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When the family is gay: the charter guarantee of equality.

The issue of same sex benefits and human rights or Charter protection for gays and lesbians has assumed centre stage in many recent high profile cases across Canada.

One of the reasons for this national attention stems from the recent trilogy of cases decided by the Supreme Court of Canada in May, 1995. This trilogy of cases, dubbed the "MET trilogy" focused our highest Court's attention on the Charter guarantee of equality. The Supreme Court of Canada's treatment of these cases, which included a same-sex benefits case, sparked national debate. Subsequent cases involving similar issues are now working their way through the court systems in a number of provinces. It is likely that more litigation of this nature will occur at the Supreme Court of Canada level before this decade is through.

The MET trilogy involved three cases in which the interpretation of Section 15 of the Canadian Charter of Rights and Freedoms. was central. Section 15 of the Charter guarantees equality as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In one of the cases in the trilogy, Miron v. Trudel, it was argued that an automobile insurance policy was discriminatory in that it provided benefits only to married couples and not to unmarried couples. In Thibodeau v. Canada, Ms Thibodeau argued that the sections of the Income Tax Act which required her to include child support in her income for the purpose of income tax was discriminatory. Finally, in the third case of the trilogy, Egan v. Canada, Mr. Egan argued that the section in the Old Age Security Act which limited benefits under the Act to heterosexual couples who were either married or lived common law, was discriminatory against homosexuals.

In all three cases, the Supreme Court of Canada had to determine how Section 15 of the Charter was to be interpreted and applied. Unfortunately, the Supreme Court of Canada was badly split in all of the cases. Because the focus of this article is same-sex spousal benefits, we will review only the Supreme Court of Canada's decision in Egan v. Canada.

In the Egan decision, four judges found that homosexuals were deserving of the protection of Section 15, but that the Old Age Security Act did not discriminate against Mr. Egan. One judge in the Egan case concluded that the Act discriminated against Mr. Egan but that the discrimination could be justified. The remaining four judges concluded, for different reasons, that the discrimination could not be justified and that the Act should be judicially revised so that it included Mr. Egan and his male partner. In the end result, Mr. Egan's challenge to the Old Age Security Act failed. The federal government is therefore not currently required to change the legislation as a matter of law, to include same-sex couples. There will be no change to that legislation as a result of Mr. Egan's challenge unless the federal government voluntarily amends it.

Egan v. Canada is a landmark decision in that the entire nine member Court agreed that gays and lesbians were entitled to the protection of Section 15 of the Charter. Despite this, Egan v. Canada is a worrisome case in that the four judges who concluded that there was no discrimination against Mr. Egan set out a new interpretation of the Charter guarantee of equality that is more restrictive than prior Supreme Court of Canada case law. Paradoxically, while homosexuals were for the first time expressly accorded Charter protection, this protection occurs in the context of a more conservative approach to Section 15 of the Charter. This group of four judges essentially concluded that distinguishing between heterosexuals and homosexuals was proper and relevant. They held that because the purpose of the Act was to support elderly married or unmarried heterosexual couples, (because it was this unit which had the ability to procreate and care for children) these couples were therefore deserving of support to meet their needs. Besides misstating the purpose of the Act, this reasoning is circular and answers the question "is there impermissible discrimination" before the inquiry even starts. This group of judges failed to provide any substance to the right to equality and ignored a long history of its own cases in coming to the conclusion it did. Rather than legitimately using the guarantee of equality to promote the fair and equal treatment of all Canadians, this group of judges turned Section 15 on its head and interpreted it in a fashion consonant with mainstream values. While concluding that homosexuals were entitled to the protection of Section 15, these judges nevertheless found no discrimination in circumstances that clearly warranted a finding of unjustified discrimination. While the majority result at the Supreme Court of Canada in Egan v. Canada is not a principled one, Mr. Egan's claim was denied by only one vote.

How have lower courts applied the reasoning of the Supreme Court in other cases?

In Vriend, the Alberta Court of Appeal relied on Egan to limit the protection available to homosexuals under the Charter. Vriend was an employee at a Christian post-secondary institute who was fired from his job for the sole reason that he was homosexual. The issue before the court was whether the Individual Rights Protection Act (IRPA) protects homosexuals from discrimination even though sexual orientation is not one of the forms of discrimination specifically forbidden by the IRPA. A majority of the Alberta Court of Appeal found that it did not. The majority held that the Charter does not prevent a province from passing human rights legislation which protects some groups from discrimination without extending similar protection to other minorities. Vriend is seeking leave to appeal this decision to the Supreme Court of Canada.

Cases in other provinces have achieved mixed results.

In an Ontario case, Rosenberg v Canada, two employees of the Canadian Union of Public Employees (CUPE) challenged the definition of spouse in the Income Tax Act. The employees wanted to have their same sex partners recognized as spouses for the purpose of survivor benefits provided by their employer. CUPE was willing to provide the benefits but was precluded from doing so by regulations under the Income Tax Act which defined "spouse" for the purpose of determining eligibility for the benefits. An Ontario judge relied on her interpretation of Egan in ruling that, although the provisions of the Income Tax Act were discriminatory, this was justified under section 1 of the Charter.

By contrast, in Moore and Akerston v. Treasury Board, the Canadian Human Rights Commission ruled that the Canadian Human Rights Act prohibits the Canadian government from differentiating between the employment benefits it provides to opposite and same sex common law couples. Unlike the Alberta IRPA, the Canadian Human Rights Act specifically prohibits discrimination based on sexual orientation. While Moore is a decision of a tribunal, not a decision of a court, it was not appealed. The Manitoba Court of Appeal has since found, in another case, that distinguishing between same-sex couples and opposite sex couples in benefit plans amounts to discrimination.

Korn v Potter is an interesting case from British Columbia. It involved a complaint against a doctor who refused to provide artificial insemination to a lesbian couple. Although he refused to help the couple, the doctor did refer them on to another doctor who performed the artificial insemination. The doctor's explanation for refusing to assist the lesbian couple was that he was afraid of becoming involved in litigation which would lead to unfavourable publicity and potentially harm his practice. This had happened to him on a previous occasion. The British Columbia Supreme Court found that the doctor did discriminate and rejected his excuse. The fact that other customers might prefer that an individual discriminate is not a defence to discrimination. Otherwise the preference of customers could be used to justify all sorts of discrimination.

In a ground-breaking case from Ontario, four lesbian couples successfully petitioned for the right to adopt their partners' children. Ontario family law legislation permitted opposite sex common-law couples but not same-sex couples to apply for step-parent adoptions. The four couples who brought this case were lesbians who were living in long-term committed relationships. During the course of the relationship, one or both of the partners of each couple had conceived a child through artificial insemination. All of the children had known their biological mother and her partner as their parents for their entire lives. The Ontario Court of Justice found that it was discriminatory not to allow homosexuals or lesbians the right to apply as a couple to adopt a child and ordered that each case proceed on its merits. This case has since been followed in other Ontario decisions.

In another significant case, an Ontario court ruled that lesbians and homosexuals are entitled to claim spousal support. Justice Gloria Epstein ruled that the Charter demanded that the definition of spouse in the Ontario's Family Law Act (FLA) be rewritten to include same sex partners, allowing those partners to seek support under the Act in the same manner as opposite-sex common law spouses. Justice Epstein found that the provisions of the FLA were intended to address issues that arose on family breakdown. The same issues arise in same-sex and opposite sex relationships.

That the debate has just started is illustrated by the diverse reasoning and results in these cases. The Supreme Court of Canada has not agreed on a definitive analysis of Section 15 and is almost evenly divided on the approach to be taken. The issue of same sex rights and benefits will certainly come before the Supreme Court again.
COPYRIGHT 1996 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996 Gale, Cengage Learning. All rights reserved.

Article Details
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Author:Ellen S. Ticoll; Claire M. Klassen
Date:Dec 1, 1996
Previous Article:Blended families, blended incomes: second spouses and support obligations.
Next Article:Who paves the way? Parental support for adult children.

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