Egan v Canada, 2 SCR 513 was one of a trilogy of equality rights cases published by the Supreme Court of Canada in the second quarter of 1995.Miron v Trudel, 2 SCR 418Egan v Canada, 2 SCR 513Thibaudeau v Canada, 2 SCR 627. It stands today as a landmark Supreme Court case which established that sexual orientation constitutes a prohibited basis of discrimination under section 15 of the Canadian Charter of Rights and Freedoms.
Background The plaintiffs—James Egan, a long-time LGBTQ rights activist, and John Norris Nesbit—were a gay couple who had been in a conjugal relationship since 1948. Upon reaching age 65 in 1986, Egan became eligible to receive Old Age Security and a guaranteed income supplement from the government under the Old Age Security Act.
The Old Age Security Act provides that a spouse of the pensioner may receive a spousal allowance should their combined income fall below a certain amount. When Nesbit reached 65, he applied to the Department of National Health and Welfare for a spousal allowance. However, he was refused on the basis that "spouse", defined in section 2 of Old Age Security Act, did not include a member of the same sex.
Joseph J. Arvay, Q.C., represented the plaintiffs, who delivered a motion for a declaration of unconstitutionality to the Federal Court of Canada (Trial Division).Federal Court Reports They alleged the definition of "spouse" under the Old Age Security Act constituted an infringement of their right to the equal protection and equal benefit of the law, entrenched in section 15 of the Charter, and that such an infringement was discriminatory on the basis of sexual orientation. They also alleged the section 15 violation could not be saved under section 1. Nesbit and Egan asked the Court to remedy the alleged Charter violation by reading the definition of spouse so as to include same-sex couples.
Judgment of the Federal Court of Canada, Trial Division The trial judge held that although the definition of "spouse" as defined in section 2 of the Old Age Security Act created a distinction, it was merely a distinction between spouses and "non-spouses" (e.g., siblings), the latter being a group which Parliament had allegedly not intended to confer similar benefits upon. The trial judge held the distinction between spouses and "non-spouses" had nothing to do with sexual orientation and therefore could not constitute discrimination on the basis of sexual orientation. The application was dismissed. This decision was appealed by the plaintiff to the Federal Court of Appeal.
Judgment of the Federal Court of Appeal On April 29, 1993, the Federal Court of Appeal affirmed the trial judge's judgment and dismissed the appeal by a 2–1 majority.
Reasons of Robertson JA Robertson JA held the definition of "spouse", as defined by section 2 of the Old Age Security Act, did not discriminate against the appellants, Egan and Nesbit, by virtue of the fact the definition merely created a "distinction" between spouses and non-spouses. Robertson held the issue in the case was not solely concerned over the question of who may receive spousal allowances, but was in actuality "an indirect challenge to the common law and statutory concept of marriage". Our "present understanding of the law of discrimination", Robertson argued, precluded the conclusion that "the common law limitations of marriage to persons of the opposite sex" constitutes discrimination under section 15 of the Charter.
Reasons of Mahoney JA In a concurring judgment, Mahoney JA adopted the reasoning of the trial judge, holding the definition of "spouse" in the Old Age Security Act did not discriminate against the appellants. Mahoney noted there were a broad range of "non-spouses" who lived together. They too are denied a spousal allowance, but on the basis of their "non-spousal status". Mahoney JA held the Charter challenge was misplaced: in his view, the discrimination the appellants alleged was due to "the failure of the definition to comprehend the concept of common law marriage between persons of the same sex" and not on the basis of their sexual orientation.
Reasons of Linden JA In dissent, Linden JA accused the other two justices of engaging in exercises of circular reasoning: The issue before this Court is whether the definition of spouse in the Old Age Security Act creates a distinction in the distribution of benefits which is discriminatory on the basis of sexual orientation. That issue cannot be resolved simply by stating that the distinction drawn by the Act is based on the definition of spouse rather than on sexual orientation. It is, after all, the definition of spouse that is being attacked as discriminatory.
Linden concluded the definition of "spouse" under the Old Age Security Act created a distinction between heterosexuals and homosexuals which constituted discrimination on the basis of sexual orientation. Linden also concluded the exclusion of same-sex couples from the definition of "spouse" did not minimally impair the appellants' section 15 rights.
Judgment of the Supreme Court of Canada In a 4–1–4 vote, the Supreme Court of Canada dismissed the appeal and upheld the constitutionality of the impugned definition of "spouse" in the Old Age Security Act.
Majority reasons Writing for the majority (Lamer CJ and La Forest, Gonthier and Major JJ), La Forest J held the exclusion of same-sex couples from the definition of "spouse" in the impugned Old Age Security Act did not violate section 15 of the Charter. La Forest J said the controlling issue in section 15 cases is whether a legislative distinction (based on a protected ground) is "irrelevant" to the objective of the legislation in question and therefore discriminatory. He recognized the objective of the Old Age Security Act was the "support and protection of legal marriage", an institution which he described as:
firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual.Egan v. Canada, 2 S.C.R. 513 at 536.
La Forest J said sexual orientation is inextricably relevant to the objective of the impugned Act given the heterosexual nature of marriage. Therefore, he held it was not discriminatory under section 15 of the Charter.
La Forest J added in obiter that had he found the impugned definition discriminatory, he would have upheld it under section 1 of the Charter "for the considerations set forth in my reasons in McKinney, supra, especially at pp. 316-18 ..."Egan v Canada, 2 SCR 513 at 539–540.
Concurring reasons Concurring only in the result, Sopinka J disagreed with the plurality's reasoning that section 2 of the Old Age Security Act was not discriminatory. Sopinka J also endorsed the section 15 analysis performed by Cory J. However, Sopinka J argued the Canadian government must be afforded some "flexibility in extending social benefits" and that the government need not be "pro-active in recognizing new social relationships":
It is not realistic for the Court to assume that there are unlimited funds to address the needs of all. A judicial approach on this basis would tend to make a government reluctant to create any new social benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) of the Charter.Egan v. Canada, 2 S.C.R. 513 at 572-573.
Sopinka J cites McKinney v University of Guelph in defence of his reasoning, noting there are situations in which legislatures may take an "incremental" approach to address novel issues.
Dissenting reasons The remaining four justices dissented, all rejecting the "irrelevance" approach as articulated by La Forest J and the "incremental" doctrine suggested by Sopinka J.
Cory and Iacobucci JJ In joint reasons, Cory and Iacobucci JJ articulated a section 15 analysis closely following the approach laid out in Andrews.Andrews v Law Society of British Columbia, 1 SCR 143 Iacobucci, in turn, wrote the Section 1 analysis.
In his section 15 analysis, Cory J disputes this was a case revolving around the concept of "adverse effect discrimination", that is, a neutral law which discriminates against a group only by the effect of the same application. Rather, he conceded that the law being challenged—the definition of "spouse" in lieu of section 2 of the Old Age Security Act—"is, quite simply, not facially neutral" at all. Rather, since the impugned Act defines a spouse only in opposite sex terms, it "draws a clear distinction between opposite-sex couples and same-sex couples".
To be discriminatory within the meaning of section 15 of the Charter, Cory J argued the distinction only had to be made on an enumerated or analogous ground protected by section 15. As such, the appellant did not have to prove the distinction on such a basis is irrelevant to the objective of the legislation.
In this case, Cory J asserted there "can be no doubt that the distinction is related to the personal characteristic of sexual orientation":
It may be correct to say that being in a same-sex relationship is not necessarily the defining characteristic of being homosexual. Yet, only homosexual individuals will form a part of a same-sex common law couple. It is the sexual orientation of the individuals involved which leads to the formation of the homosexual couple. The sexual orientation of the individual members cannot be divorced from the homosexual couple. To find otherwise would be as wrong as saying that being pregnant had nothing to do with being female. The words "of the opposite sex" in the definition of "spouse" specifically exclude homosexual couples from claiming a spousal allowance.Egan v Canada, 2 SCR 513 at 598.
Cory J argued this distinction was not based on anything other than the appellants' sexual orientation and was therefore discriminatory.
Regarding the section 1 analysis, Iacobucci J identified the objective of the impugned legislation as "the alleviation of poverty in elderly households". He held this to be a "pressing and substantial" government objective under the Oakes test. However, Iacobucci J held the section 15 violation (the exclusion of same-sex couples from the definition of "spouse") was not rationally connected to that goal:
If there is an intention to ameliorate the position of a group, it cannot be considered entirely rational to assist only a portion of that group. A more rationally connected means to the end would be to assist the entire group, as that is the very objective which is sought.Egan v Canada, 2 SCR 513 at 608.
Further, Iacobucci balked at the notion the cost of extending such monetary benefits may be justified as a reasonable limitation. He deplored the evidence adduced in support of this notion as "highly speculative and statistically weak" at best. Regardless, he endorsed the view in SchachterSchachter v Canada, 2 SCR 679 at 709 that "budgetary considerations cannot be used to justify a violation under s. 1".