design and commitments.

I use the phrase "right to liberty" to mean the liberty component of the overall guarantee, thus conceptually separating the liberty interest from the fundamental justice qualifier. However, as ultimately the two parts comprise one right, I look also at how the analysis of fundamental justice reflects and is often integral to the primary commitments underlying the interpretation given to the liberty component.

B. The Potential Scope of Section 7 and Sources of Analysis

In the Motor Vehicle Reference, (14) a foundational case in section 7 jurisprudence, the Supreme Court of Canada enunciated a rhetorical commitment to the expansive, rights-enhancing potential of section 7. First, although the majority clearly viewed the fundamental justice phrase as a qualifier that narrows the scope of overall protection, it nevertheless advocated a rights-focused interpretive approach to fundamental justice. In other words, it viewed fundamental justice from the perspective of promoting and safeguarding the individual from the overbearing state, rather than from the state perspective of administrative convenience and reasonableness. To reinforce its point, the majority indicated that analysis of fundamental justice must be directed at the purposes of protecting the three core interests and warned that "the narrower the meaning given ... the greater will be the possibility that individuals may be deprived of these most basic rights." (15)

Second, the majority asserted that fundamental justice principles should not be equated with natural justice principles nor treated as rules that are entirely procedural in content. Indeed, the majority rejected the helpfulness of the substantive/procedural dichotomy, identifying it as an American constitutional doctrine and one that ill fits the design of the Charter. It noted that "the dichotomy creates its own set of difficulties by the attempt to distinguish between two concepts whose outer boundaries are not always clear and often tend to overlap." (16) This latter directive appears to contemplate judicial scrutiny of governmental objectives as well as of governmental means for accomplishing those objectives, thereby significantly enlarging the scope of constitutional review.

Finally, the Motor Vehicle Reference majority directed future courts to look for the principles of fundamental justice in the "basic tenets of the legal system" rather than exclusively in the adjudicative process. The majority strengthened this stance by proceeding to minimize the interpretive weight of deliberations by the framers of the Charter with respect to the scope of section 7. (17) It also downplayed the relevance of Bill of Rights jurisprudence that had given comparable provisions a narrow procedural content. These sweeping commitments to an evolutionary and forward-looking interpretive approach to the "newly planted 'living tree' which is the Charter" (18) cleared the way, however, not for the suggested discussion of first principles and constitutional values, but for a historical textual analysis of the wording of the Charter and section 7, with heavy reliance placed on the common law antecedents for Charter protections for the accused. In summary, the Motor Vehicle Reference was distinctly cautious in its eventual exploration of the "basic tenets" of the legal system. However, it marked out the analytic framework for section 7 jurisprudence in terms that, at least formally, evinced a commitment to a generous, rights-enhancing approach to both the "three values" and the fundamental justice parts of the guarantee.


A. Introduction

The key components of the classical liberal view of individual liberty are directly rooted in the moral and political values that underlie liberal legal systems and thus have a broad familiarity. To the extent that the Charter is a quintessentially liberal document, this understanding of liberty fits comfortably with the phrasing and analytic structure of the Charter. The central characteristics of the classical vision of liberty are the primacy of the individual, a negative notion of liberty founded on a starkly drawn public/private split, and a complicated and often ambivalent array of justifications for the sanctification and durability of traditional family institutions and values in liberal societies.

1. The Individual

Within classical liberal constitutional discourse, the individual, abstractly conceived, is the key political actor around whom the institutions of government and civil society are designed and whose happiness and security is the object of political organization. As Anthony Arblaster comments, (19)
 Liberal individualism is both ontological and ethical. It involves
 seeing the individual as primary, as more 'real' or fundamental
 than human society and its institutions and structures. It also
 involves attaching a higher moral value to the individual than to
 society or to any collective group. In this way of thinking the
 individual comes before society in every sense.

The ontological separation of the individual from community gives rise to an abstract and, therefore, relatively empty notion of the individual and to a conception of society as a collection of atomistic individuals rather than a community. These aspects of classical liberal individualism--its radical primacy and its abstract character--converge with particular power in the analysis of liberty rights, dictating a right understood in negative terms of noninterference rather than positive terms of facilitation and support.

2. The Public/Private Split: Negative Liberty and the Hostile State

Classical liberalism defines liberty in starkly negative terms as freedom from impediments, barriers or interferences rather than as freedom to pursue some particular goal or activity. The Hobbesian formulation puts it quite clearly: (20)

"LIBERTY, or FREEDOM, signifieth (properly) the absence of Opposition; (by opposition, I mean external Impediments of motion. ... A FREEMAN, is he, that in those things, which by his strength and wit he is able to do, is not hindered to do what he has a will to."

Thus the scope of the private sphere of individual liberty is potentially limitless. Interferences with liberty due to such personal attributes as insufficient "strength and wit," or lack of talent, ability or wealth, are internal to the individual and thus analytically irrelevant. Conversely, the "external impediment" is exclusively and fundamentally the state, which is cast in a narrow coercive role aimed at maintaining minimum conditions of order and stability. The more subtle shadings and intertwinings of public and private power as well as the range of roles assumed by the modern liberal state disappear in classical liberalism's binary account of politics as a contest between the freedom-seeking individual and the potentially repressive state. (21)

3. The Family

The traditional family has always played a key but uneasy role in classical liberalism. (22) The early architects of liberal thought were clear in their rejection of the notion that the patriarchal family provides the basis for a hierarchical political order. However, the liberal alternative of a political order founded on the individual consent of the governed left the patriarchal family intact, thereby ensuring the persistence of gender hierarchies within both the public and private spheres of liberal society. For example, John Locke, although critical of patriarchal claims regarding the divine origins of the power of husbands over women, ultimately explained women's subordinate legal status in terms of women's natural inequality. (23) Hobbes invoked custom and expediency, namely that women, although men's natural equals, must be coerced into customary familial roles in order to ensure the reproduction, order and continuity of the political community. (24)

Arguments based on an intertwining of nature and choice typify the contemporary liberal justification for the durability of and primacy accorded the traditional family within the liberal order. The "nature" part of the justification is generally implied rather than directly asserted. The persistence of the natural family is simply the "natural" outcome of the consciously willed choices of individuals in privately ordering their lives. Social relations are transactional in nature and arrangements such as marriage and shared parenthood are viewed as the product of agreements between individuals who seek self-definition through choosing and planning their lives. (25) Nevertheless, within this fundamentally classical frame, some judges have endeavoured to provide an analysis of individual rights that takes account of the substantive nature of barriers to the exercise of civil rights and liberties. (26)

The framework for the classical liberal vision of liberty and for section 7 analysis more generally is articulated in the Motor Vehicle Reference, discussed in the preceding section of this essay. The majority's presumptively rights-expanding stance is the hallmark of the classical liberal approach within judicial discourse. A number of versions of this stance have developed in the subsequent case-law. However, because of my focus on the parental liberty decisions, I use Wilson J.'s decision in Jones (27) as my central example. Jones, as noted earlier, was the first case to raise the issue of parental liberty rights before the Supreme Court of Canada. Although Wilson J.'s discussion on this point is contained in a dissent, her reasons have been influential in subsequent liberty cases. I also outline in brief form Wilson J.'s restatement in her concurring reasons in Morgentaler (28) of the elements of a section 7 liberty analysis. Like her reasons in Jones, Wilson J.'s reasons in Morgentaler have been a key part of a small but significant jurisprudence of liberty rights that extends the scope of liberty rights beyond the notion of a right of nondetention.

B. Jones and Decisional Autonomy

In Jones, a pastor of a fundamentalist church who ran a school for the children of members of his religious community refused to obtain the documents required by the Alberta government to license his school or certify the instruction received by his own children. The Reverend Jones believed that his authority to instruct his pupils came directly from God. On this basis he argued that the legislative regime requiring him to obtain permission to teach on pain of a fine or imprisonment violated his right to freedom of religion and his parental rights as an aspect of the section 7 right to liberty to educate his own children as he saw fit. (29)

In the freedom of religion part of her analysis, Wilson J. found that the legislative regime was facilitative of rather than hostile to religious freedom and that any burden it imposed on the Reverend's religious convictions was so formalistic and technical as to be trivial. However, in her analysis of section 7, Wilson J., dissenting alone, was willing to find that the Alberta regime interfered not only with the Reverend Jones' physical liberty through the threat of imprisonment but also with his parental liberty, and in a manner which offended fundamental justice. The majority reasons by La Forest J., in contrast, found that the legislative regime was consistent with the principles of fundamental justice without examining the liberty component of the claim. Justice La Forest reasoned that any liberty claim the Reverend Jones might have would not survive the fundamental justice analysis. (30)

Justice Wilson outlined the notion of parental liberty in bold and clear strokes. Her starting point was the aspirations of the restless and rebellious individual of classical liberalism or, as she put it "the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be nonconformist, idiosyncratic and even eccentric--to be, in today's parlance, 'his own person' and accountable as such." (31)

In explaining how this general notion of self-ownership and self-realization yields a more specific right of parental liberty to educate one's children in accordance with one's conscientious beliefs, she wrote: "The relations of affection between an individual and his family and his assumption of duties and responsibilities towards them are central to the individual's sense of self and of his place in the world. The right to educate his children is one facet of this larger concept." (32)

Justice Wilson invoked for support a number of U.S. cases on family privacy that accord constitutional protection to aspects of family relations. (33) However, her analysis differed significantly. The reasoning in the American family privacy cases typically proceeds by placing marriage and parenthood alongside other established social institutions and practices such as a free market and the pursuit of "the common occupations" to present a socially textured and conservative picture of the meaning of liberty. (34)

In contrast, Wilson J.'s approach found its justification not in tradition, but in the abstract principle of individual moral autonomy. The rightsholder, in her account, is clearly and emphatically an individual for whom collective practices and institutions circumscribe and threaten rather than enrich liberty. (35) Not surprisingly then, her morally autonomous parent is someone who finds fulfilment through deliberately making parental choices and decisions with respect to children's education.

A familial authority structure--of parents reigning over children in a social context structured by systemic gender inequality--is implicit in this vision but is likely to remain buried except in cases in which parents explicitly disagree or in which children's interests are directly asserted in argument by an appointed representative or the state. There are two consequences of this erasure of the contextual and structural elements underlying the exercise of parental choice. First, it permits a portrayal of familial attachments and responsibilities as merely instrumental in the self-fulfilment of the choosing, planning individual rather than as inherently valuable in themselves. The latter view of family relations is, in contrast, more typical of the conservative vision of the social world. Second, by leaving unexamined the familial context in which the Reverend Jones made his choices, that context becomes "naturalized," becomes the unalterable historical backdrop against which the liberal individual strives for self-definition and autonomy. The specific attributes and institutional forms of the Jones family are treated as irrelevant to the analysis of Reverend Jones's parental right to make decisions and choices about family members. To sum up, in their reliance on the powerful linkage between liberty and choice, as well as the lack of scrutiny of the social context of choice, Wilson J.'s reasons typify the reconciliation of classical liberal principles with the sanctity and privileging of the traditional family within liberal societies.

Justice Wilson's fundamental justice analysis, in the spirit of the classical liberal approach to Charter interpretation, was designed to expand rather than compromise her initial and broad characterization of the right. Thus, in Jones, she gave very little consideration, at this stage, to the administrative concerns of the state. Instead, she accepted Reverend Jones's argument that legislation which narrowly restricted the scope of the defence's evidence violated the principles of fundamental justice. (36) She concluded by finding that the Alberta government failed to justify its violation of section 7 rights in accordance with the strict standards imposed by section 1, and thus that the legislation must fall.

C. Morgentaler and the Liberal Paradigm

The theory of liberty rights underlying Wilson J.'s reasons in Jones is reaffirmed subsequently in her concurring reasons in Morgentaler in which she argued for recognition of a protected sphere of reproductive liberty in relation to abortion decisions made by women during the first two trimesters of pregnancy.37 As in Jones, she presents in Morgentaler the modern liberal subject within the classical framework of individual/state relations. Liberty is no longer understood in terms of property rights and contractual freedom. Instead, individual proprietary interests are displaced by a notion of self-ownership. Similarly, choice comes to signify not economic choice but the inviolability of moral and conscientious choices. The protected area of decisional autonomy, in Wilson J.'s view, is not unlimited but extends to "important decisions intimately affecting their private lives." (38) Although the individual does not live in "splendid isolation," (39) communal norms and collective structures of authority are presumptively threatening. Thus, liberty is still understood primarily in the oppositional binary terms of the classical vision of politics. In addition, courts stand outside politics when they pursue their role of maintaining the fence-line of rights between private freedom and public coercion.

Finally, it should be noted that this notion of liberty often produces a "formal equality" pluralism of individual moral choices that renders it impossible to distinguish between the decision of the Reverend Jones to inculcate his children with majoritarian Christian values and the decision of a woman to terminate her pregnancy. The risk is that both decisions or choices can be presented as aspects of the individual's developing sense of moral autonomy and self-authorship without reference to contextual factors which can significantly differentiate individual choices and their implications in relation to key liberal values. In Morgentaler, Wilson J. addressed this risk, at least partially, by alluding to the social consequences for women of their decisions regarding pregnancy. She elaborated that control of reproduction is integral to women's aspirations for equality. (40) Thus her individual rightsholder, so classical in her stance toward intrusions by the state, is nevertheless given the texture of a specific history and set of social relations. Importantly, however, it is the texture of marginalization and of exclusion from the liberal political community. To this extent, the reasons by Wilson J. in Morgentaler depart from the more classical stance taken in Jones. They offer, instead, a glimpse of a substantive liberty analysis that seeks to incorporate a more contemporary sensitivity to the systemic and historically rooted nature of barriers to full inclusion in the liberal community. The conservative discourse of liberty rights offers a starkly different portrait of the nature and place of the individual rightsholder.


A. Introduction

The conservative mode of constitutional discourse under the Charter operates despite the essentially liberal commitments underlying any constitutional protection of rights; namely, the presumed structural antagonism of the public/private split and the primacy of the individual. As Patrick Macklem has commented in his essay on constitutional ideologies, "[I]n its pristine form, the conservative vision at the level of constitutional law precludes explicit, independent judicial consideration of individual constitutional rights against the state." (41) Macklem goes on to suggest that the arena within which the conservative vision of the individual as part of a web of hierarchical relations is most clearly articulated is the common law. (42) Not surprisingly then, the conservative rendering of liberty rights under the Charter is largely accomplished by drawing on the common law as a source of values in detailing the content of rights and of the principles of fundamental justice, thereby indirectly constitutionalizing common-law principles and underlying norms. (43) Thus, it is possible to discern a distinctly conservative notion of constitutional protections in Charter jurisprudence which can be linked to the broader history of conservatism in Canadian political culture.

The key theoretical elements of the conservative vision of liberty rights are the centrality of traditional institutions of civil society in sustaining individual liberty, the identification of the traditional family and associated values as essential features of the social and political order, and a more complex role for the state in both supporting and posing a threat to traditional institutions and values.

1. The Individual and Society

From the conservative standpoint, the radical individualism characteristic of classical liberalism is tempered by the political significance of community bonds, and autonomy is understood in terms of the capacity to forge and pursue responsibilities and relationships within a set of socially sanctified institutions. Anthony Quinton identifies this as the principle of organicism. (44) In describing society from the conservative viewpoint, he writes: (45)

"It is not composed of bare abstract individuals but of social beings, related to one another within a texture of inherited customs and institutions which endow them with their specific social nature. The institutions of society are thus not external, disposable devices, of interest to men only by reason of the individual purposes they serve; they are, rather, constitutive of the social identity of men."

Liberty within this organic and interdependent community is necessarily founded on "a complex assortment of historic rights, laws, traditions, political institutions and corporations." (46)

The organic principle gives rise to a conservative mode of constitutional discourse which treats the social context of rights claims--the relationships and institutions within which they occur--as analytically important. However, consistent with conservative ideology, it is a particular aspect of the social context that has value; namely, traditional practices and established institutions, the history of authoritative modes of interaction and dominant customary norms. These particularized factors provide the benchmark against which to measure a claim's significance, and liberty is given both texture and vigour by reinforcing existing practices and social patterns. By the same token, marginal, unorthodox or extremist practices and communities are more likely to be viewed as threats to, rather than expressions of, liberty rights.

2. The Family

The privileging of traditional familial institutions and formations in themselves rather than in instrumental terms fits comfortably into the conservative vision of the organic political and social order. As mentioned earlier, the common law acts as a rich source of conservative values. This is particularly true of conservative notions of the hierarchical relations between husbands and wives, and fathers and children. With respect to the former, Blackstone's summary of the legal consequences of marriage at common law provides the most succinct articulation of gendered authority relations within family law before the wave of nineteenth- and early-twentieth-century reforms. As Blackstone put it: "By marriage, husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything." (47)

The erasure of the legal personality of married women at common law was directly linked to their erasure as economic actors. During marriage, their husbands typically either "assumed ownership or at least control of their property." (48) In addition, married women, having no property of their own out of which to satisfy contractual obligations, were barred from entering into contracts on their own behalf and thus were kept from playing any significant role in the sphere of the market. (49) Although legislative reforms aimed at dismantling the legal structures of inequality began at the end of the nineteenth century, the gendered nature of economic inequality persists and matrimonial property regimes remain the focus of efforts to bring about change. (50)

A second consequence of the common law's erasure of married women's legal personality during this period was that married women had no parental rights in relation to their own children. (51) In contrast, paternal power over children was absolute (52) and viewed as necessarily so in order to ensure "the identification of legitimate heirs" (53) and "the orderly devolution of property and status within patrilineal families." (54) The common law courts regarded paternal authority as a right and given by nature, and would only interfere in extreme cases of immorality or unfitness to parent. (55)

Historians have pointed out that this model of the family represented, at most, the experience of familial relations within aristocratic households and is unrepresentative of the class diversity in familial roles and relations during this and preceding historical periods. (56) This disjunction between the complexity of experience and the legally articulated ideal, however, raises concerns about the coercive impacts and legitimacy of law. More specifically, the simplified imagery of fatherhood, motherhood and the family in legal discourse often provides the measure of inclusion and exclusion in family or of the fitness and unfitness of parents in the regulation and adjudication of familial relations. Even today, despite the spate of statutory reforms to the common law, the conservativism of the common-law imagery of the family emerges in judicial reasoning as a form of judicial "common sense" which reinforces and appears to rationalize economic, social and racial hierarchies. (57)

As in the case of the status of husbands and wives, the nineteenth and twentieth centuries saw the introduction of both legislative and judicial changes to the status and entitlements of mothers and fathers as part of a reform process that is still ongoing. (58) What Blackstone termed the "empire of the father" (59) was significantly qualified in the nineteenth century by the introduction of statutory rules which gave judges discretionary authority to award mothers access to their children and, in cases concerning young children, custody. (60) Although this represented a significant shift in both legal and social constructions of the family and parenthood, orders favouring mothers continued to reflect a patriarchal model of parental authority and guardianship. One commentator on this period in English-Canadian history observes that "mothers were awarded custody only when they were living under the protection of some other male, usually their fathers or brothers, and only if they had not disqualified themselves by an adulterous relationship or some other conduct that the Canadian courts considered unseemly." (61) Another has suggested that the change represented a shift from familial patriarchy to social patriarchy under which the purpose of the social and legal order is "not male privilege per se but control of reproduction through control of women." (62)

In the early part of the twentieth century, gendered legal rules were replaced with the welfare or "best interests of the child" principle, and mothers and fathers became gender-neutral parents who, in interspousal custody disputes, could compete as formal equals for the role of custodial parent. (63) This shift reflects the ascendancy of classical liberal ideals of formal equality over conservative notions of a society ordered around natural and customary hierarchies. However, the conservative ideology of the natural and patriarchal family reconstituted itself in legal discourse as the nuclear family within which breadwinner fathers exercised both familial and economic authority and mothers were natural caregivers and nurturers. During this period the courts continued to portray the parental relation as the "fundamental natural relation" (64) and the family--implicitly consisting of a heterosexual couple and children--as the social unit underlying the communal order. (65) In addition, although interspousal custody law increasingly employed the language of formal equality in assessing competing parental claims, the notion that the best interests of children required female, "at-home" nurturing persisted. The narrow statutory exception to father custody of the late nineteenth century became, in the first half of the twentieth century, a judicially articulated, broad rule of maternal preference--called the "tender years doctrine"--in custodial disputes involving young children. Feminist scholars have pointed out that while this gave some women an advantage in negotiating and obtaining custody, the idealization of female nurturing "had conflicting implications for women." (66) In particular, it gave explicit sanction to the notion that women were biologically disqualified from engaging in activities in the public spheres of paid labour, professional careers or political office. Again, it is important to recognize the ideological rather than empirical character of this portrait of social roles, and its intersection--often with contradictory effects--with cultural, racial and class-based norms of appropriate social and familial behaviour. (67)

3. The Role of the State

A relatively positive role for the state is contemplated by the conservative notion of "liberty connected to order." As Edmund Burke elaborated: "The distinguishing part of our constitution is its liberty ... But the liberty, the only liberty I mean, is a liberty connected with order; that not only exists along with order and virtue, but which cannot exist at all without them. It inheres in good and steady government, as in its substance and vital principle." (68)

A number of writers have alluded to the central role the conservative vision of the state--as a positive as well as negative force--has played in forming a distinctive Canadian political culture. (69) This complex view of the state manifests itself in an analysis of fundamental justice principles which is shaped to accord flexibility and latitude for the state to pursue the business of governance. Thus the overall liberty right under section 7 is exercised by an individual who is inextricably situated in a network of specific governmental arrangements. The latter must be preserved and deferred to presumably because, over time, they have proven themselves crucial in sustaining a society of free individuals. This is in contrast to the interpretation of fundamental justice in the strictly rights-enhancing approach taken by Wilson J. in Jones and, in formal terms, by the majority in the Motor Vehicle Reference. To put the point simply, within the liberal paradigm, the individual experience of liberty is prior to and in opposition to the public sphere of government; within the conservative paradigm, individual liberty rights are textured by the history and patterns of state responsibility within an organic social order.

In summary, the key points of divergence in classical liberal and conservative approaches to liberty are rooted in rival conceptions of society which, in turn, generate conceptions of the individual, the family and the public order which are in direct tension with each other. Moreover, the uneasiness of the fit between the sanctification of the traditional family and the liberal notion of community in which the individual is the social unit contrasts with the ease with which the notion of a "community in which the family is the social unit" (70) fits into conservative discourse. Several elements of the conservative vision of liberty are contained in the fundamental justice analysis contained in La Forest J.'s majority decision in Jones, in particular the deference to existing patterns of state regulation and the antipathy toward an atomistic conception of the individual. The articulation of a conservative vision of the family under the liberty protection is explored in the discussion of the emergence of a neoconservative jurisprudence in the third part of this essay.

B. Jones: Fundamental Justice and "Madmen"

As noted earlier, the Jones majority refrained from any consideration of the nature of the liberty interest in section 7, instead dismissing the claim on the basis that the legislation operated in a manner consistent with the principles of fundamental justice. In arguing that the state had unconstitutionally interfered with his parental liberty right to educate his children as he saw fit, the Reverend Jones relied solely on the procedural dimension of fundamental justice. The Alberta legislation at issue specified that a pupil is excused from compulsory attendance at a government-run school if the pupil is attending a government-approved private school or if a government official provides a certificate stating that the pupil is obtaining efficient instruction outside the school system. (71) Under the legislation, such a certificate is the only recognized means to rebut a charge of truancy. (72) The Reverend Jones argued that the limitation on what is allowed as evidence of efficient instruction prevents a full answer and defence to a charge of truancy and, thus, is contrary to the principles of fundamental justice. He further elaborated that the process put in place by the legislation sets up government schools as the exclusive model of efficient instruction and gives an official with a vested interest in the government system the power to judge whether instruction outside the system is efficient. (73)

The majority's approach to these arguments had none of the attention displayed by Wilson J.'s dissent to the perspective and concerns of an individual who is faced with the machinery and resources of a state-initiated prosecution. Instead, the majority made it clear that the justice of the process set up by the legislation should be viewed with great deference to the compelling state interest in educational quality and to the exigencies of complex administration. In La Forest J.'s words, "No proof is required to show the importance of education in our society or its significance to government ... [which is] known and understood by all informed citizens." (74) Similarly, the means chosen by the Alberta government to implement educational objectives were characterized as so obviously expedient and reasonable that supporting evidence was unnecessary. (75) Justice La Forest concluded by observing that "the provinces must be given room to make choices regarding the type of administrative structure that will suit their needs." (76) In the majority's view, anything short of what it termed manifest unfairness and arbitrariness is consistent with fundamental justice principles. The wide berth given to assertions about the reasonableness of state processes by the majority is in sharp contrast to Wilson J.'s sceptical scrutiny of the same claims.

The majority explained its readiness to dismiss Reverend Jones's complaint partly in terms of a refusal to allow the Charter to constitutionalize and thereby judicialize day-to-day aspects of governmental administration. (77) However, the injection of such considerations, refreshingly modest though they are, at the rights-defining rather than rights-limiting stage of analysis is rooted, perhaps, in a much deeper politics. The deference to school officials and the Department of Education is consistent with a conception of liberty that stresses sustaining the traditional institutions of public and private life within which individuals are formed and develop their identities. In Canada, a large state role in providing primary and secondary education is a long-established part of the social and, arguably, the constitutional order. (78) In addition, the incorporation of the communal and social aspects of individual liberty into the meaning of the right itself, reflects, as Quinton puts it, the notion that "the institutions of society ... are constitutive of the social identity of men."79 Finally, judicial modesty regarding the role of the courts and the refusal to strictly scrutinize government procedures and goals in accordance with elaborate doctrinal standards can be linked to the more general conservative conviction that courts and the legal system should serve rather than police political arrangements and priorities.

The majority reasons are suffused also with the sense that the Reverend Jones is an extremist and, as such, threatens the social stability and order necessary to individual liberty. The majority quotes the trial judge's description of the Reverend Jones as a "stiff necked parson" (80) and, despite the long history within Canada of religious control of education, goes on to describe his claim as "rather unusual in its specific setting and its intensity." (81) Recall that the Reverend Jones made it clear it would offend his beliefs even to ask permission from the state to run his divinely authorized school. (82) From the classical liberal viewpoint, which strongly influences Wilson J.'s dissent, these extremist aspects of the Reverend Jones's beliefs and behaviour qualify him as, to use her words, a "nonconformist, idiosyncratic ... eccentric" (83) person whose liberty is all the more precious in light of his intransigent posture regarding the state school system; within the conservative value system, the Reverend Jones's extremism signals danger rather than freedom. As Edmund Burke queried: "Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman, who has escaped from the protecting restraint and wholesome darkness of his cell, on his restoration to the enjoyment of light and liberty?" (84)

The Reverend Jones, in the hands of the Jones majority, has overtones of Burke's "madman," a figure better consigned to "wholesome darkness" than permitted to burden judicial resources and the communal order with his claims of liberty.

In summary, the majority's analysis of fundamental justice in Jones provides a snapshot of the way in which a conservative liberty-rights discourse tempers the classical liberal principles which strongly shape the Charter. In particular, analysis of the liberty component of section 7 is often avoided, thereby postponing the difficulty of reconciling conservativism's organically connected individual with the presumptively unconnected individual captured so directly by classical liberal notions of negative liberty. However, such reluctance is absent from the fundamental justice analysis. In keeping with conservative precepts, the latter is viewed through the lens of the difficulties faced by the state and the historical patterns of authority within both public and private spheres rather than through the lens of the priorities and preferences of an individual whose liberty is threatened rather than nourished by collective structures and practices.

The conservative approach to fundamental justice dominates the later jurisprudence of the Supreme Court. The most explicit discussion of the tension between the liberal and conservative analysis of fundamental justice occurs in Rodriguez v. British Columbia (Attorney-General). (85) Rodriguez concerned a challenge to the Criminal Code prohibition against assisting a person in the commission of suicide. The majority, in reasons by Sopinka J., found that the interest represented by the claim came within the scope of the section 7 protection for security of the person but that the prohibition was consistent with the principles of fundamental justice. (86) Fundamental justice, for the majority, was repeatedly described as reflecting the state's interest, legal traditions and societal concerns rather than the interests, concerns and perspectives of the individual rightsholder. (87) Justice McLachlin's dissenting reasons took issue with this characterization and advocated an analysis the core of which was a focus on the individual's interest in fairness. Justice McLachlin conceded that some fundamental justice principles are coherent only when the state's interest is taken into account but was adamant that, in general, Charter complainants should not bear the onus of demonstrating the unreasonableness of the state's action. (88)


Parental liberty challenges under the Charter present the Court with the conundrum that underlies liberal justifications more generally for the privileging of traditional family institutions and values in liberal societies: in short, how does one reconcile the liberal principles of individual freedom which seem so clearly contemplated by the liberty protection with the predominantly conservative vision of familial relations that has characterized much of the legal regulation of the family in liberal societies?

One approach to resolving this tension is contained in the synthesis that underlies neoconservativism. As a number of commentators have pointed out, neoconservatism melds the individualism and hostility to the state characteristic of classical liberalism with the social and moral traditionalism of Burkean conservatism. (89) The current popularity of antistatist ideologies and discourses, particularly in the area of economic regulation, is often referred to as neoliberalism. It takes place against the backdrop of the period roughly from the 1940s to the 1970s during which western liberal democratic societies such as Canada, in varying degrees, moderated the radical individualism and antistatism of classical liberal ideology by embracing the Keynesian notion of the welfare state. (90) The relationship between these two "neos" (91)--neoconservatism and neoliberalism--is complex and the terms are often used interchangeably. I use the term neoconservativism to indicate the resurgence of traditional social and moral values, leaving the term neoliberalism to refer to the rehabilitation of

nineteenth-century classical economic theories, in particular the notion that a market unimpeded by the state is both efficient and self-sustaining. (92) In popular and political discourse, the two dimensions--the moral and the economic--are often presented as complementary and intertwined insofar as neoliberal economic reforms look to neoconservative values, such as respect for the traditional family, to address the social consequences of dismantling the welfare state. (93) In this section, I explore how the neoconservative strand has surfaced in Charter jurisprudence. I focus on what I view as the centre piece of this phenomenon as the courts exhibit it; namely, the deployment of the vigorous rights-enhancing rhetoric of liberalism to accomplish the ostensibly contradictory purpose of sanctifying the traditional family as the institutional repository of fundamental social and constitutional values. I use B.(R.) (94) as the primary example of a judicial discourse which combines an explicitly conservative set of family-related values with the premises underpinning classical liberal rights protections. I start, however, with a sketch of the broader counterpart of this latest doctrinal trend, the rise in popular and political discourses of neoconservative family values.

A. Family Values and Neoconservative Discourse

A few years ago, the existence of an "unofficial" caucus of Tory politicians advocating the protection of the traditional family was described in the national media as "one of the most influential groups of politicians in Canada." (95) The account went on to identify the reasons for the group's activities as "a pervasive fear that the traditional family unit is crumbling under pressure from feminists, homosexuals, activist judges, special interest groups and the Charter of Rights." (96) This perception that the traditional family is both the cornerstone of society and is about to crumble in the face of an onslaught by social radicals has produced a wide-ranging literature. For example, George Gilder has argued that the only route out of poverty is the "maintenance of monogamous marriage and family" (97) and that "[c]ivilized society is dependent upon the submission of the short term sexuality of young men to the extended maternal horizons of women." (98) Similarly, in his critique of the erosion of liberal values within the academy, Allan Bloom castigated feminists for not only undermining the core commitments of liberal education but also offending nature with their insistence that abstract values of justice are more important than familial values of love and care and the classic female virtue of modesty. (99) The latter, in Bloom's account, was centrally important "in the old dispensation" because it "governed the powerful desire that related men to women, providing a gratification in harmony with the procreation and rearing of children, the risk and responsibility of which fell naturally--that is, biologically--on women." (100)

A prime Canadian example of this literature is William Gairdner's The War Against the Family, which epitomizes the importance to neoconservative political thought of the traditional family as well of the sense of it being under siege by social radicals who have successfully captured the state. For Gairdner, Western civilization is structured around an "inherent and deadly conflict between statism and the whole idea of the private family." (101) The expansion of the welfare state, the shift from formal to substantive theories of equality, and the substitution of rationalism for tradition, of moral relativism for moral hierarchy, converge in undermining family as the locus of individual freedom and the keystone of democracy. In Gairdner's text, the nuclear family form--"a married man and woman living together with their dependent children" (102)--is variously described as "primal and inescapable," (103) cross-cultural and cross-historical, (104) "natural" and "universal." (105) More specifically, patriarchy is necessary because it is both economically and socially efficient, it channels men's "frightening" strength and natural sexual and physical aggression into social reproduction and ordering, and it is the only alternative to governmental supremacy. (106) Gairdner applauds the nineteenth century for getting women out of the paid workforce and into the homes "where mothers wanted to be" and for treating the family as a social unit with higher importance than the individual. (107) In Gairdner's view, the health of the family and, thus, of society more generally, is under direct threat from "strident, whining, petty feminists," and radical homosexuals who refuse to "[mind] their own business," (108) and who use AIDS to promote their sexual agenda. (109)

More recently, as mainstream parties across the political spectrum endorse the dismantling of state provision of social welfare, the views of Bloom and Gairdner have found their way into policy papers on restructuring the Canadian welfare state. Of particular significance is the recurrent suggestion that social assistance benefits, rather than structural and social inequalities, "create" welfare dependency and poverty. (110) The idea that social welfare is "bad" for poor people is especially pronounced in discussions of the link between lone motherhood and poverty, leading to suggestions that tax, divorce, support and benefit regimes should explicitly reinforce the heterosexual two-parent family through a system of economic incentives and disincentives. (111) The analysis is often framed in terms of a concern for child poverty and welfare and, in this regard, displays some of the same rhetorical excesses of Gairdner and Bloom. For example, feminists are characterized as seeking to eliminate men from parenthood thereby creating "bad" neighbourhoods and harming children by condemning them to poverty and denying sons male role models. (112) Conversely, traditional marriage is characterized as a cross-cultural, cross-historical and therefore time-tested institution for the efficient rearing of children. (113)

B. B.(R.) and the Neoconservative Synthesis

Although the extreme tone of crisis that permeates the writings of Gairdner and his ilk is absent from Charter jurisprudence, the cases which endorse familial values share the posture of invoking a common sense "natural" solution to social dysfunction while at the same time claiming adherence to liberal principles of individualism and negative freedom. The key section 7 case is B.(R.) in which the plurality crafts an individual right to parental liberty that incorporates both a liberal hostility to the state and an embrace of conservative family values. As the decision is complicated by the splits between the judges, I start by outlining the various judicial approaches to parental liberty which accompany the plurality's reasons. I then examine the plurality's deployment of the liberal rhetoric of individualism and hostility toward the state to constitutionally entrench a traditional notion of parental authority. I also explore the way in which this enshrinement of parental liberty is detached from the nonconforming religious aspects of the claim. Finally, I comment on the explicitly gendered dimensions of parental rights as they have manifested themselves in other areas of constitutional jurisprudence.

1. The B.(R.) Decision

As in Jones, the Court in B.(R.) was confronted with parents from a nonconforming religious community. Here, parents refused to consent to blood transfusions for their infant child despite medical opinion that the child's life was in danger and a transfusion might be necessary. The parents based their refusal on their religious beliefs as adherents of the Jehovah's Witness faith. They challenged the subsequent temporary wardship order in favour of child protection authorities, arguing that it violated their rights to freedom of religion and to parental liberty.

Again, as in Jones, the B.(R.) case presented the Court with an opportunity to avoid any consideration of the nature of the liberty interest in section 7. In other words, it would have been possible to dispense with the case by stating that, whatever the merits of the argument about liberty rights, the state acted in a manner consistent with the principles of fundamental justice. All the judges who heard this case agreed that, ultimately, there was no violation of section 7 and the parents' claim must fail. As noted in the context of Jones, avoidance of discussion of individual liberty at the first stage of section 7 analysis allows a conservative view of the social world to coexist, albeit somewhat uneasily, with the explicitly liberal framework of the Charter. However, only one of the presiding judges, Sopinka J., took that route. (114) The other eight judges were willing to discuss and disagree on aspects of the scope of section 7 liberty.

Chief Justice Lamer took the narrowest position on the scope of the liberty right, asserting that section 7 liberty is limited primarily to a protection against state interferences with physical liberty in the context of the administration of the justice system. Thus, rather than simply avoiding discussion of a broader right, Lamer C.J.C. made it clear that he rejected such an expansion altogether. (115)

A group of three judges, in reasons by Iacobucci and Major JJ., took a slightly less circumspect position than Sopinka J., stating that they were willing to assume without deciding that section 7 extended to parental liberty. They did so in order to make the point that such a liberty interest must be defined in a way that respects the life and security rights of children. They asserted that a parental right to withhold necessary medical care from a child would be, by definition, outside the scope of the liberty protection. Thus, the group of three took a cautious and very tentative "middle" position. Although willing to contemplate extending liberty rights to the familial context, this group was taken aback by the prospect of parents and children competing against each other in a Charter-defined family of rights-holding individuals. (116)

Finally, a plurality of four judges in reasons by La Forest J. was prepared to unconditionally commit itself to a notion of liberty broad enough to include "the right to nurture a child, to care for its development, and to make decisions for it in fundamental matters such as medical care." (117) The blending of a conservative view of familial relations implicit in this statement with the analytic features of vigorous rights protection exemplifies the emergence of a neoconservative family values discourse under the Charter. It differs from the indirect sanctioning of the traditional family--found in decisions such as Wilson J.'s dissent in Jones--in its willingness to more clearly and explicitly entrench conservative values as constitutional values. In short, conservative values move out of the unexamined and "naturalized" background of personal attributes and relations and onto the centre-stage of directly enshrined constitutional principles.

2. The Plurality and a Neoconservative Jurisprudence of Parental Liberty

In staking out its position, the four-judge plurality endorsed Wilson J.'s analysis in Jones and Morgentaler, characterizing the constitutional right to liberty in terms of a broad, open-ended negative zone of freedom from state constraints on individual "personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance." (118) Justice La Forest specifically linked the concept of liberty to privacy, choice and human dignity and to classical notions of the separation between public and private, state and family. At this point, one might speculate that La Forest J. was finally agreeing with the substance of Wilson J.'s dissent in Jones. What is distinctive about the plurality reasons in B.(R.), however, is their explicit acceptance of the way in which firm recognition of individual rights often protects the rights of those who are structurally and socially privileged. Recall that Wilson J. in Morgentaler sought to avoid such outcomes by texturing her delineation of a very broad and negatively structured liberty right with references to the social and historical disadvantagement of women. The B.(R.) plurality introduces a different sort of texture to its characterization of parental rights; namely, the texture of well-established and customary social hierarchies. This emerges in the plurality's analysis of parent-child relations.

Although La Forest J. makes it clear that there is no way to directly entrench the family itself in the scheme of individual protections in the Charter, he points out the social reality which implicitly stands behind Wilson J.'s account of the self-regarding parent; namely, that "[t]he concept of the integrity of the family unit is itself premised, at least in part, on that of parental liberty." (119) In other words, an individual parent's rights include the right to "choose" to have a family and maintain (naturally) authoritative parental relationships. Justice La Forest emphasized this point by quoting from Nicholas Bala and J. Douglas Redfearn to the effect that parental interests, as distinct from family interests in upholding the family unit, entail "parental authority--a parental right to enjoy family life and control various aspects of a child's life, free from unnecessary outside interference." (120) Thus, La Forest J. endorsed a specific notion of parent-child relations in accordance with which children are only notionally present as legal persons and rightsholders. Although he asserted that "[c]hildren undeniably benefit from the Charter, most notably in its protection of their rights to life and to the security of their person," he went on to suggest that there is no way that children can assert these rights other than through their parents. (121) Justice La Forest pointed out that children's interests, as distinct from parental interests, only get consideration under the Charter indirectly in terms of the state's interest under section 1 in limiting parental rights. Again, La Forest J. made it clear that the state's interest in this regard is not the same as children's interests or rights. (122)

Justice La Forest continued this constitutionalization of the traditional structure of the family by stating that the individual right to liberty directly translates into society's customary privileging of parental authority to bring up and make choices for children. Furthermore, the source for La Forest J.'s elaboration of parental liberty in these terms was not abstract principles of the sovereignty and dignity of individuals metaphorically represented by the nonconformist Reverend Jones but rather the common law. In sum, the vision of the family presented by the plurality is deeply and explicitly conservative, especially in its endorsement of common-law-based notions of parental authority; however, the distinctive packaging in the language of individual rights gives these otherwise familiar values their neoconservative twist.

3. The Plurality and Religious Difference

As mentioned earlier, the judges in B.(R.) were unanimous in finding that, whatever the merits of the parental liberty claim, the state had acted in a manner consistent with fundamental justice and thus the claim must fail. Indeed, the plurality's fundamental justice analysis left behind the rhetoric of liberal individualism and the natural opposition between individual parents and the state. Instead, it returned to the conservative approach and viewpoint sketched out in the majority reasons in Jones, invoking both the traditional role of the state in policing subordinate religious and cultural practices as well as respect for the authority wielded within the legal arena by established medical institutions and discourses.

The two-part structure of the section 7 argument also allowed for another kind of shift and splitting of approaches in the B.(R.) plurality reasons. At the liberty stage of the analysis, the purely parental aspects of the claim were presented in an abstract and universalized form. Here the Bs are portrayed as universal, ungendered, culturally and religiously detached parents who simply want to care for and make unspecified medical decisions about their infant. They are "parents unmodified" and, as such, seem to speak to the concerns of all parents for their children's well-being and to an understandable distress when key decisions regarding the care of their ill children are removed from their control. The nonconforming religious character of the actual choices of the Bs with respect to their infant's medical treatment only become an issue at the fundamental justice stage of the analysis. At this point, in contrast, the Bs appear as extremist and unreasonable figures, as inhabitants perhaps--along with the Reverend Jones--of conservativism's gallery of "madmen." In short, the Bs no longer represent distraught parents trying to wrest their infant from the hands of a powerful and indifferent state but alarmingly and perplexingly stubborn adherents of a set of dangerous religious beliefs and practices. Indeed, the case loses some of its narrative coherence. Is it possible, one wonders, that the parents in the historically and socially sanctified family of the first part of the decision are the same people who seem to be demanding a religiously based right to endanger their infant's health in the second part? When posed against the backdrop of these contextualized religious "differences," the state's administrative imperatives and historical interest in protecting children take on a foundational quality and emerge uncontested as the overriding interests.

An additional consequence of the reversal in the narrative presentation of the Bs is that the complexity of their argument is sidelined and only briefly mentioned. Of particular note is the refusal of the Bs to accept a simplified account of the tension between the state and family underlying most child-protection regimes. Pointing to conflicting medical evidence with respect to their child's medical needs, the Bs argued that the law--in the face of such uncertainty--should defer to parents' religious convictions and values rather than to whichever set of medical experts the judge at first instance deems most credible. (123) However, the Bs' attempt to unravel, in this manner, the connections between state power, legal certainty and medical discourse and to introduce a more pluralized notion of legal truth was cut short by the plurality. Invoking the rules that demands respect on the part of appellate courts for the weighing of evidence by the trier of fact, the plurality refused to pursue the Bs' attempt to critically deconstruct the role of medical expert evidence in usurping the judicial function. (124) In conclusion, in the plurality reasons in B.(R.), a number of discursive features ensure that the purportedly universal parent who stands at the centre of the first part of the liberty analysis is, in effect, a person whose understanding and practice of parenting conforms to dominant cultural norms. Those features are facilitated by the two-part structure of section 7 and include the separation of the parental aspects of the claim from the religious aspects, the shift from an abstract to a particularized discourse and the refusal to acknowledge the substantive impacts of the formal constraints on appellate review.

4. The Gendered Context of Parental Liberty

The B.(R.) plurality did not address the question of parental disputes between adult members of the family who, unlike children, are able to be more than notionally present within the constitutional discussion. For example, what happens when individual adults--mothers and fathers--are in conflict with each other over parental issues? How does the constitutional recognition of parental liberty rights affect such conflicts?

Carol Smart has stressed the point that "children form part of the nexus of power within family relations." (125) To the extent those relations are gendered, it makes sense to analyze the way power circulates not only along the parent-child axis but also and simultaneously between mothers, fathers and others in a parental or caregiving role. As Smart observes: (126)
 [T]he presence of children in the household creates the potential
 of a power nexus that parents can exploit positively or negatively
 in relation to one another as a consequence of their social
 constitution as mothers and fathers. Structurally speaking,
 children create a specific field of power relations between
 parents, and the subsequent power claims that parenthood
 potentiates are linked to the question of gender.

The shift away from gendered preferences and into the neutral language of the "best interests of the child" in legal discourse often hides or ignores these power relations. For example, in Jones and B.(R.) the nonspecific term "parent" obscures the axis of gender power that structures relations within heterosexual marriages and unions. We can only speculate about how the educational and medical treatment decisions are arrived at within the Reverend Jones and B households. The relations between the parents remain private and irrelevant to the determination of the nature of parental liberty. While the Bs are referred to in the plural throughout B.(R.), they are assumed to be advancing a single set of claims. There is no mention or reference to a partner or spouse of the Reverend Jones in Jones. The assumption of parental unity in both instances illustrates the way in which facially neutral legal concepts may indirectly sanction social hierarchies within the private sphere. However, in a 1995 Charter equality case, Thibaudeau v. Canada, (127) the Court was forced to consider directly a gender analysis of power in relations between parents. Indeed, like B.(R.), the case reveals the durability of conservative familial ideologies that, in this instance, take the shape of the "post-divorce 'family unit'." (128)

Thibaudeau concerned an equality challenge to provisions in income tax legislation that deal with the tax treatment of child support payments in the context of divorced spouses. The provision in question gave more favourable tax treatment to non-custodial spouses, mostly fathers, who pay child support than to custodial spouses, mostly mothers, who receive the payments on behalf of their children. The rationale for the provision was that, in most cases, an overall tax savings for the ex-spouses would result and that such savings could then be directed by the non-custodial payor towards child support. Commentators on the litigation have pointed out the way in which such tax provisions reinforce conservative familial ideologies by "tend[ing] to give men control over the distribution of tax benefits among members or former members of the heterosexual family and [by presuming] they will share those benefits with dependent women and children." (129)

The custodial mother, Suzanne Thibaudeau, challenged the tax provisions on the basis of her individual right to sex equality under section 15 of the Charter. Her action failed in part because a splintered majority of five judges found that, for the purposes of measuring the allegedly unconstitutional impacts of the legislation's differential treatment of divorced spouses, custodial spouses should not be viewed as individuals but as members of the "post-divorce family unit." (130) One of the dissenting judges analogized this merger of the individual interests of custodial mothers into those of the family to the historical merger of the property interests of women into those of their husbands. (131)

The erasure of custodial spouses as rightsholders in Thibaudeau seems more pointed and deliberate than the parallel erasure of children's interests in the plurality reasons by La Forest J. in B.(R.). Perhaps for this reason the melding of classical liberal values of individualism and conservative familial ideologies is less smoothly accomplished in Thibaudeau. In B.(R.) the plurality recognized children as rightsholders so long as it was clear that children have no meaningful way to assert that status. (132) Traditional notions of parental authority thus could be presented safely in combination with a family made up of rightsholding individuals. In Thibaudeau, custodial spouses had to be firmly excluded from the scope of the protection rather than simply not mentioned or only notionally recognized. The injurious impacts of the tax regime on individual custodial spouses had to be elided. The vision of "the community in which the [traditional] family is the social unit" (133)--so comfortably lauded as a "natural" feature in the older common-law cases--came readily to hand, reemerging as the "post-divorce family unit." Thus the shifts in B.(R.) and Thibaudeau between who counts as an individual and when, can be explained partly in terms of conservative familial ideology.


Since B.(R.) the Supreme Court of Canada has returned to the question of whether section 7 extends protection to aspects of the parent-child relationship. In G.(J.), the majority, in reasons by Lamer C.J.C., found that the interference in the parent-child relationship represented by custody proceedings brought by state officials under a child protection statute constituted a violation of the "security of the person" prong of section 7. (134) Although characterizing the fundamental interest at stake as one of psychological security, the majority used the classical liberal "liberty" language of negative privacy to describe the constitutional harm. (135) Justice L'Heureux-Dube, in concurring reasons, characterized the right as both a liberty and security interest. (136) A subsequent case, K.L.W., (137) focused on the apprehension of children under child protection law, specifically the warrantless apprehension of children in nonemergency situations provided for under the Manitoba regime. In this case, L'Heureux-Dube J., for the majority, invoking Lamer C.J.C.'s reasons in G.(J.), found that apprehensions of children by state officials acting under child protection statutes trigger the constitutionally protected security concerns of both parents and children. (138) Justice Arbour, in dissenting reasons, agreed with this aspect of the majority's holding. (139)

These two cases--G.(J.) and K.L.W.--place parental rights claims under section 7 on a solid footing, albeit under the security prong of the protection. (140) Furthermore, the divergence between the majority and the concurrence in G.(J.) offers an important insight into the relative tenacity of the neoconservative synthesis--the fusion of traditional family ideologies with classical liberal rights protection norms--found in La Forest J.'s plurality reasons in B.(R.). As noted earlier, Lamer C.J.C.'s delineation of parental rights in his majority reasons in G.(J.) was cast in the classical mould of a negative liberty right despite his insistence that the interest is more appropriately described as a security interest. (141) Justice L'Heureux-Dube, in concurring reasons, although willing to invoke both the liberty and security guarantee in relation to the section 7 claim, did not challenge Lamer C.J.C.'s characterization and, indeed, approved of La Forest J.'s plurality reasons in B.(R.). However, unlike her colleagues, L'Heureux-Dube J. asserted that the claim in G.(J.) implicated the section 15 equality guarantee and that equality concerns should inform the section 7 analysis. She alluded, in particular, to the social context of female, lone-parent poverty and the systemic disadvantages stemming from ablism, racism and colonialism that disproportionately characterize the parental respondents in child protection proceedings. (142) Thus, like La Forest J. in B.(R.), L'Heureux-Dube J. in G.(J.) sought to provide texture and specificity to a liberty right which, by definition, is conceived in negative and therefore, very open-ended abstract terms. Rather than the texture of traditional societal values, however, L'Heureux-Dube J. invoked the texture of broadly based social disadvantagement. In this respect, L'Heureux-Dube J.'s attempt to contextualize liberty rights--directed at the features that marginalize the individual claimant rather than at dominant social values--was a better "fit" with the liberal values underlying the framework of rights protection than La Forest J.'s analysis in B.(R.). Justice L'Heureux-Dube's approach in G.(J.) finds a parallel in that of Wilson J. in Morgentaler, discussed earlier. However, unlike Wilson J., L'Heureux-Dube J. did not attempt to articulate her vision of substantive liberty rights under the section 7 guarantee itself but rather argued for an interpretation that takes account of the interplay between different Charter guarantees and strives for an overall coherence. (143)

Together, these two sets of reasons--those of Wilson J. in Morgentaler and of L'Heureux-Dube J. in G.(J.)--demonstrate how the rigidly classical framework within which liberty rights are typically understood might be reworked to reflect the more socially textured individual of section 15 substantive equality analysis. (144) At the same time, the lack of support on the Court for either of these approaches and L'Heureux-Dube J.'s seeming unwillingness to challenge the fundamentally negative character of the liberty protection itself, attest to the difficulty of pursuing this more progressive variation on the liberal theme of the Charter. (145)

Justice L'Heureux-Dube's analysis in G.(J.) thus remains a minority voice within the new-found consensus on the protection of parental rights under section 7. Although she secured majority support in K.L.W., once more she did not reexamine or question Lamer C.J.C.'s classical portrayal of parental interests in G.(J.), nor that by La Forest J. in B.(R.). (146) Meanwhile, the neoconservative family values discourse found in the B.(R.) plurality reasons was repeated not only in the Thibaudeau equality decision but also in Thibaudeau's companion cases, Egan v. Canada (147) and Miron v. Trudel. (148) As noted earlier, the Thibaudeau case on equality rights invoked conservative and historically outdated notions of interspousal relations in the name of the "post-divorce family unit." Some of the judgments in Egan and Miron echo this neoconservative perspective. In Egan, a block of four judges in concurring reasons by La Forest J. defended its finding that the exclusion of same-sex couples from government pension schemes is reasonable on the following terms: (149)
 [M]arriage has from time immemorial been firmly grounded in our
 legal tradition ... [b]ut its ultimate raison d'etre transcends all
 of these and is firmly anchored in the biological and social
 realities that heterosexual couples have the unique ability to

In this manner, just as Thibaudeau exposed the gendered dimension of the constitutionalized family, the plurality reasons in Egan exposed its heterosexist dimension. (150) In Miron, the same block of four in dissenting reasons by Gonthier J. rejected an equality challenge to the privileging of married spouses in relation to common-law spouses in legislation regulating accident insurance coverage. In the course of doing so, Gonthier J. asserted that legislative distinctions which reflect "some objective physical or biological reality, or fundamental value" (151) are not discriminatory and relied on the American familial privacy cases to defend the primacy of the marriage institution as such a value.

Despite the strong conservative voice in the Thibaudeau trilogy, recent equality jurisprudence tells a more auspicious tale about the strategic use of Charter litigation to achieve progressive social change. The deep divisions regarding the nature of equality revealed in the Thibaudeau trilogy were resolved ostensibly in the Court's decision, four years later, in Nancy Law v. Canada. (152) In Nancy Law a unanimously supported framework for section 15 analysis was accomplished by merging bits and pieces of several approaches into one. In crafting its approach, the Court in Nancy Law did not incorporate the explicit deference to social tradition and established norms found in the conservative sets of reasons in the Thibaudeau trilogy, a deference that is presented in those conservative reasons as a limit internal to the right itself. Rather, the Nancy Law decision introduced its own version of an internal limit on what counts as an equality violation. In doing so, the Court used the comparatively neutral language of a correspondence between the grounds of discrimination and the actual needs, circumstances and capacities of claimants. In accordance with this correspondence test, legislative distinctions based on one of the section 15 enumerated or analogous grounds that mirror or correspond to the actual situation of a group do not violate section 15 as long as the distinction made does not have the effect of undermining human dignity. (153) In light of the recent history of sharply divergent approaches to equality analysis, the internalized "saving" effect of correspondence to "real life" or actual differences risks inviting arguments about correspondence to majoritarian practices and values. (154) The risk was soon put to the test. In M. v. H., (155) decided shortly after Nancy Law, a majority for the Court found that the exclusion of same-sex couples from regimes imposing an obligation of spousal support violates the equality guarantee. Thus, the result in M. v. H. suggests that the correspondence component in the Nancy Law analysis will not automatically construct dominant heterosexual practices and heterosexist norms as reflections of "real life" needs, capacities or circumstances, thereby shielding such practices and norms from equality challenges.

However, it should be noted that an explicitly conservative version of the correspondence test was pursued in M. v. H. in the dissenting reasons by Gonthier J. In short, echoing the conservative sets of reasons in the Thibaudeau trilogy, Gonthier J. argued that the legislative exclusion of same-sex couples from spousal-support regimes must be viewed in light of the unique biological and social role played by opposite-sex couples with respect to procreation. (156) Placed on that footing, the challenged legislative distinction, Gonthier J. elaborated, meets the correspondence test. As he put it, the distinction is based on "a true appreciation of the facts," of "the necessarily gendered nature of the [opposite-sex] relationship, which in a great many cases leads to economic dependency based on gender, often (though not always) due to children." (157) Pending equality challenges to the heterosexist character of the common law of marriage may provide insights that more clearly attest to the ease with which the neutrally phrased correspondence test in the Nancy Law framework can accommodate an explicitly conservative rendering of its limiting effect on equality protection. (158)

At the present moment, the conjunction of the section 15 equality cases and the section 7 parental rights cases presents a portrait of a Court trying out a number of ways, some of them in direct conflict with each other, of locating and characterizing familial relationships in the language of Charter rights and values. The section 7 cases differ from the equality cases in that they purport to constitutionalize dominant institutions and practices and present them as individual rights. The equality cases, in contrast, threaten simply to disqualify distinctions that conform to such institutions and practices from counting as unconstitutional discrimination. The question remains whether equality decisions, such as that in M. v. H., which make the texture and history of social disadvantagement analytically significant are, in fact, on a collision course with parental rights decisions that seem to place the texture and historical legacy of conservative family ideologies at the core of an otherwise negatively structured, and therefore presumptively empty, abstraction. In addition, one must ask whether the newly minted "family rights" under section 7 will contribute to the legitimacy given in the political arena to policy initiatives that tout the traditional family as a central part of the solution to what neoliberal governments construct as the "problems" of welfare dependency, child poverty and large public debt loads. (159)

The elasticity of the judicial discourse of rights and its reliance on large, negatively drawn abstractions such as privacy or liberty, as well as on slippery doctrinal concepts such as "correspondence to actual facts," provide ample room for the contradictory currents of Canadian politics to coexist. To some extent, this fluidity is healthy, providing room for the "push and pull" of engaged debate by individuals and social groups around fundamental political and constitutional values. However, the pursuit of emancipatory understandings of political community, familial relations and the role of law through Charter litigation must always keep an eye, not only to the broader context of the politics surrounding family issues, but also to the normative, ideological and institutional constraints that distinguish legal discourse from political discourse more generally. Historical notions of family relationships find resonance and support in the common-law roots of our legal traditions and concepts. At the same time, the distinctiveness of rights discourse under the Charter is in part attributable to its historical and conceptual debt to the classical liberal understanding of the liberal political community. The fusion of these two currents in the judicial discourse of parental rights removes a large measure of elasticity from the otherwise open-ended promise of individual liberty rights.

(1) This analysis draws on and is indebted to an essay by Patrick Macklem that explores variations on individualist and collectivist themes in both pre- and post-Charter constitutional discourse. Macklem presents classical liberalism and pluralist liberalism as two ideological variations on the individualist theme, while conservatism and socialism provide two parallel variations on the collectivist theme. P. Macklem, "Constitutional Ideologies" (1988) 20 Ottawa L. Rev. 117. I should note here that, unlike Patrick Macklem, I have used the term conservativism rather than toryism throughout this chapter in order to link the conservative strain of Charter discourse to the broad philosophical tenets of conservative thought as well as to the particular manifestation of those tenets in B ritish and Canadian tory political traditions. However, many writers use the terms interchangeably when discussing Canadian political ideologies. Gad Horowitz, writing about Canadian politics, provides the following helpful correlation: "By 'conservativism' I mean not the American conservativism which is nineteenth century liberalism, but toryism--the British conservativism which has its roots in a pre-capitalist age, the conservativism that stresses prescription, authority, order, hierarchy, in an organic community." G. Horowitz, "Tories, Socialists and the Demise of Canada" in H.D. Forbes, ed., Canadian Political Thought (Toronto: Oxford University Press, 1985) 353 at 353.

(2) (1986), 31 D.L.R. (4th) 569 (S.C.C.) [hereinafter Jones].

(3) (1995), 122 D.L.R. (4th) 1 (S.C.C.) [hereinafter B.(R.)].

(4) There are also a small number of significant decisions that are considered examples of substantive rather than procedural due process in that they address the substantive nature of proof within the penal process. Reference Re Section 94(2) of the Motor Vehicle Act (1985), 24 D.L.R. (4th) 536 (S.C.C.) [hereinafter Motor Vehicle Reference], discussed in the next section of this essay, is the first and foundational case in this line of jurisprudence. This case addressed the constitutionality of B.C. legislation that makes it an absolute liability offence to be found driving with a licence subject to a prohibition or suspension. The legislation provided for a penalty of imprisonment. The case stands for the proposition that the combination of absolute liability with the possibility of imprisonment violates the section 7 right not to be deprived of physical liberty except in accordance with the principles of fundamental justice. Another example is R. v. Vaillancourt (1987), 39 C.C.C. (3d) 193 (S.C.C.). Here, the Court invalidated a felony murder provision which allowed a conviction of murder without proof of an intent to kill. Although these cases place substantive limits on state power, they are very tightly tied to notions of moral innocence and of fairness of process in penal proceedings. Indeed, they illustrate the difficulty of separating procedural from substantive issues, at least in this area. As the cases add very little to notions of the scope of section 7 outside the realm of entitlements to fairness in penal proceedings, I shall not, except for the discussion of the interpretive directives set out in the Motor Vehicle Reference, cover them in this essay. For a comparative discussion of the impact of constitutional rights o n the criminal law, including the criminal law doctrine of intent, in the United States and Canada, see R. Harvie & H. Foster, "Different Drummers, Different Drums: The Supreme Court of Canada, American Jurisprudence and the Continuing Revision of Criminal Law under the Charter" (1992) 24 Ottawa L. Rev. 39, in particular at 92-98.

(5) I do not mean to suggest that this notion of liberty is unimportant or never controversial. Lately, it has become critical in debates over the legal regulation of pregnant women; in particular, over the detention of pregnant women whose substance abuse allegedly harms the fetuses they carry. For example, the majority in Winnipeg Child and Family Services (Northwest Area) v. D.F.G., [1997] 3 S.C.R. 925, a case involving an application to detain a woman on the grounds that her solvent addiction endangered her fetus, referred to the right of the individual "to live and move in freedom" as "the most sacred sphere of personal liberty." Ibid. at para. 46, per McLachlin J. Constitutional liberty interests were not fully analyzed as the majority found there was no legal basis on which a court could make such an order. Major J. dissented but did not analyze the constitutional liberty interests of pregnant women other than to stipulate that no order should issue unless the woman in question had decided not to exercise her right to an abortion but to carry the fetus to term. Ibid. at para. 133, per Major J.

(6) Godbout v. Longueuil, [1997] 3 S.C.R. 844 at 893, per La Forest J. In Godbout v. Longueuil, La Forest J., writing for a minority consisting of himself and two others, built on his reasons for the plurality in B.(R.) and found that section 7 liberty protects the individual right to choose where to establish a home. The other six judges in Godbout v. Longueuil came to the same result without resort to section 7 of the Charter. Another key strand in the privacy jurisprudence is represented by Wilson J.'s separate concurring reasons in R. v. Morgentaler (1988), 44 D.L.R. (4th) 385 [hereinafter Morgantaler], in which she asserted that section 7 liberty rights extended to the decisions of women to continue or terminate a pregnancy, see discussion infra at note 37. In R. v. Heyward, [1994] 3 S.C.R. 761, Cory J. for the majority found that Criminal Code restrictions on loitering violated section 7 liberty. The liberty interest can be understood here in terms of unrestricted physical mobility, thus aligning it closely with the nondetention interpretation of liberty. However, the liberty interest in R. v. Heyward contemplates also the freedom to wander in public spaces and, in that sense, involves an important element of personal choice and decisional autonomy. Thus parental decisions, reproductive decisions and decisions about where to live and where to wander now mark out this small but growing area of privacy jurisprudence under the liberty prong of section 7. In none of these decisions, save R. v. Heyward, does the "personal decisional autonomy" interpretation of liberty rights achieve majority sup port. H owever, in Blencoe v. British Columbia (Hum an Rights Com m ission), [2000] 2 S.C.R. 307 [hereinafter Blencoe], the majority in reasons by B astarache J. asserted that section 7 liberty extends beyond "m ere freedom from physical restraint" and protects "decisions of fundamental importance." Ibid. at 340. Bastarache J. cited, among others, the B.(R.), M orgentaler and G odb ou t decisions for support. However, he went on to state that the claim in Blencoe did not fall within the ambit of the section 7 liberty protection. Ibid at 340-43.

(7) [1999] 3 S.C.R. 46 [hereinafter G.(J.)].

(8) [2000] 2 S.C.R. 519 [hereinafter K.L.W.].

(9) Rodriguez v. British Columbia (1993), 107 D.L.R. (4th) 342 (S.C.C.) at 388, per Sopinka J. for the majority [hereinafter Rodriguez].

(10) Blencoe, supra note 6 at 339, per Bastarache J. for the majority.

(11) Ibid.

(12) Ibid.

(13) See e.g. R. v. Beare, [1988] 2 S.C.R. 387 and Morgentaler, supra note 6.

(14) Supra note 4. As noted earlier, the Court in this case found that the combination of absolute liability and mandatory imprisonment is contrary to the Charter right not to be deprived of physical liberty except in accordance with the principles of fundamental justice.

(15) Ibid. at 548 per Lamer J. (as he then was). Wilson J., in dissent, was even clearer. She would have permitted the three values in the first part of the guarantee to be invoked as the basis for a claim without reference to fundamental justice and stated that she preferred not to characterize the fundamental justice phrase as a qualification but rather as a further protection of the three basic values. Ibid. at 564-65. According to the majority, if a claimant fails to show that fundamental justice principles have been violated, the claim fails, notwithstanding a deprivation of life, liberty and security of the person. Therefore, in practice, the fundamental justice qualifier is a serious limitation. However, the Motor Vehicle Reference majority, within those constraints, seemed to favour an interpretation of fundamental justice that measured the requirements flowing from the qualifying phrase in terms of the individual's vulnerability rather than the state's priorities. In more recent decisions, fundamental justice has become, for the most part, an opportunity to justify, on the grounds of important state interests or administrative burdens, procedures which fall short of strict due process guarantees. See discussion infra accompanying notes 83-89 for the development of this latter view.

(16) Ibid. at 546.

(17) In submissions before the Parliamentary committee considering the entrenchment of the Charter, federal justice officials stated their belief that fundamental justice meant roughly the same thing as judicially developed rules of procedural due process and of the principles of natural justice, thereby precluding substantive review of legislative policy. Ibid. at 551.

(18) Ibid. at 554.

(19) A. Arblaster, The Rise and Decline of Western Liberalism (Oxford: Basil Blackwell, 1984) at 15.

(20) T. Hobbes, Leviathan Parts One and Two (New York: Macmillan, 1968) at 170-71 [emphasis added]. Isaiah Berlin is commonly credited with problematizing the distinction between negative and positive liberty. I. Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1982) at 118-72. However, Hobbes more clearly focuses on the state as the main obstacle to liberty. Indeed, he is famous for his assertion that liberty depends on the "silence of the law." Hobbes, ibid. at 178.

(21) There are numerous concessions to a more contemporary view of the role of the state in both the design of the Charter and the case-law. See, for example, the large role accorded countervailing "public" interests under section 1, the legislative override provision in section 33, and the recognition of the importance of affirmative action in addressing group-based discriminatory harms under section 15(2). However, the classical tensions between the individual and the state, private freedom and public order, and liberty and coercion provide the starting point as well as governing framework for these modifications.

(22) Feminist scholars have paid particular attention to the role of family in liberal political theory. For an overview of feminist discussions of the place of familial relations and values in classical liberal theory, see M. Butler, "Early Liberal Roots of Feminism: John Locke and the Attack on Patriarchy" (1978) 72A Amer. Poli. Sci. Rev. 135; Z. E isenstein, The Radica l Future of Liberal Feminism (New York: Longman, 1981); J.B. Elshtain, ed., The Family in Political Thought (Amherst: University of Massachusetts Press, 1982); C. Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988); C. Pateman, The Disorder of Women: Democracy, Feminism and Political Theory (Stanford: Stanford University Press, 1989); I. Makus, Women, Politics, and Reproduction: The Liberal Legacy (Toronto: University of Toronto Press, 1996).

(23) J. Locke, Two Treatises of G overnm ent: A Critical Edition, P. Laslett, ed. (Cambridge: Cambridge University Press, 1960) at 47; J. Locke, Second Treatise of Government, C.B. MacPherson, ed., (Indianapolis: Hackett, 1980) at 44. Makus and several other feminist writers make much of the ambiguities in Locke's construction of women, in particular, his assumption that women are equally capable of reason, his claim that, for the most part, husbands and wives wield equal power within the family, and the importance of the Lockean notion of boundaried individuals for women's autonomy. Makus, supra note 22, 54; M. Butler, supra note 22; D. Belevsky, "Liberty as Property" (1995) 45 U.T.L.J. 209; M. Shanley, "Marriage Contract and Social Contract in Seventeenth-Century English Political Thought" in Elshtain, supra no te 22 , 80. Clearly, from a feminist perspective, Locke's political theory sets off in a more fruitful direction than the object of his critique; namely, Sir Robert Filmer's justification of the absolute power of monarchs and fathers. However, in general I agree with those writers who have focused on the manner in which the Lockean world is profoundly structured to consign women to secondary and subordinate roles within both the public and private spheres. See Pateman, The Sexual Contract, supra note 22; Pateman, The Disorder of Women, supra note 22; Eisenstein, supra note 22.

(24) Hobbes, supra note 20 at 162-70; T . Hobbes, D e Cive: The English Version , H. Warrender, ed., (Oxford: Clarendon Press, 1983) at 121-28. See also Makus, supra note 22 at 52. Makus argues that the Hobbesian scheme not only views men and women as natural equals but also recognizes the unique power of life or death that women wield with respect to their infants. Thus, conferring rights on women threatens the Hobbesian community as there are few incentives for the self-interested Hobbesian individual to bear or raise children.

(25) For a discussion of how the liberal ideology of the autonomous individual both obscures and reinforces gendered stereotypes concerning motherhood and the "natural" predilections of women, see J. Williams, "Gender Wars: Selfless Women in the Republic of Choice" (1991) 66 N.Y.U.L. Rev. 1559.

(26) See discussion infra notes 37-40 of Wilson J.'s reasons in Morgentaler, supra note 6, and of L'Heureux-Dube J.'s reasons in G.(J.), infra note 137.

(27) Supra note 2.

(28) Supra note 6.

(29) For a fuller description of the legislative provisions, see infra notes 72-74 and accompanying text.

(30) See discussion infra notes 71-84 and accompanying text.

(31) Jones, supra note 2 at 582.

(32) Ibid. at 583.

(33) For example, she refers to Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Griswold v. Conneticut, 381 U.S. 479 (1965). Ibid. at 581, 583.

(34) Thomas Grey argues that the family privacy cases, including the contraception and abortion cases, protect "only the historically sanctified institutions of marriage and the family." T. Grey, "Eros, Civilization and the Burger Court" (1979-80) 43 L. & Contemp. Prob. 83 at 87.

(35) Jones, supra note 2 at 582.

(36) Ibid. at 585.

(37) The other two sets of reasons that, together with those of Wilson J., make up the majority, struck down the challenged Criminal Code provisions by finding that they interfered with women's section 7 rights to physical and psychological security of the person and failed to conform to standards of procedural justice contained in the second part of section 7. Supra note 6 per Dickson C.J.C. at 392-420 and per Beetz J. at 420-61. While Wilson J. agreed with this analysis of the issue, she maintained that "to fail to deal with the right to liberty ... begs the central issue in the case." Ibid. at 484.

(38) Ibid. at 490.

(39) Jones, supra note 2 at 582.

(40) Morgentaler, supra note 6 at 491.

(41) Macklem, supra note 1 at 129.

(42) Ibid.

(43) As pointed out in the introductory section, the Motor Vehicle Reference--although couched in the expansive, rights-enhancing rhetoric of the liberal approach--set the pattern early on for drawing on the common law in order to articulate the "basic tenets of the legal system" on which principles of fundamental justice are founded. See supra notes 14-19 and accompanying text.

(44) A. Quinton, The Politics of Imperfection (London: Faber & Faber, 1978) at 16.

(45) Ibid.

(46) I. Gilmour, Inside Right: A Study of Conservatism (London: Hutchinson & Co., 1977) at 64.

(47) W. Blackstone, Commentaries on the Laws of England, vol. 1, 17th ed., (London: Richard Taylor, 1830) at 441 [emphasis in original, footnotes omitted].

(48) L. Holcombe, Wives and Property: Reform of the Married Women's Property Law in Nineteenth-Century England (Toronto: University of Toronto Press, 1983) at 25.

(49) Ibid. at 27-28.

(50) For an account of the historical background of these changes, see Holcombe ibid.; M .L. Shanley, Feminism, Marriage and the Law in Victorian England, 1850-1895 (London: I.B. Tauris & Co., 1989) at 221-30 [hereinafter Feminism, Marriage and the Law]; M. McCaughan, The Legal Status of Married Women in Canada (Toronto: Carswell, 1977). For a discussion of the Canadian reforms of the 1970s, see J. Payne, "Family Property Reform as Perceived by the Law Reform Commission of Canada" (1976) 24 Chitty's L.J. 289; W. Holland, "Reform of Matrimonial Property Law in Ontario" (1978) 1 Can. J. Fam. L. 1. For examples of recent reform efforts, see Law Reform Commission of British Columbia, Working Paper on Property Rights on Marriage Breakdown (July 198 9); Ontario Law Reform Com mission, Report on Family Property Law (19 93); Law Reform Commission of N ova Scotia, Reform of the Law Dealing with Matrimonial Property in Nova Scotia (March 1997).

(51) For a discussion of the implications for child custody law, see S. Maidment, Child Custody and Divorce: The Law in Social Context (London & Sydney: Croom Helm, 1984) at 108-10. In contrasting the parental roles of mothers and fathers, Blackstone remarked that "a mother, as such, is entitled to no power, but only to reverence and respect." Blackstone, supra note 47 at 452.

(52) Maidment suggests that the notion of absolute paternal rights arose at the end of the thirteenth century in the context of a society organized around kinship and community and continued to develop, even as the conjugal unit displaced more extended kin networks in the sixteenth and seventeenth centuries. Maidment argues that "nuclear family actually became more patriarchal and more authoritarian, mirroring the growth of the State, and the political and legal authority of the King as the parens patriae." Maidment, ibid. at 109. She locates the beginning of the decline of the power of fathers and husbands in the middle of the eighteenth century, using Lawrence Stone's term of "affective individualism" to describe the more "egalitarian and companiate nuclear family" which began to emerge during that period. Ibid., citing L. Stone, The Family, Sex and Marriage in England 1500-1800 (Harmondsworth: Penguin, 1979).

(53) Ibid. at 111.

(54) B. Hoggett, Parents and Children, 2d ed. (London: Sweet and Maxwell, 1981) at 119.

(55) Re Agar-Ellis, [1883] 24 Ch. D. 317. Maidment describes this case as the highpoint in the British jurisprudence according nearly absolute custodial rights to fathers. Supra note 51 at 98. See also, Feminism, Marriage and the Law, supra note 50 at 131-55. It is important to note that the rule of paternal right only applied to legitimate children. Unmarried mothers were typically accorded sole custody of their illegimate children. However, as Carol Smart points out, the seemingly paradoxical treatment of the rights of married and unmarried mothers to their children was by no means aimed at empowering or privileging the latter. As she comments, the custodial right of unmarried mothers "was meant to reflect the stigma of bastardy and the poverty of the unmarried mother's status. Poor women were, in any case, often forced to put their illegitimate children and themselves into the workhouse in order to survive." C. Smart, "Power and the Politics of Child Custody" in C. Smart & S. Sevenhuijsen, eds., Child Custody and the Politics of Gender (London: Routledge, 1989) 1 at 7.

(56) B. Gottlieb, The Family in the Western World from the Black Death to the Industrial Age (Oxford: Oxford University Press, 1993). Gottlieb concedes that both formal legal norms and social customs reflected the privileging of husbands and fathers. However, she makes the point that the ideal was most closely realized in aristocratic households. Husbands and wives in the middle and lower classes each performed complementary and essential roles. Moreover, in some instances, wives could not afford to simply complement their husbands' work and did whatever work was available. Ibid. at 92-93. Martha Bailey makes the related point that although mothers had no legal rights to access after marital breakdown, it "was considered ungentlemanly, and even immoral, to deprive mothers of access to their children without good cause." M. Bailey, "England's First Custody of Infants Act" (1995) 20 Queen's L.J. 391 at 394.

(57) For example, Susan Boyd observes that ideologies of motherhood which reflect "privileged notions of white, male-headed, nuclear families" may be crucial to understanding how government or social welfare policies, for instance, or court decisions, have difficulty meeting the needs of black mothers and black families because of their assumption that black, female-headed families are "dysfunctional and pathological." S. Boyd, "Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law" (1991) 10 Can. J. Fam. L. 79 at 94 [hereinafter "Some Postmodernist Challenges"]. In addition to examining the disjunction between dominant ideologies and the diversity of women's experience, much of the discussion in Boyd's article concerns the exclusive--and thus exclusionary--focus of feminist criticism on the gendered dimension of familial ideologies. For a more recent return to these themes, see also S. Boyd, "Is There an Ideology of Motherhood in (Post)modern Child Custody Law?" (1996) 5 Soc. & Leg. Stud. 495. A similar point has been made with respect to a disjunction between ideologies of fatherhood and social diversity by Richard Collier in Masculinity, Law and the Family (New York: Routledge, 1995) 187-88. For an example of a critical examination of the race, class and gender specificity of the dominant ideology of motherhood in the context of the impact of Canadian child welfare systems on First Nations women, children and communities, see M. Kline, "Complicating the Ideology of Motherhood: Child Welfare Law and First Nation Women" (1993) 18 Queen's L.J. 306.

(58) For an account of these reforms, see Maidment supra note 51 at 89-149. Although couched in the gender-neutral terms of custodial versus access parents' rights and responsibilities, the recent cases of Young v. Young, [1993] 4 S.C.R. 3 and Gordon v. Goertz, [1996] 5 W.W.R. 457 (S.C.C.) deal directly with the broader social debate concerning the respective parenting roles of mothers and fathers.

(59) Blackstone, supra note 47 at 453.

(60) For an account of the development of this qualification of paternal rights in nineteenth-century Canada, see C. Backhouse, "Shifting Patterns in Nineteenth Century Canadian Custody Law" in D. Flaherty, ed., Essays in the History of Canadian Law, vol. 1 (Toronto: The Osgoode Society, 1981) 212.

(61) Ibid. at 212. See also Martha Bailey's discussion of the first reforms to child custody law in nineteenth-century Britain. Bailey concludes that although the reform represented an important challenge to paternal authority within the patriarchal family, it was "hobbled by the patriarchal norms" which characterized the dominant view of the family both inside and outside the reform movement. Bailey, supra note 56 at 437. See also Feminism, Marriage and the Law, supra note 50 at 131-55.

(62) S. Boyd, "From Gender Specificity to Gender Neutrality?: Ideologies in Canadian Custody Law" in Smart & Sevenhuijsen, supra note 55, 126 at 131. Both Boyd and Backhouse link the loosening of the rule of husbands and fathers to the split between the household and the workplace as a result of industrialization and the development of a notion of childhood as a unique stage of life requiring a familial environment and female nurturing. Ibid. at 130-31 and Backhouse, supra note 60 at 212-13. Again, recently historians have disputed the notion that childhood is a recent invention, pointing to evidence that parents have always felt deeply about their children and pondered the difficulties of childrearing. However, most concede that there has been a significant increase in the amount of attention focused on children within households. R. Smandych, "Changing Images of Childhood and Deliquency" in J.H. Creechen & R.A. Silverman, eds., Canadian Delinquency (Scarborough: Prentice Hall Canada, 1995) 7 at 12; Gottlieb, supra note 56 at 11-76, 111.

(63) Maidment, supra note 51 at 130-48, traces the development of the welfare principle in British family law from 1886 to 1973. Backhouse traces parallel developments in English-speaking Canada at the end of the nineteenth century. She notes that the reallocation of parental power was accompanied by an enlargement of the role of the state in supervising parenting and as guardian of children of unfit parents. Backhouse, supra note 60 at 232-41. Canadian developments in the twentieth century are discussed by J. McBean, "The Myth of Maternal Preference in Child Custody Cases" in K. Mahoney & S. Martin, eds., E quality and Judicial Neutrality (Toronto: Carswell, 1987) 184; S. Boyd, "Some Postmodernist Challenges" supra note 57 and "Child Custody, Ideologies and Employment" (1989) 3 C.J.W.L. 111.

(64) Hepton v. Maat (1957), 10 D.L.R. (2d) 1 (S.C.C.) [hereinafter Hepton]. Hepton stood for the proposition that birth parents have a presumptive right of custody which should prevail over the claims of the state even when state-approved foster or adoptive parents can furnish a home of "easier circumstances and better fortune." Ibid. at 2. The family in Hepton was a married couple, recently emigrated from Holland, who had placed their infant twins for adoption during a period of personal financial crisis and later sought to revoke their consents to the adoption. Until 1985, this presumption in favour of birth ties applied--at least theoretically--even when the birth parent was young, female, unmarried and economically vulnerable unless there was significant evidence of her unfitness. In King v. Low (1985), 16 D.L.R. (4th) 576, the Supreme Court of Canada replaced this presumption with the "best interests of the child" standard which some have argued permits decisions that fall harshly and disproportionately on parents--especially young single mothers--who are socially marginalized, members of racialized groups or economically disadvantaged. Thus, the emphasis in Hepton on the "natural" character of parental relations arguably might be seen to produce more equitable results. However, it does so at the expense of any recognition of the cultural, political and social issues at stake. The two standards seem to leave us caught between seriously flawed analytic frameworks: one supports a mythologizing of family ties as naturally ordained and the other deploys the rational and abstract language of formal equality to legitimize substantive inequalities.

(65) Hepton, ibid. at 1. As Rand J. put it: "[T]he Sovereign is the constitutional guardian of children but that power arises in a community in which the family is the social unit." Ibid.

(66) Boyd, supra note 62 at 133.

(67) See supra notes 54-55 and accompanying text. Recently, gendered preferences in interspousal custody law have been more thoroughly displaced by the gender-neutral language of form al equality and the assumption that parents freely enter into agreements regarding their domestic responsibilities from positions of equal bargaining power within the spheres of both the market and family. Again, this represents an even more pronounced shift from conservative to liberal views of the social and political order. However, as explained in the preceding section, liberal justifications of traditional family arrangements on the basis of choice simply bury the reliance on natural hierarchies and biological roles a little deeper. In addition, feminist analyses point out that mothers seeking custody under the current regime often find themselves caught between the conservative ideology of motherhood and the liberal ideology of equality, i.e., cast as insufficiently nurturant or as having foregone primary caregiving if they have extensive or non-traditional involvement in paid work or, alternatively, as morally and economically responsible for any poverty they may experience as a consequence of their roles as full-time homemakers. See Boyd, supra note 62; B. Cossman, "A Matter of Difference: Domestic Contracts and Gender Equality" (1990) 28 Osgoode Hall L.J. 303.

(68) E. Burke, "Speech at His Arrival to Bristol" in The Works of Edmund Burke, vol. 1 (London: George Bell, 1902) at 441. For a more contemporary rendering of the connection between liberty and state ordering within conservative thought, see R. Scruton, "Law and Liberty" in The Meaning of Conservatism (London: MacMillan, 1984) c. 4.

(69) See e.g. R. Whitaker, A Sovereign Idea: Essays on Canada as a Democratic Community (Montreal & Kingston: McGill-Queen's University Press, 1992) at 9; G. Horowitz, "Conservatism, Liberalism, and Socialism in Canada: On Interpretation" in J. Axenstat & P. Smith, eds., Canada's Origins: Liberal, Tory, or Republican? (Ottawa: Carleton University Press, 1995) 21 at 25; W. Christian & C. Campbell, Political Parties and Ideologies in Canada: Liberals, Conservatives, Socialists, Nationalists, 2d ed. (Toronto: McGraw-Hill Ryerson, 1983) at 28.

(70) Hepton, supra note 64 at 1 [emphasis added].

(71) School Act, R.S.A. 1980, c. 3, ss. 142(1) and 143(1)(a) & (b).

(72) Ibid., s. 143(1)(a).

(73) Jones, supra note 2 at 596.

(74) Ibid. at 594.

(75) Ibid.

(76) Ibid. at 598.

(77) Ibid. at 597. La Forest J. is critical of Reverend Jones's attempt to characterize the process for determining the efficiency of home instruction as "being ... in the nature of a judicial hearing." Ibid.

(78) Although there is no common-law or constitutional right to education, several provisions in the Canadian constitution contemplate a state school system. See references to separate schools in s. 93 of the Constitution Act, 1867 ((U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5) and to language in primary and secondary schools in s. 23 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. As well, an array of statutory prohibitions and obligations presume a public primary and secondary school system. See also, A.W. MacKay, Education Law in Canada (Toronto: Emond Montgomery, 1984) at 37-48.

(79) Quinton, supra note 44.

(80) Jones, supra note 2 at 588.

(81) Ibid. at 592.

(82) Ibid. at 587.

(83) Ibid. at 582.

(84) E. Burke, "Reflections on the Revolution in France," supra note 68, vol. 2 at 282.

(85) Rodriguez, supra note 9.

(86) Ibid. at 388-97.

(87) Ibid. at 396.

(88) Ibid. at 416-20.

(89) See e.g. P. Steinfels, The Neoconservatives: The Men Who Are Changing America's Politics (New York: Simon & Schuster, 1979) at 24; S. McBride & J. Shields, Dismantling a Nation: Canada and the New World Order (Halifax: Fernwood Publishing, 1993) at 36 [hereinafter New World Order]; S. McBride & J. Shields, Dismantling a Nation: The Transition to Corporate Rule in Canada (Halifax: Fernwood Publishing, 1997) [hereinafter Corporate Rule]; D. King, The New Right: Politics, Markets and Citizenship (Chicago: Dorsey Press, 1987) at 25.

(90) For an account of the rise of neoliberalism, see McBride & Shields, New World Order and Corporate Rule, ibid.; King, ibid.; B . Cooper et al., eds., The Resurgence of Conservativism in Anglo-American Democracies (Durham: Duke University Press, 1988); L. Philipps, "The Rise of Balanced Budget Laws in Canada: Legislating Fiscal (Ir)responsibility" (1996) 34 Osgoode Hall L.J. 681 at 70815; C. Harris, "The Devolution of Decisionmaking: Political and Gendered Implications of Restructuring" (1997) [unpublished].

(91) I have borrowed from Carol Harris, who calls them the "two 'neo' impulses." Harris, ibid. at 7.

(92) McBride and Shields use the term neoconservativism to describe the Mulroney government's advocacy of policies reflecting laissez-faire economic analysis, promotion of free trade, an attack on the Keynesian liberal state and the revival of social traditionalism in their original account of recent ideological shifts in Canadian politics. New World Order, supra note 89 at 24-37. In their more recent revision of the earlier work, the authors switch to the term neoliberalism in order to place "emphasis on the central component of the ideological direction--its neoclassical (liberal) economic orientation." Corporate Rule, supra note 89 at 12. I am interested in focusing on the role family and familial ideologies play in this economic and ideological shift and so have used the term neoconservativism to bring the discourse of traditional family values more firmly into the discussion.

(93) The recent flood in Canada of editorial comment lauding the two-parent family as the only appropriate setting for childrearing and attacking reliance on daycare is an example of the turn to traditional values and family forms to address the consequences of government slashing of economic and social supports for poor people, single mothers and persons with disabilities. See e.g. "Rethinking Child Care" The Globe and Mail (25 October 1997) D6; M. Zyla, "Hacking Away at Family Life" The Globe and Mail (16 January 1998) A22; A. Thomas, "The Time Bomb of Daycare" The Globe and Mail (17 January 1998) D6; W. Thorsell, "In Support of the Two Parent Family" The Globe and Mail (17 January 1998) D6; J. Richards, "The Case For Subsidizing the Traditional Family" The Globe and Mail (26 January 1998) A17. Although the Keynesian welfare state was criticized by feminists for reinforcing a gendered and racialized social order, many of these critics pointed to the ways in which welfare provision simultaneously opened up opportunities and identities for women as political actors. See P. Baker, "The Domestication of Politics: Women and American Political Society, 1780-1920" and F. Fox Piven, "Ideology and the State: Women, Power, and the Welfare State" in L. Gordon, ed., Women, the State, and Welfare (Madison: University of Wisconsin Press, 1990). Critics of the current dismantling of the Keynesian welfare state have identified the ways in which "[p]rivatization and welfare cuts often simply mean that social services are shifted from the paid work of women in the public sphere to the unpaid work of women in the domestic sphere." J. Brodie, "Restructuring and the New Citizenship" in I. Bakker, ed., Rethinking Restructuring: Gender and Change in Canada (Toronto: University of Toronto Press, 1996) 126 at 127-40.

(94) Supra note 3.

(95) "Tory Politicians Form Family Compact" The Globe and Mail (3 June 1992) A1.

(96) Ibid.

(97) G. Gilder, Wealth and Poverty (New York: Basic Books, 1981) at 69.

(98) Ibid. at 70.

(99) A. Bloom, The Closing of the American Mind (New York: Simon & Schuster, 1987) at 99-100.

(100) Ibid. at 101.

(101) W. Gairdner, "Introduction" in The War Against the Family (Toronto: Stoddart, 1992) at 10.

(102) Ibid. at 59.

(103) Ibid. at 55.

(104) Ibid. As Gairdner puts it: "Whether a natural family is wandering forlorn in the desert, or living with parents, aunts, uncles, cousins, servants, and a few cows and goats under the same roof on a medieval farm, or with unrelated friends in a utopian commune, or in a single-family dwelling in a modern suburb, that does not alter the primal fact." Ibid.

(105) Ibid.

(106) Ibid. at 79-83.

(107) Ibid. at 80.

(108) Ibid. at 357.

(109) Ibid. at 401.

(110) See e.g. J. Richards' discussion of the way benefit provision undermines the "Lutheran ethic" in recipients and "Prussian discipline" in the administrative providers. J. Richard s, Retooling the Welfare State (Toronto: C.D . H owe Institute, 1997) at 153-61.

(111) Ibid. at 202-13 and 250-57; D. Allen, "Some Comments Regarding Divorce, Lone Mothers, and Children" in Family Matters: New Policies for Divorce, Lone Mothers, and Child Poverty (Toronto: C.D. Howe Institute, 1995) at 258-84.

(112) Richards, supra note 110 at 207-10.

(113) Allen, supra note 111 at 265.

(114) B.(R.), supra note 3 at 84.

(115) Ibid. at 10-25. Note, however, that Lamer C.J.C. subsequently supported the recognition of parental rights under the security prong of section 7. See discussion infra at notes 134-42. Also, Lamer C.J.C.'s position on the narrow ambit of liberty rights has now been clearly superseded by the decision in Blencoe, supra note 6. In Blencoe, Bastarache J., for the majority, relying in part on Wilson J.'s reasons in Morgentaler and the La Forest J. reasons in B.(R.), found that section 7 liberty protects inherently private and fundamental personal choices. Blencoe, supra note 6 at 340-43.

(116) Ibid. at 85-88.

(117) Ibid. at 40.

(118) Ibid. at 38-39.

(119) Ibid. at 35.

(120) N. Bala & J.D. Redfearn, "Family Law and the 'Liberty Interest': Section 7 of the Canadian Charter of Rights" (1983) 15 Ottawa L. Rev. 274 at 281, quoted by La Forest J. in B.(R.), supra note 3 at 35.

(121) B.(R.) supra note 3 at 42.

(122) Ibid.

(123) Ibid. at 42.

(124) Ibid. at 34. For a fuller discussion of this aspect of the case see, see H. Lessard et al., "Developments in Constitutional Law: The 1994-95 Term" (1996) 7 Supreme Court L.R. 81 at 123-27.

(125) Smart, supra note 55 at 1. Smart also makes it clear that she is using the term power in the Foucauldian sense of having positive as well as negative aspects and inhering in all aspects of social relationships. Ibid. at 2.

(126) Ibid. at 3.

(127) (1995), 124 D.L.R. (4th) 449 (S.C.C.) [hereinafter Thibaudeau].

(128) This term is used by Cory and Iacobucci JJ. in reasons with which La Forest and Sopinka JJ. concur and which, together with reasons by Gonthier J., make up the majority. Ibid. at 501. For analyses of the currency of this term in Canadian cases and its implications for the legal regulation of the family, see D. Bourque, "'Reconstructing' the Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada" (1995) 10 Can. J. L. & Soc. 1; S. Boyd, "Child Custody, Relocation, and the Post-Divorce Family Unit: Gordon v. Goertz at the Supreme Court of Canada" (1997) 9 C.J.W.L. 447; C. Young, "It's All in the Family: Child Support, Tax and Thibaudeau" (1995) 6 Const. Forum 107; L. Philipps, "Tax Law: Equality Rights: Thibaudeau v. Canada" (1995) 74 Can. Bar Rev. 668.

(129) L. Philipps & M. Young, "Sex, Tax and the Charter: A Review of Thibaudeau v. Canada" (1995) 2 Rev. Const. Stud. 222 at 279.

(130) As indicated in note 128, only the Cory and Iacobucci JJ. reasons, with which La Forest and Sopinka JJ. concur, actually use this term. The fifth judge making up the majority, Gonthier J., wrote separate concurring reasons. Although he did not use the term "postdivorce family unit" he implicitly endorsed such a concept in agreeing that the overall benefit to parents to whom the tax provisions apply negates the equality concerns of custodial parents such as Suzanne Thibaudeau. Thibaudeau, supra note 127 at 485-500.

(131) Ibid. at 458, per L'Heureux-Dube J.

(132) As noted earlier, a group of three judges in reasons by Iacobucci and Major JJ. was clearly concerned about the erasure of any meaningful consideration of the rights of children and made the point that a parental liberty right would have to be defined in a manner that takes account of the constitutional life and security interests of children. See supra note 116 and accompanying text.

(133) This is the phrase used to describe the fundamental importance to the political order of the family, which is constituted by natural relations of parents to children, in Hepton, supra note 64. The case is a prime example of the legal articulation of a conservative discourse of family relations. See discussion supra notes 61 to 65 and accompanying text.

(134) Supra note 7, per Lamer C.J.C. at 76-80.

(135) Lamer C.J.C. described direct state interference into the parent-child relationship as a "gross intrusion into a private and intimate sphere" and emphasized the stigma associated with being found an unfit parent. Ibid. at 78.

(136) For an extended analysis of the parental rights portions of this case, see H. Lessard, "The Empire of the Lone Mother: Parental Rights, Child Welfare Law, and State Restructuring" Osgoode Hall L. J. [forthcoming].

(137) Supra note 8.

(138) Ibid. at 568-70.

(139) Ibid. at 532-33. The split in the Court in K.L.W. revolved around the question of whether the principles of fundamental justice require prior judicial authorization of a nonemergency apprehension. L'Heureux-Dube J. held, for the majority, that a prompt postapprehension hearing was sufficient to meet the constitutional standard of procedural fairness under section 7 principles of fundamental justice. Ibid. 570-89. Arbour J. disagreed, holding that both the substantive and procedural dimensions of fundamental justice demand, at the very least, an ex parte hearing to obtain prior judicial authorization of nonemergency apprehensions and that the failure to do so under the Manitoba regime could not be justified under section 1 of the Charter. Ibid. at 533-50.

(140) In the aftermath of Blencoe, in which a broad liberty protection extending to fundamental personal choices is recognized by the majority, it is probably no longer necessary to avoid the liberty characterization of parental rights. Supra note 6 at 340-43.

(141) Supra note 7 at 76-80.

(142) Ibid. at 99-101.

(143) Ibid. at 99.

(144) For a summary of currents in equality jurisprudence and, in particular, the tension between the abstract individual of formal equality and the textured individual of substantive equality, see Lessard et al., supra note 124 at 87-99.

(145) L'Heureux-Dube J.'s unwillingness to challenge the fundamentally classical conception of liberty underlying the liberty jurisprudence may lie in a pragmatic understanding of the normative and ideological limits of the rights framework. In an earlier decision, Young v. Young, supra note 58, L'Heureux-Dube J. expressed her misgivings about the applicability of the Charter provisions protecting religious and expressive freedoms to familial relations, especially to the parent-child relationship. She referred to the essentially public character of such freedoms, in contrast to the essentially private character of family relationships. Thus she seemed willing, to some extent, to disregard the formal linkage between Charter application and government action and to engage, instead, in an explicitly normative discussion of the nature of social and political relationships in relation to Charter values. Ibid. at 89-90.

(146) The split in K.L.W., however, reflects in part a disagreement over the relation between children's constitutional interests and parents' constitutional claims. The dissent's position that both procedural and substantive principles of fundamental justice demand prior judicial authorization for nonemergency apprehensions was based in part on concern that children's constitutional interests receive adequate protection. Arbour J. placed children's interests in protection from harm from parents on an equal par with children's interests in remaining within their parent's custody should it turn out that fears about harm were unfounded. She concluded that the protection of children's constitutional interests necessitates prior judicial authorization, on an ex parte basis if circumstances militate against notice for any nonemergency apprehension. Supra note 8 at 553-49. L'Heureux-Dube J. took the view that the special vulnerability of children to harm from family members, the difficulty of obtaining evidence of imminent harm on short notice and the fact that the risks associated with prior authorization procedures fall exclusively on the child if it turns out that harm is occurring, requires that situations of serious risk be treated on a par with emergency situations. Ibid. at 574-87.

(147) (1995), 124 D.L.R. (4th) 609 [hereinafter Egan].

(148) (1995), 124 D.L.R. (4th) 693.

(149) Egan, supra note 147 at 625.

(150) The majority in Egan recognized the violation of the equality rights of same-sex spouses. However, of that majority, Sopinka J. found that the exclusion is a reasonable limit under section 1, thus providing majority support for the dismissal of the same-sex challenge. Ibid. at 653-56, per Sopinka J.

(151) Miron, supra note 148 at 704. A majority in Miron found that the equality rights of common-law couples had been violated and that the government action was inconsistent with section 1. Ibid. at 725-37 per L'Heureux-Dube J. and at 737-58 per McLachlin J.

(152) [1999] 1 S.C.R. 497 [hereinafter Nancy Law].

(153) Ibid. at 537-38.

(154) The Court in Nancy Law seemed to be aware of this danger, stipulating that legislative action which achieves valid social purposes for one group of persons; i.e., meets the correspondence test with respect to that group, cannot frustrate equality claims where the effects of such action on another group of persons are at odds with the purposes of the equality guarantee. In addition, the Court seemed to view the correspondence step of the analysis as a way of "saving" affirmative-action-style initiatives that seek to ameliorate disadvantage by singling out a particular group in need of accommodation or support. Ibid.

(155) [1999] 2 S.C.R. 3.

(156) Ibid. at 130-31.

(157) Ibid. at 142.

(158) See e.g. EG A LE Canada Inc. v. Canada (Attorney G en eral), [2001] B .C.J. No. 1995, (B.C.S.C.), online: QL (BCJ).

(159) The tendency of Charter jurisprudence to favour rights claims that result in the privatization of the social costs of reproduction has been observed with respect to early Charter cases. See J. Fudge, "The Public/Private Distinction: The Possibilities of and Limits to the Use of Charter Litigation to Further Feminist Struggles" (1987) 25 Osgoode Hall L. Rev. 485.

Hester Lessard *

* Professor, Faculty of Law, University of Victoria.

I would like to thank Donald Galloway, Margot Young and Susan Boyd for their patient and helpful feedback on earlier drafts of this essay. I would like to thank, as well, the audience at a presentation of a version of this work at Green College at the University of British Columbia in October 1997. Finally, I would like to thank David Schneiderman for his thoughtful and, as always, insightful comments on my analysis of the case-law and its political context. However, all mistakes contained in this essay are entirely my own.
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Date:Jul 1, 2001
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