The Supreme Court carefully limited the scope of M. v. H. to an examination of a specific legislative provision in the Ontario Family Law Act which provided certain family-related property rights to common-law couples of the opposite sex while denying the same rights to common-law couples of the same sex. It found the distinction to be discriminatory and contrary to the Charter. My assumption is that the Supreme Court could not, due to the limited fact situation in M. v. H., deal with the broader issues of discrimination it had considered but had not agreed upon in earlier cases.

In Egan v. Canada [1995] 2 S.C.R. 513, the Supreme Court dealt with the situation of two homosexual men who had lived together for over thirty-five years. When one reached sixty-five he began to receive old age security and guaranteed income supplements under The Old Age Security Act. The other applied for a spousal allowance but was rejected because he did not fall within the definition of "spouse" in the Act. The definition included "a person of the opposite sex who is living with that person, having lived with that person for at least one year, if the two persons have publicly represented themselves as husband and wife." The appellant had claimed that the provision discriminated on the basis of sexual orientation and was in beach of the protections guaranteed by the Charter.

Four of the judges found the provision to be discriminatory while five found it was not. The case was therefore dismissed. The judges' reasons nevertheless dealt at length with the Charter and how it should be approached and a great deal was written on the discrimination facing gays and lesbians. The final result was the Supreme Court, while providing a wealth of judicial analysis and commentary, had not made a majority finding in favour of same-sex common-law partners.

In Miron v. Trudel [1995] 2 S.C.R. 418 a common-law husband had been injured in an automobile accident and sought accident benefits from his common-law wife's insurer. The policy provided for the payment of benefits to the "spouse" of the policyholder and the insurer denied the claim. The case considered whether the policy, which was based on the Ontario Insurance Act, discriminated against him in violation of the Charter.

Several judges wrote extensively on how the Charter provisions should be interpreted and the nature of discrimination itself. The unfortunate outcome was that four judges found that the section in question was not discriminatory under Section 15(1) of the Charter, while five found it was discriminatory, but one of the five found the discrimination was saved by Section 1. With the court so badly split the result was inconclusive and did not provide binding authority.

In Walsh v. Bona (2000), 5 R.F.L., (5^th) 188<, the Nova Scotia Court of Appeal found the legislation in question infringed the Charter where it effectively denied benefits to a person in a common-law relationship that were bestowed upon a similar person in a marriage relationship. The couple had lived together for ten years and had two children. The Court found the definition of "spouse" as either of a man or a woman who are married to each other, violated s. 15 and was not justified under s. 1 of the Charter. In doing so it relied on comments made by a number of the judges of the Supreme Court of Canada in the cases I mentioned. The fact remains that the Walsh case is from a provincial Court of Appeal and is not binding in Manitoba. In any event the Supreme Court has yet to reach a consensus on the issue.

I mention the limitations on some of these cases as lawyers often quote positions taken by Supreme Court Judges. While those comments may be persuasive and deserve the greatest attention and respect, in the current debate about whether common-law couples have or should have the same rights as married couples, that issue has yet to be definitively decided by the Supreme Court.

It is valuable from the standpoint of my review and the advice I have been asked to provide, to examine the statements by Supreme Court judges in the past before expressing an opinion on what they may decide in the future. M. v. H. is of course a binding decision of the court. In addition to discussing the limited question of equality between different common-law relationships, the majority made comments that can be applied to the broader question of whether the equality of which they speak is likely to be extended to equate the rights of common-law and married partners.

Bastarache J., in M. v. H. near the beginning of his reasons, pointed out that things are not as simple as they may appear. He said:

On June 9, 1994, the Ontario legislature defeated Bill 167, which sought to extend the definition of "spouse" in various Acts to include same-sex couples. This has been interpreted as a deliberate exclusion of same-sex couples from the definition of "spouse" in s. 29 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"), which is impugned in the case before this Court. In that sense, it is true that this case is about the status of same-sex couples in the family law regime of Ontario. Things are, however, not as simple as they may appear. It has been argued before us that this case is essentially about the degree of deference to be given to legislatures in designing public policy and that the central legal issue here is to determine whether there is a constitutional obligation on the legislature to afford same-sex couples the same status under the family law regime as that afforded to opposite-sex couples. These are very contentious questions. The scope of the legal issues raised and the implications of our decision may in fact be greater than expected when the action was first initiated. This explains why we have heard forceful presentations by interveners, and why emotions run high. It is easy to understand, in this context, why the Court has been invited by some parties to take sides; but this is not the role of a court. A court's role is to give a generous and liberal interpretation to s. 15(1) of the Canadian Charter of Rights and Freedoms, and to apply s. 1 of the Charter in a fair and reasonable way in order to determine, in legal terms, whether the legislature has breached its obligations under the Charter.

This case, like all Charter challenges to legislation, represents another episode in the continuing dialogue between the branches of government. As this Court recently outlined in Vriend v. Alberta, [1998] 1 S.C.R. 493, when Canadians collectively chose to adopt the Charter, Canada changed from a system of parliamentary supremacy to a system of constitutional supremacy. In doing so, Canadians assigned the role of judicial review to the courts so that the rights given to individuals under the Charter could not be unjustifiably infringed by any legislature or government. This Court, in Vriend, set out the proper role of the courts on judicial review of government action. At para. 136, Cory and Iacobucci JJ. for the majority, state:

Because the courts are independent from the executive and legislature, litigants and citizens generally can rely on the courts to make reasoned and principled decisions according to the dictates of the constitution even though specific decisions may not be universally acclaimed. In carrying out their duties, courts are not to second-guess legislatures and the executives; they are not to make value judgments on what they regard as the proper policy choice; this is for the other branches. Rather, the courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution itself. But respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each other's role and the role of the courts.

In Miron, McLachlin J. (now the Chief Justice of Canada) also made a number of important statements that are relevant to this review. She said,

This appeal requires us to decide whether exclusion of unmarried partners from accident benefits available to married partners violates the equality guarantees of the Canadian Charter of Rights and Freedoms. I conclude that it does.

If a violation of s. 15(1) is established, the burden shifts to the party upholding the denial of equality to justify it under s. 1 of the Charter. Section 15(1) and s. 1 of the Charter must be read together. Neither, in itself, is complete. Together, they provide a comprehensive equality analysis that provides effective remedies against discrimination while preserving the power of the state to deny protections and benefits to individuals where differences between them justify it.

Andrews instructs us that our approach must also reflect the human rights background against which the Charter was adopted. In evoking human rights law as the defining characteristic of discrimination under s. 15(1) of the Charter, this Court in Andrews engaged the principle of equality which underlies the constitutions of free and democratic countries throughout the world. This principle recognizes the dignity of each human being and each person's freedom to develop his body and spirit as he or she desires, subject to such limitations as may be justified by the interests of the community as a whole. It recognizes that society is based on individuals who are different from each other, and that a free and democratic society must accommodate and respect these differences.

The corollary of the recognition of the dignity of each individual is the recognition of the wrong that lies in withholding or limiting access to opportunities, benefits, and advantages available to other members of society, solely on the ground that the individual is a member of a particular group deemed to be less able or meritorious than others. This is the evil we call discrimination. It denies to the individual the right to realize his or her potential and to live in the freedom accorded to others, solely because of the group to which the individual belongs. In the course of the past century, free and democratic societies throughout the world have recognized that the elimination of such discrimination is essential, not only to achieving the kind of society to which we aspire, but to democracy itself. "The principle of equality, which is but the other side of the coin of discrimination and to which the law of every democratic country strives to realize in pursuit of justice and decency, means that one must apply, for the purpose of the [legislative] goal in question, equal treatment for all people, where there are no real differences amongst them that are relevant to that goal": Boronovsky v. Chief Rabbis of Israel, P.D. CH [25] (1), 7, 35.

The theme of violation of human dignity and freedom by imposing limitations and disadvantages on the basis of a stereotypical attribution of group characteristics rather than on the basis of individual capacity, worth or circumstance is reflected in qualities which judges have found to be associated with analogous grounds. One indicator of an analogous ground may be that the targeted group has suffered historical disadvantage, independent of the challenged distinction:

What then of the analogous ground proposed in this case -- marital status? The question is whether the characteristic of being unmarried -- of not having contracted a marriage in a manner recognized by the state -- constitutes a ground of discrimination within the ambit of s. 15(1). In my view, it does.

First, discrimination on the basis of marital status touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination violative of fundamental human rights norms. Specifically, it touches the individual's freedom to live life with the mate of one's choice in the fashion of one's choice. This is a matter of defining importance to individuals. It is not a matter which should be excluded from Charter consideration on the ground that its recognition would trivialize the equality guarantee.

Second, marital status possesses characteristics often associated with recognized grounds of discrimination under s. 15(1) of the Charter. Persons involved in an unmarried relationship constitute an historically disadvantaged group. There is ample evidence that unmarried partners have often suffered social disadvantage and prejudice. Historically in our society, the unmarried partner has been regarded as less worthy than the married partner. The disadvantages inflicted on the unmarried partner have ranged from social ostracism through denial of status and benefits. In recent years, the disadvantage experienced by persons living in illegitimate relationships has greatly diminished. Those living together out of wedlock no longer are made to carry the scarlet letter. Nevertheless, the historical disadvantage associated with this group cannot be denied.

A third characteristic sometimes associated with analogous grounds --distinctions founded on personal, immutable characteristics -- is present, albeit in attenuated form. In theory, the individual is free to choose whether to marry or not to marry. In practice, however, the reality may be otherwise. The sanction of the union by the state through civil marriage cannot always be obtained. The law; the reluctance of one's partner to marry; financial, religious or social constraints -- these factors and others commonly function to prevent partners who otherwise operate as a family unit from formally marrying. In short, marital status often lies beyond the individual's effective control. In this respect, marital status is not unlike citizenship, recognized as an analogous ground in Andrews: the individual exercises limited but not exclusive control over the designation.

Comparing discrimination on the basis of marital status with the grounds enumerated in s. 15(1), discrimination on the ground of marital status may be seen as akin to discrimination on the ground of religion, to the extent that it finds its roots and expression in moral disapproval of all sexual unions except those sanctioned by the church and state.

At paragraph 155 of her reasons McLachlin J. makes a comment that applies to the situation in which Manitoba finds itself at the moment. It also addresses the request that we consider what legislative steps other provinces have taken.

Of late, legislators and jurists throughout our country have recognized that distinguishing between cohabiting couples on the basis of whether they are legally married or not fails to accord with current social values or realities. As the amicus curiae has pointed out, 63 Ontario statutes currently make no distinction between married partners and unmarried partners who have cohabited in a conjugal relationship. For example, the right to spousal maintenance is not conditioned on marriage: see Part III, Family Law Act, R.S.O. 1990, c. F.3, which establishes a right to spousal support for those who have cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence and who have a child. Other provinces have adopted similar benefit thresholds. In the judicial domain, judges have recognized the right of unmarried spouses to share in family property through the doctrine of unjust enrichment: Pettkus v. Becker, [1980] 2 S.C.R. 834; Peter v. Beblow, [1993] 1 S.C.R. 980. All this suggests recognition of the fact that it is often wrong to deny equal benefit of the law because a person is not married.

These considerations, taken together, suggest that denial of equality on the basis of marital status constitutes discrimination within the ambit of s. 15(1) of the Charter. If the evil to which s. 15(1) is addressed is the violation of human dignity and freedom by imposing limitations or disadvantages on the basis of the stereotypical application of presumed group characteristics, rather than on the basis of individual capacity, worth or circumstance, then marital status should be considered an analogous ground. The essential elements necessary to engage the overarching purpose of s. 15(1) -- violation of dignity and freedom, an historical group disadvantage, and the danger of stereotypical group-based decision-making -- are present and discrimination is made out.

At paragraph 157 the learned judge deals with a matter raised time and time again by people we spoke to and by many who made submissions to the Legislative Committee:

These observations are sufficient to dispose of the insurer's arguments based on alleged absence of historical disadvantage and the "mutable" nature of the unmarried state. It remains to consider, however, the theme underlying the whole of the insurer's submissions -- that marriage is a good and honourable state and hence cannot serve as a ground for discrimination. To most in our society, marriage is a good thing; to many a sacred thing. There is nobility in the public commitment of two people to each other to the exclusion of all others. How can it be wrong to use this commitment as the condition of receiving legal protection and benefit?

These sentiments, valid as they are, do not advance the insurer's case. The argument, simply put, is that marriage is good; the grounds of discrimination evil; therefore marriage cannot be a ground of discrimination. The fallacy in the argument is the assumption that the grounds of discrimination are evil. Discrimination is evil. But the grounds upon which it rests are not. Consider the enumerated grounds -- race, national or ethnic origin, colour, religion, sex, age and mental or physical disability. None of these are evil in themselves. Indeed, people rightfully take pride in their race and ethnic origin; they find identity in their colour and their sex. Even mental and physical disabilities should be regarded not as deficiencies, but differences -- differences which, while they will make some aspects of life more difficult, do not affect others, and may, moreover, contribute to society's richness and texture. What is evil is not the ground of discrimination, but its inappropriate use to deny equal protection and benefit to people who are members of the marked groups -- not on the basis of their true abilities or circumstance, but on the basis of the group to which they belong. The argument that marital status cannot be an analogous ground because it is good cannot succeed. The issue is not whether marriage is good, but rather whether it may be used to deny equal treatment to people on grounds which have nothing to do with their true worth or entitlement due to circumstance. L'Heureux-Dubé J. stated in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 634: "It is not anti-family to support protection for non-traditional families." One might equally say it is not anti-marriage to accord equal benefit of the law to non-traditional couples.

I conclude that marital status may serve as an analogous ground of discrimination under s. 15(1) of the Charter.

Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497, is the latest in this unusual succession of cases that has examined discrimination. This unanimous decision is particularly significant in the way it was arrived at. A panel of three judges initially heard the case on January 20, 1988, and dismissed it. A re-hearing was ordered on December 3, 1998 and the rehearing took place in the presence of a full court of nine judges on March 25, 1999.

The decision of the court was written by Iacobucci J. but it is reasonable to assume that the other judges participated in its formation as it represented their collective thinking. The re-hearing was likely held for that specific purpose. The unanimity seems unusual as in Miron v. Trudel and Egan v. Canada the court had been deeply divided. In this decision the court concentrated on the principles and process to be applied in the future when a judge or judges are asked to examine a case based on discrimination and Sections 15(1) and 1 of the Charter.

What the case did was provide an opportunity for the Court to review the process and principles to be followed by a court before coming to grips with specific legislation that is alleged to be discriminatory. The Court made it clear it was establishing standards and principles to be applied when considering whether legislation is discriminatory or not.

As the following extracts from the case are fairly lengthy, I have underlined the parts I consider to be particularly applicable to the issues I wish to discuss. Hopefully that will enable those who may not be interested in reading the extracts in detail to identify some of the significant principles that must be applied in Manitoba.

Iacobucci J. explained the purpose of the Court releasing this statement on the law and procedure to be applied:

Indeed, in the brief history of this Court's interpretation of s. 15(1) of the Charter, there have been several important substantive developments in equality law, relating to, among other things, the meaning of adverse effects discrimination, the role of context in identifying discrimination more generally, and the indicia of an analogous ground. All of these developments have been guided by the Court's evolving understanding of the purpose of equality protection under s. 15(1). All have augmented and enriched anti-discrimination jurisprudence under the Charter.

Throughout these developments, although there have been differences of opinion among the members of this Court as to the appropriate interpretation of s. 15(1), I believe it is fair to say that there has been and continues to be general consensus regarding the basic principles relating to the purpose of s. 15(1) and the proper approach to equality analysis. In my view, the present case is a useful juncture at which to summarize and comment upon these basic principles, in order to provide a set of guidelines for courts that are called upon to analyze a discrimination claim under the Charter.

In accordance with McIntyre J's caution in Andrews, supra, I think it is sensible to articulate the basic principles under s. 15(1) as guidelines for analysis, and not as a rigid test which might risk being mechanically applied. Equality analysis under the Charter must be purposive and contextual. The guidelines which I review below are just that - points of reference which are designed to assist a court in identifying the relevant contextual factors in a particular discrimination claim, and in evaluating the effect of those factors in light of the purpose of s. 15(1).

It is not necessary for me to go into the details of the process that is defined in the case, but there are a number of statements that relate to discrimination in the legislative sense that warrant repetition and consideration when the property-related statutes in Manitoba are being revised. The judgement continues:

Similar observations were made in Miron, supra, by McLachlin J. and in Egan, supra, by L'Heureux-Dubé J. and Cory J., all of whom found that the fundamental purpose of s. 15(1) is the protection of human dignity. Cory J. stated in Egan, supra, at para. 128, that the equality guarantee "recognizes and cherishes the innate human dignity of every individual". As he explained, at para. 179, "the existence of discrimination is determined by assessing the prejudicial effect of the distinction against s. 15(1)'s fundamental purpose of preventing the infringement of essential human dignity". Similarly, in Miron, supra, at para. 131, McLachlin J. stated the overarching purpose of s. 15(1) as being "to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of merit, capacity, or circumstance".

In Egan, supra, at para. 39, L'Heureux-Dubé J. stated in a similar vein:

. . . at the heart of s. 15 is the promotion of a society in which all are secure in the knowledge that they are recognized at law as equal human beings, equally capable, and equally deserving. A person or group of persons has been discriminated against within the meaning of s. 15 of the Charter when members of that group have been made to feel, by virtue of the impugned legislative distinction, that they are less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration.

Most recently, in Vriend, supra, at para. 67, Cory and Iacobucci JJ. stated the purpose of s. 15(1) as being to take "a further step in the recognition of the fundamental importance and the innate dignity of the individual", and in the recognition of "the intrinsic worthiness and importance of every individual . . . regardless of the age, sex, colour, origins, or other characteristics of the person".

All of these statements share several key elements. It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.

What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General),[1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

As has been consistently recognized throughout this Court's jurisprudence, probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group: see, e.g., Andrews, supra, at pp. 151-53, per Wilson J., p. 183, per McIntyre J., pp. 195-97, per La Forest J.; Turpin, supra, at pp. 1331-33; Swain, supra, at p. 992, per Lamer C.J.; Miron, supra, at paras. 147-48, per McLachlin J.; Eaton, supra, at para. 66. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon them, since they are already vulnerable.

One consideration which the Court has frequently referred to with respect to the issue of pre-existing disadvantage is the role of stereotypes. A stereotype may be described as a misconception whereby a person or, more often, a group is unfairly portrayed as possessing undesirable traits, or traits which the group, or at least some of its members, do not possess. In my view, probably the most prevalent reason that a given legislative provision may be found to infringe s. 15(1) is that it reflects and reinforces existing inaccurate understandings of the merits, capabilities and worth of a particular person or group within Canadian society, resulting in further stigmatization of that person or the members of the group or otherwise in their unfair treatment. This view accords with the emphasis placed by this Court ever since Andrews, supra, upon the role of s. 15(1) in overcoming prejudicial stereotypes in society. However, proof of the existence of a stereotype in society regarding a particular person or group is not an indispensable element of a successful claim under s. 15(1). Such a restriction would unduly constrain discrimination analysis, when there is more than one way to demonstrate a violation of human dignity. I emphasize, then, that any demonstration by a claimant that a legislative provision or other state action has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society (whether or not it involves a demonstration that the provision or other state action corroborates or exacerbates an existing prejudicial stereotype), will suffice to establish an infringement of s. 15(1).

The Walsh v. Bona (2000), 5 R.F.L., (5^th) 188, decision of the Nova Scotia Court of Appeal has now been appealed to the Supreme Court of Canada. It is likely that the Law decision, and its analysis of the law, will be referred to in the hearing of that case. Earlier comments of the Judges may also be discussed, varied or contradicted, but it is unlikely that the basic principles so clearly expressed in Law will change, at least in the foreseeable future. It is impossible to say which Judges will hear the appeal when it is argued, impossible to tell how widely or narrowly the issue in Walsh will be defined, or what the result will be.

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