Procedural Posture
Egan and Nesbit, the appellants, brought suit in trial court seeking a declaration that the definition of “spouse” in the Old Age Security Act contravened Section 15 of the Canadian Charter of Rights and Freedoms. The trial court dismissed the action and the court of appeal upheld the judgment. The appellant appealed.
Facts
Egan and Nesbit, a same-sex couple, had lived together since 1948. When Egan turned 65, he began to receive old age security payments under the Old Age Security Act. When Nesbitt turned 60, he applied for a spousal allowance, which he was denied on the grounds that his relationship with Egan did not fall under the definition of common law marriage contained in the Act.
Issue
Whether the exclusion of same-sex relationships from the definition of common law spouse violated the Canadian Charter of Rights and Freedoms.
Domestic Law
Canadian Charter of Rights and Freedoms, Sections 1 (limitations to rights and freedoms) and 15 (equality before the law).
Reasoning of the Court
The Court unanimously concluded that sexual orientation was an “analogous ground” to the other grounds covered by Section 15 of the Charter. However, the Court divided on whether the Old Age Security Act violated the Charter and a majority of the Court held that it did not.
Four Justices (La Forest, joined by Lamer, Gonthier, and Major) held that, although sexual orientation was an analogous ground, the distinction drawn by Parliament between heterosexual common law couples and homosexual common law couples was relevant to the classification because heterosexual couples were primarily responsible for procreating and raising children. Thus “the distinction adopted by Parliament is relevant here to describe a fundamental unit to which some measure of support is given”. Therefore there was no violation of Section 15 of the Charter.
Justice La Forest wrote that Parliament’s original intent in enacting the statute was to provide for the needs of elderly married couples. Acknowledging changing social realities, it had amended the law to include opposite sex common law couples. According to Justice La Forest, the marital relationship, because of its connection with producing and raising children, had special needs that were the proper concern of Parliament. Legal marriage was “fundamental to the stability and well-being of the family”. The same underlying concerns justified extending support to common law couples because many of these couples bear and raise children. Justice La Forest observed: “Support of common law relationships with a view to promoting their stability seems well devised to advance many of the underlying values for which the institution of marriage exists”. It was not relevant that not all heterosexual couples (married or not) actually had children, because what mattered was their unique capacity to procreate. Same-sex couples, on the other hand, might “occasionally adopt or bring up children, but this is exceptional and in no way affects the general picture”. Other people who lived together in long-term relationships, such as siblings or friends, were also excluded. “Homosexual couples are not, therefore, discriminated against; they are simply included with these other couples.”
One Justice (Sopinka) held that the legislation did infringe Section 15 of the Charter but was saved under Section 1, which provided that a distinction had to be relevant to a proportionate extent to a pressing and substantial objective. He emphasised that recognition of discrimination on grounds of sexual orientation was relatively new and that Parliament should be given time to craft a legislative response.
Four Justices dissented, and argued that sexual orientation was covered by Section 15 of the Charter, and that the Old Age Security Act violated the Charter. Justice L’Heureux-Dubé’s dissent began by analysing the purpose of the equal protection guarantee. The types of discrimination that were at the heart of Section 15 were those that “offend inherent human dignity”. The focus was on effect.
She criticised the “grounds” approach as failing to take into account the impact of a distinction on the affected group. “By looking at the grounds for the distinction instead of at the impact of the distinction on particular groups, we risk undertaking an analysis that is distanced and desensitised from real people’s real experiences.”
A distinction is discriminatory within the meaning of [Section] 15 where it is capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.
Justice L’Heureux-Dubé found that the factors the Court had previously identified, in its analogous grounds approach, were also essential elements of any inquiry into the nature of the group affected by the distinction. Considerations included: whether the distinction was based on fundamental attributes that are generally considered to be essential to our popular conception of personhood or humanness; whether the adversely affected group was already a victim of historical disadvantage; whether group members were currently socially vulnerable to stereotyping, social prejudice and/or marginalisation; whether this distinction was likely to expose them in the future to stereotyping, social prejudice and/or marginalisation; and whether the group was a discrete and insular minority.
Justice L’Heureux-Dubé summarised: “[T]he more socially vulnerable the affected group and the more fundamental to our popular conception of ‘personhood’ the characteristic which forms the basis for the distinction, the more likely that this distinction will be discriminatory”.
Applying this analysis to the facts, Justice L’Heureux-Dubé agreed with the other members of the Court that Egan and Nesbit had been denied an equal benefit of the law because of a legislative distinction based on sexual orientation. She argued that this distinction was “capable of either promoting or perpetuating a view that the appellants Egan and Nesbit are, by virtue of their homosexuality, 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”. She concluded that it did, and that the distinction was therefore discriminatory. Same-sex couples were a highly socially vulnerable group that had suffered considerable historical disadvantage, stereotyping, marginalisation and stigmatisation. Sexual orientation was an aspect of “personhood” that was possibly biological and at the very least a “fundamental choice”. The applicants had been excluded as a couple from any entitlement to a basic shared standard of living for elderly persons cohabitating in a relationship analogous to marriage. “This interest is an important facet of full and equal membership in Canadian society … the metamessage that flows almost inevitably from excluding same-sex couples from such an important social institution is essentially that society considers such relationships to be less worthy of respect, concern and consideration than relationships involving members of the opposite sex. This fundamental interest is therefore severely and palpably affected by the impugned distinction”.
Finally, the Justice rejected arguments based on the “biological reality” that homosexual relationships were non-procreative. The presence or absence of children had nothing to do with eligibility for the old age spousal supplement. Therefore the impugned distinction failed the rational connection branch of the proportionality test.
In his dissent, Justice Cory focused on the breach of Section 15. In particular he looked at discrimination against homosexuals as individuals and as couples. “Sexual orientation is more than simply a ‘status’ that an individual possesses. It is something that is demonstrated in an individual’s conduct by the choice of a partner. The Charter protects religious beliefs and religious practice as aspects of religious freedom. So, too, should it be recognised that sexual orientation encompasses aspects of ‘status’ and ‘conduct’ and that both should receive protection. Sexual orientation is demonstrated in a person’s choice of a life partner, whether heterosexual or homosexual. It follows that a lawful relationship which flows from sexual orientation should also be protected.”
Justice Iacobucci’s dissent analysed whether the discrimination could be justified under Section 1 of the Charter. He said the goal of the Old Age Security Act was to mitigate poverty among elderly households and found the exclusion of same-sex partners not rationally connected to this goal. He dismissed any arguments that the need to conserve financial resources (by reducing the number of qualified households) was a part of Section 1 analysis. The government had: “not supplied evidence demonstrating why the patterns of economic interdependence among same-sex couples are sufficiently different from those in heterosexual relationships to indicate why excluding same-sex couples from the scheme would still enable the legislation to be rationally connected to its goal of mitigating poverty among elderly households”.
“On a broader note, it eludes me how according same-sex couples the benefits flowing to opposite-sex couples in any way inhibits, dissuades or impedes the formation of heterosexual unions.” Justice Iacobucci noted that the facts of this case did not require the Court to explore whether same-sex couples were constitutionally entitled to adopt or get married.
The Appeal was dismissed.
Egan v. Canada, Supreme Court of Canada (full text of judgment, PDF)