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Is Canada’s top court addicted to compromise?

Partial victories all too common as Supreme Court tries to steer clear of controversy

WHO WINS? Partial victories are the name of the game. It's led some to wonder whether, in juggling priorities, Chief Justice Beverly McLachlin's court compromises too often — or whether it's been compromised altogether. Credit: Ken Boesem illustration

The Supreme Court: friend or frenemy?

When the Supreme Court ruled in the Hislop case that, while all gay and lesbian widows deserved their partner’s pensions, Canada only owed them back pay to 1999, Albert McNutt was caught.

His partner had died in 1993, and despite being the lead Atlantic plaintiff in the cross-country class-action lawsuit, and despite his being one of the few plaintiffs that had extensive documentation on his application for spousal benefits from Canada Pension Plan, McNutt was left without the money that was owed to him.

“I was really angry because if we were a heterosexual couple, this wouldn’t have been an issue,” McNutt says. “If we were a common-law heterosexual couple that had been together for over a year, it wouldn’t have been an issue. It was the fact that we were a gay couple that it was an issue.”

And yet, the Supreme Court decided that while same-sex couples deserved equal rights to heterosexual couples, they didn’t deserve them any further back than 1999.

“I wasn’t in it for the money in the beginning,” McNutt says. “I was in it for the principle — basically it was the right thing to do. My government has let me down and has let a great many people down, and they’re not living up to the Charter that they passed and implemented, or passed and didn’t implement.”

“To me, the government has done same-sex couples a huge injustice and they continue to do that when they wouldn’t budge from that 1999 date.”

But when the Supreme Court set the cut-off, it essentially forced a compromise position between the rights of survivors and the federal government.

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In many ways, the Hislop case is indicative of the judgments of the McLachlin era of the Supreme Court. But is this the doing of Chief Justice Beverly McLachlin, or is it something inherent in our judicial system in the Charter era?

“It’s a very Canadian thing that we sort of balance people’s Charter rights against the ‘reasonable limits in a free and democratic society,'” says Mark Ertel, president of the Defence Counsel Association of Ottawa.

“The guiding principle, in my opinion, should be that people’s rights will be limited to the extent that the exercise of those rights causes some actual harm to other people,” Ertel says. “But that’s not what’s happening. They’re not drawing that line. The Supreme Court doesn’t agree with me. They’re wrong, but they’re entitled to their opinion.”

In a case like Little Sisters or Hislop, it’s often more complicated than the line between rights versus harm.  Victories can be pyrrhic or compromised because, sometimes, a path to a remedy isn’t clear.  The Little Sister’s (or, more properly, the first Little Sister’s) case is a prime example of this.

After years of battling with Canada Customs over the seizure of pornographic material at the border, the Vancouver bookstore had its case heard before the Supreme Court, only to be handed a partial victory in 2000. While they changed the onus of proof, and made it procedurally more difficult for Canada Customs (now the Canada Border Services Agency) to engage in the kinds of misbehaviours they had been, they didn’t strike down the Act.

“I mean, you could do otherwise,” says Brenda Cossman, law professor at the University of Toronto. “It’s not the craziest, most outrageous thing the Court has ever done, to say ‘Oh, you’re right, maybe you have changed in the last six years,’ except that at least the dissent would have gone much further and would have struck down a provision of the law and said it’s not just about the behaviour of Canada Customs, it’s also about the law that allows this.”

Douglas Elliott worked on Hislop and intervened in Little Sisters on behalf of the Canadian AIDS Society. He points out that the Vancouver-based bookstore asked for the law to be struck and for the Supremes to reconsider its policy on porn.

Elliott criticizes the position Little Sister’s took — asking for the farm — but if the law itself is unjust, as many contend, the Supreme Court is one of the best venues for the bookstore to make its case.

“The court was looking for a compromise, but Joe Arvay who was representing Little Sister’s — he wanted everything,” Elliott says. “He wanted the legislation struck down, he was attacking the very idea that there could be such a thing as an obscene gay book. He was really trying to attack the underlying court ruling in Butler, and to say that the Butler case was based on heterosexual pornography and had no application to gay pornography.”

But, says Elliott, the Supreme Court was in compromise mode, it wasn’t willing to entertain Arvay’s argument.

Moreover, it’s nearly impossible to be awarded damages in a Charter case because of a test that the discrimination must be proven to be deliberate, says Elliott. Arvay never asked for them. And because he didn’t, the Court couldn’t award any, thus removing that possible remedy.

“That just left an injunction — instead of just relying on their promise not to do it again, ordering them not to do it again,” Elliott says. “That’s certainly what I pushed for. If you read the decision, Justice Iacobucci in dissent, he quotes one of the lawyers that said ‘the fox wants to be left in charge of the hen house because he’s become a vegetarian. Speaking for the chickens, we’re very concerned.’ That was me who said that, and all the judges laughed, but you know it’s exactly what they were offering us.”

Yet the Supreme Court chose to trust Canada Customs, and made their mild ruling. Meanwhile, the seizure of gay material at the border persists.

“For me, thinking about it, especially a few years removed, it doesn’t feel that the Court particularly targeted the gay and lesbian community,” Cossman says. “I mean, certainly through the eighties and nineties, it was just outrageous, but once the kind of basic equality arrived, from Vriend, from M v H, then after that, there was a bit more of a ‘you know, we don’t give everybody what they want,’ and it might be going beyond what the court thinks it can rightly deliver. And we see that everywhere, from gay stuff to health care stuff, to other things.

“With a little benefit of hindsight, it’s not so much about what the Court thinks of the gay community, but what the Court thinks of its own role now in constitutional rights, and its more limited institutional role.”

The issue of that role was further muddied over the course of the Hislop case, where the search for compromise came up with very troubling results, says Elliott.

“They said, as of April 17, 1985, every gay and lesbian survivor was entitled, so anyone whose partner died after April 17, 1985 is included because that’s what the Charter requires,” Elliott says. “Then they said, well, but you don’t have to pay them all the money because it took us a while to figure it out. It took the government a while to figure it out, so let’s pick a convenient year, 1999.”

The year, 1999, was significant in that it related to the important victory of a federal same-sex couples case, M v H. But the broader implications are something Elliott describes as “intellectually dishonest and inconsistent with their first ruling.”

“If you only get your money going back to 1999, why not exclude everyone before 1999?” Elliott asks. “Why are you including them that go back to 1985? And if you think that it’s only the right thing to do to include people going back to 1985, then why are you denying them their money going back to 1985? Except you just want to compromise. Really, that’s what it reeks of.”

And while the Court acknowledged discrimination, there was a second factor they considered — money.

“Justice Rothstein, in particular, in the courtroom, his questions were all about ‘How much is this going to cost? This is going to cost a lot of money — who’s going to pay for this?'” Elliott recalls. “What’s that got to do with equality? It’s got nothing to do with equality, and I told him that the court’s jurisprudence was very clear.”

With six hundred and fifty participants in the lawsuit, it was a tiny sum to consider. It’s a point that still infuriates Elliott.

“As long as it’s on sale, then we’re interested in equality. But we’re not going to pay retail,'” Elliott says. “That to me is really offensive. This idea as to how much equality can we afford? Well you either believe in equality as a principle or you don’t.”

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“The McLachlin era is marked by a real hard swing in favour of governments,” Elliott says. “Particularly in favour of protecting government expenditures any time something is going to cost government money. Canada’s judges in the last five, 10 years, their record has been pretty pathetic. They will find just about any excuse not to give justice to the individual or, if they can’t deny the claim altogether, as in the Hislop case, they’ll try and find some way to compromise it and to minimize the financial impact on the government.”

“It’s as if Chief Justice McLachlin thought that she were Minister Flaherty, that her job was to look after public finances. Well that’s not her job. Her job is to enforce the law and protect people’s constitutional rights. And if that means that it’s going to cost the government money, then so be it.”

“As somebody who’s spent a lot of time in the Lamer court, and has spent some time in the McLachlin court, the shift has been pretty transparent to me, and very disturbing,” Elliott says. “Very disturbing. All I can say is I’m glad that we have the good fortune that most of the important lesbian and gay equality cases happened to reach the Supreme Court during the Lamer era, because if we were trying to push though our cases now, as opposed to 10 years ago, I’m not sure that we would get to where we ended up with this group.”

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So what changed? It’s not a question with an easy answer. For one, there has been a shift in the political landscape of this country, much of it in regards to the roles between the Court and the legislature. While, once upon a time, it was Parliament that was supreme, the legislature gave up some of that role with the advent of the Charter.

At the same time, this has also given rise to the cries of so-called “judicial activism,” a sentiment borrowed from the US, but no less valid for a Canadians who see a group of unelected and unaccountable judges making the law.

That criticism has no doubt rubbed off on the courts, as the cries have been much louder recently. It hasn’t helped that governments have tried to use the Supreme Court for their own political ends as well.

“I wouldn’t say that it’s new in the McLachlin era, exactly,” Elliott says. “The judges were sensitive to it in the Lamer era, particularly Chief Justice Lamer himself.

“I remember in the M v H case, the Government of Ontario said ‘Well, we don’t want a suspended remedy. If you find it’s discrimination, just change it and we’ll accept responsibility.’ And Chief Justice Lamer just said ‘Oh yes, I’m sure. I can hear Premier Harris now, standing up in the Legislature saying it wasn’t the Supreme Court making this change, it’s all my fault. Yeah right.'”

Elliott also recalls then-Chief Justice Lamer speaking to the Canadian Bar Association, wondering if the tradition of judges not defend themselves from attacks be revisited in this new, hostile climate.

It’s ironic that one of the most vocal critics of so-called judicial activism is Prime Minister Stephen Harper, says Elliott. Harper has the distinction of being the only Canadian prime minister to be a plaintiff in a Charter Case at the Supreme Court. He lost.

Still, the charges of judicial activism haven’t subsided — even as the Court makes fewer and fewer sweeping decisions. It could all come down to a Court that’s a little too aware of how it’s being portrayed, suggests Cossman.

“The Court is very conscious of its controversial role and just trying to carve out an appropriate role for itself that still respects that Parliament is going to have a role in this as well,” Cossman says. “It’s different times now too. I think it’s different when your Parliament is a Liberal one versus a Conservative one that holds the Court in a some degree of, shall we say, disregard.”

The cases that the Supreme Court is hearing now are also different from the cases they heard in the early days of the Charter, when straight-up discrimination was easier to identify and strike down. Now, there are a lot more complex issues that require an appropriate balance.

“Even the Security Certificates thing,” Cossman says. “There are complicated legal arguments going on there about balancing different rights and interests in a way that is much harder than just in the simple gay rights cases where it was ‘basically we’re not giving you rights because we don’t like you as a people.'”

In terms of future queer issues coming before the Court, Cossman sees the balancing act will be a factor — be it equality versus religious rights or free speech issues.

“You know, there’s rights on both sides and it’s going to be a question of balancing different rights — and how do you do that?” she asks.

“There’s no slam dunk here, and some of the earlier cases were really just slam dunks,” Cossman says. “Now we’re moving into much more complicated territory, as this whole question of the role of the Court does evolve, their cases are going to get more complicated.”

The changes in the Court itself have contributed to this evolution.

“The Court is a very different Court now then when it did M v H, and even Little Sisters,” Cossman says. “There’s a lot of new members of the Court. A lot of the folks who really wrote cutting-edge same-sex rights decisions, which were Iacobucci and Cory through the nineties, for the dissent, and finally they carried the majority — they’re long gone.”

With a second Harper appointment coming to the Court, Ertel warns about the quality of judges that the Harper government will likely continue to appoint.

“They’re putting people with conservative opinions on the Court,” Ertel says. “These guys appointed a judge in Toronto who’s on the record of saying that a woman should have no right to an abortion, notwithstanding that the Supreme Court of Canada has already ruled that the law goes contrary to that. So this guy is on the bench, appointed, and the government when they appointed him knew that he didn’t accept the settled law of the country, which is pretty shocking I think.”

The controversial appointment of David Brown to the Ontario bench may have slipped under the radar, but Harper will soon have appointed two Supreme Court justices: Rothstein and, barring disaster at Parliament, he will soon be joined by Thomas Cromwell (see sidebar.)

As well, the Court has all but stopped hearing from intervenors, a policy which used to allow the justices to gain different points of view from the community, says Elliott.

“They think they’ve got it figured out, they don’t need any help,” he says. “I think that it’s contributed to some very bad decisions, frankly. Because I saw decisions, like Vriend, like M v H, even the same-sex marriage case where the judges were assisted greatly by the variety of arguments that they had in front of them, the variety of perspectives.”

The second Little Sisters case was an example of this, but Hislop was an egregious case-in-point. There, they didn’t hear from intervenors, but the government of Quebec, which doesn’t participate in the Canada Pension Plan (they have a parallel provincial program), had a right to have a lawyer present who spoke against the plaintiffs’ position.

“Now I ask you, what more screwed-up system could you imagine, when the people who are directly affected have no voice, but the people who are not affected at all have a voice?” Elliott asks. “In the Lamer era, that would never have happened. In the Lamer era, you can bet that Egale would have had a lawyer there, Canadian AIDS Society would have had a lawyer there, talking about the affected communities and their perspective on the ruling, absolutely.”

Which brings us back to Chief Justice McLachlin herself and the tone that she sets.

“I’ve heard that, privately, she refers to herself as ‘Captain Compromise,'” Elliott says. “I think what goes on is that, behind the scenes, there’s this drive to the middle, and they get it wrong.”

“Even in cases where they were fairly bold, like the Charkaoui case [on security certificates] — they’re always looking to find a middle position.”

 

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10 years of mixed decisions

Workplace
After being fired by a college in Alberta, Delwin Vriend became the nexus of one of Canada’s most important gay-rights Supreme Court cases. When the decision came down in 1998, it obliged employers not to discriminate against gay employees.


Partner benefits

The controversial M v H decision, released in the same year as Vriend, paved the way for gay partner obligations. Parliament responded with the Modernization of Benefits and Obligations Act, which gave same-sex couples access to common law partnerships but not marriage. Later, the Court would decline to answer the question put to it by the Liberal government about the constitutionality of barring gays from nuptials.

Censorship
After years of having gay material seized, delayed and destroyed by Canada Customs (now the Canada Border Services Agency), the Little Sisters bookstore in Vancouver braced for the result of their legal challenge, which came by way of the Supreme Court in 2000. The court reaffirmed Customs’ ability to censor, while admonishing them for their discriminatory application of the law. When harassment continued, Little Sisters launched a second charter challenge, but the Surpeme Court ruled it couldn’t access the government funds it needed to continue its case.


Sexual expression

In 2001, the Supreme Court released its Sharpe decision, which ruled on paintings, drawings and fictionalized accounts of a minor’s sexual expression — as well is representations of actual sexual conduct between consenting teens. After criticizing the porn law as overbroad, the Court carved out a narrow “artistic merit” defence for sexualized depictions where no real children or teens were involved.

Sex clubs
The Montreal swingers clubs decision, known as Kouri, changed the test for indecency in 2005, from a community-values approach to a harm-based test. It may yet pave the way for a charter challenge on bathhouses or prostitution, but it hung SM practitioners out to dry.


Survivor Benefits

In the Hislop decision in 2006, the Supreme Court ruled that gay widows were entitled to their partners Canada Pension Plan, but that back payments would only go back as far as 1999.