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All I’m asking for is a little respect: equality rights and same-sex spousal benefits Banks, Nancy K. 1992

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ALL PM ASKING FOR IS A LITTLE RESPECT:EQUALITY RIGHTS AND SAME-SEX SPOUSAL BENEFITSbyNANCY KATHLEEN BANKSB.A., Dalhousie University, 1984LL.B., The University of British Columbia, 1988A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIESFaculty of LawWe accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAMay 1992© Nancy Kathleen Banks, 1992In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Department of The University of British ColumbiaVancouver, CanadaDate NILDE-6 (2/88)ABSTRACTThis thesis explores same-sex spousal benefits claims against the background ofCanada's equality rights jurisprudence. This, in turn, is examined in light of the rightto respect for one's private life, as developed in European human rights jurisprudence,and contrasted with the right to privacy doctrine developed in the United States ofAmerica.The judicial development of limitations of constitutionally guaranteed rights andfreedoms is also examined with a view to developing a successful same-sex spousalbenefit claim.iiTABLE OF CONTENTSABSTRACT ^ iiTABLE OF CONTENTS ^ iiiACKNOWLEDGEMENT ivINTRODUCTION ^ 1THE RIGHT TO RESPECT FOR ONE'S PRIVATE LIFE ^ 2THE RIGHT TO PRIVACY ^ 11CANADIAN JURISPRUDENCE ON SEXUAL ORIENTATION:PRE- AND NON-CHARTER CASES ^ 21EQUALITY RIGHTS JURISPRUDENCE 35THE JUSTIFICATION OF LIMITATIONS ON RIGHTS AND FREEDOMS:SECTION ONE OF THE CHARTER ^ 41LIMITS v. DENIALS ^ 42LIMITATIONS OF CONSTITUTIONALLY GUARANTEED RIGHTSAND FREEDOMS 44THE JUSTIFICATION OF DISCRIMINATION:THE INTERPLAY BETWEEN SECTIONS 15 AND 1 ^ 124SAME-SEX SPOUSAL BENEFITS CLAIMSIN LIGHT OF THE CHARTER ^ 162EQUALITY RIGHTS AND SAME-SEX SPOUSAL BENEFITS CLAIMS ^ 181SEXUAL ORIENTATION AND DISCRIMINATION ^ 182THE JUSTIFICATION OF LIMITATIONS OF CONSTITUTIONALLYPROTECTED RIGHTS AND FREEDOMS 187OBJECTIVES OF THE LEGISLATION MUST RELATE TO PRESSINGAND SUBSTANTIAL CONCERNS ^ 187RATIONAL CONNECTION ^ 189MINIMAL IMPAIRMENT 192DELETERIOUS EFFECTS ^ 204CONCLUSION ^ 206END NOTES 209BIBLIOGRAPHY ^ 232111ACKNOWLEDGEMENTMany people have contributed, directly or indirectly, to the completion of thiswork. I am especially grateful to:Professor Michael Jackson, for his supervision and encouragement despite analready considerable workload; Professor Bruce MacDougall, for his comments andadvice; Professor Marilyn MacCrimmon, for her continued faith and encouragement;Gillian Cartmell, for her wizardry with the word processor and patience with me; theAdministration and Law Library staff of the University of British Columbia, Faculty ofLaw, who have been particularly kind and helpful to me; Dr. Ray Edney, for hersupport; my late aunt, Dianne Dunn, with a special thought; and my parents, for theirsupport and patience.I was fortunate to receive funding from the Law Foundation of British Columbiaand The University of British Columbia, Faculty of Law, for which I am grateful.For many, the subject of equality rights does not merit much consideration.Their experience has been such that their participation in society has not necessitatedthe development of a rights discourse. Accustomed to their own social equality,respect and benefits, rights are thus seen as redundant. However, for many othersequality rights are very much a matter for consideration and concern, and the CanadianCharter of Rights and Freedoms' and its equality provisions2 were seen as theculmination of decades of struggle towards equality for all Canadians.Yet in fact this represents only the beginning, for we are now faced withextraordinarily difficult questions stemming from our social commitment to equality asembodied in the Charter. For those whose rights have been too long ignored, the mereguarantee of equality is not good enough: to achieve true equality these rights must bevalidated publicly through our laws by the legislatures and courts. Public recognitionand validation is particularly important when the right relates to an aspect of personalitythat is critical to self-definition and fulfillment, and even more so when that right isrepeatedly denied. The lack of validity dooms some members of society to a life ofinvisibility that is hardly consonant with the equality values enshrined in the Charter.Homosexual persons3 know this invisibility and invalidity only too well. Anexamination of the law reveals that Canada ought not to be proud of its treatment ofthis minority. The struggle towards equal treatment has been arduous anddisappointing.In particular, the exclusion of same-sex couples from the benefits andprotections of legislation that applies only to heterosexual couples through a restrictivedefinition of the term "spouse" serves to ensure the less than equal status ofhomosexual persons in society by denying them a public identity. It is only through the1development of an approach to equality rights that is cognizant of the importance ofself-definition and public validation that this inequality will cease.To this end, the European right to respect for private life will be examined inthe context of the regulation of homosexual behaviour. This will reveal that the privateaspects of a person's life must be given public validity to give the right any meaningfulcontent. This is in sharp distinction to the right to privacy as developed in Americanjurisprudence which, as will be demonstrated, has served to deny rather than promotethe rights of homosexual persons. Additionally, attempts by homosexual couples inCanada to secure the rights and benefits enjoyed by their heterosexual counterparts willbe reviewed. Finally, Canada's emerging equality rights jurisprudence will beexamined with a view to developing an analysis that will extend the equal benefit andequal protection of the law to homosexual persons in same-sex relationships. This willnecessarily entail an examination of the jurisprudence developed with respect to thejustification of infringements of constitutionally guaranteed rights and freedoms as setout in section 1 of the Charter.THE RIGHT TO RESPECT FOR ONE'S PRIVATE LIFEThe European Convention for the Protection of Rights and FundamentalFreedoms4 (the "Convention") seeks to secure a broad range of rights and freedoms. 5Of particular interest here is Article 8 of the Convention, which guarantees the right torespect for one's private life. 6 Initial attempts to secure the rights of homosexualpersons through the guarantee of respect for private life met with little success. TheEuropean Commission of Human Rights (the "Commission") generally had nodifficulty in finding legislation prohibiting and punishing homosexual behaviour to be ajustifiable interference with a person's right to respect for his or her private life under23the health and morals exception to Article 8 of the Convention. For example, in 1959the Commission received the complaint of a German citizen who had been convicted ofrepeated offences against Article 175 of the German Criminal Code, which prohibitedmale homosexual relationships, and imprisoned for "an indefinite duration as adangerous and habitual offender." 7 He asserted that his right to respect for his privatelife as guaranteed in the Convention had been violated by Article 175. TheCommission's response was brief:... [T]he Commission has already decided on many occasions that theConvention allows a High Contracting Party to punish homosexualitysince the right to respect for private life many, in a democratic society,be subject to interference as provided for by the law of that Party for theprotection of health or morals (Art. 8(2) of the Convention); whereas itis clear from the foregoing that Article 175 of the German CriminalCode is in no way in contradiction with the provisions of theConvention; whereas it thus appears that this part of the Application ismanifestly ill-founded and must be declared inadmissible under Article27(2) of the Convention. 8The Commission responded in a similar manner to another application from aGerman citizen again challenging the validity of Article 175 of the German CriminalCode. 9 This was the applicant's third petition to the Commission respecting theGerman prohibition against homosexual behaviour, 10 the previous two having beendeclared inadmissible. In dismissing the third application, the Commission restated itsassertion that Article 175 did not violate Article 8 of the Convention as it was dictatedby "the legitimate interests of society" 11 and was necessary "to prevent crime andprotect the health and morals of others." 12 Moreover, the Commission stated that theApplication "was abusive 'having regard ... to the fact that [the applicant] has alreadylodged several other Applications which have been declared inadmissible'" 13 and "thepresent Application is proof of a querulous and abusive exercise of the right of petitiongiven to individuals .. it follows that this Application must also be rejected as beingabusive ... ". 14It is significant to note that the Commission had no hesitation in upholding theGerman legislation as necessary for the protection of health and morals withoutarticulating exactly why. Nowhere in their reasons is there any discussion of thepurported health and morals basis for prohibiting homosexual conduct. This omissionis particularly curious considering the applicants provided the Commission withevidence that homosexual relationships between adults are not subject to criminalsanction in many other democratic countries. 15 While each country is free to enact itsown laws legislating morality, one would think the purported health considerationsunderlying anti-homosexual behaviour laws would remain the same from country tocountry. Moreover, given the apparent exasperation the Commission felt in dealingwith repeated challenges to Article 175 of the German Criminal Code, 16 it is surprisingit did not foreclose these challenges by outlining with greater precision why theseclaims would not succeed. As they stand, the Commission's reasons do not contributea great deal to a reasoned jurisprudence on the regulation of homosexual behaviour.Thus, it appeared the right to respect for one's private life was to be of littleassistance to persons subject to criminal sanctions for their homosexual behaviour.However, in the 1970s the Commission demonstrated a willingness to examine theregulation of homosexuality in a more detailed manner while at the same timedeveloping an expanded interpretation of the right to respect for private life thatconsiderably widened the scope of interests included. In 1975 the Commission heardyet another complaint against Article 175 of the German Criminal Code. 17 TheGerman Criminal Code had been amended to remove the prohibition against adult malehomosexual behaviour, yet it retained the criminalization of homosexual relationsbetween males over the age of 18 and partners under the age of 21. 18 The complainantasserted that his conviction under Article 175 was an interference with his right to4respect for his private life and was discriminatory on the basis of sex in that only malehomosexuality constituted a criminal offence and was thus contrary to the sex equalityprovisions found in Article 14 of the Convention. 19 The findings of the Commissionare worth setting out in length. With respect to the privacy issue, the Commissionstated:A person's sexual life is undoubtedly part of his private life ofwhich it constitutes an important aspect. Some of its aspects howevermay be the subject of state interference and in particular that of thenational legislature in accordance with the provisions of paragraph 2 ofArticle 8.... The purpose of the German legislature as it appears from thetext of the Act ... is to prevent homosexual acts with adults having anunfortunate influence on the development of heterosexual tendencies inminors. In particular it was feared that on account of the socialreprobation with which homosexuality is still frequently regarded aminor involved in homosexual relationships with an adult might in factbe cut off from society and seriously affected in his psychologicaldevelopment....[T]he action of the German legislature was clearly inspired bythe need to protect the rights of children and adolescents and enable themto achieve true autonomy in sexual matters ...The only difficulty which remains is therefore to decide up towhat age the protection of an adolescent is necessary and justifiesmaking homosexuality a criminal offence. Opinions on this point arevery varied; some consider that the age of consent to homosexualrelationships must be the same as that of puberty or the same as thatrequired for heterosexual relationships. Some States have fixed at 16and others at 21 the age after which homosexual relations cannot giverise to criminal proceedings. Ideas are developing rapidly in this field.It can therefore be admitted that the age above which homosexualrelationships are no longer subject to the criminal law may be fixedwithin a reasonable margin and vary depending on the attitude ofsociety. In the instant case it would not seem that the age limit of 18 -21 although relatively high and since lowered can be considered as goingbeyond this reasonable margin.At all events the applicant was convicted for having hadhomosexual relationships with adolescents under 16.As applied to the applicant the German legislation wouldtherefore appear to comply with the provisions of Article 8(2) of theConvention as being a measure necessary in a democratic society for theprotection of the rights of others. It follows that this complaint must berejected ... 205As for the argument that the German law was discriminatory in that itprohibited certain male homosexual behaviour without similar sanctions against femalehomosexual relations, it was the Commission's opinion that the distinction was justifiedby a clearly established need for protecting young males from adult homosexuals. TheCommission noted that a difference in treatment that is justified by objective andreasonable proportionality in legislative aims does not constitute discriminatorytreatment. 21 Citing the submissions of the government of the Federal Republic ofGermany, the Commission stated:... It was not necessary to provide special protection for girlsagainst homosexual acts by adults for the following reasons:(a) It is generally admitted that there are comparatively few femalehomosexuals as compared with males.(b) Experience shows that adult female homosexuals prefer partnersof their own age.(c) It is generally admitted that these women seldom change theirpartners.(d) It follows that homosexual relationships between an adult womanand a girl under age are very rare.(e)^In the rare case of the seduction of a girl by an adult womanexperience shows that the girl's personal development and the insertionin society are not generally affected because female homosexuality doesnot usually show itself in public.The situation was fundamentally different as regards malehomosexuality.(a) This was much more frequent.(b) Male homosexuals prefer young partners.(c) These homosexuals frequently change their partner.(d) It follows that young men are much more exposed to the risk ofhomosexual relations with adults than girls.(e)^On account of the tendency of masculine homosexual couples toshow themselves in public, a young man or adolescent is much moreexposed to social isolation and conflicts with society. 226Accordingly, there existed "a specific social danger in the case of masculinehomosexuality. This danger results from the fact that masculine homosexuals oftenconstitute a distinct socio-cultural group with a clear tendency to proselytize adolescentsand that the social isolation in which it involves the latter is particularly marked. 23Any difference in treatment between male and female homosexual behaviour was,therefore, justified and thus not discriminatory. The Commission declared theapplication inadmissible as the applicant failed to establish that Article 175 violatedeither Article 8 or 14 of the Convention. 24Despite its disappointing outcome and suspect reasoning, this decision isimportant in that it represents the first real attempt by the Commission to articulate thecircumstances under which a homosexual person's right to respect for private life mightvalidly be interfered with. Additionally, the Commission's comments concerning thesocial justification for treating male and female homosexuality differently form thebasis for dismissing subsequent Article 14 challenges to similar legislation andupholding legislation regulating homosexual relations between adults and adolescents. 25Concurrent with their decisions upholding legislation regulating homosexualrelations, the Commission began to develop an approach to the right to respect forprivate life that gave it greater depth and that recognized that a private life entailedmore than mere privacy. In a 1976 decision concerning the freedom to keep a dog, 26the Commission stated:For numerous Anglo-Saxon and French authors the right torespect for 'private life' is the right to privacy, the right to live, as far asone wishes, protected from publicity ...In the opinion of the Commission, however, the right to respectfor private life does not end there. It comprises also, to a certaindegree, the right to establish and to develop relationships with other7human beings, especially in the emotional field for the development andfulfillment of one's own personality. 27This idea was further elaborated on the following year in Bruggemann andScheuten v. Federal Republic of Germany, 28 a decision concerning restrictions onobtaining abortions. The Commission reiterated its assertion that the right to respectfor private life "is of such a scope as to secure to the individual a sphere within whichhe can freely pursue the development and fulfillment of his personality" 29 and added:... To this effect, [the individual] must also have thepossibility of establishing relationships of various kinds, includingsexual, with other persons. In principle, therefore, whenever the Statesets up rules for the behaviour of the individual within this sphere, itinterferes with the respect for private life and such interference must bejustified in the light of Article 8(2). 30In a later decision concerning transsexualism, the Commission held that the State had apositive duty to recognize essential elements of an individual's personality, includinghis or her sexual identity. 31Against this background, the Commission and the European Court of HumanRights (the "Court") returned to the issue of the regulation of homosexual behaviour.The issue before the Court in Dudgeon v. United Kingdom32 concerned the validity oflegislation in Northern Ireland making homosexual relations between consenting adultmales a criminal offence. The Court stated that the legislation represented a continuingand direct interference with the applicant's right to respect for his private life in that... either he respects the law and refrains from engaging (even in privatewith consenting male partners) in prohibited sexual acts to which he isdisposed by reason of his homosexual tendencies, or he commits suchacts and thereby becomes liable to criminal prosecution. 33The Court considered whether the legislation could be justified under the exceptions ofArticle 8(2). With respect to the principles relevant to determining the necessity oflegislation in a democratic society, the Court pointed out that "'necessary" in thiscontext does not have the flexibility of such expressions as 'useful', 'reasonable' or8'desirable', but implies the existence of a 'pressing social need' for the interference inquestion."34 The Court acknowledged that each nation must determine for itself theclimate surrounding the pressing social need for legislation and, thus, a "margin ofappreciation" 35 is left to the discretion of the national legislators. However, indetermining the acceptable range of the margin of appreciation, the Court said:... not only the nature of the aim of the restriction but also the nature ofthe activities involved will affect the scope of the margin of appreciation.The present case concerns a most intimate aspect of private life.Accordingly, there must exist particularly serious reasons beforeinterferences on the part of the public authorities can be legitimate forthe purposes of Article 8(2).Finally, in Article 8 as in several other Articles of theConvention, the notion of 'necessity' is linked to that of a 'democraticsociety'. According to the Court's case law, a restriction on aConvention Right cannot be regarded as 'necessary in a democraticsociety' (two hallmarks of which are tolerance and broadmindedness)unless, amongst other things, it is proportionate to the legitimate aimpursued. 36The Court then turned to an examination of the justification of the interference with theapplicant's right to respect for his private life:... As compared with the era when that legislation was enacted [1861and 1865], there is now a better understanding, and in consequence anincreased tolerance, of homosexual behaviour to the extent that in thegreat majority of the member-States of the Council of Europe it is nolonger considered to be necessary or appropriate to treat homosexualpractices of the kind now in question as in themselves a matter to whichthe sanctions of the criminal law should be applied; the Court cannotoverlook the marked changes which have occurred in this regard in thedomestic law of the member-States ... No evidence has been adduced toshow that this has been injurious to moral standards in Northern Irelandor that there has been any public demand for stricter enforcement of thelaw.It cannot be maintained in these circumstances that there is apressing social need to make such acts criminal offences, there being nosufficient justification provided by the risk of harm to vulnerablesections of society requiring protection or by the effects on the public.On the issue of proportionality, the Court considers that suchjustifications as there are for retaining the law in force unamended areoutweighed by the detrimental effects which the very existence of thelegislative provisions in question can have on the life of a person ofhomosexual orientation like the applicant. Although members of thepublic who regard homosexuality as immoral may be shocked, offendedor disturbed by the commission by others of private homosexual acts,9this cannot on its own warrant the application of penal sanctions when itis consenting adults alone who are involved. 37The Court concluded that the legislation represented an unjustified interference with theapplicant's right to respect for his private life and that a breach of Article 8 hadoccurred.The significance of the foregoing decisions is that they signal a clear departurefrom the restrictive notion of the right to privacy as merely a right to private behaviourbehind closed doors. Rather, what is emphasized instead is the development of thepersonality, including its sexual aspects, in an atmosphere that not only limits thecircumstances in which the State can justifiably interfere, but also includes the positiveelement of a right to public and State recognition of certain aspects of an individual'sidentity. Put another way, as developed by the European Commission of HumanRights and Court, the right to respect for private life -- including sexuality -- must berecognized in the public sphere in order for the right to be truly meaningful. The rightto consensual homosexual relationships is, indeed, an empty one if one cannot compelpublic recognition by the State of homosexuality. Moreover, the "freedom to have animpact on others -- to make the 'statement' implicit in a public identity -- is central toany adequate conception of the self." 38 This development is a notion of privacy thatencompasses the public recognition of private life avoids a strict and artificialdelineation between a truly private and separate life free from any governmental action,positive or otherwise, and a public life subject to all the rights and obligations the lawbestows on individuals. People do not live in an easily compartmentalized fashionpermitting a strict separation of public and private life, and the law does a disservice tothe principle of validity by reflecting such a separateness. This dichotomy betweenprivate and public life has been particularly well developed in United Statesjurisprudence and, as the following will demonstrate, has utterly failed to promote the10rights of homosexual persons, leading one commentator to critique this development asthe "poverty of privacy" . 39THE RIGHT TO PRIVACY: AMERICAN JURISPRUDENCEThe eloquent rhetoric that flows through the right to privacy cases40 ispassionate in its assertion and defence of the "'right to be let alone' -- the mostcomprehensive of rights and the right most valued by civilized man." 41 Yet the right tobe let alone ends abruptly at precisely the point where it is most acutely felt. Privatesexual conduct is very heavily regulated indeed by the legislators and courts. Privateconsensual homosexual relations are particularly closely scrutinized with a view toprohibiting the conduct and punishing the offenders through state sodomy statutes. 42Cases that do not expressly concern the validity of statutes regulating sexual behaviourfocus on an individual's sexuality as a valid ground for dismissal from employment ordenial of some legal benefit. Taken as a whole, such cases do little to secure rights forhomosexual persons, let alone work to actively promote them.The constitutional validity of a Virginia statute prohibiting private consensualhomosexual activity was challenged in Doe v. Commonwealth's Attorney for City ofRichmond. 43 The challenge was based chiefly on the right to privacy and the sanctityof the home, as articulated in Griswold v. Connecticut." The majority had nodifficulty in dismissing this contention on the basis that the right to privacy developedin Griswold applied only to marital privacy. Having stated that, the Court then citedpassages in Griswold of a minority dissenting opinion demonstrating that homosexualintimacy is denunciable by the State:'... Adultery, homosexuality and the like are sexual intimacies which thestate forbids ... but the intimacy of husband and wife is necessarily anessential and accepted feature of the institution of marriage, an11institution which the State not only must allow, but which always and inevery age it has fostered and protected. It is one thing when the Stateexerts its power either to forbid extra-marital sexuality ... or to say whomay marry, but it is quite another when, having acknowledged amarriage and the intimacies inherent in it, it undertakes to regulate bymeans of the criminal law the details of that intimacy.'... In sum, even though the State has determined that the useof contraceptives is an iniquitous as any act of extra-marital sexualimmorality, the intrusion of the whole machinery of the criminal lawinto the very heart of marital privacy, requiring husband and wife torender account before a criminal tribunal of their uses of that intimacy issurely a very different thing indeed from punishing those who establishintimacies which the law has always forbidden and which can have noclaim to social protection. 45 [emphasis in original]Having dismissed the argument that private homosexual activities were included in theright to privacy and thus immune from governmental interference, the Court thenturned to discuss the circumstances under which the State could validly describe suchconduct as criminal. Here, the analysis was brief: as long as the legislature decidesthat the conduct ought to be prohibited in the name of morality and decency, the Courtwill not interfere. 46 The State need only show that it has "a legitimate interest in thesubject of the statute or that the statute is rationally supportable" 47 and that homosexualconduct is likely to end in a contribution to moral delinquency. To demonstrate theState's interest in the statute, the Court referred to the longevity of the statute, datingback to 179248 and noted its Judaic and Christian ancestry. 49 Thus the Court was notprepared to declare the statute invalid.The dissenting opinion in Doe is worthy of note. Merhige J. held that theStatute was a violation of the constitutional right to privacy and felt that the majorityhad applied an overly restrictive interpretation of the principles set out in Griswold:To say, as the majority does, that the right of privacy, whichevery citizen has, is limited to matters of marital, home or family life isunwarranted under law. Such a contention places a distinction in12marital-nonmarital matters which is inconsistent with current SupremeCourt opinions and is unsupportable."In an almost total repudiation of the majority opinion, Merhige J. stated that theright to privacy encompasses... the principle that every individual has a right to be free fromunwarranted governmental intrusion into one's decisions on privatematters of intimate concern. A mature individual's choice of an adultsexual partner, in the privacy of his or her own home, would appear tome to be a decision of the utmost private and intimate concern. Privateconsensual acts between adults are matters, absent evidence that they areharmful, in which the State has no legitimate interest. 51As private consensual sex acts are protected by the constitutional right toprivacy, they cannot be regulated by government action absent compelling justificationsuch as the protection of minors or where force is used to coerce the participation ofone of the parties. 52 No such evidence of the requisite compelling justification waspresent in this case:[The State] ... made no tender of any evidence which evenimpliedly demonstrated that homosexuality causes society any significantharm ... To suggest as [the State does] that the prohibition ofhomosexual conduct will in some manner encourage new heterosexualmarriages and prevent the dissolution of existing ones is unworthy ofjudicial response. 53Finally, to focus as the majority did on the promotion of morality and decencyas the basis for upholding the validity of the Statute was to miss the point completely:the case, as the lack of evidence showed, had little to do with promoting morality anddecency and everything to do with the unjustified invasion of the applicant'sconstitutional right to privacy. 54 At the end of the day, however, the majority opinionprevailed and the Virginia statute was held not to be unconstitutional. The UnitedStates Supreme Court denied Doe's petition for rehearing without reasons, 55 and theSupreme Court's implied affirmation of the Doe reasoning was used to dismiss asimilar challenge to the validity of a Louisiana state law prohibiting private consensualsex acts. 5613Similarly, in Singer v. United States Civil Service Commission 57 a decision ofthe U.S. Court of Appeals, Ninth Circuit, the Court upheld the dismissal of a federalemployee (employed, ironically, with the Equal Employment Opportunity Commission)for openly and publicly flaunting or advocating homosexual conduct "while identifyinghimself as a member of a federal agency." 58 The termination of the employee wasjustified on the basis thatthese activities were such that 'general public knowledge thereof reflectsdiscredit upon the federal Government as his employer, impeding theefficiency of the service by lessening public confidence in the fitness ofthe Government to conduct the public business with which it wasentrusted. ' 59These reasons reveal that the government was clearly concerned about its reputation.Evidence of actual harm need not be established; the Court need onlybe able to discern some reasonably foreseeable, specific connectionbetween an employee's potentially embarrassing conduct and theefficiency of the service. 60 [emphasis added]In other words, the Equal Employment Opportunity Commission was worried aboutlooking bad. This decision is troubling not only because it reveals a bias in an agencysupposedly committed to alleviating employment inequities, but also because itindicates how readily the courts will uphold dismissals from employment forhomosexual conduct absent any evidence of harm to the agency or public.This latter point is demonstrated particularly well in the decision of Dronenburgv. Zech by the U.S. Court of Appeals, District of Columbia. 61 The United StatesNavy's policy of mandatory discharge for homosexual conduct was challenged on thegrounds that it violated the constitutional right to privacy. The Court reviewed thedevelopment of the right to privacy cases stating:The [Supreme] Court has listed as illustrative of the right toprivacy such matters as activities relating to marriage, procreation,contraception, family relationships, and child rearing and education. Itneed hardly be said that none of these cover a right to homosexualconduct. 6214Again, by focusing on a restrictive interpretation of privacy and a right tohomosexual conduct, the Court misses the point entirely of what privacy is all about:to be free from unwarranted governmental interference with one's decisions on privatematters of intimate concern.The Court then stated that it is up to legislatures to make laws concerningmorality, echoing the sentiment of the majority in the Doe decision. 63 The Courtfurther held:If a statute proscribing homosexual conduct in a civilian contextis sustainable, then such a regulation is certainly sustainable in a militarycontext. That the military has needs for discipline and good order justifyrestrictions that go beyond the needs of civilian society has repeatedlybeen made clear by the Supreme Court. 64That being so, the only question then left to the Court was whether the Navy'spolicy was rationally related to a permissible end:The effects of homosexual conduct within a naval or military unitare almost certain to be harmful to morale and discipline. The Navy isnot required to produce social science data or the results of a controlledexperiment to prove what common sense and common experiencedemonstrate.The Navy's policy requiring discharge of those who engage inhomosexual conduct serves legitimate state interests which themaintenance of 'discipline, good order and morale[,] ... mutual trust andconfidence amongst service members, ... insur[ing] the integrity of thesystem of rank and command, ... recruit[ing] and retain[ing] members ofthe naval service ... and prevent[ing] breaches of security ...' ... webelieve that the policy requiring discharge for homosexual conduct is arational means of achieving these legitimate interests. 65Like the Court in Singer, 66 the Court here managed to find the necessaryjustification for upholding a policy prohibiting and punishing homosexual conductabsent any evidence that such conduct was in any way harmful. Indeed, the Court15refers only to the "common sense and common experience" 67 that indicate homosexualconduct is "almost certain to be harmful to morale and discipline." 68 One is leftwondering whether such a tenuous evidentiary finding would have been acceptable andprobative in any other proceeding not involving homosexual conduct.This decision may be contrasted with the findings of the New York Court ofAppeals in People v. Onofre, 69 again a challenge to state penal laws prohibitingconsensual sodomy. In a statement reflecting a sentiment noted in the Doe dissent, 70the Court emphasized that privacy is not about secrecy behind closed doors, butsomething more:At the outset it should be noted that the right addressed in thepresent context is not, as a literal reading of the phrase might suggest,the right to maintain secrecy with respect to one's affairs or personalbehaviour; rather, it is a right of independence in making certain kindsof important decisions, with a concomitant right to conduct oneself inaccordance with those decisions, undeterred by governmental restraint71The Court turned to the issue of the supposed moral justification for thecriminalization of consensual sodomy. The Court noted the distinction between publicand private morality and stated that "the private morality of an individual is notsynonymous with nor necessarily will have an effect on what is known as publicmorality." 72 Further, the Court stated:We express no view as to any theological, moral or psychologicalevaluation of consensual sodomy ... [I]t is not the function of the PenalLaw in our governmental policy to provide either a medium for thearticulation or the apparatus for the intended enforcement of moral ortheological values ... That is not the issue before us ... The issue beforeus is whether, assuming that at least at present it is the will of thecommunity (as expressed in legislative enactment) to prohibit consensualsodomy, the Federal Constitution permits recourse to the sanctions of thecriminal law for the achievement of that objective. 7316The Court then pointed out that no evidence of harm to public morality hadbeen demonstrated. Additionally, there was no evidence of elements ofcommercialization, force or the involvement of minors. 74 In short, the Courtconcluded,... the people have failed to demonstrate how government interferencewith the practice of personal choice in matters of intimate sexualbehaviour out of the view of the public and with no commercialcomponent will serve to advance the cause of public morality or doanything other than restrict individual conduct and impose a concept ofprivate morality chosen by the State. 75Against this background is introduced Bowers v. Hardwick,76 the United StatesSupreme Court's sweeping repudiation of a meaningful right to privacy. The issuebefore the Court was the constitutional validity of Georgia's sodomy statute, whichprohibited private consensual acts of sodomy between any persons and provided forimprisonment for not less than one year nor more than 20 years upon conviction. 77Writing for the majority, White J. framed the issue as "whether the FederalConstitution confers a fundamental right upon homosexuals to engage in sodomy." 78So stated, it is hardly surprising that the majority would find no such right exists. In areview of the right to privacy cases focusing on the most restrictive interpretationpossible of the meaning of privacy, then limiting it to child rearing and education,family relationships, procreation, marriage, contraception and abortion, 79 the Courtstated:Accepting the decisions in these cases and the above descriptionsof them, we think it evident that none of the rights announced in thosecases bears any resemblance to the claimed constitutional right ofhomosexuals to engage in acts of sodomy that is asserted in this case.No connection between family, marriage, or procreation on the one handand homosexual activity on the other has been demonstrated ...Moreover, any claim that these cases nevertheless stand for theproposition that any kind of private sexual conduct between consentingadults is constitutionally insulated from state proscription isunsupportable. 8017The Court held that the extension of rights not specifically defined in theConstitution was appropriate in situations involving "fundamental liberties that are'implicit in the concept of ordered liberty', such that 'neither liberty nor justice wouldexist if [they] were sacrificed" 81 and that such fundamental liberties were those "thatare 'deeply rooted in this nation's history and tradition.'"82 The Court added that "[i]tis obvious to us that neither of these formulations would extend a fundamental right tohomosexuals to engage in acts of consensual sodomy." 83 Further, the Court notedlegislative proscriptions against consensual sodomy have existed in the United Statessince 1791 and that 25 States and the District of Columbia continue to prohibitconsensual acts between adults in private. 84 Thus, "to claim that a right to engage insuch conduct is 'deeply rooted in this nation's history and tradition' or 'implicit in theconcept of ordered liberty' is, at best, facetious." 85With respect to the argument that there was insufficient evidence to support apresumed belief that sodomy and homosexual sodomy in particular is immoral andunacceptable and is an inadequate rationale to support the law, the Court simplyreplied:... The law ... is constantly based on notions of morality, and if all thelaws representing essentially moral choices are to be invalidated underthe Due Process Clause, the courts will be very busy indeed. Evenrespondent makes no such claim, but insists that majority sentimentsabout the morality of homosexuality should be declared inadequate. Wedo not agree, and are unpersuaded that the sodomy laws of some 25States should be invalidated on this basis. 86Burger C.J. concurred with the majority, adding a separate opinion emphasizingthe Judeo-Christian condemnation of homosexual sodomy: "[t] hold that the act ofhomosexual sodomy is somehow protected as a fundamental right would be to castaside millennia of moral teachings." 8718The minority, in a dissenting opinion written by Blackmun J., took an entirelydifferent approach:This case is no more about 'a fundamental right to engage inhomosexual sodomy' ... than Stanley v. Georgia ... was about afundamental right to watch obscene movies ... Rather, this case is about... 'the right to be let alone.' 88He added that "I believe [i]t is revolting to have no better reason for a rule oflaw than that it was laid down in the time of Henry IV. It is still more revolting if thegrounds upon which it was laid down have vanished long since, and the rule simplepersists from blind imitation of the past." 89The right to privacy that this case involves encompasses something more thanthe right to be "let alone" -- important as that right is. Further, what is necessary is toexamine why the need to be let alone arises in the first place. In reviewing thedevelopment of the right to privacy cases in the context of the protection of the family,Blackmun J. observed: "We protect those rights not because they contribute, in somedirect or material way, to the general public welfare, but because they form so central apart of an individual's life."" When framed in this manner, the privacy interest is thusseen in terms of decisions that are properly for the individual to make as a criticalaspect of self-definition.91 From that, Blackmun J. recognized... that the 'ability independently to define one's identity that is centralto any concept of liberty' cannot truly be exercised in a vacuum; we alldepend on the 'emotional enrichment from close ties with others.'Only the most willful blindness could obscure the fact that sexualintimacy is 'a sensitive, key relationship of human existence, central tofamily life, community welfare, and the development of humanpersonality' ... The fact that individuals define themselves in asignificant way through their intimate sexual relationships with otherssuggests, in a nation diverse as ours, that there may be many 'right'ways of conducting those relationships, and that much of the richness ofa relationship will come from the freedom an individual has to choosethe form and nature of these intensely personal bonds. 92 [emphasis inoriginal]19Quoting from Stanley v. Georgia, 93 Blackmun J. noted:'The makers of our Constitution undertook to secure conditionsfavourable to the pursuit of happiness. They recognized the significanceof man's spiritual nature, of his feelings and of his intellect. They knewthat only a part of the pain, pleasure and satisfaction of life are to befound in material things. They sought to protect Americans in theirbeliefs, their thoughts, and their emotions and their sensations.' 94This, according to the minority dissent opinion, is what the right to privacy is all about:"Indeed, the right of an individual to conduct intimate relationships in the intimacy ofhis or her own home seems to me the heart of the Constitution's protection ofprivacy." 95Blackmun J. then turned to the purported justification of the State's interferencewith the right to privacy found to exist and found there was no evidence tendered tosupport the claim that the sodomy law was necessary for "the general health andwelfare. " 96 Religious justification or public intolerance was simply not enough:... 1 [W]e apply the limitations of the Constitution with no fear thatfreedom to be intellectually and spiritually diverse or even contrary willdisintegrate the social organization ... [F]reedom to differ is not limitedto things that do not matter much. That would be a mere shadow offreedom. The test of its substance is the right to differ as to things thattouch the heart of the existing order' ... It is precisely because the issueraised by this case touches the heart of what makes individuals what theyare that we should be especially sensitive to the rights of those whosechoices upset the majority ...A state can no more punish private behaviour because of religiousintolerance than it can punish such behaviour because of racial animus.'The Constitution cannot control such prejudices, but neither can ittolerate them. Private biases may be outside the reach of the law, butthe law cannot directly, or indirectly, give them effect' ... No matterhow uncomfortable a certain group may make the majority of this Court,we have held that '[M]ere public intolerance or animosity cannotconstitutionally justify the deprivation of a person's physical liberty. ' 97Blackmun J. concluded his dissent with the hope that the Court would soon reconsiderits analysis of this case and cast it in a light that does not betray the values underlyingthe right to privacy.2 0It may be seen from the foregoing that a steady progression of United Statesjurisprudence, culminating in Bowers v. Hardwick, has essentially eviscerated the rightto privacy of any meaningful content. By insisting on a strict line between private andpublic behaviour the courts have developed an artificially compartmentalized view ofprivacy and its impact on an individual's self-definition. Moreover, in emphasizingreligious and moral overtones in upholding legislation that prohibits consensual adultsexual behaviour the courts again miss the point that the government must not interferewith the development of an individual's personality absent compelling evidence ofnecessity.The decision in People v. Onofre98 and the dissenting opinions in Doe" andBowers v. Hardwick100 represent the high water mark of the judiciary's development ofthe right to privacy. Yet even these decisions only partially develop a truly meaningfulright. For while these opinions are passionate in their defence of privacy andarticulation of the need to independently define one's identity free from governmentalintrusion, they do little to ensure the concomitant need to have one's private life andidentity recognized, officially sanctioned and respected in the public sphere. Thisaspect of a right to privacy is perhaps most crucial, for the freedom to make a publicstatement about one's identity is central to the concept of the self. 101CANADIAN JURISPRUDENCE ON SEXUAL ORIENTATION: PRE- ANDNON-CHARTER CASESTurning from European and American jurisprudence on privacy to anexamination of Canadian law, it will be seen that the law has failed to promote therights of homosexual persons. Specifically, attempts by homosexual couples to obtain21the benefits accorded heterosexual couples have been repeatedly denied. Persons insame-sex partnerships have argued that their relationships are the same as any othercommon law relationship and that their partners thus constitute spouses for the purposesof obtaining spousal benefits available through legislation. These claims have beendenied on the basis that common law relationships are an alternative form of marriageand as such can only include opposite sex partners. Marriage is thus seen as thefoundation upon which all rights and benefits are based.The legal rights and benefits conferred on homosexual couples through marriageand common law do not extend to homosexual persons in same-sex relationships. Thisis based on the reasoning that homosexual persons lack the legal capacity to marry andthus cannot be married and thus cannot obtain the legal benefits that flow from beingmarried. One of the essential requirements for the capacity to marry is that one of thepartners be of the opposite sex.lo One judicial definition of marriage, found in Hydev. Hyde and Woodmanseelo stated that "marriage, as understood in Christendom, mayfor this purpose be defined as the voluntary union for life of one man and one womanto the exclusion of all others." 104 Corbett v. Corbett (Otherwise Ashley) 105 offered thefurther elaboration thatsex is clearly an essential element determinant of the relationship calledmarriage, because it is and always has been recognized as the union ofman and woman. It is the institution on which the family is built, and inwhich the capacity for natural heterosexual intercourse is an essentialelement. It has, of course, many other characteristics, of whichcompanionship and mutual support is an important one, but thecharacteristics which distinguish it from all other relationships can onlybe met by two persons of opposite sex. 106A Canadian attempt to register the marriage of two homosexual men wasrejected. It was argued in Re North and Mathesonlo that the Manitoba MarriageAct, 108 in failing to stipulate an opposite-sex requirement, could apply to same-sex22couples by virtue of Section 2 of the Act, which provided for the registration of amarriage between "any two persons not under a legal disqualification to contract themarriage." The Manitoba County Court found the marriage to be a nullity, stating: "Icannot conclude that the Legislature, in using the words 'any two persons', intended torecognize the capacity of two persons of the same sex to marry." 1°9 Citing Hydelloand Corbettl 1 1 the Court concluded that only persons of the opposite sex had thecapacity to enter into a valid marriage. 112 Marriages between same-sex couples arevoid ab initio.n 3Judicial recognition of common law same-sex relationships have fared littlebetter. In Anderson v. Luoma114 such a relationship was at an end and one partnerattempted to claim a division of property and support for herself and her children inaccordance with the provisions of the British Columbia Family Relations Act. 115 Theissue before the Court was whether the Act had any application where the parties wereof the same sex. The answer was succinct:The Family Relations Act does not purport to affect the legalresponsibilities which homosexuals may have to each other or to childrenborn to one of them ... The Act's application is, in general, directed tothe spousal and parental relations of men and women in their role ofhusband, wife and parent. For example, s.1 of the Family Relations Actdefines 'spouse':'spouse' means wife or husband and includes ... (c) ... aman or woman not married to each other, who have livedtogether as husband or wife for a period of not less thanthree years ... '116Any remedies sought by the parties must, therefore, be found in law or equity. Ms.Anderson's claim for support was rejected on the ground that she failed to meet thedefinition of "spouse" and her success in obtaining a division of property was based onthe existence of a constructive trust between her and her former partner.23Similarly, the meaning of the term "spouse" was at issue in Re Andrews andMinister of Health for Ontario 117 ("Karen Andrews"), a decision concerning achallenge to legislation that denies same-sex couples the benefits accorded to theirheterosexual counterparts. The legislation in this instance was the Ontario HealthInsurance Act, 118 which provides a scheme of health insurance for residents of Ontario.Ms. Andrews sought to include her same-sex partner under her (Andrews') medical,dental and optical coverage as her dependent spouse. The Ontario Hospital InsuranceCommission refused to extend coverage to Ms. Andrews' partner on the basis that herpartner could not be defined as a "dependent spouse". The Ontario High Court ofJustice agreed, holding that the term "spouse" as used in Ontario legislation and definedin dictionaries always refers to a person of the opposite sex and thus cannot be extendedto include same-sex partners. 119The Karen Andrews case is significant because it represents the first time s.15of the Charter was used to challenge legislation that denies same-sex couples benefitsaccorded to heterosexual couples. On this issue the Court found that homosexualpartners living together in a domestic situation represent a distinct class 120 but held thatas a distinct class they re not similarly situated to heterosexual couples in thathomosexual couples do not and cannot marry, procreate and raise children and have thelegal obligation to support those children. 121 The Court further held that the purpose ofthe legislation was to "promote and assist with the establishment and maintenance offamilies": 122 that is, families "in the more traditional heterosexual context." 123 Thus,the difference in treatment between heterosexual couples and homosexual couples couldnot be seen as discriminatory because the two groups were decidedly different becauseof the above reasons. Further, homosexual couples were treated in "exactly the samemanner" 124 as "all of the other unmarried people in the province": 12524Heterosexual couples of the same sex, brothers and brothers,sisters and sisters, brothers and sisters, cousins, parents and adultchildren and any combination of them may be living together undersimilar circumstances to the applicant but would in each case pay OHIPpremiums as 'single persons' .126This reasoning entirely misses the point that Ms. Andrews and her partner arenot exactly like "all the other unmarried people in the province." They are a domesticpartnership and as such are exactly like all heterosexual common law couples in theprovince except that they are denied the benefits so readily available to heterosexualcouples. By including homosexual couples with unmarried brothers and sisters, sistersand sisters, cousins and parents, the Court is completely invalidating homosexualrelationships as domestic partnerships. This strikes directly at the heart of a publicidentity that is so central to a conception of the self.In June 1990 the Federal Court of Canada held that the term "family status", ascontained in the Canadian Human Rights Act, 127 did not extend to two persons livingtogether in a homosexual relationship. 128 The circumstances giving rise to this decisionare as follows.In June 1985 Brian Mossop129 was employed by the Treasury Board of Canadaand through his employment was a member of the Canadian Union of Professional andTechnical Employees (CUPTE). He had been living with Ken Popert since 1976 in anopenly homosexual relationship. They shared a home which they jointly owned, shareda bank account, shared domestic tasks, and publicly represented each other as his lover.Mr. Mossop attended the funeral of Mr. Popert's father, and applied for bereavementleave as provided for in the collective agreement that governed his place of work. Thecollective agreement provided for bereavement leave as follows:19.02 For the purpose of this clause, immediate family is defined asfather, mother, brother, sister, spouse (including common law25spouse resident with the employee), or ward of the employee,father-in-law, mother-in-law ...2.01 For the purpose of this Agreement ...(s) a "common law spouse" relationship is said to exist when, for acontinuous period of at least one year, an employee has livedwith a person of the opposite sex, publicly represented thatperson to be his/her spouse, and lives and intends to continue tolive with that person as if that person were his/her spouse. 130The Department of Secretary of State refused bereavement leave on the basisthat Mr. Mossop's partner was a man. 131 He applied for one day vacation leaverelating back to the day of the funeral. This application was granted. He then filed acomplaint under the Canadian Human Rights Act 132 (the "Act") alleging his employer"committed a discriminatory practice on the prohibited ground of family status in amatter related to employment. "133 The Act lists as prohibited grounds ofdiscrimination "race, national or ethnic origin, colour, religion, age, sex, maritalstatus, family status, disability and conviction of an offence for which a pardon hasbeen granted." 134 Family status is not defined in the Act and thus became the focalpoint of the proceedings before the Human Rights Tribunal (the "Tribunal").Counsel for Mr. Mossop argued that homosexual couples can constitute afamily. In seeking to define "family" it is important to look beyond mere appearanceand examine the content of the relationship. Dr. Margrit Eichler, an expert witness forMr. Mossop, stated that there are many indicia of a familial relationship and that thereis no standard list because no single factor is always present in the relationship, 135 butstated:From what I've heard this is a relationship of some standing in terms oftime with the expectation of continuance. So it's not a relationship thatis defined in terms of time. You have the joint residence, you haveeconomic union in many ways as expressed by the fact that the house isjointly owned, that life insurance -- the people, the two (2) partners are26beneficiaries -- that there's joint financing, it's a sexual relationship,housework is shared and it's an emotional relationship which is a veryimportant aspect of familial relationships. 136"Family" may mean many things depending on the context in which it is used andincludes various types of relationships including blood (or consanguinity), kinship(which would include relationships beyond blood ties), marriage or adoption, andbonds made between people on some other basis. 137 Thus, it is important to examinethe nature of the relationship in question to determine whether it is familial as describedabove.The Treasury Board and Department of Secretary of State argued that "family"should be confined to its plain meaning, founded in "traditional values" 138 with the"common denominator" 139 of children. The Tribunal noted that counsel generally "didnot cite any authorities establishing these principles. "140A review of the parliamentary history of the addition of family status to the Actas a prohibited ground of discrimination revealed that the phrase was left undefinedbecause it included a variety of relationships and "Mt will be up to the commission, thetribunals it appoints, and, in the final cases, the courts, to ascertain in a given case themeaning to be given to [family status]. "141The Tribunal stated that it must approach the definition of family status in lightof the objectives of the Act. The goal of the Act is "that of equal opportunity for eachindividual to achieve 'the life that he or she is able and wishes to have'" 41 2 and isintended to address group stereotypes. 143 As "family" is capable of different meaningsin different circumstances, the Tribunal was reluctant to ascribe an all-inclusivemeaning to the term, preferring instead to adopt a meaning that is reasonable and bestaccords with the intentions of the Act. 144 The Tribunal rejected the "traditional" view27of the family "as generally understood" as put forth by the Treasury Board andDepartment of Secretary of State, 145 noting the lack of evidence to support thisargument and further noting that views "generally understood" may sometimes begenerated by "bias or prejudice against homosexuals. "146 The Tribunal also noted:It must be remembered that to exclude any person from invokinga prohibited ground of discrimination bars any further considerationunder the Act, with potentially serious consequences for individuals. Inthe view of this Tribunal, such an approach to definition does not giveeffect to, or advance, the special purpose of the Act - 147The Tribunal thus held that a reasonable definition of family would include homosexualfamilies, given the purpose of the Act, the realities of people's living situations, and anunderstanding that pro forma dictionary definitions often trap people in outdatedmeanings that do little to promote rights. 148The next question that arose was whether Mr. Mossop's employer hadcommitted a discriminatory practice by entering into a collective agreement which "forthe purposes of bereavement leave, excludes people from the definition of 'immediatefamily' a person of the same sex as the employee who, except for the sex of thatperson, would otherwise meet the definition of 'common law spouse' . "149An examination of the terms for bereavement leave reveals that it is available toan employee upon the death of a member of his or her immediate family. Asidentified, immediate family members may be directly related by blood or marriage,such as spouses (including common law spouses) or indirectly related through a spousalrelationship, such as in-laws. Common law relationships are said to existwhen, for a continuous period of at least one year, an employee haslived with a person of the opposite sex, publicly represented that personto be his/her spouse, and lives with and intends to continue to live withthat person as if that person were his/her spouse. 15028So described, the immediate family defined in the collective agreement includes someof the indicia of familial relationships outlined by Dr. Eichler. The Tribunalconcluded:The definition of 'immediate family' includes some familialrelationships and excludes others. The collective agreement thereforetreats some types of familial relationships differently than others. Inparticular, it excludes from the benefit of bereavement leave anemployee who is in a permanent and public relationship with a person ofthe same sex. Having determined that persons of the same sex primafade may have the status of family under the Act, and havingdetermined that the family of the complainant is treated differently underthe Act than other families ... this Tribunal therefore finds that thecollective agreement deprived the complainant of the employmentopportunity of bereavement leave on a prohibited ground ofdiscrimination and that therefore each of the Treasury Board and[CUPTE] have committed a discriminatory practice - 151Clearly this decision represented a radical departure from conventionalconceptions of family status. Not surprisingly, the Attorney General of Canada (joinedby the Salvation Army, Focus on the Family Association of Canada, Realwomen, thePentacostal Assemblies of Canada and the Evangelical Fellowship of Canada) appealedthis decision on the basis that the Tribunal had erred in interpreting the term "familystatus" to extend to two persons living together in a homosexual relationship. TheCourt relied on a narrow, legalistic interpretation of family that limited its meaning bystating that "the basic concept signified by the word has always been a group ofindividuals with common genes, common blood, common ancestors" (emphasisadded) 152 that has been extended to include "individuals connected by affinity oradoption, an inclusion rendered normal by the fact that marriage was made the onlysocially accepted way of extending and continuing the group, and adoption a legallyestablished imitation of natural filiation" (emphasis addec). 153 However, this "normal"extension of family does not affect that "core meaning conveyed by the word." 154Similarly,29[i]t is true that the term is also the subject of analogous uses which maystill be debatable and will remain susceptible to changes (hence the lackof complete uniformity in the dictionaries). But so long as theseanalogous uses are clearly seen as being what they are semantically. i.e. used by analogy, the peripheral area of uncertainty they bring in is quiteresidual and should not be misleading. 155(Emphasis added)Thus the term "family" may be properly used to refer to groups that are clearly beyondthe "core meaning" of the word, so long as the word is only used as analogy and isunderstood as such. Supposedly, this would apply to any close network of support thatconsisted of individuals other than those related by common genes, common blood,common ancestors, affinity or adoption. These individuals would thus be considered"residual". As the Court stated, "[t]here is a difference being, in certain respects,functionally akin to a family and being a family. "156Along with the difficulties the Court found with conceptualizing homosexualfamilies, it also expressed concern thatfamily is not used in isolation in the Act, but rather coupled with theword 'status'. A status, to me, is primarily a legal concept which refersto the particular position of a person with respect to his or her rights andlimitations as a result of his or her being a member of some legallyrecognized and regulated group. I fail to see how any approach otherthan a legal one could lead to a proper understanding of what is meantby the phrase 'family status'. Even if we were to accept that twohomosexual lovers can constitute 'sociologically speaking' a sort offamily, it is certainly not one which is now recognized by law as givingits members special rights and obligations. 157(Emphasis added)This latter statement amply demonstrates the absurd catch-22 position in whichlegalistic reasoning places homosexual persons seeking spousal benefits. One can onlybe accorded rights and obligations if one is legally recognized, and cannot be legallyrecognized without belonging to some group that has been accorded a legal status.Being denied legal recognition thus sentences an individual or group to legal invisibilityand invalidity: out of sight, out of mind, out of luck. The Court went on to hold thatthe Human Rights Tribunal30had no authority to reject the generally understood meaning given to theword 'family' and adopt in its stead, through a consciously ad hocapproach, a meaning ill-adapted to the context in which the word appearsand obviously not in conformity with what was intended when the wordwas introduced, as shown by the legislative history of the amendment. 158(Emphasis added)Clearly the Court thought it was entirely inappropriate to ascribe to a homosexualrelationship a status reserved for a narrowly and legally defined group that homosexualrelationships were not even analogous to. Even if this relationship was analogous to afamily, it was still beyond the "core meaning" of the term "as generally understood"and remained analogous in a residual, peripheral manner. The dividing line between"normal" (hence legitimate and recognized) and "other" (illegitimate and unrecognized,invisible) is thus maintained. But for the Court, the whole issue of whetherhomosexual relationships could be considered family relationships was secondary."The real issue" 159 underlying Mr. Mossop's complaint, said the Court, was sexualorientation. 160 Indeed, it was the fundamental issue:[S]hould it be admitted that a homosexual couple constitutes a family inthe same manner as a husband and wife, it then becomes apparent thatthe disadvantage that may result to it by the refusal to treat it as aheterosexual couple is inextricably related to the sexual orientation of itsmembers. It is sexual orientation which has led the complainant to enterwith Popert into a 'familial relationship' (to use the expression of theexpert sociologist), and sexual orientation, therefore, which hasprecluded the recognition of his family status with regard to his loverand that man's father. So in the final analysis, sexual orientation isreally the ground of discrimination involved. 161Again, this reasoning implies the distinction between a "normalcy" and "otherness",this time with sexual orientation serving as the "otherness" that is sufficientlyperipheral to place homosexual couples beyond the reach of a status that would conferbenefits and legitimacy. Implicit in this is a sort of double legal curse visited uponhomosexual persons: their relationships may be "family", but only in a peripheral andresidual (hence marginal) sense and not really family as that term was intended andgenerally understood, 162 and their sexual orientation is sufficiently "otherly" to place31them outside the individuals whose relationships are "normal" enough to be consideredfamily.With respect to recent decisions which held that sexual orientation is aprohibited ground of discrimination under s.15 of the Charter, 163 the Court held that itdid not believe that the Charter iscapable of being used as a kind of ipso facto legislative amendmentmachine requiring its doctrine to be incorporated in the human rightslegislation by stretching the meaning of the terms beyond theirboundaries. 164Rather, the more appropriate use of the Charter would be to use it as the primarymeans of challenging legislation that contained discriminatory provisions, instead ofsuperimposing Charter jurisprudence onto human rights Acts. 165 Nevertheless, theCourt's use of language such as "stretching the meaning of terms beyond theirboundaries" 166 and the "core meaning conveyed by the word" 167 implies thatirrespective of whether the Charter of human rights legislation is used to examine themeaning of "family", anything considered not "normal" in the sense of heterosexualrelationships and sexuality will not be recognized.This decision serves as a particularly clear example of how deeply entrenchedsocial and judicial thinking about the family is. The use of language such as "normal","has always been", "core meaning", "generally understood" and "peripheral","residual", "not in conformity" and "meaning which it was not intended to possess"clearly delineates between what is considered appropriate and legitimate and that whichis marginal and illegitimate. Implicit in this is the belief that some relationships are"natural" (hence normal and legitimate) while those that occupy the periphery areunnatural and thus somehow lacking in quality; therefore, not deserving of social andjudicial approval.32The preceding are clear examples of the denial of the equal protection and theequal benefit of the law based on sexual orientation. But for the fact of their sexuality,none of the parties' claims would have been denied or even given rise to adjudication.A definition of spouse that extends only to heterosexual partners clearly affects same-sex couples' rights and benefits under such legislation as the British Columbia FamilyRelations Act168 and the Ontario Health Insurance Act. 169 Indeed, such a definitionprecludes any rights and benefits at all. Moreover, in denying these claims the courtsserve to perpetuate the invalidity of a homosexual identity by refusing the publicrecognition and official sanction so critical to self-identification. Government andjudicial refusal to acknowledge the reality of homosexual relationships constitutes thehighest form of social repudiation and dooms homosexual persons to invisibility andinvalidity: out of sight, out of mind, out of luck. Trapped by a jurisprudence thatrefuses to hear their voices, homosexual persons appear destined to move from atradition of disadvantage to a future of the same fate.However, recent decisions indicate that the courts are finally awakening to theplight of the historically disadvantaged and may now been seen as recognizing andactively promoting their rights through s.15 of the Charter. This is now undertaken inlight of the particular process of constitutional adjudication. In Hunter v. Southam,Mr. Justice Dickson stated that a constitutionis drafted with an eye to the future. Its function is to provide acontinuing framework for the legitimate exercise of governmental powerand, when joined by a Bill or Charter of Rights, for the unremittingprotection of individual rights and liberties. Once enacted, its provisionscannot easily be repealed or amended. It must, therefore, be capable ofgrowth and development over time to meet new social, political andhistorical realities often unimagined by its framers. 17033Specific provisions of a constitution, he continued, must therefore be subject to a"broad, purposive" analysis in light of the constitution's larger objectives. 171Addressing the Charter, Dickson J. stated that its purposeis to protect, within the limits of reason, the enjoyment of the rights andfreedoms it enshrines. It is intended to constrain governmental actioninconsistent with those rights and freedoms; it is not in itself anauthorization for governmental action. 172Additionally, there are clear indications that the courts view the principles that underliethe Charter as a mandate to foster an environment that encourages and respects self-fulfillment. In Morgentaler, Smoling and Scott v. The Queen 173 Wilson J. observed:The Charter is predicated on a particular conception of the placeof the individual in society. An individual is not a totally independententity disconnected from the society in which he or she lives. Neither,however, is the individual a mere cog in an impersonal machine inwhich his or her values, goals and aspirations are subordinated to thoseof the collectivity. The individual is a bit of both. The Charter reflectsthis reality by leaving a wide range of activities and decisions open tolegitimate government control while at the same time placing limits onthe proper scope of that control. Thus, the rights guaranteed in theCharter erect around each individual, metaphorically speaking, aninvisible fence over which the state will not be allowed to trespass. Therole of the courts is to map out, piece by piece, the parameters of thefence.The Charter and the right to individual liberty guaranteed under it areinextricably tied to the concept of human dignity ... [Liberty is] 'acondition of human self-respect and of that contentment which resides inthe ability to pursue one's own conception of a full and rewarding life'The idea of human dignity finds expression in almost every right andfreedom guaranteed in the Charter. Individuals are afforded the right tochoose their own religion and their own philosophy of life, the right tochoose with whom they will associate and how they will expressthemselves, the right to choose where they will live and what occupationthey will pursue. These are all examples of the basic theory underlyingthe Charter, namely, that the state will respect choices made byindividuals and, to the greatest extent possible, will avoid subordinatingthese choices to any one conception of the good life.Thus, an aspect of the respect for human dignity on which the Charter isfounded is the right to make fundamental personal decisions without34interference from the state. This right is a critical component of theright to liberty. Liberty ... properly construed, grants the individual adegree of autonomy in making decisions of fundamental personalimportance. 174From this may be heard echoes of the European sentiment of the right to respectfor one's private life and its concomitant right to fulfillment of one's own personality ina manner that is officially validated. Clearly the way one defines oneself sexually is animportant aspect of one's personality, 175 and clearly marriage in both its formal andcommon law manifestations is an equally important aspect of self-definition and,indeed, a right deemed fundamenta1. 176 That certain legally recognized benefits andobligations flow from the state of marriage and being a spouse cannot be disputed: thespousal support provisions contained in the British Columbia Family Relations Actinand the insurance scheme contained in the Ontario Health Insurance Act 178 are but twoobvious examples. How, then, can s.15 of the Charter be used to promote the claimsof those denied the equal benefit and equal protection of the law?EQUALITY RIGHTS JURISPRUDENCELess than one year after the Karen Andrews decision, the Supreme Court ofCanada released its judgment in Andrews v. Law Society of British Columbia. 179 Thisgave the Supreme Court of Canada its first opportunity to articulate its views on theconcepts of equality and discrimination within the context of s.15. At issue waswhether the citizenship requirement for entry into the legal profession in BritishColumbia contravened s. 15 and, if so, whether this was justified under the provisionsof s.1.With respect to the concept of equality, McIntyre J. stated that it was somethingmore than treating likes alike and inalikes unalike. Such an approach could lead to a35mechanical application of the law, resulting in decisions similar to that in Bliss v. A-GCan. 180 where a pregnant woman was denied the benefit of the law because the lawworked to deny a particular benefit to all pregnant women and thus all pregnant womenwere treated equally. 181 Rather, in keeping with the purposive approach to the Charterthe Court has sought to undertake, 182 it held that s.15 contained three basic andseparate rights beyond the right to equality before the law: the right to equality underthe law, the right to the equal protection of the law, and the right to the equal benefit ofthe law. 183 Thus, the equality provisions were designed to cast a much wider net thatprevious equality legislation. 184 However, the Court also recognized that s.15 providedsomething more than "mere equality":It is clear the purpose of s.15 is to ensure equality in theformulation and application of the law. The promotion of equalityentails the promotion of a society in which all are secure in theknowledge that they are recognized at law as human beings equallydeserving of concern, respect and consideration. It has a large remedialcomponent ... It must be recognized, however, as well that thepromotion of equality under s.15 has a much more specific goal than themere elimination of distinctions. 185That specific goal is equality without discrimination. Discriminationis unacceptable in a democratic society because it epitomizes the worsteffects of the denial of equality, and discrimination reinforced by law isparticularly repugnant. The worst oppression will result fromdiscriminatory measures having the force of law. It is against this evilthat s.15 provides a guarantee.' 86Clearly, then, discrimination is an integral aspect of the equality guarantee.McIntyre J. defined discrimination asa distinction, whether intentional or not but based on grounds relating topersonal characteristics of an individual or group, which has the effect ofimposing burdens, obligations, or disadvantages on such individual orgroup not imposed upon others, or which withholds or limits access toopportunities, benefits, and advantages to other members of society. 187It is also necessary to consider what kinds of discrimination will be brought within theprotection of s.15. All laws and legislation by their very nature make distinctions.36The question thus becomes which distinctions will result in discriminatory treatment.The Court adopted an approach that focuses on the enumerated grounds found withinthe text of s.15 and those analogous to them, stating [t]he words 'withoutdiscrimination' require more than a mere finding of distinction between the treatmentof groups or individuals. Those words are a form of qualifier built into s.15 itself andlimit those distinctions which are forbidden by the section to those which involveprejudice or disadvantage." 188 The following was cited as illustrative of the approach:The inquiry, in effect, concentrates upon the personal characteristics ofthose who claim to have been unequally treated. Questions ofstereotyping, of historical disadvantagement, in a word, of prejudice, arethe focus and there may even be a recognition that for some peopleequality has a different meaning than for others. 189Thus, a claim under s.15 involves two distinct steps. An individual claiming a breachof s.15 must demonstrate... not only that he or she is not receiving equal treatment before andunder the law or that the law has a differential impact on him or her inthe protection or the benefit accorded by law but, in addition, must showthat the legislative impact of the law is discriminatory. 190If a breach of s.15 is found to have occurred, that is, that a denial of one of theequality rights with the requisite discriminatory element has been established, it falls tothose seeking to uphold the discriminating legislation 191 to establish that the legislationis "demonstrably justified in a free and democratic society" under the provisions of s.1of the Charter. This involves a two step analysis:...[T]he first question the court should ask must relate to the nature andthe purpose of the enactment, with a view to deciding whether thelimitation represents a legitimate exercise of the legislative power for theattainment of a desirable social objective which would warrantoverriding constitutionally protected rights. The second step in a s.1inquiry involves a proportionality test whereby the court must attempt tobalance a number of factors. The court must examine the nature of theright, the extent of its infringement, and the degree to which thelimitation furthers the attainment of the desirable social goal embodied inthe legislation. Also involved in the inquiry will be the importance ofthe right to the individual or group concerned, and the broader socialimpact of both the impugned law and its alternatives. 19237This decision is significant in that it sets the parameters for developing ananalysis for the application of the Charter's equality guarantees. This is an importantstep in giving expression to the large social values that underlie the Charter and what itseeks to secure and guarantee. It is in this sense that the decision is particularlysignificant, for it identifies the politically and socially weak and the traditionallydisadvantaged as the true beneficiaries of the protections found in s.15. Commentingon the relative positions of citizens to non-citizens in society, Wilson J. noted:Relative to citizens, non-citizens are a group lacking in politicalpower and as such vulnerable to having their interests overlooked andtheir rights to equal concern and respect violated. They are among'those groups in society whose needs and wishes elected officials have noapparent interest in attending. ' 193Wilson J. then examined politically vulnerable groups within the context of... the entire social, political and legal fabric of our society. Whilelegislatures must inevitably draw distinctions among the governed, suchdistinctions should not bring about or reinforce the disadvantage ofcertain groups and individuals by denying them the rights freelyaccorded to others.I believe also that it is important to note that the range of discreteand insular minorities has changed and will continue to change withchanging political and social circumstances. For example, Stone J.,writing in 1938, was concerned with religious, national and racialminorities. In enumerating the specific grounds in s.15, the framers ofthe Charter embraced these concerns in 1982 but also addressedthemselves to the difficulties experienced by the disadvantaged on theground of ethnic origin, colour, sex, age and physical and mentaldisability. It can be anticipated that the discrete and insular minorities oftomorrow will include groups not recognized as such today. It isconsistent with the constitutional status of s.15 that it be interpreted withsufficient flexibility to ensure the 'unremitting protection' of equalityrights in the years to come. 194From this is may be seen that the court is alive to the concerns of thetraditionally disadvantaged and is seeking to promote their rights. This point wasfurther developed by Wilson J. in R. v. Turpin 195 where she emphasized theimportance of examining the "larger social, political and legal context" within which38"discrimination on grounds relating to the personal characteristics of the individual orgroup" 196 occurs:[I]t is only by examining the large context that a court can determinewhether differential treatment results in inequality or whether,contrariwise, it would be identical treatment which would in theparticular context result in inequality or foster disadvantage. A findingthat there is discrimination will, I think, in most but perhaps not allcases, necessarily entail a search for disadvantage that exists apart fromand independent of the particular legal distinction being challenged. 197Wilson J. noted that the purpose of s.15 was to remedy or prevent "discriminationagainst groups suffering social, political and legal disadvantage in our society" 198 andthat the indicia of discrimination included "stereotyping, historical disadvantage orvulnerability to potential and social prejudice." 199 These are clear signals that theCourt is prepared to actively promote the rights of the historically disadvantaged toensure that those individuals or groups who have been denied any of the equalities ins.15 are not further denied their rights by operation of the law. Section 15 is thus notmerely about "anti-discrimination"that seeks to ameliorate disadvantage by asserting rights against the relativelyadvantaged. In this sense s.15 may be seen as not merely maintaining the status quobut actively working to overcome it.The following case concerning equality rights claims against the federalgovernment is noteworthy. In Rudolph Wolff & Co. v. Canada, 201 the appellantcompany claimed that federal legislation conferring exclusive jurisdiction on theFederal Court of Canada for all claims made against the federal government violateds.15(1) of the Charter. The appellant stated that the effect of the legislation was totreat those litigants bringing a claim against the federal government differently fromlitigants bringing claims against any other party. 20239; 200 rather, it has an active and progressive elementThis claim is rejected on two grounds. First, the Court holds that the Crown "isnot an individual with whom a comparison can be made to determine a s.15(1)violation." 203 Second, the appellants failed to show that if any irregularity existed, itwas discriminatory. The legislation granting the Federal Court of Canada exclusivejurisdiction over claims against the federal Crown does not distinguish between classesof individuals on the basis of any of the grounds enumerated in s.15(1) nor on anyanalagous grounds. It could not be said that individuals claiming relief against thefederal Crown are "a disadvantaged group in Canadian society within the contemplationof s.15. “204These reasons flow directly from the development of discrimination inAndrews. Thus, it is not surprising that the Court would hold that litigants seeking tosue the federal Crown are not discriminated against on the basis of the personalcharacteristics found in s.15 or those analogous to them. It is interesting to note,however, that the Court also found that the Crown was not an individual with whom acomparison can be made in determining a s.15 violation. What this means is that theCrown is simply different from others against whom a comparison can be made. Thisaspect of the judgment appears to be the application of the "similarly situated" test,expressly rejected in Andrews as appropriate for the resolution of equality questionsarising under the Charter. 205 The reasons for judgment in this case were followed inDywidag Systems v. Zutphen Brothers Construction. 206 It is unclear whether thesedevelopments signal a narrowing of the scope of s.15, or simply represent aberrationsin the Court's reasoning with respect to s.15.40THE JUSTIFICATION OF LIMITATIONS OF RIGHTS AND FREEDOMS:SECTION ONE OF THE CHARTERThe rights and freedoms set out in the Charter are not absolutely guaranteed butsubject to the limitation found in section 1 of the Charter. This provision reads:The Canadian Charter of Rights and Freedoms guarantees the rights andfreedoms set out in it subject only to such reasonable limits as can bedemonstrably justified in a free and democratic society.Section 1 thus serves both to guarantee the rights and freedoms set out in theCharter and to provide the exclusive justificatory criteria against which limitations onthose rights and freedoms must be measured. The presence of s.1 is a recognition ofthe necessity to limit rights and freedoms at times to realize collective goals offundamental importance. The textual primacy of a section focussing on the limitationof rights suggests that the concept of justification is the Charter's fundamentalorganizing principle.The jurisprudence developed by the Supreme Court of Canada with respect tos.1 reveals that whether legislation is upheld or declared constitutionally invaliddepends very much on the approach taken to the justificatory criteria. A relaxed s.1analysis will result in the finding that legislation infringing rights and freedoms isjustified in the circumstances. A strict analysis of the s.1 components will result in thefinding that the legislation is constitutionally invalid. In this sense the approach takenby the courts to s.1 may be seen as results-oriented, with the outcome dictated by thelevel of analysis applied.4142Initial Supreme Court of Canada decisions on the justification of limitations ofconstitutionally guaranteed rights and freedoms are dealt with very much on anindividual basis.LIMITS v. DENIALSA-G Quebec v. Quebec Association of Protestant School Boards 207 concernedthe validity of Quebec's provincial legislation dealing with minority language educationrights, Bill 101, which, it was conceded, were inconsistent with the minority languageeducation rights in s. 23 of the Charter. 208 The Court concludes that the Quebeclegislation, being inconsistent with the Charter, is of no force or effect, 209 withoutresorting to the limitations clause found in s. 1. The Court finds it unnecessary toresort to a discussion of the substantive elements of s. 1 for two reasons. First, it statesthat s. 23 of the Charter was specifically intended to override the provisions of theQuebec legislation. 21° Thus,the limits which [the Quebec legislation] imposes on rights involving thelanguage of instruction, so far as they are inconsistent with s. 23 of theCharter, cannot possibly have been regarded by the framers of theConstitution as coming within 'such reasonable limits prescribed by lawas can be demonstrably justified in a free and democratic society.'Accordingly, the limits imposed by Chapter VIII of Bill 101 are notlegitimate limits within the meaning of s. 1 of the Charter -211The Court's second reason for holding the Quebec legislation invalid without asubstantive consideration of s. 1 focuses on the effects of Bill 101. The Court statesthat the real effect of the Bill was to make an exception to the minority languageeducation rights in s. 23 of the Charter. 212 The Court holds that the effect of the Billwas tocollide directly with those of s. 23 of the Charter, and are not limitswhich can be legitimized by s. 1 of the Charter. Such limits cannot beexceptions to the rights and freedoms guaranteed by the Charter noramount to amendments of the Charter. An Act of Parliament or of alegislature which, for example, purported to impose the beliefs of a Statereligion would be in direct conflict with s. 2(a) of the Charter, whichguarantees freedom of conscience and religion, and would have to beruled of no force or effect without the necessity of even consideringwhether such legislation could be legitimized by s. 1. The s,me appliesto Chapter VIII of Bill 101 in respect of s. 23 of the Charter.` 13Thus it appears that the Court contemplates a distinction between the limitationof rights and freedoms, and the denial of them. Denials must properly be pursuedthrough s. 33 of the Charter or by way of constitutional amendments. 214 Limits that"collide directly" with a Charter right or freedom, or go to its core, are not consideredreasonable limits or demonstrably justified in a free and democratic society and thusmust be ruled invalid without reference to s. 1. 215The Court also finds it unnecessary to discuss the substantive elements of s. 1 inHunter v. Southam, 216 concerning the constitutional validity of provisions of theCombines Investigation Act authorizing a search and seizure. Southam Inc. assertedthat sections of the Act were inconsistent with the right to be secure againstunreasonable search and seizure, as provided by s. 8 of the Charter. The Court statesthat the crux of the case is the meaning to be given to the term "unreasonable" in s.8. 217 The federal government made no submissions that even if the searches providedfor by the Act were "unreasonable" within the meaning of s. 8, they neverthelessconstituted "reasonable limits" and were "demonstrably justified" within a free anddemocratic society under s. 1. 218 The Court therefore finds it unnecessary to considers. 1. 219Thus, the vision of the Charter and its limitations the Supreme Court of Canada appearsto be developing through Hunter v. Southam and A-G Quebec v. Quebec Associationof Protestant School Boards220 is one where Charter guarantees serve to ensure43freedom from governmental action and where limitations must be carefully drafted towarrant consideration under s. 1 at all.LIMITATIONS OF CONSTITUTIONALLY GUARANTEED RIGHTS ANDFREEDOMSThe Court again had the opportunity to address the substantive requirements ofs. 1 in Singh et al v. Minister of Employment and Immigration. 221 The issue here waswhether the procedure for the determination of refugee status under the ImmigrationAct. 1976222 was in accordance with the principles of fundamental justice asestablished in s. 7 of the Charter. The Act was challenged on the basis that it did notprovide an adequate opportunity for refugee claimants to state their case and know thecase they have to meet. 223 Wilson J., writing on behalf of the three justices whodecided this case on the basis of the Charter,224 finds this inadequacy of the Actcontravenes s. 7 of the Charter. She then moves on to consider whether theshortcomings of the Act in relation to the standards set by s. 7 constitute reasonablelimits which can be demonstrably justified in a free and democratic society according tothe principles of s. 1 of the Charter. 225Wilson J. notes that thequestion of the standards which the Court should use in applying s. 1 is,without a doubt, a question of enormous significance for the operation ofthe Charter. If too low a threshold is set, the courts run the risk ofemasculating the Charter. If too high a threshold is set, the courts runthe risk of unjustifiably re,stricting government action. It is not a task tobe entered upon lightly. 22°This task is made all the more difficult, she states, by the comparatively few argumentsmade on the principles the Court should be guided by in applying s. 1 and the limitedscope of the factual material provided by the Minister of Employment and Immigration44to support the contention that the Act's procedures constitute reasonable limits onclaimants' rights. 227 On the relationship between s. 1 and the rest of the Charter, shesays:One or two comments are in order respecting this approach to s.1. It seems to me that it is important to bear in mind that the rights andfreedoms set out in the Charter are fundamental to the political structurein Canada and are guaranteed by the Charter as part of the supreme lawof our nation. I think that in determining whether a particular limitationis a reasonable limit prescribed by law which can be 'demonstrablyjustified in a free and democratic society' it is important to rememberthat the courts are conducting this inquiry in light of a commitment touphold rights and freedoms set out in other sections of theCharter. h28That said, Wilson J. then addresses the argument made on behalf of the Minister ofEmployment and Immigration to uphold the legislation. The Immigration AppealBoard, it was argued, wasalready subjected to a considerable strain in terms of the volume of caseswhich it was required to hear and that a requirement of an oral hearingin every case where an application for redetermination of a refugee claimhas been made would constitute an unreasonable burden on the Board'sresources. 229However, it is Wilson J.'s opinion that "administrative convenience" could not"overrule the need to adhere" to principles of fundamental justice. 230 Indeed, to do sowould render the guarantees of the Charter "illusory". 231 Declining to state preciselywhat factors would give rise to justification under s. 1 and what standards of reviewshould be applied with respect to s. 1,232 she holds that they must be more compellingthan those advanced by the Minister. 233The Court's concern about administrative expediency in Singh is echoed in R.v. Big M Drug Mart et al. 234 The issue in this case was whether federal legislationcompelling Sunday as a day of religious observance was contrary to s. 2(a) of theCharter as infringing the right to freedom of conscience and religion and, if so,whether the legislation could be saved by s. 1 as a demonstrably justified reasonable45limit. In commenting on the nature of legislation generally, Dickson J. states that it isnecessary to assess both the purpose and the effects of legislation to determine itsconstitutionality. 235 Indeed, the court must assess the object of legislation "if rights areto be fully protected." 236 Such an inquiry would ensure that the aims and objectives ofthe legislatures are in accordance with the guarantees set out in the Charter. Thisassessment, he says, is vita1. 237 Further, Dickson J. states,[t]he declaration that certain objects lie outside the legislature's powerchecks governmental action at the first stage of unconstitutional conduct.Further, it will provide more ready and more vigorous protection ofconstitutional rights by obviating the individual litigant's need to proveeffects violative of Charter rights. It will also allow courts to dispose ofcases where the object is clearly improper, without inquiring into thelegislation's actual impact. 238Thus, the initial test of legislation's constitutional validity is to look to its purpose: ifthe legislation is found to have an improper purpose, there is no need to consider itseffects, as it has already been found to be invalid. He notes that the legislation must beexamined in light of its purpose at the time it was drafted and enacted, dismissing theargument that the legislative purpose can shift or be transformed over time by changingsocial conditions. To hold otherwise, he says, would create uncertainty in the law,encourage relitigation of the same issues, and undermine the doctrines of stare decisisand Parliamentary intention. 239 With respect to the purpose of the right or freedom atissue, he states it is to be soughtby reference to the character and larger objects of the Charter itself, tothe language chosen to articulate the specific right or freedom, to thehistorical origins of the concepts enshrined, and where applicable, to themeaning and purpose of the other specific rights and freedoms withwhich it is associated within the text of the Charter. The interpretationshould be, as the judgment in Southam emphasizes, a generous ratherthan a legalistic one, aimed at fulfilling the purpose of the guarantee andsecuring for individuals the full benefit of the Charter's protection. Atthe same time it is important not to overshoot the actual purpose of theright or freedom in question, but to recall that the Charter was notenacted in a vacuum, and must therefore ,e placed in its properlinguistic, philosophic and historical contexts.`4'46Dickson J. determines that the true purpose of the legislation was to compel theobservance of the Christian Sabbath and thus contravened the guarantee of freedom ofconscience and religion found in s. 2(a) of the Charter. 241 He then turns to aconsideration of whether the infringement could be justified on the basis of s. 1.Before addressing the arguments advanced in support of the legislation, DicksonJ. makes some general comments indicating what the scope of a s. 1 test might be:At the outset, it should be noted that not every government interest orpolicy objective is entitled to s. 1 consideration. Principles will have tobe developed for recognizing which government objectives are ofsufficient importance to warrant overriding a constitutionally protectedright or freedom. Once a sufficiently significant government interest isrecognized then it must be decided if the means chosen to achieve thisinterest are reasonable -- a form of proportionality test. The court maywish to ask whether the means adopted to achieve the end sought ,clo soby impairing as little as possible the right or freedom in question. 24`This passage is the first indication of the Court attempting to develop a comprehensiveapproach to the s. 1 inquiry, rather than simply indicating, as in previous cases, whatreasonable limits do not consist of. 243Responding to the argument that Sunday as a day of rest and religiousobservance was the most practical since it was adhered to by the Christian majority,Dickson J. states that[t]his submission is really no more than an argument of convenience andexpediency and is fundamentally repugnant because it would justify thelaw upon the very basis upon which is attacked for violating s. 2(a). 244In dismissing this argument of convenience and expediency he echoes the Court'searlier statements in Singh. 245Finding the legislation was religious in nature by compelling Sundayobservance, 246 Dickson J. holds that it was not open for the federal government to relyon secular grounds (the need and value of a universal day of rest) the legislators did not47primarily intend. 247 "Parliament", he says, "cannot rely upon an ultra vires purposeunder s. 1 of the Charter." 248Wilson J., while agreeing with the conclusions of Dickson J., comments on thedistinction between an analytical approach appropriate to a Charter case and thetraditional approach in determining questions of the division of power between thefederal and provincial legislatures. While the approach to the latter focuses on thepurpose or primary function of the legislation, 249 the entrenchment of constitutionallyguaranteed rights and freedoms necessitates an examination of the consequences oflegislation. The question to ask is whether the legislation "has the effect of violating anentrenched individual right. " 250 The Charter, she says, is "first and foremost aneffects-oriented document." 251 In this approach she differs with Dickson J. that theinitial test of legislation's constitutional validity is to look to its purpose: for Wilson J.the first stage is to "inquire whether legislation in pursuit of what may well be an intravires purpose has the effect of violating an entrenched right or freedom." 252 In herview, the purpose of a statute is irrelevant as long as it has an actual or potential effecton a constitutionally guaranteed right. 253The last of the pre-Oakes decisions concerning s. 1 was the Reference ReSection 94 (2) of the Motor Vehicle Act, 254 concerning the constitutional validity ofprovincial legislation providing for a minimum period of imprisonment for the absoluteliability offence of driving without a valid driver's licence or with a licence undersuspension. The matter came before the courts by way of a reference under theConstitutional Question Act255 asking whether the offence created by s. 94 (2) of theMotor Vehicle Act was consistent with the Charter.48In addressing the issue of whether the legislation offended s. 7 of theCharter, 256 the Court focuses on the scope of the term "principles of fundamentaljustice." This issue, in turn, is narrowly restricted to whether the principles offundamental justice have a substantive content or a merely procedural content. 257 Inexpressly considering a purposive analysis of this term, 258 Lamer J. states that tointerpret "the principles of fundamental justice" so as to have a merely proceduralcontent would be wrong, becauseto do so would strip the protected interests [of life, liberty and securityof the person] of much, if not most, of their content and leave [those]'right[s]' ... in a sorely emaciated state. Such a result would beinconsistent with the broad, affirmative language in which those rightsare expressed and equally inconsistent with the approach adopted by thisCourt toward the interpretation of Charter rights in ... Hunter v.Southam ... 259Lamer J. then goes on to state that absolute liability in penal law with the potential ofimprisonment offends the principles of fundamental justice as it has the potential ofdepriving an individual of life, liberty or security of the person. 260 The legislation inquestion clearly falls within this category, and thus could only be salvaged by thegovernment demonstrating that it is a justified and reasonable limit of one's s. 7 rightsunder s. 1.Before addressing s. 1, Lamer J. notes that absolute liability does not per seoffend s. 7; rather, it is the combination of absolute liability and potentialimprisonment that imperils the legislation. Further,Administrative expediency, absolute liability's main supportiveargument, will undoubtedly under s. 1 be invoked and occasionallysucceed. Indeed, administrative expediency certainly has its place inadministrative law. But when administrative law chooses to call in aidimprisonment through penal law and the added stigma attached to aconviction, exceptional, in my view, will be the case where the libertyor even the security of the person guaranteed under s. 7 should besacrificed to administrative expediency. Section 1 may, for reasons ofadministrative expediency, successfully come to the rescue of anotherwise violation of s. 7, but only in cases arising out of exceptional49conditions such as natural disasters, the outbreak of war, epidemics, andthe like. 26iNo evidence was presented either in the British Columbia Court of Appeal or inthe Supreme Court of Canada to uphold the legislation under s. 1 of the Charter. Theargument to sustain the legislation suggests that limiting rights under s. 7 is areasonable means of "reducing the human and economic cost of bad driving" andgetting "bad drivers off the road" by imposing "severe penalties on those who drivewhile prohibited from driving and those who drive while their driver's licence issuspended." 262 While Lamer J. finds keeping bad drivers off the road and severelypunishing drivers "in contempt of prohibitions against driving" laudable goals, he askswhether the Government of British Columbia has demonstrated asjustifiable that the risk of imprisonment of a few innocent is, given thedesirability of ridding the roads of British Columbia of bad drivers, areasonable limit in a free and democratic society. That result is to bemeasured against the offence being one of strict liability open to adefence of due diligence, the success of which does nothing more thanlet those few who did nothing wrong remain free.As did the Court of Appeal, I fin d  this demonstration has not beensatisfied, indeed, not in the least. 2°3In this passage Lamer J. indicates that there is a less drastic means of accomplishing thelegislative objective, that of a strict liability offence open to a defence of due diligence,a test first suggested in R. v. Big M. Drug Mart. 264 Because the legislation employs amore drastic means than necessary to accomplish its objective, it fails to meet therequirements of s. 1.Justice Wilson reaches the same conclusion that s.94(2) of the Act violates s.7.She reaches that result, however, by a different route. In an opinion that stresses theprimacy of the principles of fundamental justice found in s.7, she states that thepurpose of s.7 is to ensure that deprivations or impairments of life, liberty or securityof the person are only effected in accordance with the principles of fundamental50justice. 265 Thus, an inquiry into s.7 must begin with a determination of whether theright has been impaired in accordance with the principles of fundamental justice. If so,the inquiry moves to the s.1 stage. 266If, however, the limit on the s.7 right has been effected through aviolation of the principles of fundamental justice, the enquiry, in myview, ends there and the limit cannot be sustained under s. 1. I say thisbecause I do not believe that a limit on the s.7 right which has beenimposed in violation of the principles of fundamental justice can beeither 'reasonable' or 'demonstrably justified in a free and democraticsociety'. The requirement in s.7 that the principles of fundamentaljustice be observed seems to me to restrict the legislature's power toimpose limits on the s.7 right under s.1. It can only limit the s.7 right ifit does so in accordance with the principles of fundamental justice and,even if it meets that test, it still has to meet the test under s.1. 267In this instance, it is Justice Wilson's view that mandatory imprisonment for an offencecommitted unknowingly and unwillingly, and after the exercise of due diligence isgrossly excessive and inhumane and offends the principles of fundamental justice ins.7. 2 6 8 Resort to s.1 is thus unnecessary.Notable among these five pre-Oakes cases is the lack of any successful s.1argument. While the Court failed to develop a comprehensive approach to s.1 andinstead dealt with each case on its own, it nevertheless demonstrated which argumentswould not succeed in a s.1 analysis. Moreover, on this issue the Court presented aunited front: no dissenting judgments were given in these decisions. 269 In two cases,A-G Ouebec v. Quebec Association of Protestant School Boards and Hunter v.Southam, 270 the Court found it unnecessary to resort to a discussion of s. 1 at all, whilethe three remaining cases indicated the Court's willingness to establish high standardsthe government must meet when seeking to uphold limitations on constitutionally-protected rights. The Court made it clear that legislation that serves to deny rather thanlimit rights will fail the test of constitutionality before it reaches the s.1 stage, 271indicating that legislation must be carefully drafted to warrant consideration under s.1at all. The contrast between limits and denials points to a particular approach taken by51the Court in addressing the different institutional roles of ss.1 and 33. The denial of aright represents a particularly political stance taken by a legislative body, with overtlypolitical consequences in terms of voter reaction and public perception. The very act ofdenying a constitutionally guaranteed right -- an event so significant it must bespecifically enacted notwithstanding the Charter's guarantees or by way ofconstitutional amendment -- speaks volumes about a legislature's particular politicalagenda and the value it places on the particular right denied. The act of limiting theright, on the other hand, allows the legislative body the relative political luxury ofappearing to maintain the integrity and principles of the Charter's rights by limiting,rather than denying, them. 272In embracing a "purposive" approach to Charter jurisprudence, the Courtemphasizes it must move away from formal and technical legal analysis and insteadfocus on "the character and larger objects of the Charter itself", the language used toarticulate the right, and "the historical origins of the concept enshrined". 273 Thisapproach necessitates a discussion of "values, social needs, competing interests andpolicy alternatives" and of the social and political concerns raised by the Charter'sguarantees. 274 This, in turn, encourages judges to develop and elaborate on ideas ofthe good society that give expression and foundation to guaranteed rights. At the sametime, it should be recognized that the definitions and content given to rights andfreedoms are very much dependent on a judge's own particular values and policies.Moreover, the general language used to articulate the rights and freedoms in theCharter is so open as to allow differing definitions and purposes according to differentjudges. Thus, while a purposive approach encourages judges to view Charteradjudication in a more open and less formalistic manner, it by no means isdeterminative of the content and interpretation of rights. 2755253The Court made some significant comments concerning arguments ofadministrative efficiency and the costs involved in guaranteeing rights and freedoms toall. The point is made in Singh, Big M and the Motor Vehicle Reference thatadministrative convenience per se does not constitute a reasonable and demonstrablyjustified limit on rights. 276 However, the Court cautioned that "prohibitive costs" maybe sufficient to justify the limitation of rights. 277 Yet cost arguments usually do notstate that funding for a particular program is a prohibitive burden itself; rather, theargument states that the funding is an excessive burden given prevailing resourceallocations. 278 In rejecting this argument the Court indicated that the governmentcannot escape "Charter commitments by failing to fund a particular department orprogramme sufficiently to meet constitutional standards." 279 This implies thatconstitutionally guaranteed rights must receive higher priority in the distribution offinancial resources than non-constitutional rights. This has significant meaning totraditionally disadvantaged groups who have experienced difficulty gaining access toresources and programs. The new constitutional guarantees set forth in the Chartercannot be abridged by the government resorting to arguments of greater cost.Finally, the Court began to develop for the first time a comprehensiveframework for a s.1 analysis. In Big M, Dickson J. noted that government objectiveswould have to be of sufficient importance to override constitutionally protected rightsand freedoms, and that the means chosen to do so are reasonable. He termed this aform of proportionality test. 280 He also indicated that the Court may look to see if themeans taken to restrict the right or freedom are the least restrictive. 281 This leastrestrictive means test was later applied by Lamer J. in the Motor Vehicle Reference.These elements would be subjected to more serious scrutiny in later cases. Takentogether, then, the preceding cases, while dealt with very much on an individual basis,indicate that denials rather than limits will not succeed at the s.1 stage, nor will ultravires legislation or arguments of administrative convenience.R. v. Oakes282 represents the Court's most serious attempt thus far to constructa comprehensive framework of analysis for s.l. At issue here was the constitutionalvalidity of s.8 of the Narcotic Control Act,283 which contained a "reverse onus" clauserequiring an accused person to prove, on a balance of probabilities, that he or she is notin possession of a narcotic for the purpose of trafficking once the basic fact ofpossession is proven. It was argued that this was contrary to the right to be presumedinnocent until proven guilty as set forth in s.11(d) of the Charter. 284In developing the framework for a s.1 analysis, Dickson C.J. notes that s.1 hastwo separate functions. The first is that it constitutionally guarantees the rights andfreedoms set out in the Charter. The second is that it "states explicitly the exclusivejustificatory criteria (outside s.33 of the Charter) against which limitations on thoserights and freedoms must be measured." 285 Further, he states that the Court must beguided by the underlying values and principles of a free and democratic society whichembody, to name but a few, respect for the inherent dignity of thehuman person, commitment to social justice and equality,accommodation of a wide body of beliefs, respect for cultural and groupidentity, and faith in social and political institutions which enhance theparticipation of individuals and groups in society. The underlying valuesand principles of a free and democratic society are the genesis of therights and freedoms guaranteed by the Charter and the ultimate standardagainst which a limit on a right or freedom must be shown, despite itseffect, to be reasonable and demonstrably justified. 286In limiting rights, the criteria in s.1 impose what Dickson C.J. terms a "stringentstandard of justification" in the face of constitutionally guaranteed rights and "thefundamental principles of a free and democratic society. "28754Turning to the evidence necessary in a s.1 analysis, Dickson C.J. states that thestandard of proof is that of a preponderance of probability and that it must be appliedrigorously, as the phrase "demonstrably justified" implies. The evidence necessary tosustain a violation of a constitutionally protected right or freedom must be "cogent andpersuasive and make it clear to the Court the consequences of imposing or not imposingthe limit." He also notes that the Court must be advised of what other means ofaccomplishing the legislative objective were available when the legislators made theirdecision to breach a right or freedom. 288 It is worth setting out in full Dickson C.J.'scomments concerning the elements of s.1:To establish that a limit is reasonable and demonstrably justifiedin a free and democratic society, two central criteria must be satisfied.First, the objective, which the measures responsible for a limit on aCharter right or freedom are designed to serve, must be of 'sufficientimportance to warrant overriding a constitutionally protected right orfreedom': R. v. Big M Drug Mart Ltd.,  supra, at p.352. The standardmust be high in order to ensure that objectives which are trivial ordiscordant with the principles integral to a free and democratic societydo not gain s.1 protection. It is necessary, at a minimum, that anobjective relate to concerns which are pressing and substantial in a freeand democratic society before it can be characterized as sufficientlyimportant.Second, once a sufficiently significant objective is recognized,then the party invoking s.1 must show that the means chosen arereasonable and demonstrably justified. This involves 'a form ofproportionality test': R. v. Big M Drug Mart Ltd.,  supra, at p.352.Although the nature of the proportionality test will vary depending onthe circumstances, in each case courts will be required to balance theinterests of society with those of individuals and groups. There are, inmy view, three important components of a proportionality test. First,the measures adopted must be carefully designed to achieve the objectivein question. They must not be arbitrary, unfair or based on irrationalconsiderations. In short, they must be rationally connected to theobjective. Second, the means, even if rationally connected to theobjective in this first sense, should impair 'as little as possible' the rightor freedom in question: R. v.  Big M Drug Mart Ltd., supra, p.352.Third, there must be a proportionality between the effects of themeasures which are responsible for limiting the Charter right orfreedom, and the objective which has been identified as of 'sufficientimportance'.With respect to the third component, it is clear that the generaleffect of any measure impugned under s.1 will be the infringement of aright or freedom guaranteed by the Charter; this is the reason why resort55to s.1 is necessary. The inquiry into effects must, however, go further.A wide range of rights and freedoms is guaranteed by the Charter, andan almost infinite number of factual situations may arise in respect ofthese. Some limits on rights and freedoms protected by the Charter willbe more serious than others in terms of the nature of the right orfreedom violated, the extent of the violation, and the degree to which themeasures which impose the limit trench upon the integral principles of afree and democratic society. Even if an objective is of sufficientimportance, and the first two elements of the proportionality test aresatisfied, it is still possible that, because of the severity of the deleteriouseffects of a measure on an individual or groups, the measure will not bejustified by the purposes it is intended to serve. The more severe thedeleterious effects of a measure, the more important the objective mustbe if the measure is to be demonstrably justified in a free and democraticsociety. 289With respect to the reverse-onus clause in s.8 of the Narcotic Control Act, DicksonC.J. finds that while the legislation addressed the pressing and substantial concern ofcurbing drug trafficking and that this was of sufficient importance to warrant overridingconstitutionally protected rights, it fails at the proportionality test. He states that thereis no rational connection between the basic fact of possession and the presumed fact ofpossession for the purposes of trafficking. It would be irrational, he holds, to infer thatan individual has an intent to traffic when the quantity of drugs seized is very sma11. 290The presumption of trafficking is found to be overinclusive, potentially resulting inirrational and unfair instances. This, together with a potential for life imprisonmentupon conviction of the offence, could not successfully sustain a s.1 analysis. 291 Whilethe ends of the legislation were legitimate, the means are not.The element of proportionality exists in several contexts in this judgment. First,to ensure that "trivial" claims or those "discordant with the principles integral to a freeand democratic society"292 are not afforded s.1 protection, the importance of thelegislative objective containing a limitation on rights must be proportionate with theimportance of the principle of constitutionally-protected rights and freedoms. Forexample, it may be argued that legislation limiting the right to vote to citizens over 18years of age is discrimination based on age and thus contrary to the guarantees of56equality found in s.15 of the Charter. Yet is difficult to imagine the courts declaringthe legislation invalid and the age limitation unreasonable, thus paving the way for five-year olds to vote. Such a finding would trivialize both the equality rights guarantees ins.15 and the right to vote found in s.3 of the Charter. 293 There must also beproportionality between the legislative objective and the means chosen to achieve thatobjective. Each of these two elements must be reasonable and demonstrably justifiedby the party seeking to uphold the limitation. A law that seeks to reduce the amount oflitter on city streets may well be seen as a reasonable and important objective, but theimposition of a mandatory five year jail term upon a first conviction for littering wouldrarely be seen as reasonable when less drastic means of accomplishing the goal areavailable. Finally, the legislative objective must be proportionate with the effects ofthe measure on individuals or groups. The greater the deleterious effect of themeasure, the more important the objective must be in order to survive at the s.1 stage.The framework of analysis for s.1 is telling of the Court's approach to thelimitation of rights and, in a broader sense, of the nature of the relationship betweenindividuals and groups on the one hand and the state on the other. The Court makes itclear that it is the purpose of the Charter to protect individuals and groups fromgovernmental action that is inconsistent with fundamental rights and freedoms. Indeed,this is Chief Justice Dickson's express statement in Hunter v. Southam. 294 Significantalso is his statement in the same case that the Charter does not itself authorizegovernmental action, 295 again indicating the view that the Charter is to be considered ashield to be used by citizens in the face of governmental objectives that effect rightsand freedoms.Also clearly evident is the Court's view of the Charter as having a collectivistintent. In addressing the elements of a free and democratic society, the Chief Justice57identifies a "commitment to social justice and equality, accommodation of a widevariety of beliefs, respect for cultural and group identity, and faith in social andpolitical institutions which enhance the participation of individuals and groups insociety."296 In this sense the Court may be seen as supporting the view of the state asan agency through which the collective goals of society are advanced. 297 Thatcollective goals are given significant consideration is not surprising, given that the finalword of s.1 is "society". 298 The Court's statement of the necessity to limit rights andfreedoms at times to realize collective goals of fundamental importance 299 supports theview that society's rights and benefits are to be enjoyed by the greatest number ofcitizens equally, rather than by a fortunate few at the expense of the rest. 3°° This isfurther supported by the Court's earlier dismissal of s.1 justifications based onarguments of administrative convenience and expediency, increased costs for programsand religious tradition. 301The Court is also careful to point out that it is not inconsistent to speak ofguaranteeing fundamental rights and freedoms and at the same time of conditions underwhich they may be limited. Indeed, this is one of the fundamental tensions of theCharter. Chief Justice Dickson explicitly addresses this in his observation that s.1serves two distinct functions: to constitutionally guarantee the rights and freedoms setout in the Charter, and to state explicitly the exclusive justificatory criteria againstwhich limitations must be measured.302 In determining whether a limitation isjustified, the Court is guided by the underlying values and principles of a free anddemocratic society. At the same time, these values and principles "are the genesis ofthe rights and freedoms guaranteed by the Charter. "303 Thus, the terms of referencefor constitutionally guaranteed rights and freedoms and their limitations are identical,rooted in the concept of a free and democratic society. 304 Relating this notion back tothe collectivist intent of the Charter, in a free and democratic society, rights and58freedoms may be limited in some circumstances to further "collective goals offundamental importance" 305 and to balance individual Charter principles againstbroader social goals. It is for future decisions to indicate under what circumstancescollective goals will trump rights, but it is significant to note that the Oakes judgmentspecifically contemplates this.The retreat from the stringent test of Oakes and the near-unanimous position ofthe Court with respect to the justification of limitations on rights and freedoms beganalmost immediately. The issues of freedom of religion and conscience and the right tolife, liberty and security of the person (ss.2(a) and 7 of the Charter) were raised inJones v. The Queen. 306 This case concerned a fundamentalist pastor who waseducating his own children and several others in a schooling program operating in hischurch basement. He refused to send his children to public school, as required bys.142(1) of the Alberta School Act, 307 nor would he apply to the Department ofEducation to have his school approved as a private school as permitted by s.143(1)(e)of the Act. He stated that his authority over his children and his duty to attend to theireducation came from God, and that obtaining permission from the state to do what he isauthorized by God to do would violate his religious convictions as guaranteed bys.2(a). He further refused to apply for an exemption under s.143(1)(a) of the Act,under which a pupil is excused from attendance at school if a Department of Educationofficial certifies in writing that the pupil is receiving efficient instruction at home orelsewhere. He argued that the obligation on him to seek an exemption for his childreninfringed his freedom of religion in that it compelled him to acknowledge that thegovernment, rather than God, has the final authority over the education of hischildren. 308 He also stated that s.143(1)(a), in limiting the evidence of efficientinstruction to a certificate issued by the Department of Education, deprived him of hisliberty, contrary to the principles of fundamental justice in s.7, by preventing him from59making a full answer and defence to the charges of truancy he faced under s.180(1) ofthe Act.It is significant to note that the near unanimity that distinguishes Oakes and itsprecedators breaks down in Jones. Four judgments are rendered here, with Justices LaForest and Wilson offering opposing views, Justice Lamer concurring with La Forest a brief judgment, and Justice McIntyre agreeing with both La Forest and Wilson H.on separate issues.La Forest J. limits his discussion of s.1 as it applies to freedom of religion andconscience, having found that the legislation did not deprive Mr. Jones's right to life,liberty and security of the person in a manner inconsistent with the principles offundamental justice. Even assuming that the word "liberty" as used in s.7 includes theright of parents to educate their children as they see fit, the system provided by the Actto ensure the requirements necessary to regulate the education of young persons is notso manifestly unfair as to violate the principles of fundamental justice. 309 Clearly, theprovince has a compelling interest in the quality of education, and it "seems normalenough to refer a question of efficient instruction within the meaning of the School Actto a school inspector or Superintendent of Schools who is knowledgeable of therequirements and workings of the educational system ...". 310 No breach of s.7 isfound, and a discussion of s.1 is thus unnecessary. 311With respect to the freedom of conscience and religion argument, La Forest J.identifies the purpose of the School Act as serving to "regulate the education of theyoung people in the schools of the province." 312 While he states that this is secularand has no religious purpose, he concedes that the effect of the Act is to constitute aninterference with Mr. Jones's freedom of religion. Nevertheless, he says,60Education is today a matter of prime concern to government everywhere... Indeed, in modern society, education has far-reaching implicationsbeyond the province, not only at the national, but at the internationallevel.The interest of the province in the education of the young is thuscompelling. It should require no further demonstration that it may, inadvancing this interest, place reasonable limits on the freedom of thosewho, like the appellant, believe that they should themselves attend to theeducation of their children and do so in conformity with their religiousconvictions. 313This is clearly enough for La Forest I. The compelling state interest in education easilyjustifies the minimal impairment of freedom of religion in requiring the appellant toapply to the Department of Education for a certificate stating his instruction efficientlycomplied with provincial standards of efficiency.It is significant to note that no evidence is tendered by the Province of Albertato show the importance of education. It is more significant to note that the provincedoes not tender any evidence that the compelling objective of the education of theyoung could be accomplished by other, less drastic, means. This is the second part ofthe means test outlined in Oakes, and it is completely absent in Justice La Forest's s.1analysis in Jones. Indeed, his analysis is lacking in a detailed, strict, Oakes-styleapproach to s. 1 .This latter point is made all the more apparent in Wilson J.'s dissentingjudgment in Jones. In finding that the impugned sections of the School Act did notinfringe Mr. Jones's freedom of conscience and religion, she does not have to addresss.1 on that issue. 314 However, she states that if the School Act did in fact violates.2(a), it could not be saved by s. 1. Focussing directly on the lack of evidence putforth by the province of a less drastic means of insuring the education of the young, shesays:61While there can be no doubt that the province has a compelling interestin education, more than this is required under s.l. There has to be aform of proportionality between the means employed and the end soughtto be achieved. In particular, the means employed must impair as littleas possible the right or freedom in issue: R. v. Oakes. The governmentadduced no evidence to establish that having the parent apply for acertificate was the least drastic means of ensuring that their childrenwere receiving efficient instruction. The legislature, for example, couldclearly have given the education authorities the power to inspect on theirown initiative. I do not believe, therefore, that the government hasdischarged its burden under s.l. [citation omitted] 315On this issue, Wilson J. disagrees with the conclusions of La Forest J. Wilson'sapproach adheres strictly to the tenets of the Oakes test; indeed, quoting directly thewords of Chief Justice Dickson on the least drastic means part of the analysis.Turning to Jones's submissions that his right to liberty is violated by the SchoolAct in a way that offends the principles of fundamental justice, Wilson J. firstaddresses the meaning of the term "liberty" in s.7:I believe that the framers of the Constitution in guaranteeing'liberty' as a fundamental value in a free and democratic society had inmind the freedom of the individual to develop and realize his potential tothe full, to plan his own life to suit his own character, to make his ownchoices for good or ill, to be non-conformist, idiosyncratic and eveneccentric -- to be, in today's parlance, 'his own person' and accountableas such. 316She finds that the term "liberty" includes a parent's right to raise and educate his or herchildren in accordance with the parent's conscientious beliefs. 317 She further statesthat failure to obtain a certificate of efficient instruction from the school authoritiesmeans that a parent loses the right to educate his or her children in accordance with theparent's conscientious beliefs. Moreover, she says, the lack of the certificate means theparent has no legal right to educate his or her children, and exposes the parent to acharge of truancy under the School Act, which could result in the loss of physicalliberty for the non-payment of fines. This loss of physical liberty is clearlyencompassed by the term "liberty", as stated in the B.C. Motor Vehicle Reference. 318Further, the School Act, in restricting proof of efficient instruction to a certificate62supplied by the school authorities, prevents parents from proving efficient instructionby any other manner. This, she states, thus prevents the parent from making fullanswer and defence to the charges before him or her by introducing any other evidencerelevant to the case. For these reasons, the School Act violates the parent's rightspursuant to s.7.Turning to s.1, Wilson J. repeats her opinion that a violation of a person'srights under s.7 by legislation which offends the principles of fundamental justice couldneither be reasonable nor demonstrably justified in a free and democratic society. 319However, she says, if she is incorrect in this opinion, it is still her view that thegovernment had failed to justify the violation of s.7 under s. 1. In keeping with theOakes test, Wilson J. holds that the strict standard of justification necessary to uphold aviolation of a Charter guarantee had not been met. The government, she says, putforth no justification for the one exclusive method of proving efficient instruction. Thegovernment has "proffered no argument as to why exclusivity is necessary to achievethe province's objective of insuring adequate instruction for its children. " 320 Otherjurisdictions, she notes, allow proof of efficient instruction to be decided in court. Thisfailure to address the least drastic means aspect of the Oakes test means that theprovince failed to justify the violation of s.7. In her reasons for judgment, Wilson J.clearly differs in her application of the Oakes criteria. She may be seen to be adheringstrictly to the form of analysis set out in Oakes, while La Forest J.'s judgment indicatesa move away to a slacker standard of justification.The decision of Retail. Wholesale and Department Store Union. Local 580 v.Dolphin Delivery Ltd. 321 signaled a further move away from the strict approach tojustification developed in Oakes. At issue was whether secondary picketing bymembers of a trade union involved in a labour dispute was an activity protected by63s.2(b) of the Charter, which guarantees freedom of expression 322 and accordingly isnot the proper subject of an injunction to restrain it. The respondent company hadobtained an injunction preventing the appellant union from engaging in secondarypicketing of the company's place of business. The trade union appealed on the basisthat the injunction infringed on freedom of expression. McIntyre J., for the majority,holds that the Charter does not apply to litigation between purely private parties andthus dismisses the union's appeal. 323 However, he does express the view thatsecondary picketing, indeed, all forms of picketing, involves some form ofexpression. 324 He further states that action on the part of the picketers will alwaysaccompany the expression. He then makes this significant statement:... not every action on the part of the picketers will be such as to alterthe nature of the whole transaction and remove it from Charterprotection for freedom of expression. That freedom, of course, wouldnot extend to protect threats of violence or acts of violence. It would notprotect the destruction of property, or assaults, or other clearly unlawfulconduct. 35McIntyre J. then declares that the picketing in this instance does involve the exercise ofthe right of freedom of expression and moves to consider whether the injunction againstsecondary picketing constituted a reasonable limit on freedom of expression under s.l.He notes that a balance must be struck between the competing interests of the union'sright to freedom of expression on the one hand and the respondent company's "pressingand substantial" concern that it will suffer economically in the absence of an injunctionrestraining secondary picketing at its premises. 326 McIntyre J. then states thatpicketing and industrial conflict may be tolerated, but "only as an inevitable corollaryto the collective bargaining process." 327 It is necessary, he says, that picketing belimited in the general social interest. Thus, he says, it is reasonable to restrainpicketing to the actual parties so that it will not harm others. 328 He further states thatthe "requirement of proportionality is also met, particularly when it is recalled that thisis an interim injunction effective only until trial when the issues may be more fully64canvassed on fuller evidence." 329 He therefore concludes that the injunctionconstituted a "'reasonable limit prescribed by law which can be demonstrably justifiedin a free and democratic society'. "330This approach, particularly the statements that some forms of freedom ofexpression, such as threats or acts of violence or property damage, would not beprotected, 331 indicates a significant shift in approach to the justification of Charterinfringements. Rather than keeping the issues of breach and justification analyticallydistinct by limiting the justification of Charter infringements strictly to the s.1 stage,the Court has indicated a willingness to consider limiting substantive rights at thedefinitional stage. 332 In indicating that some forms of "expression" would be protectedby s.2(b) while others would not, the Court has blurred the boundaries between breachand justification. Moreover, in limiting rights at the definitional stage, the Court mayavoid the necessity of a s.1 analysis altogether.Such an approach may be problematic. It appears to run contrary to ChiefJustice Dickson's comments in Oakes that s.1 is to provide the criteria for justificationof limitation of rights guaranteed by the Charter. 333 In stating that s.1 serves thisfunction, the implication is that rights are not to be limited in their substantive sections.Also, it would appear that the standard of justification of limitations would be greater atthe s.1 stage than at the definitional stage. By implication, this means that the partyseeking to uphold a limitation of a right (usually the government) would be put to ahigher standard of justification if obliged to undertake a s.1 analysis than if the rightwere limited by definition, thereby avoiding the necessity of considering s.1 at all.Thus, if the government succeeds in limiting a right at the definitional stage, it ispossible to view that right as less significant as a right that is limited at the s.1 stage.This raises the potential of some constitutionally-guaranteed rights being seen as more65fundamental than others. This does not seem to be in accordance with Dickson'scomments in Oakes.It also appears that the Charter itself is organized on the basis of a strictseparation between the issues of breach and justification. The textual primary of asection focussing on the limitation of rights, combined with compelling statements bythe Court in previous cases, 334 advances the theory that the concept of justification isthe Charter's fundamental organizing principle. 335 Moreover, that the substantiverights appear in the Charter in individual self-contained sections preceded by alimitations section suggests an intention to keep the relationship between breach andjustification analytically distinct. 336 Indeed, the existence of s.1 itself compels thisapproach.The practice of definitional balancing suggested in Dolphin Delivery raisessignificant issues with respect to the interpretation and justification of constitutionally-guaranteed rights and freedoms. On the one hand, protection of all activity claimedunder a substantive section would leave virtually all constitutional litigation to the s.1stage. Obvious effects of this include hopelessly clogged courts and woefullytrivialized rights as any and all litigants could claim Charter protection of a right andput the state to the proof of justifying limitations. A trivialized right is tantamount tono right all, and hardly seems consonant with the Court's earlier statements of theirimportance in the constitutional fabric of Canada. On the other hand, defining rightsso as to suggest that some activities are protected while others are not precludes resortto s.1 and offers the potential for some rights to be seen as more fundamental thanothers. This is equally problematic.66It should be noted as well in Dolphin Delivery that at the s.1 stage McIntyre J.fails to follow the strict framework of analysis developed in Oakes. Indeed, Oakeshere appears to receive little more than lip service, with a nod toward a pressing andsubstantial interest on the part of the respondent and a form of proportionality inbalancing the interests of freedom of expression and social costs due to industrialconflict. Oakes itself is passingly referred to, and there is no discussion of thenecessity of a rational connection between the legislative objective and the measurestaken to achieve that; nor of a least restrictive means of ensuring the objective isachieved; nor is there any discussion of the effects of the measure in proportion to thelimitation of the right. In short, Oakes is almost entirely absent from the s.1 analysisin Dolphin Delivery, thus indicating a further erosion of its original principles.A far more detailed analysis of s.1 is offered in R. v. Edwards Books and ArtLtd. and reveals widely varying applications of the test for justifying limitations onrights and freedoms. The question before the Court was whether the Ontario RetailBusiness Holiday Act337 infringed the freedom of conscience and religion guaranteedby s.2(a) of the Charter. The Act required retail businesses to close on Sundays andprovided limited exemptions to stores that closed on Saturdays, were smaller than5,000 square feet, and employed no more than seven people to serve the public.Failure to close on Sunday resulted in charges against several retail stores, whichclaimed that the Act violated freedom of religion. Four judgments are written in thiscase. Chief Justice Dickson, joined by Chouinard and Le DaM JJ., holds that the Actviolated freedom of religion but is saved by s.l. La Forest J., in a separate opinion,holds that the Act is a reasonable limit under s.l. Wilson J., dissenting in part, holdsthat the Act infringed freedom of religion and can not be saved by s.l. Beetz J., joinedby McIntyre J., is of the opinion that the Act did not constitute a violation of s.2(a) andthus does not find it necessary to resort to s.l.67Chief Justice Dickson, addressing the purpose of the Act, finds it was enacted toprovide a uniform holiday or day of rest for retail workers. 338 The choice of Sundayreflected a secular rather than religious reason: research indicated Sunday as thepreferred day of social interaction and leisure activities between family and friends. 339However, the effect of the Act was to significantly infringe on the freedom of Saturdayretail observers who, for religious reasons, close their stores on Saturday to practicetheir religious beliefs. Exemptions aside, the Saturday observer is disadvantaged bybeing closed an extra day relative to the Sunday observer. The effect of this is notinsignificant given the competitive pressures on retailers. The effect of the Act, then,is to make it more expensive for Saturday observers to practice their faith than Sundayobservers. This, the Chief Justice says, constitutes an interference with freedom ofreligion. 34°Turning to s.1, he reiterates the form of the s.1 test, adding that in consideringthe proportionality requirement, "the Court has been careful to avoid rigid andinflexible standards." 341 Addressing the first component of the test, the importance ofthe legislative objective of the Act, he states that the aim of ensuring a common pauseday to pursue leisure and other activities with family and friends is a pressing andsubstantial concern, thus satisfying the first part of the s.1 test. 342The rational connection part of the test involves determining "how well thelegislative garment has been tailored to suit its purpose." 343 The legislature wasjustified in focussing on the retail industry because its labour force, characterized by itslow level of unionization, its high proportion of women and its heterogeneouscomposition, was believed to be "especially vulnerable to subtle and overt pressurefrom its employer" 344 to work on Sunday and was thus in need of special attention.6869The exemptions provided by the legislation were justified on the basis that there is aneed to have leisure facilities available on Sunday and, consequently, people to staffthem. 345What Dickson C.J. characterizes as the "heart of this litigation" is the questionof whether the Act infringed the freedom of religion of Saturday observers as little aspossible: the least drastic means test. 346 He states that the exemptions in the Act wereintended to "very substantially" reduce the impact of the Act on Saturday observers.What must be decided, he says, "is whether there is some reasonable alternative schemewhich would allow the province to achieve its objective with fewer detrimental effectson religious freedom." 347 The implication of this statement is that an alternativescheme must be "equally as effective as the means actually chosen." 348 The ChiefJustice proceeds to examine a number of alternatives to the Act which would ensure acommon pause day for retail workers. A right by workers to refuse Sundayemployment is rejected on the basis that it ignores the coercive pressures an employercan exert on workers, and workers' vulnerability to that pressure. 349 An exemption forretailers having sincerely held religious beliefs requiring them to close their stores on aday other than Sunday is also rejected due to the undesirability of state-sponsoredinquiries into religious beliefs. Dickson C.J. is of the opinion that such inquiriesshould be avoided wherever possible, "since they expose an individual's most personaland private beliefs to public airing and testing in a judicial or quasi-judicial setting." 350The legislature has attempted, he says, to "minimize the adverse effects of pause daylegislation on Saturday observers." 351 The scheme provided by the legislationconstitutes atrade-off between a scheme which provides complete relief from burdenson religious freedom to most Saturday-observing retailers by avoiding adistasteful inquiry, and, on the other hand, an alternative scheme whichprovides substantial relief frpm burdens on religious freedom to &_1Saturday observing retailers. 352This balancing of interests engaged in by the legislature was the process envisaged bys.1 in determining reasonable limits, Dickson C.J. says. He then states that he woulduphold the legislation on the basis that the infringement is not disproportionate with thelegislative objectives and that a serious effort had been made to accommodate thefreedom of religion of Saturday observers. 353La Forest J., writing for himself, agrees with Dickson C.J. that the legislationviolates s.2(a) of the Charter. In his view, the Act would be valid even if it did notcontain the Sabbatarian exemption for Saturday observers. He agrees that thelegislation was aimed at a pressing and substantial concern. Given this, he says, "theLegislature must be allowed adequate scope to achieve that objective." 354 It isnecessary to recognize that if the legislative objective is to be achieved, "it willinevitably be achieved to the detriment of some." 355 Thus, in terms of proportionality,[i]n seeking to achieve a goal that is demonstrably justified in a free anddemocratic society, therefore, a legislature must be given reasonableroom to manoeuvre to meet these conflicting pressures. Of course, whatis reasonable will vary with the context. Regard must be had to thenature of the interest infringed and to the legislative scheme sought to beimplemented. In a case like the present, it seems to me, the Legislatureis caught between having to let the legislation place a burden on peoplewho observe a day of worship other than Sunday or create exemptionswhich in their practical workings may substantially interfere with thegoal the Legislature seeks to advance and which themselves result inimposing burdens on Sunday observers and possibly on others as well.That being so, it seems to me that the choice of having or not having anexemption for those who observe a day other than Sunday must remain,in essence, a legislative choice. That, barring equality considerations, istrue as well of the compromises that must be made in creating religiousexemptions. These choices require an in-depth knowledge of all thecircumstances. They are choices a court is not in a position to make.3 6La Forest J. states that absent unreasonableness or discrimination, the courts are not ina position to second guess decisions that are essentially legislative in nature. 357 In thishe clearly differs from the opinion of the Chief Justice, who does not hesitate to reviewalternative legislative options in this case. This deference to the legislature and lack of70adherence to the Oakes principles indicates a further distancing from what La Forestrefers to as "rigid and inflexible standards" 358 -- impliedly the Oakes test.Dissenting in part, Wilson J. agrees with Dickson C.J. that the purpose of theAu was to establish a common pause day for those employed in retail business and thatthe Act infringes the freedom of religion of those who close their retail businesses onSaturday for religious reasons because the effect of the Act was to impose an economicpenalty to their religious observance in that it required them to be closed two daysinstead of one. 359 She disagrees, however, with Dickson C.J. 's approach to s.1.Focussing on the legislative exemption that would allow some Saturday observers --specifically, those whose retail premises are smaller than 5,000 square feet and employseven or fewer people to serve the public -- to stay open Sundays, she holds that theeffect of this disparate treatment is that "the religious freedom of some is respected bythe legislation and the religious freedom of others is not. "360 When the Charterprotects group rights such as freedom of religion, she states, it protects the rights of allmembers of the group. To do otherwise is to "introduce an invidious distinction intothe group and sever the religious and cultural tie that binds them together." 361 Thescheme the legislature adopted had the effect of subordinating "the freedom of religionof some members of the group to the objective of a common pause day to the freedomof religion of other members of the same group. n362 This, she says, represents thelegislature's failure to make a decision as to the type of justice it wished to promote.Wilson J. further states that if she is wrong and this disparate treatment could bejustified under s.1, it is her opinion that the Crown has not discharged its burden unders.1 in that it adduced no evidence to establish that such treatment was necessary inorder to achieve the government objective of a common pause day. Much morecompelling evidence is needed. 363 In her judgment, Wilson J. is much more faithful tothe principles of the Oakes test than La Forest J. and the Chief Justice. Her adherence71to it is strict, more so than Dickson C.J. 's and far more so than La Forest J. whoappears to move away from it immediately after Oakes itself. 364365A return to the debate concerning definitional balancing is found in theReference Re Public Service Employee Relations Act (Alta.) (The "AlbertaReference"), 366 the first of three labour cases that would consider freedom ofassociation. The government of Alberta had passed three Acts which prohibited strikesand imposed compulsory arbitration for resolving disputes arising from the collectivebargaining process. The first Act applied to public service employees, the second tofirefighters and hospital employees, and the third to police officers. The issue beforethe Court was whether these Acts violated freedom of association, as guaranteed bys.2(d) of the Charter and, if so, whether the legislation could be demonstrably justifiedunder s.l. Again, the Court approached the issue from widely varying perspectives.McIntyre J., whose reasons were substantially agreed with by Le Damn, Beetzand La Forest JJ., 367 states that the question presented is whether the Charter givesconstitutional protection to the right of a trade union to strike as an incident tocollective bargaining. 368 The appellants in this case focussed their submissions solelyon the assertion that the right to strike is a necessary incident to the exercise by a tradeunion of freedom of association. Thus, the resolution of the appeal turns on themeaning of freedom of association.Looking to the purpose and value of freedom of association, McIntyre J. holdsthat its core rests on the "simple proposition" that "the attainment of individual goals,through the exercise of individual rights, is generally impossible without the aid andcooperation of others." 369 The exercise of this freedom through associations serves theinterest of the individual, promotes general social goals, serves to educate members in72the operation of democratic institutions and facilitates the effective expression ofpolitical views, thus influencing governmental and social policy. 370 However, thisfreedom is one vested in the individual and does not belong to the group. This, forMcIntyre J., is the crux of the freedom of association.The group or organization is simply a device adopted by individuals toachieve a fuller realization of individual rights and aspirations. People, by merely combining together, cannot create an entity which has greaterconstitutional rights and freedoms than they. as individuals, possess.1Freedom37 of association cannot therefore vest independent rights in thegroup. [emphasis added]This passage highlights the central theme of Justice McIntyre's vision of freedom ofassociation and plays the pivotal role in determining the outcome of this appeal. Withrespect to collective bargaining, he states this to be a group concern or activity andnotes that it is only possible for the group to exercise those rights that the individualmembers possess: "If the right asserted is not found in the Charter for the individual, itcannot be implied for the group merely by the fact of association. "372McIntyre J. next addresses the scope or definition of freedom of association.He identifies six theories advanced to define the right, ranging from the very restrictiveto the virtually unlimited, which may be briefly summarized from most to leastrestrictive. First, freedom of association may be defined simply as the freedom toassociate with others only, with no constitutional protection for the purposes of theassociation or the means by which those purposes may be achieved. 373 Second, it maybe defined as the freedom to engage collectively in those activities that areconstitutionally protected for each individual. This encompasses the right to pursueobjects of association which have constitutional protection. 374 The third approachholds that freedom of association means that an individual may do with a group thatwhich he or she may lawfully do alone. Conversely, this means that individuals andgroups may not do in concert that which is unlawful when done alone. 375 The fourth7374approach extends freedom of association to activities "which may be said to befundamental to our culture and traditions and which by common assent are deserving ofprotection. " 376 The fifth approach defines freedom of association as the freedom tomeet and pursue the lawful objects and activities essential to the association's purposes.Finally, the sixth approach would grant constitutional protection to all activitiesperformed in association that are incapable of individual performance, so long as theactivities are not harmful to others, subject only to s.1 of the Charter.Having outlined these possible definitions for freedom of association, McIntyreJ. immediately rules out approaches five and six. The fifth approach focuses too muchon the group and rejects the individual nature of the freedom. The effect of thisdefinition, he says, is to render the whole greater than the sum of its parts: thisdefinition accords "an independent constitutional status to the aims, purposes, andactivities of the association, and thereby confer[s] greater constitutional rights uponmembers of the association than upon non-members." 377 The sixth approach issimilarly rejected on the grounds that it would raise activities to constitutional statussimply because they were performed in association. 378 There can be no justificationfor extending constitutional status to an activity solely on the basis that it is engaged inby a group. 379 Approach number four is rejected on the grounds that in focussing onthe activities or goals themselves, the fundamental purpose of the right is ignored. Thepurpose of the right is to guarantee that goals and activities may be pursued incommon, rather than guaranteeing the goals and purposes themselves. 380With respect to the final three approaches, McIntyre J. states that freedom ofassociation must, at the least, include the right to join with others in common pursuitsor for certain lawful purposes (approach number one) and the right to engagecollectively in activities that are constitutionally protected for each individual (approachnumber two). Individual rights, he says, do not lose their constitutional protectionwhen exercised in common with others. 381 It is the third approach that most accuratelyreflects McIntyre J.'s vision of freedom of association, that "whatever activity anindividual can lawfully pursue as an individual, freedom of association ensures he canpursue with others. Conversely, individuals and organizations have no constitutionalright to do in concert what is unlawful when done alone." 382 This approach extendsconstitutional protection to all group activity that can be lawfully performed by anindividual, irrespective of an individual's constitutional right to engage in thoseactivities. Thus, legislation proscribing the group pursuit of an activity an individualmay lawfully engage in would infringe freedom of association.In McIntyre J.'s approach, then, in determining whether legislation prohibitingstrikes violates freedom of association, it is necessary to consider whether the activity isindependently protected by the Charter (it is not) or if the state has forbidden a groupfrom engaging in an activity an individual is permitted to pursue. In McIntyre J.'sopinion, it is not correct to state that an individual has a right to strike as an individual.An individual withholding his or her labour may be liable for breach of contract andordered to pay damages for that breach and thus cannot be said to have ceased worklawfully. Moreover, there is a significant difference between an individual ceasingwork and a strike undertaken by members of a trade union. The difference isqualitative: there is no individual equivalent of a strike. 383 The right to strike and thelawful conduct of a strike are specifically provided for in provincial and federal labourlegislation and, while specific references are made to the right to strike in foreigncountries' constitutions, no such right was incorporated into Canada's. Nor is thereany basis for implying a constitutional right to strike. 384 It is McIntyre J.'s opinionthat freedom of association does not extend to the constitutional guarantee of a right tostrike. 385 Obviously resort to s.1 is unnecessary.75McIntyre J. closes his reasons for judgment with a ringing endorsement for therole of specialized tribunals and boards specifically created for resolving labourdisputes. Experience with labour relations, he states, has indicated that the courts arenot always the best arbiters of such disputes. 386 Courts generally lack the specializedknowledge and expertise necessary to resolve labour problems and are better suited tothe resolution of purely legal matters. If the right to strike were to beconstitutionalized, he goes on, questions concerning its legality would bring the courtsback into the field of labour relations "and much of the value of specialized labourtribunals would be lost." 387 McIntyre J. adds a final statement revealing hisdiscomfort with the application of s.1 to labour policy. In enacting labour legislation,governments have already attempted to strike a balance between the interests of tradeunion members and the government. In litigation attempting to justify strike action, theissues are not amenable to principled resolution and involve hard choices. In hisopinion, these are choices best left to the freely elected legislatures and the court shouldnot intrude where no specific right in the Charter is involved. 388 This is a clearindication of his increasing reluctance to abide by the principles articulated in Oakes.Here he avoids the necessity of dealing with Oakes at all by engaging in definitionalbalancing that allows him to resolve the question before even reaching the s.1 stage.The comments above suggest that this definitional balancing was the only way he couldavoid engaging in a process he felt the Court ought not to be involved in.In agreeing with the reasons of McIntyre J., Le Dain J., joined by Beetz and LaForest JJ., adds a further endorsement of the idea that the field of labour relations isbest left regulated by legislative policy. In his opinion, the rights to bargaincollectively and to strike are not fundamental freedoms but the creation of legislation,"involving a balance of competing interests in a field which has been recognized by the76courts as requiring specialized expertise." 389 In an area where the Court has affirmedthe principle of judicial restraint in the review of administrative action, he says, it issurprising ... that we should be considering the substitution of ourjudgment for that of the Legislature by constitutionalizing in general andabstract terms rights which the Legislature has found it necessary todefine and qualify in various ways according to the particular field oflabour relations involved. The resulting necessity of applying s.1 of theCharter to a review of particular legislation in this field demonstrates inmy respectful opinion the extent to which the Court becomes, involved ina review of legislative policy for which it is not really fitted.' 9°Thus, definitional balancing of freedom of association again plays a significant role inescaping the necessity of a s.1 review.Chief Justice Dickson, dissenting, with Wilson J., takes a far differentapproach. For him, freedom of association is the freedom to "combine together for thepursuit of common purposes or the advancement of common causes", a "sine qua nonof any free and democratic society" and "the cornerstone of modern labourrelations." 391 The question for him in this case is to what extent freedom ofassociation "protects the freedom of workers to act in concert, and to bargain andwithdraw their services collectively." 392 He notes that in this appeal, two varyingapproaches to freedom of association are urged: a narrow version suggesting thatfreedom of association entails simply the freedom to join together only, and a widerversion that freedom of association means not only the freedom to join together but alsothe freedom to pursue collective activities. 393 The appellants urged the latter approachwhile the respondents adopted the former. In reviewing jurisprudence relating to thesetwo approaches in the context of the right to strike, Dickson C.J. rejects definitionalbalancing:The cases in which a line was drawn to exclude strike activity from thescope of constitutionally protected associational activities are indicativeof the strength of the countervailing concerns (i.e., the public interest)which would find recogniticn under the Charter in s.1 rather than indefining the scope of s.2(d). 947778Dickson C.J. notes widely varying interpretations of the phrase "freedom ofassociation". The narrowest of these, that the freedom does not extend beyond thefreedom to belong to or form an association, and not to pursue the activities for whichthe organization was formed, is rejected on the basis that it renders the freedom"legalistic, ungenerous, indeed vapid" 395 and is inconsistent with the purposiveapproach to Charter rights articulated in Hunter v.  Southam. 396 A wider interpretationis next examined which suggests that associational activity relating specifically to otherfreedoms contained in s.2 is protected is also rejected on the grounds that freedom ofassociation is explicitly and independently set out in s.2(d) is thus clearly not derivativeof other s.2 freedoms. 397 Dickson C.J. is also unable to restrict freedom of associationto purely political freedoms. 398 Rather, the freedom in s.2(d)relates to the central importance to the individual of his or her interactionwith fellow human beings. The purpose [of s.2(d)] is ... to recognizethe profoundly social nature of human endeavours and to protect theindividual from state-enforced isolation in the pursuit of his or herends. 399Individuals seek, through association, to attain and fulfil common pursuits. Turning towork, Dickson C.J. characterizes this as "one of the most fundamental aspects of aperson's life, providing the individual with a means of financial support and, asimportantly, a contributory role in society. "400 Since a person's work is directlyrelated to his or her "sense of identity, self-worth and emotional well-being", theconditions under which a person performs that work are highly significant. 401 Thus,the ability to bargain collectively to "ensure fair wages, health and safety protections,and equitable and humane working conditions" is clearly a vital aspect of association inprotecting the interests of working people. 402 Similarly, the right to strike is anessential element of collective bargaining, since without the right to withdraw services,the effectiveness of collective bargaining is substantially diminished. 403 Thus, it wasDickson C.J. ' s opinion thatcollective bargaining protects important employee interests which cannotbe characterized as merely pecuniary in nature. Under our existingsystem of industrial relations, effective constitutional protection of theassociational interests of employees in the collective bargaining processrequires concomitant protection of their 4 to withdraw collectivelytheir services, subject to s.1 of the Charter:44There is no question that the Alberta legislation abridges freedom of association in thatit prohibits strikes and imposes compulsory arbitration on certain public sector workers.Thus it falls to s.1 to determine if this can be demonstrably justified.Dickson C.J. sets out the elements of the Oakes test and the respondent's viewthat the purpose of the legislation in question is to protect essential services and toprotect the government from political pressure through strike action: 405 While heagrees that protection of essential services is a legislative objective of sufficientimportance, it is necessary to define what is meant by "essential service" and whoseservices this covers. The legislation covers four classes of employees: public servicesemployees (the Public Service Act), firefighters and employees of approved hospitals(Labour Relations Act), and police officers (the Police Officers Act). The onus is onthe government of Alberta to establish that each of these classes represents "essential"employees. While the government adduced no evidence on this question, 406 DicksonC.J. states that the essentiality of police and firefighters is self-evident, the interruptionof which would clearly endanger life, personal safety and health. Thus, the rationalconnection between preventing such interruptions and the objective of protectingessential services is made out with respect to police and firefighters: 407The situation with respect to hospital and public service workers is moreproblematic. Again, the government adduced no evidence to demonstrate either that allhospital and public service workers were essential nor that services would beinterrupted by strike activity. While some workers clearly could be deemed essential,the same cannot be said of all workers absent some evidentiary basis:408 The difficulty79with the legislation is that it is too wide in its application and represents too drastic ameasure for achieving the objective of the protection of essential services, and thus failsthe rational connection aspect of the s. 1 test. 409 The second argument advanced by thegovernment suffers equally from a lack of evidence that denying public service workersthe right to strike would protect the government from political pressure through strikeaction.41° The mere fact of government employment is not sufficient to deny thisright: indeed, in many instances private sector employee strikes pose a more seriousthreat to the public interest. 411 The protection of the government from the politicalpressure of strike action by its employees is not an objective of sufficient importancefor the purpose of s.1. 412 Thus, this argument fails to meet even the first aspect of theOakes test.Dickson C.J. next turns to a consideration of whether the legislation impairs aslittle as possible the freedom of association of the affected employees, the second aspectof the proportionality test. In his view, if the legislation is to survive the least drasticmeans test, it must be accompanied by "adequate" guarantees for safeguardingemployees' interests. 413 The legislation imposes a scheme of compulsory arbitrationfor the resolution of labour disputes. Among its provisions are the requirement that thearbitrators consider the fiscal policies of the provincial government and wages andbenefits in private and public sectors. In Dickson C.J.'s view there is nothingimproper with an arbitrator considering the employer's ability to pay and comparingwages of other employees in the public and private sectors and this does notcompromise the fairness of the arbitration. 414 The arbitration scheme also providesthat certain matters cannot be considered in arbitration nor contained in an arbitralaward. These matters are generally arbitrable in other labour relations contexts. In theChief Justice's view, the exclusion of subjects which are normally matters that arebargainable compromises the effectiveness of the arbitration process and casts "serious80doubt" upon its fairness. 415 Finally, he notes that the arbitration scheme does notprovide a right to refer matters to arbitration but instead vests a discretionary power ina government minister or administrative board to establish an arbitration board ifdeemed appropriate. 416 This again compromises the fairness and effectiveness of thearbitration procedure as a substitute for the freedom to strike. The effect of this aspectof the scheme is to place absolute authority for determining if matters should go toarbitration with the government's executive branch. It is difficult to see how theprocess could be viewed by the participants as equitable and fair; "such authorityconsiderably undermines the balance of power between employee and employer whichthe arbitration scheme is designed to promote", 417 and constitutes an unjustifiedinterference with the effectiveness of the arbitration process in promoting equality ofbargaining power between the parties. 418 The arbitration scheme cannot be consideredan adequate replacement of the employee's right to strike and thus the legislation failsthe least drastic means component of the proportionality test.Chief Justice Dickson approached the impugned legislation in a principledmanner consistent with the tenets of the Oakes test. The difference between theapproach taken by him and that taken by McIntyre, Le Dahl, La Forest and Beetz JJ. isstriking. While the latter prefer to engage in definitional balancing to avoid thenecessity of reaching s.1 at all and clearly demur to the policy choices of legislaturesand role of specialized tribunals, Dickson C.J. remains true to the analytically distinctapproaches to breach and justification. Such an approach is more consonant with theCourt's earlier decisions, and clearly one that Dickson C.J. prefers. Equally clear isMcIntyre J.'s increasing discomfort with the test as it is formulated, as evidenced byhis use of definitional balancing and his frank comments concerning the Court's role --or lack of it -- in matters of labour policy.81Very much derivative of the Alberta Reference is the second of the three labourcases, Public Service Alliance of Canada v. Canada 419 ("PSAC"). At issue here wasfederal government legislation aimed at reducing inflation. In 1982 Parliament enactedthe Public Service Compensation Restraint Act, 420 aimed at ensuring that governmentemployees' compensation plans were in accordance with the government's restraintpolicy. Under the Act, compensation plans in the public sector that were in force 29June 1982 were extended for a period of two years. Wage increases were rolled backto 6% for the first year and the Act provided for a 5% increase in the second year.Employees not subject to a compensation plan on 29 June 1982 had their previouscollective agreements automatically extended for one year, with a wage increase of 9%for that year. The Act further provided that, for the period of the extensions, thecompensation plans covered by the Act (s.6(1)(a)) and those collective agreements orarbitral awards which included such a compensation plan (s.6(1)(b)) continued to be inforce without change, thus precluding collective bargaining on compensatory and non-compensatory components of collective agreements. Section 7 of the Act permitted theparties to a collective agreement or persons bound by an arbitral award to amend non-compensatory terms and conditions of the collective agreement by agreement only. Itdid not authorize employees to strike or submit proposed amendments to bindingarbitration. The Act was challenged by PSAC on the basis that it infringed the affectedemployees' freedom of association and could not be justified under s.1 of the Charter.Drawing on his reasoning in the previous Alberta Reference, Dickson C.J.concludes that the employees' freedom of association is infringed by the legislation. Inthe context of labour relations, he says, freedom of association includes the right todetermine the conditions of work through collective bargaining and to strike. Byextending existing collective agreements and fixing wages for two years, freedom tobargain collectively is infringed. Section 7 of the Act offers no relief in that the union82has no effective ability to strike or submit proposed amendments to binding arbitration.Lacking these abilities, the employees are simply not in an effective bargainingposition. For these reasons, the Act, in infringing the right to bargain collectively,violates s.2(d) of the Charter. 421Turning to s.1, Dickson C.J. first assesses the importance of the legislativeobjective, which he characterizes as the reduction of inflation. He has no hesitation indeclaring this to be an objective of sufficient importance to warrant overriding aconstitutionally guaranteed freedom. In aid of this decision he notes that on the trial ofthis matter three out of four economists agreed that inflation was a serious problem andthat the Court had earlier characterized inflation as such. 422In addressing the proportionality aspect of the s.1 test, Dickson C.J. expresses ahigh degree of judicial deference on questions of economic policy. 423 It is not theCourt's role, he says, to assess the government's choice of strategy in attempting tocombat inflation. Moreover, the Court must pay due deference to the symbolicleadership role of government and thus its role in this instance is to ensure thelegislation is implemented fairly with "as little interference as is reasonably possiblewith the rights and freedoms guaranteed by the Charter."424 While the legislation onlyapplied to a small proportion of the overall labour force and had an admittedly"indirect" and "partial" impact, Dickson C.J. is prepared to accept this as a positivemeasure in controlling inflation generally. Thus, the requirement of proportionalitybetween the effects of the measure, together with the "temporary suspension ofcollective bargaining on compensation issues", to the sufficiently important objective ofattempting to control inflation, is met. 42583With respect to the rational connection aspect of the test, Dickson C.J. notesthat the legislation subjects some public sector workers to harsher treatment than otherworkers of the federal labour force. Again he shows deference to Parliament's need todemonstrate leadership and set a "serious and striking example"426 that it was"prepared to take tough measures within its own sphere of employer-employeerelations" 427 by placing controls on a "discrete and homogeneous group ofemployees" . 428 He does not view the measures as capricious or arbitrary and is notprepared to second guess Parliament's leadership role in this endeavour. 429 Thus therational connection aspect of the test is made out. 43° Dickson C.J. further states thatthe controls on "compensation" broadly defined, rather than wages alone, is alsojustified as consistent with Parliament's objective of sending a "clear and unmistakablemessage of restraint to other employers." 431For the Chief Justice, the only aspect of the legislation that is not justified unders.1 is s.6(1)(b) of the legislation, which removes the right to strike over non-compensatory matters and to submit those matters to binding arbitration. He notes thatthe government offered "no rationale for casting its net so widely as to impaircollective bargaining on non-compensatory issues in an Act designed to reduceinflationary expectations." 432 Indeed, the lack of evidence on this issue seems tosurprise him: in a strongly worded endorsement of the right to strike and bargaincollectively, he states that this aspect of the legislationrepresents a profound intrusion into the associational freedoms ofworkers, and one which bears no apparent connection to the objectivesof an inflation restraint programme. The [Act] has swept away virtuallythe full range of collective bargaining activities of federal employees,seemingly witho% any thought for whether such draconian measureswere necessary. 4"84The effect of this specific provision is to overreach an otherwise justifiable impairmentof public sector employees' freedom of association. 434 This section was thus declaredto be of no force or effect. 435Reiterating their opinion in the Alberta Reference that freedom of associationdoes not include the right to strike or bargain collectively, Justices Beetz, Le Dain andLa Forest conclude that the Act does not violate s.2(d) of the Charter. 436Similarly, relying on his reasons in the Alberta Reference that the Charter doesnot guarantee a constitutional right to strike, Justice McIntyre states that freedom ofassociation is not infringed by the legislation. 437 He leaves open the possibility that"other aspects of collective bargaining may receive Charter protection under theguarantee of freedom of association", 438 but not in this instance: the role of the tradeunion as exclusive agent of the employees is not restricted by the legislation, nor does itpreclude continued negotiations between employer and employees for changes in non-compensatory terms of employment. 439 The effect of the Act, he says, is to limit theunion's bargaining power by denying the "economic weapon" of a strike for two years.This limitation does not infringe freedom of association. 44°What McIntyre J. characterizes as a limitation, Chief Justice Dickson terms aviolation. For the latter, no equality in bargaining power can be had without the tradeunion's ability to withdraw their services441 and the effect of the Act in proscribingcollective bargaining on non-compensatory issues is to "[sweep] away virtually the fullrange of collective bargaining activities of federal employees". 442 It is significant tonote the high degree of judicial deference paid by him to the parliamentary objective offighting inflation and the role played by supportive evidence of government aims andobjectives. For the Chief Justice, this lack of evidence contributed to his decision that85a limit on employees' ability to collectively bargain on non-compensatory issuesconstitutes a violation of s.2(d) that is not justifiable under s. 1. McIntyre J.'sdeference to Parliament on labour issues is far more pronounced, as is his reliance ondefinitional balancing to avoid consideration of s.l. The difference in approaches takenby Dickson C.J. and McIntyre J. is highlighted in McIntyre J.'s comment that "someaspects of collective bargaining" may find protection under s.2(d): for McIntyre J. thisinvolves a consideration of freedom of association, whereas for the Chief Justice this ismore properly addressed in s.l.Wilson J. writes a brief dissenting opinion in PSAC. She agrees with ChiefJustice Dickson that the legislation violates freedom of association, but disagrees withhis view that it is justified under s.1. 443 In her opinion, the legislation fails theproportionality requirement that it be carefully designed to achieve the legislativeobjective in question. She notes that the government attempted to control inflation byindirect means by setting an example of public sector restraint in the hopes that thiswould inspire voluntary controls in the private sector. In this the government wished tobe seen publicly as a leader. However, she says, the "government as employer has nogreater power vis-a-vis its employees than a private sector employer" 444 and in"abandoning the collective bargaining process and imposing legislative restraint on itsemployees" 445 it violated the employees' freedom of association:It seems to me that if both public and private employees are free toengage in collective bargaining, which generally speaking they are, thenpublic sector employees should not be deprived of this freedom as ameans of government getting across its message, no matter howworthwhile that message may be.446Further, she questions the government's method of inspiring private sector restraint:"It seems somewhat paradoxical for the government to seek to inspire voluntarycompliance by imposing a program of mandatory compliance. One might well ask howthis can be seen as setting an example of voluntary compliance by either government or8687its employees." 447 Thus, the mandatory controls imposed upon a "captiveconstituency", admittedly not expected to have a direct impact on fighting inflation,and which could not have set an example of voluntary compliance for the private sectorto follow, were "arbitrary and unfair" according to the Oakes principle and wereunjustified under SA .448The final case in the labour trilogy is RWDSU v.  Saskatchewan449 (the"Dairyworkers" case). Again, this decision is very much derivative of the reasoning inthe Alberta Reference. The government of Saskatchewan had enacted The DairyWorkers (Maintenance of Operations) Act45° (The "Act"), temporarily prohibitingdairy workers from striking and their employers from locking the workers out as aresult of unsuccessful contract talks between the dairyworkers' unions and the onlymajor dairy businesses in the province. The unions had served notice of rotating strikeson the dairies but before this could begin, the dairies served the unions with lock-outnotices covering all fluid milk plants. 451 The legislation extended the last collectiveagreement between the parties and provided for final binding arbitration between themif an agreement could not be reached within a specified period. 452 The unionsrepresenting the dairyworkers sought a declaration that the Act infringed freedom ofassociation and was therefore of no force or effect.Again relying on their opinions in the Alberta Reference that the right to strikeis not included in freedom of association, Justices Le Dain, Beetz, La Forest andMcIntyre uphold the Saskatchewan legislation. 453For his reasons given in the Alberta Reference, Dickson C.J. declares that thelegislation is in violation of s.2(d) of the Charter in that it "interferes with the freedomof the employees to engage in strike activity that would have been lawful in the absenceof the Act. "454Turning to s.1, he notes two objectives advanced in support of the legislation.First, due to the unique nature of the dairy industry, a work stoppage of milkprocessing facilities would cause serious harm to the dairy industry and particularly todairy farmers. Second, it was argued that milk is an essential commodity and itscontinued supply to consumers must be ensured. 455 It is the first of these argumentsthat Dickson C.J. finds most significant.He notes that it is possible for a legislature to abridge employees' right to strikeif "the effect of strike is to deprive the public of essential services. The rationale forsuch a limitation is that members of the public who do not participate in a particularcollective bargaining process ought not to be unduly harmed when the bargaining failsto produce a settlement." 456 He adds, importantly, that this reasoning applies tosituations where the harm to third parties is economic in nature:It would be strange, indeed, if our society were to give constitutionalprotection for the freedom of employees to advance economic, as well asnon-economic, interests by striking, while insisting that the state remainidle and indifferent to the infliction on others of serious economicharm. 47Thus, the significant social costs caused by a strike may properly be considered by alegislature in limiting the right to strike.These costs must be considered in the context of the s.1 framework. In thisinstance, Dickson C.J. focuses on the pressing and substantial concern that thelegislation is aimed at, and the balancing of the legislative objective against thedeleterious effects of the legislation of limiting a constitutionally protected right orfreedom. 458 The question for the Chief Justice to address in this case isWhether the potential for economic harm to third parties during a workstoppage is so massive and immediate and so focussed in its intensity as88to justify the limitation of a constitutionally guaranteed freedom inrespect of those employees. 459The third party in this dispute, the dairy farmers, were faced with economicharm in the form of losses caused by dumping milk that, due to the strike, would notbe picked up from their farms and taken to the processing plants. According to theonly evidence adduced on this point, (contained in affidavits and newspaper clippings:no further evidence was tendered), 1.3 million pounds of milk with a value of$250,000 was produced daily by 50,000 dairy cows on 800 farms. Milk was normallypicked up from the farms every second day, and could not be stored on the farm formore than three days. 46° Two-thirds of the dairy farmers in the province were in avulnerable financial position due to high debt loads. 461The dairy farmers were not only threatened with significant economic losses asa result of the strike, but they would bear these losses "in their full intensity": theharm could not be distributed over a larger population, but rather visited upon theprovince's 800 dairy farms. Thus, in the Chief Justice's view,the economic harm threatened by a total work stoppage in the dairyprocessing industry was so immediate, of such a high degree and of suchan intense focus as to fall well within the ambit of discretion of theSaskatchewan legislature to substitute a fair and efficient arbitrationscheme for the dairy processing employees' freedom to strike. I mightadd that what perhaps exacerbates the economic harm to dairy farmersand distinguishes it from the routine economic harm experienced by anysupplier to a producer in the throes of a work stoppage is thecombination of three unusual features: (i) the producer in this case wasthe sole outlet for the suppliers' only product; (ii) the product in questionwas highly perishable; and (iii) because of the biological imperativesqfthe cow, the supplier could not mitigate losses by ceasing production. 462The other two aspects of the Oakes proportionality test, that the measures be rationallyconnected to the objective and that they impair the right or freedom as little as possible,get an extremely brief consideration: Dickson C.J. states that the Act applies only tothe workers in the dairy industry 463 (the rational connection aspect), and that the89workers' rights are impaired as little as possible by the provision of a neutral, bindingarbitration scheme that either party may compel the other to submit to withoutinterference from the government. 464 No additional commentary is provided on thesetwo facets of the Oakes test.In a dissenting opinion that the legislation can not be justified under s.1, WilsonJ. focuses on the characterization of the dairyworkers' activity as an "essential service",the dairy farmers as a third party to the dispute, the "least restrictive means" aspect ofthe Oakes test, and the evidence relied on to uphold the legislation.The first matter Wilson J. takes issue with is the casting of the dairyworkers'activity as an "essential service". In her opinion, this label is properly applied to aservice "whose interruption would endanger the life, personal safety or health of thewhole or part of the population." 465 Examples of such services include hospitals,police and firefighters. 466 In her view this is very different from situations where theeconomic interests of a particular group are threatened, especially in the context of thecollective bargaining process. The implications of this, she says,are extremely far-reaching since some measure of damage to theeconomic interests of the parties and the public is an inevitableconcomitant every work stoppage c]. Indeed, the effectiveness of thisnegotiating tool depends upon it. 4°'Government intervention in industrial relations in general and constitutionally protectedfreedoms in particular should occur in response to "a serious threat to the well-being ofthe body politic or a substantial segment of it." 468 In Wilson J.'s opinion, theprevention of economic harm to a particular sector per se is not a sufficiently importantgovernment objective to warrant overriding a constitutionally-protected freedom. 469She notes that the evidence proffered "falls far short of establishing economic harm to90the dairy workers and the public" 470 and that the provision of milk is "essential" 471 andthat none would be available in the province should the work stoppage continue.With respect to the evidence adduced in this case, she notes that theGovernment of Saskatchewan did not call any and that the only evidence before theCourt was that tendered by the respondents, consisting of affidavits sworn by unionofficials and newspaper clippings. The newspaper clippings, relating to the effects ofthe work stoppage on the dairy industry, are declared by Wilson J. to be "inherentlyunreliable", "self serving statements" 472 used by the proponents of the legislation toinfluence public opinion and justify their cause. Such evidence, in her view, is of verylittle probative value. 473 The sworn affidavits did not contain enough information forthe Court to determine the reasonableness of the government's actions in limiting theworker's right to strike. 474For a limit to be justified pursuant to s.1, the legislative objective must relate toa pressing and substantial concern. A certain amount of damage and inconvenience isaccepted by industry and the public as "the price of maintaining free negotiation in theworkplace"; unless the damage to the dairy industry can be shown to be considerablygreater than the damage that would occur as the result of a work stoppage of"reasonable duration", it cannot be characterized as a "pressing and substantialconcern". 475 Wilson J.'s fear here is that if this were not the case, all work stoppageswould be deemed a pressing and substantial concern "and government interventionwould be the rule rather than the exception. There has to be more to it than that." 476Wilson J. also takes issue with Chief Justice Dickson's characterizing the diaryfarmers as third parties. She notes that some of the farmers collectively owned nine ofthe eleven milk processing plants involved in the dispute. In Dickson C.J.'s view this91did not present any difficulties, since the "co-operative company owned at least in partby some of the farmers is a separate legal entity and its directors are entitled to pursuea labour relations strategy which does not conform to the wishes of individualmembers." 477 For Wilson J., this is problematic: she has "difficulty in appreciatinghow the owners of a corporation involved in the strike as a principal can be viewed asinnocent third parties for the purpose of assessing the harm suffered by suchparties." 478 With respect to the harm to the dairy farmers, characterized by DicksonC.J. as "massive", Wilson J. again expresses concern that this conclusion was reachedin the absence of evidence. 479 In her opinion, the government of Saskatchewan hasfailed to prove that protecting the economic interests of dairy farmers was a legislativeobjective of sufficient importance to warrant overriding freedom of association.She further states that, if she is wrong in this conclusion, the government hasnot proved that it achieved its objective by the least restrictive means. In her view, thelegislation was not tailored closely enough for the objective. The legislation providedfor a total strike ban and compulsory arbitration. Instead, she suggests, it could haveprovided for a partial strike ban that would achieve the objective of preventing harm.Again she points to the lack of evidence that a total ban was necessary: therespondents' affidavits indicated thatthey would have an effective strike weapon if they were allowed toengage in a series of rotating strikes that would have allowed theindustry to continue functioning at 85 per cent of normal capacity. Thegovernment has not contended that such a partial strike would have hadunacceptable costs to dairy farmers. 48°A partial strike ban would, in Wilson J.'s view, realize the governmental objective. Atotal ban simply went too far.Finally, she notes that there was, again, no evidence adduced that the health ofSaskatchewan residents would be harmed by the interruption of milk delivery. While92milk is clearly an important food product, possible adequate substitutes might beavailable, or milk might be imported from other areas. There is simply no evidence;hence, no threat to the health of consumers is established. 481It is significant to note the differences in approaches taken by Dickson C.J. andWilson J. Dickson C.J. is quite prepared to extend the protection of essential servicesto cover economic harm caused to third parties. For Wilson J., this strikes at the veryheart of the collective bargaining process. Clearly her concern here is the slipperyslope: once economic harm to third parties is protected, where will it stop and whatdoes this mean in the context of labour relations? Although Dickson C.J. follows theformat of the Oakes test, his application of it is significantly relaxed. He is willing toallow evidence that Wilson J. characterizes as "inherently unreliable". Indeed, it seemscurious that such evidence could be considered sufficient in the context of justifyinglimits on constitutionally protected rights and freedoms. It seems more appropriate toconsider more broadly based and substantial evidence for such a significantundertaking. The onus on the government in justifying the limitation appears to comeeasily in Dickson C.J.'s approach. Wilson J. puts the government to a far harsher test.In her view the evidence adduced in this case simply did not go far enough inestablishing the necessity of infringing constitutional freedoms. In this, Wilson J.proves herself most loyal to the stringent standards articulated in Oakes. Her dissent inthis instance is instructive of her particular view of the proper approach to breach andjustification. While Chief Justice Dickson shows increasing relaxation of the s.1 testand deference to the legislature on matters of labour relations, Wilson J. continues toadhere to the view that constitutionally guaranteed rights and freedoms should only belimited in exceptional circumstances.93The labour trilogy demonstrates the widely varying approaches the Court hastaken to the issues of breach and justification. The definitional balancing employed byMcIntyre J. in the Alberta Reference indicates a reluctance to consider constitutionalprotection for some activities at all. By defining the freedom so as to exclude theactivity, resort to s.l is simply not necessary. Given his statements revealing hisalmost complete deference to the legislature and specialized tribunals on labourrelations matters, it is hardly surprising that McIntyre J. would limit freedom ofassociation so as to exclude strike activity. In so doing he avoids the necessity ofapplying s.l.Chief Justice Dickson takes a different approach that is more consonant with theprinciples set out in Oakes. After defining freedom of association as including the rightto strike, he focuses his attention on the s.1 test. His application of the test through thecases reveals an increasing relaxation of the standards necessary to justify a limitation.In the Alberta Reference he notes the lack of evidence that collective bargaining orstrike activity would cause undue political pressure on the government. 482 Similarly,in PSAC he expresses surprise that the federal government prohibited its employees'right to strike over non-compensatory issues in an effort to control inflation absentevidence that this measure would be effective. 483 In the Dairyworkers case, theevidence deemed sufficient to justify a limitation of a constitutionally protected freedomseems tenuous indeed. Moreover, the three aspects of the Oakes proportionality testappear to receive increasingly brief consideration, with legislation passing the rationalconnection test in PSAC484 and the Dairyworkers485 case easily, the latter almost as anafterthought. While the format of the Oakes test in maintained by Dickson C.J., it isconsiderably diluted in its application to the labour trilogy.94Wilson J. remain the most committed to the Oakes principles. Her consistentapplication of the stringent standards focus on all aspects of the test, with legislationfailing to survive at the first criteria of "pressing and substantial" in theDairyworkers 486 case, the rational connection stage in PSAC 487 and the least restrictivemeans test in the Dairyworkers. 488 Her approach to the limitation of constitutionallyguaranteed rights and freedoms is clearly premised on a commitment to uphold theright and put the government to the stringent proof with cogent evidence thatlimitations are justified only in the most exceptional cases.The majority decision489 in Irwin Toy Ltd. v.  Attorney-General of Quebec 49°offers a particularly good example of the Court's continuing devolution of justificatorycriteria at both the substantive law section and the s. 1 stage. At issue here was whetherprovisions of the Quebec Consumer Protection Act 491 and Regulations492 infringedfreedom of expression in prohibiting advertising, including television, aimed at childrenunder thirteen years of age, subject to certain exemptions. 493 The respondent, IrwinToy Ltd., had broadcast advertising messages that the Office de la protection duconsommateur claimed were in contravention of the Act and Regulations, and in returnsought a declaration that the legislation and regulations were of no force or effect asthey infringed the respondent's freedom of expression.The first step taken by the majority is to consider whether the respondent'sactivity falls "within the sphere of conduct protected by freedom of expression". 494This is an immediate signal that the Court is openly engaging in definitional balancing:indeed, it expressly states that not all activity is so protected. 495 Expression isprotected, the Court says, "to ensure that everyone can manifest their thoughts,opinions, beliefs, indeed all expressions of the heart and mind, however unpopular,distasteful or contrary to the mainstream. "496 The Court then notes that expression has9596both a content and a form, and that activity is expressive if it attempts to conveymeaning. Linking content and activity in an apparent literal interpretation ofexpression, the Court states that "if the activity conveys or attempts to convey ameaning, it has expressive content and prima fade falls within the scope of theguarantee."497 Content or meaning is the centre of the Court's focus at this point:activity not ordinarily considered expressive will be so if the party claiming protectioncan demonstrate that it was done to convey a meaning. The example the Court useshere is an unmarried person parking a car, (not usually thought of as expressive) in azone reserved for spouses of government employees, to express dissatisfaction with thismethod of allocating resources. 498 In discussing the form by which content may beexpressed, such as written or spoken words, gestures, the arts or physical acts, theCourt states that "certainly violence as a form of expression receives no protection", 499without explaining why, simply stating that it "is clear ... that a murderer or rapistcannot invoke freedom of expression in justification of the form of expression he haschosen. "5°° Yet some gestures may be taken to be violent, and certainly the artscontain violent expression in the form of dance and visual imagery. While violence perse does not garner protection, this aspect of the Court's test indicates that some formsof violence may. This is simply to suggest that that Court's pronouncement thatviolence as expression cannot be brought within s.2(b) is not as clear as the Courtbelieves, and indicate in a particularly clear way the process of balancing that ought tobe reserved for the s.1 stage. Applying these rules to the facts of this case, the Courtstates that the advertising in question clearly attempted to convey a meaning and hadexpressive content and, absent a basis for excluding the form of expression chosen(television advertisements) from the sphere of protected activity, and consequently isprotected . 5°197The second step of the test involves considering whether the purpose or effect ofthe legislation was to restrict freedom of expression. The purpose of the legislationmust be measured against the standpoint of freedom of expression. The Court heredistinguishes between purposeful restrictions on the form or content of expression,which constitute a prima facie breach of s.2(b), and restrictions which seek to controlthe physical consequences or the direct physical results of expressive activity, such asharm to individuals in creating in them false beliefs as a result of the expression, andharmful consequences of acts performed as a result of the expression where theexpression led the actors to believe the acts were worth performing. 502 In consideringwhether the effects of the legislation were to restrict freedom of expression, the onus ison the party claiming breach to demonstrate such an effect. The party must show thatthe activity in question conveys a meaning which "relates to the pursuit of truth,participation in the community, or individual self-fulfillment and humanflourishing". 503 With respect to the legislation and regulations in question, the Courtstates that there is no question that its purpose was to restrict both a particular range ofcontent and certain forms of expression in the name of protecting children. Thelegislation and regulations restrict both the manner in which a particular content mustbe expressed and the content directly. Advertisements must not "use a superlative todescribe the characteristics of goods or services" or "directly incite a child to buy orurge another person to buy goods or services or to seek information about it". 504Evidence submitted by the Attorney-General of Quebec indicated that the mischief atwhich the legislation and regulations was directed was "the harm caused by the messageitself". 505 Thus the legislation and regulations served to prohibit freedom ofexpression and may only be justified according to the principles of s.1. 506What is significant about the purpose and effects discussion is that the Court isagain engaging in a balancing process before it reaches the s.1 stage. The test forexpression, as outlined above, sets up a triple hurdle in which the Court considers theform and content, purpose and effect of the expression and legislation restricting it. Ateach stage qualifiers are grafted on to the basic principles. Activity, if performed toconvey a meaning, is prima facie protected, unless a certain form removes it from thesphere of guarantee. Legislation that purposely restricts expression is prima facie inbreach of s.2(b), unless done simply to control the physical consequences of theactivity. The effect of legislation restricting expression must be considered in light ofthe principles underlying freedom of expression. Every stage involves a balancing ofinterests to determine whether the activity is within the sphere of guaranteedexpression. The effect of this approach is to dissect the substantive right and create aconvoluted path through the guarantee of expression that protects some expression andnot others without resort to the considerations set out in s. 1. This is curious indeed,given freedom of expression's designation as "'little less vital to man's mind and spiritthan breathing is to his physical existence". 507 One would think that restrictions on sofundamental a freedom ought properly only be considered in light of the higherstandards set out in the s.1 stage that put the government to the proof that thelimitations are reasonable. Moreover, it is difficult to define expression in the abstract,as the Court has done, in articulating protected content and unprotected consequences.To separate into content and consequence is extremely problematic in the realm of ideaswhere acts or words can, and are often intended to, incite. The majority decision hereonly serves to blur the lines between breach and justification at the substantive lawstage.In moving to the s.1 stage, the Court first considers whether the legislationrelates to a pressing and substantial concern. This hurdle is passed rather easily: theCourt declares the legislative objective is the protection of a group that is "particularlyvulnerable to the techniques of seduction and manipulation abundant in advertising. "5089899In aid of this finding the Court reviews evidence submitted by the Attorney-General ofQuebec indicatingthe particular susceptibility of young children to media manipulation,their inability to differentiate between reality and fiction and to grasp thepersuasive intention behind the message, and the seconOary effects ofexterior influences on the family and parental authority. 5°'Children, particularly those six years old and younger, are completely credulous whenpresented with advertising, and television advertising directed at this group is "per semanipulative. "510 The Attorney-General of Quebec also filed evidence as to the agethat children begin to develop cognitive abilities to recognize the persuasive nature ofadvertising and to evaluate its comparative worth. Although the evidence offereddiffering opinions on this point, the Court states, significantly, that the legislature isonly required to exercise reasonable judgment in identifying the vulnerable group thelegislation is aimed at:If the legislature has made a reasonable assessment as to wherethe line is most properly drawn, especially if that assessment involvesweighing conflicting scientific evidence and allocating scarce resourceson this basis, it is not for the court to second guess ... There is sufficientevidence to warrant drawing a line at age 13, and we would not presumeto re-draw the line. 511Hence, on "the balance of probabilities" the evidence establishes that children 13 yearsand younger are manipulated by commercial advertising and the legislative aim ofprotecting all children in this group is a pressing and substantial concern. 512The proportionality test in this case offers further evidence of the devolution ofthe Oakes criteria. The rational connection aspect is passed very easily: the firstsentence of the one paragraph the Court takes to deal with this portion of the test states:"There can be no doubt that a ban on advertising directed to children is rationally'613connected to the objective of protecting children from advertising. The connectionbetween the means and objective is made in one sentence: "Simply put, advertisers areprevented from capitalizing on the inability of children either to differentiate betweenfact and fiction or to acknowledge and thereby resist or treat with some skepticism thepersuasive intent behind the advertisement. "514 This particular application of the test isindicative of how readily the Court will make the rational connection. Here there is nodiscussion whatever of the need for the legislation to be "carefully designed to achievethe objective in question", or that the means must not be "arbitrary, unfair or based onirrational considerations", as outlined in Oakes. 515 Indeed, the Court's treatment heresuggests that this aspect is a substantially formal part of the test. There might havebeen some discussion with respect to the arbitrariness of drawing the age limit at 13,for instance, but again, the Court adopts a deferential posture towards the measurestaken to achieve the legislative objective which, it earlier stated, need only be"reasonable". 516The minimal impairment aspect of the test proves to be the major hurdle in thediscussion. The question the Court addresses is whether "the government had areasonable basis, on the evidence tendered, for concluding that the ban on alladvertising directed at children impaired freedom of expression as little as possiblegiven the government's pressing and substantial objective." 517 Here the Court's focusis on the evidence before it of children's susceptibility to persuasion and their lack ofcognitive abilities. Regulation of advertising content could not address this problem: aban on all advertising directed at children would. A ban based on audiencecomposition is deemed unworkable on the basis that viewing audiences are not sosufficiently segmented that a ban on advertising directed at children during certainhours of the day would catch all programs frequently watched by children. 518Similarly, audience cut off figures of 30% (where children make up 30% of theviewing audience) would catch only one program. Lowering the cut off figure wouldcatch too many non-children and still may not capture all children's programs.Moreover, it is difficult to define "advertising directed at children" in such a way as to1 00distinguish between young and older children. 519 The answer is found in thelegislation and regulations themselves. The guidelines for their application suggesttime periods when children compose a specified percentage of the audience. They alsoset forth a sophisticated method of determining when an advertisement is directed atchildren by identifying categories of products, advertisement and audience, which inturn are sub-categorized to target the type of advertisement the legislation is aimedat. 520 These guidelines serve as a framework for determining permittedadvertisements, with the courts having the final word as to whether the strictest limit onadvertising should apply where children compose a smaller percentage of the viewingaudience.521 Self-regulation by broadcasters is raised as a means of addressing theproblem of children's advertising and quickly dismissed by the Court, noting thatchildren's advertising is per se manipulative and that it was reasonable, therefore, forthe legislature of Quebec to ban it. 522 In concluding this aspect of the test, the Courtonce again focuses on the reasonableness of the legislative action, and suggests that forthe minimal impairment hurdle to be cleared, the measures taken need only bereasonable compared to the alternatives:While evidence exists that other less intrusive options reflecting moremodest objectives were available to the government, there is evidenceestablishing the necessity of a ban to meet the objectives the governmenthad reasonably set. This Court will not, in the name of minimalimpairment, take a restrictive approach to social science evidence andrequire legislatures to choose the least ambitious means to protectvulnerable groups. There must nevertheless be a sound evidentiary basisfor the government's conclusions. 52'It is hardly surprising, after all that, that the third aspect of the proportionality test, thedeleterious effects component, is easily satisfied: advertisers are free to direct theirmessages to adults and to participate in educational advertising. The real concern ofthe advertisers, the Court states, is that revenues are in some degree affected. Theywill simply "have to develop new marketing strategies for children's products." 524101McIntyre J.'s dissenting opinion is noteworthy. While agreeing that theadvertising in question constitutes expression and that the legislation infringes this, hedisagrees that the legislation can be saved by s.l. He is not convinced that the welfareof children is at risk due to the advertising directed at them. Agreeing that childrenhave difficulty distinguishing fact from fiction, he suggests that this is the nature ofchildren, and that no evidence has been tendered to show they suffer harm because ofit:Children live in a world of fiction, imagination and make believe.Children's literature is based on these concepts. As they mature, theymake adjustments and can be expected tp pass beyond the range of anyill which might be caused by advertising.'2For McIntyre J., the legislation fails at the first stage of the s.1 test in not constitutingan objective of pressing and substantial importance. Furthermore, he says, thelegislation also fails on the issue of proportionality in that a total ban of advertisingaimed at children "below an arbitrarily fixed age makes no attempt at the achievementof proportionality. "526 Limitations on freedom of expression, whether political,religious, artistic or commercial, should only be sustained in "urgent and compelling"situations and then only "to the extent and for the time necessary for the protection ofthe community."527 The legislation in question represents a "small abandonment" of aprinciple of "vital importance" and can not be justified. 528 Even this opinion, whilenominally adhering to a stricter s.1 standard than that of the majority's, neverthelessapproves of the definitional balancing that serves to blur the lines between breach andjustification.Irwin Toy represents further proof of the Court's continuing devolution of therole of s.1 in justifying breaches of constitutionally guaranteed rights and freedoms. Ininitially considering whether the advertising in question was protected under theguarantee of freedom of expression, the Court begins the process of definitional102balancing. The dissection of expression into form and content further restricts thedefinition, with the Court readily deciding some forms of expression are protected andothers not, without explaining why. The further dissection of limitations on expressioninto purposes and effects serves to graft yet another qualifier onto the guarantee. Theresult is a convoluted test that openly balances interests throughout without anyconsideration of the reasonable limits set out in the higher standards of s.l. Theapplication of the s.1 criteria as an overlay to the preceding balancing of interests canonly serve to further dilute the substantive freedom and obscure the line between breachand justification. Moreover, it appears that the internal framework of the Oakes testhas been largely abandoned in all but formal application. The proportionality test hasbeen collapsed from three distinct discussions to a discussion where minimalimpairment is the significant factor, with rational connection and deleterious effectsbeing rather easily satisfied. Even within the minimal impairment component, theCourt suggests that restrictions may be upheld despite the existence of alternativemeasures that impair the freedom in question less than the legislative scheme, as longas the legislative scheme is "reasonable". Irwin Toy clearly demonstrates that theCourt has travelled a great distance from its earlier pronouncement that the substantivelaw sections and section 1 be kept analytically distinct, 529 and further serves to confusethe issues of breach and justification and limits the function role of s.1.The jurisprudence developed in Irwin Toy figures prominently in R. v.Butler. 530 This case dealt with the difficult issue of whether the obscenity provisions ofthe Criminal Code531 violated freedom of expression as set out in s.2(b) of the Charter.The appellant opened a shop selling and renting "hard core" videotapes and magazines,as well as sexual paraphernalia. He was charged with numerous counts of sellingobscene material, possessing obscene material for the purpose of distribution or sale,and exposing obscene material to public view, all contrary to s.163 of the Criminal103Code. At trial, he was convicted on eight counts relating to eight films, and aquittalswere entered on the remaining charges. The Crown appealed the aquittals and theappellant cross-appealed the convictions. The majority of the Manitoba Court ofAppeal allowed the Crown appeal and entered convictions for the appellant with respectto all the counts. 532 The appellant further appealed to the Supreme Court of Canada.This appeal raises several related concerns. First, there is the matter of thedefinition of "obscene". Next is a consideration of whether obscenity is included inexpression that is guaranteed by s.2(b) of the Charter. Finally, it is necessary todetermine whether any violation of s.2(b) by s.163 of the Criminal Code is justifiedunder s.1 of the Charter. The constitutional questions were set out as follows.1. Does s.163 of the Criminal Code ... violate s.2(b) of the Charter ...2. If s.163 of the Criminal Code ... violates s.2(b) of the Charter ..., can[it] be demonstrably justified under s.1 of the Charter ... as a reasonablelimit prescribed by law?533While the questions as stated raise the review of all of s.163, the analysis is confined tothe examination of the constitutional validity of s.163(8) only. That section sets outwhat is considered obscene:163(8) For the purposes of this Act, any publication a dominantcharacteristic of which is the undue exploitation of sex, or of sex andany one or more of the following subjects, namely, crime, horror,cruelty and violence, shall be deemed obscene. 534Writing for the majority, 535 Sopinka J. reviews the legislative history of theprovision and the tests that have been developed to give substance to the term"obscene". Early legislation sought to proscribe "obscene matter", "tendency tocorrupt morals" and the exhibition of any "disgusting object or indecent show" withoutdefining any of these operative terms. 536 The common law test developed in 1868104suggested that obscenity was that which had "the tendency ... to deprave and corruptthose whose minds are open to such immoral influences ... " .537 Unlike the previousstatutes, the current provision, introduced in 1959, contained the statutory declarationof "obscene" found in s.163(8), set out above.Judicial interpretation of s.163(8) set out the tests for determining whethermatter is obscene for the purposes of criminal prosecution. The statutory definitionwas held to constitute an "exhaustive test of obscenity with respect to publications andobjects which exploit sex as a dominant characteristic" 538 and the common law testdeveloped in 1868 was held no longer applicable.One of the elements of the definition of "obscene" in s.163(8) is that theexploitation of sex as its dominant characteristic must be "undue". Varying tests havebeen developed in order to determine when such exploitation will be considered"undue".The "community standard" test suggests that there existsin any community at all times ... a general instinctive sense of what isdecent and what is indecent, of what is clean and what is dirty, and whenthe distinction has to be drawn ... There are certain standards of decencywhich prevail in the community ... What is obscene is something whichoffends against those standards. 539This vague test has been somewhat refined to state that it is the standards of thecommunity as a whole, and not a small segment of it, which must be considered, thestandard to be applied is a national one, expert evidence on the national standard is notnecessary and the Crown need not prove it as part of its case, and the communitystandards test must be contemporary and responsive to changing mores. 540105Recent decisions hold that material that exploits sex in a "degrading ordehumanizing" manner will necessarily fail the community standards test. Suchmaterial, Sopinka J. says, even in the absence of cruelty or violence, placeswomen (and sometimes men) in positions of subordination, servilesubmission or humiliation. They run against the principles of equalityand dignity of all human beings. In the appreciation of whether materialis degrading or dehumanizing, the appearance of consent is notnecessarily determinative. Consent cannot save materials that otherwisecontain degrading or dehumanizing scenes. Sometimes the veryappearance of consent makes the depicted acts even more degrading ordehumanizing. 541Degrading or dehumanizing material fails the community standards not for the reasonsstated in the old common law test as offending against morals, but because publicopinion perceives it to be harmful to society in general and women in particular. 542 Itis significant to note that this perception cannot be proved. However, Sopinka J. statesthere is a "substantial body" of public opinion that supports these conclusions, and thus"it would be reasonable to conclude that there is an appreciable risk of harm to societyin the portrayal of such material." 543Sopinka J. also notes that in some instances the community may find someforms of undue exploitation that cause harm nevertheless tolerable. Quoting an earlydecision by Dicksion C.J. , it is notedSex related publications which portray persons in a degrading manner asobjects of violence, cruelty or other forms of dehumanizing treatment,may be 'undue' for the purposes of [s.163(8)] ... However, ... there isno necessary coincidence between the undueness of publications whichdegrade people by linking violence, cruelty or other forms ofdehumanizing treatment with sex, and the community standard oftolerance. Even if certain sex related materials were found to be withinthe standard of tolerance of the community, it would still be necessary toensure that they were not 'undue' in some other sense, for example inthe sense that they portray persons in a degrading manner as objects ofviolence, cruelty, or other forms of dehumanizing treatment. 544106This passage serves to illustrate that the line between the mere portrayal of sex and thedehumanization of people is drawn by the "undueness" concept and that the communityis the judge of what is harmful to it.Finally, Sopinka J. notes the "internal necessities test" or "artistic defence".Material which offends community standards will not be considered undue if it isrequired for the serious treatment of a theme. This test flows from the recognition thatartists "must have freedom in the production of a work of genuine artistic and literarymerit". 545 In the case of films, in order to determine whether the exploitation of sex isundue, under this test the court will consider the artistic purpose, the manner in whichthe artist has developed and portrayed the story, the depiction and interplay of characterand the creation of visual effect through camera techniques. 546 In order to survive theinternal necessities test, the exploitation of sex must be found to have a justifiable rolein advancing the plot or theme.547The difficulty with these tests is that they do not precisely identify what materialcaught by s.163(8) will not be tolerated. In determining whether the exploitation of sexis undue, it is uncertain whether the material is found to be intolerable because it isdegrading or dehumanizing or because it offends against morals or on some othergrounds. Similarly, it is difficult to determine the relationship, if any, between thesetests and the internal necessities test. There is no indication which, if any, of thesetests takes prcedence over the others. The effect of these concerns is that s.163(8)could be challenged on the grounds of vagueness and uncertainty. Such a challenge liesat the heart of the present appeal.Turning to a consideration of pornography, Sopinka J. divides it into threecategories:107108(1) explicit sex with violence, (2) explicit sex without violence but whichsubjects people to treatment that is degrading or dehumanizing, and (3) explicitsex without violence that is neither degrading nor dehumanizing. Violence inthis context includes both physical violence and threats of physical violence. 548Section 163(8) of the Criminal Code specifically contemplates explicit sex withviolence, the first category outlined. Explicit sex combined with crime, horror orcruelty will sometimes involve violence and thus also fall within the first category.Absent violence, explicit sex combined with crime, horror or cruelty will fall withinthe second category, that which subjects people to treatment that is degrading ordehumanizing. The third category is not considered in this appeal.Because different segments of society would have differing opinions as to whichcategories of pornography, if any, cause harm, and what may be considered degradingand dehumanizing, and these matters are not susceptible of exact proof, the communityas a whole will serve as an arbiter in determining what amounts to an undueexploitation of sex. 549 The question the court must address, then, is what would thecommunity "tolerate others being exposed to on the basis of the degree of harm thatmay flow from such exposure. " 550The definition of harm set forth by Sopinka J. sets the stage for the rest of hisjudgment and clearly informs his reasoning throughout his analysis. Harm in thiscontext, he says,means that it predisposes persons to act in an anti-social manner, forexample the physical or mental mistreatment of women by men, or,what is perhaps debatable, the reverse. Anti-social conduct for thispurpose is conduct which society formally recognizes as incompatiblewith its proper functioning. The stronger the inference of a risk of harmthe lesser the likelihood of tolerance. The inference may be drawn fromthe material itself or from the material and other evidence. Similarlyevidence as to the community standards is desirable but not essential. 55'Relating this harm principle back to the three categories of pornography, he states thatthe portrayal of sex combined with violence will almost always constitute the undueexploitation of sex. If the risk of harm is substantial, explicit sex which is degrading ordehumanizing may be undue. The third category of pornography, explicit sex withoutviolence that is neither degrading nor dehumanizing will not constitute the undueexploitation of sex and will generally be tolerated unless it employs children in itsproduction. 552 In Sopinka J.'s opinion, this harm principle deals with the inter-relationship of the community standards test and the degrading and dehumanizing test.The internal necessities or artistic defence test would only arise if a work is found tocontain sexually explicit material that by itself constitutes the undue exploitation of sex.The context of the portrayal of sex must be examined to determine whether it isessential to a "wider, artistic, literary or other similar purpose" or if it is the mainobject of the work. 553The court must determine whether the sexually explicit material whenviewed in the context of the whole work would be tolerated by thecommunity as a whole. Artistic expression rests at the heart of freedomof expression values and any doubt in this regard must be resolved infavour of freedom of expression. 554Sopinka J. then turns to consider whether s.163(8) violates freedom ofexpression as set out in s.2(b) of the Charter. This determination is relatively easilymade. He notes that the court advocates a "generous approach to the protectionafforded by s.2(b) of the Charter". 555 The form of the activity in this case, he says, "isthe medium through which the meaning sought to be conveyed is expressed, namely,the film, magazine, written matter, or sexual gadget. There is nothing inherentlyviolent in the vehicle of expression, and it accordingly does not fall outside theprotected sphere of activity." 556 This is a straight application of the test set out inIrwin Toy concerning the types of expression protected. 557 Moreover, he says,activities cannot be excluded from protection on the basis of the content or meaningbeing conveyed. 558 In Justice Sopinka's opinion, the materials in this case conveyideas, opinions or feelings. 559 He does not elaborate on what these ideas, opinions or109feelings might be, other than to note a statement made by the Court of Appeal when itconsidered this matter:The subject matter of the material under review ... is sexualactivity. Such activity is part of the human experience ... The depictionof such activity has the potential of titillating some and informing others.How can images which have such an effect be meaningless? ... 560In keeping with the Court's advocating a generous approach to freedom of expressionand absent the violence Irwin Toy suggests would remove it from protection, thematerial is held to be within the scope of protection afforded by freedom of expression.The purpose and effect of s.163(8), he says, is "specifically to restrict thecommunication of certain types of materials based on their content." 561 There is nodoubt that s.163(8) seeks to prohibit certain types of expressive activity and thisviolates s.2(b) of the Charter. 562 Recourse to s.1 is thus necessary to determinewhether s.163(8) constitutes a justifiable limit on freedom of expression.Two competing views of the objectives of s.163 were put forth. The appellantargued that the objective of the legislation is "to have the state act as 'moral custodian'in sexual matters and to impose subjective standards of morality." 563 Whileacknowledging that much of criminal law is based on moral conceptions of right andwrong, legislation to advance a particular conception of sexual morality is no longerdefensible in view of the Charter's protection of freedom of expression. "To impose acertain standard of public and sexual morality, solely because it reflects the conventionsof a given community, is inimical to the exercise and enjoyment of individualfreedoms, which form the basis of our social contract." 564 Rather, the objective of thelegislation is the avoidance of the harm to society that results from anti-social behaviourcaused by exposure to obscene material. The harm to society is described as follows bythe Report on Pornography by the Standing Committee on Justice and Legal Affairs:110The clear and unquestionable danger of this type of material isthat it reinforces some unhealthy tendencies in Canadian society. Theeffect of this type of material is to reinforce male-female stereotypes tothe detriment of both sexes. It attempts to make degradation,humiliation, victimization, and violence in human relationships appearnormal and acceptable. A society that holds that egalitarianism, non-violence, consensualism, and mutuality are basic to any humaninteraction, whether sexual or other, is clearly justified in controllingand prohibiting any medium of depiction, description or advocacy whichviolates these principles. 565The harm, then, is clearly identified. Moreover, the undue exploitation of the materialseriously harms society by impairing true equality between men and women. How canwomen expect equality of treatment when the materials depict them in seeminglynormal situations of degradation, humiliation, victimization and violence? This is aparticular concern in light of society's commitment to equality and the enhancement ofdignity and the negative impact on an individual's sense of self-worth and acceptance.Given the objective of preventing harm to society and the manner in which that harm ischaracterized, it is not surprising that Sopinka J. finds the legislation proscribingobscenity is one of sufficient importance to warrant overriding freedom of expression.He is further persuaded that this type of legislation is found in "most free anddemocratic societies. " 566 The "burgeoning pornography industry" is also cited in aid ofthe pressing and substantial concern. 567 While this is not articulated, perhaps if theindustry was significantly smaller and less powerful in terms of economicconsiderations, the issue of obscenity would not seem so pressing and substantial. Onthe other hand, it is unlikely that a smaller industry with the same harm to societywould not be considered so pressing and substantial. Size of the industry is clearly asubsidiary issue to harm to society.Thus, Sopinka J. states that the proportionality aspect of the s.1 test must beundertaken "in light of the conclusion that the objective of the impugned section isvalid only insofar as it relates to the harm to society associated with obscenematerials."568 For the reasons given earlier, the objective of maintaining conventional111standards of propriety, independent of social harm, is rejected as it is no longer a validlegislative concern given the Charter's advent. 569In a comment reminiscent of the type of definitional balancing undertaken inIrwin Toy, Sopinka J. states that it is important to keep in mind the nature ofexpression which has been infringed. In his view, the expression here "does not standon equal footing with other kinds of expression which directly engage the 'core' of thefreedom of expression values." 570 These values "relate to the search for truth,participation in the political process, and individual self-fulfillment." 571 He isunpersuaded that the expression relates to political discourse by engaging people indiscussions of pornography and thus forcing examinations of conventional ideas ofsexuality. He is similarly unpersuaded that pornography serves the search for truth orrelates to individual self-fulfillment. The realities of the pornography industry's harmto society and women particularly militates against those arguments. 572 Further, hesays, the impugned material "is expression which is motivated, in the overwhelmingmajority of cases, by economic profit. This Court held ... that an economic motive forexpression means that restrictions on that expression 'might be easier to justify thanother infringements . ." 573 It is unlikely that the profit factor would significantly alterthe finding that obscenity is beyond the core of freedom of expression values. Sinceharm to society and individuals figures so prominently in these reasons, whether theprofit realized through material that is harmful is greater or lesser would not appear tobe a significant issue. Indeed, this may well be said for any of the values ofexpression. Clearly, if the harm is great, the search for truth, participation in thepolitical process and individual self-fulfillment would always seem to come up lacking.Sopinka J. notes only that the impugned material "has the potential of titillating someand informing others"574 without elaborating further on exactly what values ofexpression they serve.112In keeping with the development of the jurisprudence on this issue, the rationalconnection between the legislation and its objective is rather easily made, and it appearsthat Sopinka J. has imported facets of the minimal impairment test into it. Noting thatan exact causal relationship between obscenity and harm to society may be difficult, ifnot impossible, to establish, he says "it is reasonable to presume that exposure toimages bears a causal relationship to changes in attitudes and beliefs." 575 Where socialscience evidence is inconclusive, he says, the approach in Irwin Toy is instructive.There the Court said:The question is whether the government had a reasonable basis, on theevidence tendered, for concluding that the ban on all advertising directedat children impaired freedom of expression as little as possible given thegovernment's pressing and substantial objective. 576This "reasonable basis" finding is a facet of the minimal impairment aspect, not therational connection. This appears to be blended into the rational connectionconsideration with this statement: "I am in agreement with the view ... that Parliamentwas entitled to have a 'reasoned apprehension of harm' resulting from thedesensitization of individuals exposed to materials which depict violence, cruelty, anddehumanization of sexual relations. " 577 The rational connection between the legislationand its objective is thus made. The basis for this finding is, apparently, the difficulty,if not the impossibility, of an exact determination of harm caused by obscenity. Thismay be problematic. Freedom of expression itself is an inherently vague concept, asthe jurisprudence on this issue bears out, 578 as is obscenity. The evidence of harmcaused by obscenity may be considered impossible to establish, but may be "reasonablypresumed." 579 It seems dangerous to heap a reasonable presumption upon vagueconcepts in an attempt to justify violations of constitutionally guaranteed freedoms. Arational connection should be just that: a connection it is rational to make. If theCourt is to take seriously its commitment to uphold the rights and freedoms set out in113the Charter, 58° it ought to tread lightly on tenuous evidentiary foundations. While thisdoes not appear to present much difficulty for the Court, perhaps it should.Justice Sopinka defends the more abstract definition of obscenity in hisconsideration of whether the legislation constitutes a minimal impairment of freedom ofexpression. Earlier laws and proposed alternatives were thought to be less effectivethan the legislation now in place. Previous attempts to provide exhaustive instances ofobscenity have failed. Moreover, attempting to define a concept inherently vague and"the intractable nature of the problem ... make the possibility of a more explicitprovision remote." 581 Therefore, he says,the only practicable alternative is to strive towards a more abstractdefinition of obscenity which is contextually sensitive and responsive toprogress in the knowledge and understanding of the phenomenon towhich the legislation is directed. In my view, the standard of 'undueexploitation' is therefore appropriate. 582It is not necessary that the legislative scheme be perfect, he says, but "appropriatelytailored in the context of the infringed right." 583 Focussing again on the difficulty ofproving a connection between harm to society and obscenity, he notes the deferentialattitudes of the Court in Irwin Toy:This Court will not, in the name of minimal impairment, take arestrictive approach to social science evidence and require legislatures tochoose the least ambitious means to protect vulnerable groups. 584Thus, no actual proof of harm is needed.The legislation is designed to proscribe material that creates a risk of harm tosociety585 and thus does not affect sexually explicit material that does not containviolence and is neither degrading nore dehumanizing. Further, the availability of theinternal necessity or artistic defence ensures that material with scientific, artistic orliterary merit is not proscribed by s.163(8). Moreover, he says, the legislation doesnot affect the private use or viewing of obscene materials. He rejects arguments114suggesting reasonable time, manner and place restrictions on obscene materials wouldbe preferable to outright prohibition. If the objective of the legislation is the avoidanceof harm to society, particularly the degradation of women and the negative impact onwomen exposed to these materials, it is difficult to argue these harms could be avoidedby time, place and manner restrictions. Further, making the material more expensiveand difficult to obtain would not achieve the same objective. Indeed, such measuresmay be seen as tacit social approval by maintaining their availability. Finally,measures designed to address the harms caused to women by pornography, such ascounselling sexual assault victims to charge their assailants, providing shelters forbattered women and increased education for law enforcement agencies and othergovernment authorities may only be seen as responses to the harm caused to women.While these measures may form part of the multi-pronged approach by the governmentto serious social problems such as violence against women, they are not seen bySopinka J. as alternatives but complements in addressing the problem. These amountto treating the symptom rather than the disease. The measures adopted by Parliamentconstitute a minimal impairment of freedom of expression.As with most recent jurisprudence on s.1, the question of the balance betweenthe effects of the legislation and the legislative objective is dealt with almost as anafterthought. Th effect of s.163 is confined to the prohibition of the distribution ofsexually explicit material combined with violence or those that are degrading anddehumanizing. It is significant to note that the type of expression at issue lies far fromthe core of the values of freedom of expression. Sopinka J. says the expression"appeals only to the most base aspects of individual fulfillment, and it is primarilyeconomically motivated. " 586 On the other hand, the objective of the legislationis of fundamental importance in a free and democratic society. It isaimed at avoiding harm, which Parliament has reasonably concluded willbe caused directly or indirectly, to individuals, groups such as women115and children, and consequently to society as a whole by the distributionof these materials. It thus seeks to enhance respect for all members ofsociety, and non-violence and equality for their relations with eachother. 587In a brief concurring judgment Gonthier J., for himself, and L'Heureux-Dube J.agree with the conclusions of Sopinka J. with the following exception. He states thatthe subject matter of s.163 of the Criminal Code encompasses a combination of contentand representation. That is, not only is the content of the material at issue, therepresentation of it is as well. By representation, he means "a portrayal, a descriptionmeant to evoke something to the mind and senses." 588 It is the combination of both therepresentation and its content that attracts criminal liability. This dual aspect comesinto play in his consideration of Sopinka J.'s three categories of pornographic material.Gonthier J. takes no issue with the first two of these categories, explicit sexwith violence and explicit sex that is degrading or dehumanizing. 589 However, hediffers with Sopinka J. on the issue of whether material in the third category, explicitsex that is neither violent nor degrading or dehumanizing, escapes the application ofs.163(8). In Gonthier J. 's opinion, the difficulty here is that Sopinka J. focussed onlyon the content of the material. If such an approach is taken, it seems unlikely thematerial would be caught by s.163(8). However, when viewed in light of itsrepresentation, it may cause harm even though its content alone would not be seen asharmful. 590 He explains it this way:The manner of representation, of public suggestion, can greatlycontribute to the deformation of sexuality, through the loss of itshumanity. Even if the context is not as such objectionable (and, I wouldsay, even more so), the manner in which the material is presented mayturn it from innocuous to socially harmful. After all, it is the element ofrepresentation that gives this material its power of suggestion, and itseems quite conceivable that this power may cause harm despite theapparent neutrality of the content. 591116Gonthier J. points out that it is important to consider the medium in which materialsubject to s.163(8) is presented. He states that the various media are not acknowledgedoften enough in considering s.163. The difficulty here, he says, is that statements"made regarding the law of obscenity where a movie is impugned, for instance, and itis often taken for granted that they will apply to all media." 592 This observationfigures prominently in his consideration of the representation of the contents of obscenematerial. Unlike the element of content, the element of representation is subject tovarying degrees of community tolerance. Gonthier J. uses the following illustration tomake this point. The explicit portrayal of 'plain' sexual intercourse falls withinSopinka J.'s third category. 593 If this imagery were portrayed in words in a book, itwould not be of much concern, unless it were a children's book. If the same imagerywere found in a magazine or movie, he says, the likelihood of harm increases butremains low. If the imagery were found on a poster, it is more problematic. Finally,if found on a billboard, Gonthier J. "would venture that it may well be an undueexploitation of sex, because the community does not tolerate it, on the basis of itsharmfulness." 594 The harm, he says, comes from the "immediacy of therepresentation" in that the billboard stands by itself in an absence of context. Themessage it contains is "at once crude and inescapable. It distorts human sexuality bytaking it out of any context whatsoever and projecting it to the public." 595 Thus,despite the lack of an objectionable context, the representation may cause the harm thatwill attract criminal liability. These comments illustrate Gonthier J.'s reservationsconcerning the third category of material outlined by Sopinka J. He is in agreementwith Sopinka J. on the constitutional validity of s.163.There is no doubt that the objective of avoiding harm to women, children andsociety, and the enhancement of respect for all members of society and non-violence117and equality in their relations with each other are laudable goals. However, the waythe Court has upheld these goals may be problematic for a number of reasons.The intentionally vague test proposed by Sopinka J. of "undue exploitation" willbe in need of constant clarification. Rather than lending certainty to the law, the effectof this is to leave it uncertain as to whether material is caught by s.163(8).Particularly in the criminal law context, such uncertainty ought to be avoided.Gonthier J.'s concerns respecting "representations" are similarly lacking in clarity,particularly when placed alongside his comments concerning a shifting communitystandards test with respect to representations. Again, this does little to ensurereasonable certainty in knowing if material is contrary to s.163.It would be helpful if the Court could provide a meaningful distinction betweenobscenity and pornography. There appears to be little effort made to do so. If thedistinction is not relevant in this case, perhaps the Court should state that, and why.Striking in this freedom of expression case is an almost complete absence of thedefinitional balancing that characterized the earlier expression decisions. 596 Indeed, inthe earlier cases definitional balancing was determinative of expression. Yet in thiscase there is no such consideration. This may be reflective of the Court's higherdeference to the legislatures in non-criminal matters involving economic policy. Thiscase hints at as much in its statement advocating a generous approach to freedom ofexpression.597 This is nothing new, of course: the Court advocates a generousapproach to all Charter guarantees. 598 Given the significance of definitional balancingin previous freedom of expression decisions, absent a clear explanation it is difficult todetermine why s.163 is so rapidly brought within the scope of protection afforded bys.2(b) of the Charter.118The s.1 analysis follows what is by now a predictable course. The minimalimpairment discussion forms the bulk of these reasons, with the balancing of the effectsof the legislation against its objectives being added almost as an afterthought. Indeed,the effects portion of the proportionality test appear subsumed by the minimalimpairment aspect. Like most s.1 cases, here the rational connection is made rathereasily. Yet the ease of this connection is problematic. Freedom of expression andobscenity are both inherently vague concepts. Similarly, evidence of harm caused tothe community is almost impossible to determine, but might be "reasonably presumed".Surely the justification of violations of constitutionally guaranteed rights and freedomswarrants a more solid evidentiary foundation than the one relied on here. This may beparticularly relevant in Gonthier J.'s reasons concerning a varying degree ofcommunity tolerance for representations of obscenity.Prohibiting material that is sexually explicit because it contains violence is alsosubject to criticism on the basis of vagueness. Violence itself is not defined. Onceagain this leaves it uncertain what material would be caught. Some activity may havethe appearance of violence without the intent. According to Sopinka J.'s analysis, thiswould be caught by s.163. But what if it were never intended to have such anappearance? The same comments may be made with respect to the terms "degrading"and "dehumanizing".Sopinka J.'s reasons with respect to the minimal impairment aspect of the s.1test are also subject to comment. The definition of obscenity is replete with terms thatdo not lend themselves to easy definition or determination. To seek an abstractdefinition of obscenity that is contextually sensitive and responsive to the knowledge119and understanding of the phenomenon to which the legislation is directed appears toensure a certain level of indeterminacy.It is not entirely clear that limiting freedom of expression by banning obscenematerials will substantially reduce the perceived harm to society. Banning materialdoes not necessarily limit its availability: it may only serve to make access moredifficult. Indeed, it may make the material even more desirable. The effect of thelegislation may be to drive the hard core pornography industry underground. The harmto society would remain the same.If harm to society is deemed to be the legislative objective, then it should notmake a difference where the material is viewed. In aid of his reasons that thelegislation minimally impairs freedom of expression, he states that the legislation doesnot affect the private use or viewing of obscene materials. If the use results in harm tosociety, then where that use occurs should be irrelevant. The legislation does affect theprivate use and viewing of obscene materials in that by banning their public distributionand exhibition, access for private use is necesarily affected.These comments serve to suggest that the Court's reasons in Butler are subjectto critical analysis both in their substantive content and in the application of the s.1 test.It may be said that the Court's approach to s.1 is very much results-oriented. Ifthe Court wishes to uphold legislation that is subject to a constitutional challenge, itwill apply a relaxed s.1 analysis. If, on the other hand, the Court wishes to uphold theconstitutional provision that is being pitted against legislation, the s.1 analysis will bestrictly applied. Further, the Court may also uphold the legislation by engaging in the120definitional balancing of a constitutionally guaranteed right or freedom, thus avoidingthe necessity of resort to s.1 at all.For example, in Justice McIntyre's opinion in the Alberta Reference, freedomof association is defined in such a way as to preclude resort to s.l. Indeed, McIntyre J.undertakes a significant review of the meaning of "association" in reaching hisconclusion that freedom of association does not encompass the right to strike. Yet thesame intense definitional balancing that characterized freedom of association in thelabour context is virtually absent in the definition of expression in Irwin Toy andButler. Commercial expression in Irwin Toy is subject to a nominal investigation todetermine whether it is within the scope set out in s.2(b). Pornography as expressionin Butler is protected with hardly any reference to definitional balancing at all.Once an impugned right or freedom is deemed to be constitutionally guaranteed,it is subject to varying degrees of scrutiny pursuant to the s.1 test. An example of thisis Justice McIntyre's judgment in Dolphin Delivery. He has little difficulty in findingthat restraining secondary picketing in labour disputes constitutes a reasonable limit onfreedom of association. This cannot be surprising given his high degree of deference tothe legislature and reliance on the expertise of specialized labour tribunals in matters oflabour relations. This approach may be contrasted with that taken by Chief JusticeDickson in his dissenting opinion in the same case. Here the s.1 analysis is strictlyapplied, with significantly different results. In his opinion, some of the impugnedlegislation fails to meet even the first part of the s.1 test: some of the legislation passedby the government of Alberta was simply not of sufficient importance to override theworkers' freedom of association. Dickson C.J. further questions the rationalconnection between the legislative aims and the means taken to achieve them and againfinds it lacking in some respects. Moreover, it is his opinion that the legislation does121not impair the workers' rights as minimally as possible. What is evident throughout hisanalysis is a commitment to apply each aspect of the s.1 test in a rigorous fashion.Clearly Dickson C.J. exhibits none of the deference evidenced by McIntyre J. in labourissues.Irwin Toy also offers a results-oriented approach to s.l. The first aspect of thetest, whether the legislation relates to a pressing and substantial concern, is easilypassed, as is the rational connection aspect. There is no discussion whatever of theneed for the legislation to be "carefully designed to achieve the objective in question"or that the means not be "arbitrary, unfair or based on irrational considerations," asoutlined in Oakes. Indeed, the Court's treatment here suggests that this aspect is asubstantially formal part of the test. The minimal impairment aspect proves to be themajor hurdle in this case. Here the Court suggests that restrictions may be uphelddespite the existence of alternative measures that impair the freedom in question lessthan the legislative scheme, as long as the legislative scheme is "reasonable". Whatthis suggests is that the Court was committed to uphold a ban on commercialadvertising aimed at children, notwithstanding reference to the s.1 test. It is worthnoting McIntyre J.'s dissent in Irwin Toy. In holding that the legislation cannot beupheld under s.1, he applies a rigorous standard throughout the stages of the test. Hestates that the legislative aim is not sufficiently important to warrant overriding freedomof expression. Further, he says the legislation fails at the proportionality stage in that atotal ban on advertising aimed at children below an arbitrarily fixed age makes noattempt at proportionality.In Butler it is clearly that the desired result is that the obscenity provisions ofthe Criminal Code be upheld. In the s.1 analysis, the objective of the legislation isdeclared as the avoidance of the harm to society that results from anti-social behaviour122caused by exposure to obscene material. When framed in this manner, it is difficult toimagine any legislation not surviving the s.1 stage. When viewed in this context, thelegislation is clearly of sufficient importance to warrant overriding a constitutional rightor freedom. Once again the major consideration is the minimal impairment aspect,diluted to a question of whether it was reasonable for Parliament to enact thislegislation in light of the perceived harm created by obscene matter. Again there is noserious discussion of whether the legislation is in any way arbitrary or unfair, or basedon irrational considerations. While the majority opinion very briefly considersalternative legislative measures, these are dispensed with easily in favour of the existingCode provisions. In this instance, it appears that the framing of the legislativeobjective all but determined the outcome. Indeed, when set against preventing harm tosociety, the outcome of the s.1 test seems a foregone conclusion.It is also worth noting in Butler and in other decisions upholding legislation byapplying a relaxed s.1 analysis, the evidence relied on by the Court in reaching itsdecision is sometimes tenuous at best. In Jones, for instance, the majority upholdsprovincial legislation despite the fact that the province did not tender any evidence thatthe compelling objective of the education of the young could be accomplished by other,less drastic means. This point became the focus of the dissenting opinion in that case.Further, in the Alberta Reference, Dickson C.J.'s dissenting reasons squarely addressthe lack of evidence proferred by the government that all work covered by thelegislation in question was essential. Similarly, in the Dairyworkers case Wilson J., indissent, was unable to accept arguments of economic harm or harm to the communities'health, absent compelling evidence. This is simply to note that the Court is quitewilling to rely on varying standards of evidence depending on whether legislation isupheld or stopped at the s.1 stage.123Taken as a whole, then, the Court's approach to s.1 has demonstrated aconsiderable weakening in the rigourous approach articulated in Oakes and the pre-Oakes cases. The Court has engaged in definitional balancing in order to avoid thenecessity of dealing with s.1 at all. When s.1 is considered, its components are subjectto varying levels of scrutiny. The first aspect, the determination of whether thelegislative objective in question relates to concerns which are pressing and substantial,is rather easily passed. The second aspect of the analysis, the proportionality test, hasbeen seriously eroded in the time since Oakes. The three aspects of this test -- therational connection, minimal impairment and deleterious effects considerations -- havebeen collapsed into a diluted consideration of minimal impairment, with therequirement that the legislature need only demonstrate, sometimes absent any evidenceat all, that it was reasonable for it to have taken the measures it did in light of itsobjectives. The approach taken to s.1 appears to dictate its outcome: a relaxed s.1analysis results in legislation being upheld. A strict analysis of the s.1 componentsresults in legislation being declared constitutionally invalid.THE JUSTIFICATION OF DISCRIMINATION: THE INTERPLAY BETWEENSECTIONS 15 AND 1 The issue of the justification of discrimination through mandatory retirementpolicies was raised in McKinney v. University of Guelph. 599 The appellants, eightprofessors and a librarian at the respondent universities, Guelph, Laurentian, York andToronto, challenged the universities' policies of mandatory retirement at age 65 asdiscrimination based on age, contrary to s.15 of the Charter. The appellants furthercontended that s.9(a) of the Ontario Human Rights Code. 1981 600 also violated s.15 inthat it confined the Code's prohibition against discrimination in employment ongrounds of age to persons between the ages of 18 and 65 only, thus denying protection124to the appellants. Since the majority of the Court is of the opinion that the Charterdoes not apply to universities, the entire discussion of whether mandatory retirementpolicies violate s.15 of the Charter is obiter. Despite this, it is worth considering thecomments on this issue as the Court clearly considers it significant and it has seriousimplications on informing the Court's understanding of discrimination and itsjustification under s. 1. Justice La Forest, writing for himself, Dickson C.J. andGonthier J., holds that the Charter does not apply to universities and that mandatoryretirement policies violate s.15 of the Charter, as does s.9(a) of the Code but that theseare justified pursuant to s. 1. In a short separate judgment Sopinka J. agrees with LaForest J. Justice Wilson, in dissent, holds that the Charter is binding on universities,and that s.15 is violated by the mandatory retirement policies and s.9(a) of the Code.She is unable to find justification for these breaches in s.l. L'Heureux-Dube J., also indissent, finds that universities are not subject to the Charter and therefore the issue ofwhether mandatory retirement policies violate s.15 need not be answered. However,she finds s.9(a) of the Code is in breach of s.15, and that it cannot be justifiedaccording to s. 1. Finally, Justice Cory, while agreeing that the Charter applies to theuniversities, is in agreement with Justice La Forest that although s.15 is violated by thepolicies and by s.9(a) of the Code, each may be justified by s.l.The mandatory retirement policies at the respondent universities wereestablished in varying manners. At the University of Guelph, mandatory retirement isbased on policy and practice and a pension plan providing for retirement at age 65. AtLaurentian University, retirement policy is set by the general by-laws of the university,the collective agreement between the university and faculty, and the retirement plan forstaff. York University's university plan and collective agreement with the facultyassociation provides for retirement at age 65. The University of Toronto's mandatoryretirement policy has been effected by a formal resolution of the Board, and the125university's pension plan provides for retirement at age 65 and is funded on that basis.Additionally, the collective agreement between the university and faculty associationrefers to retirement at age 65 and stipulates that there will be no change in this policyduring the term of the agreement. 601 While the majority of the Court finds that theCharter does not apply to universities in this instance, the equality rights argumentswere discussed because of their significance and relevance to the companion casesargued along McKinney. Thus, while the discussion with respect to mandatoryretirement policies and ss.15 and 1 is obiter, it is instructive of the Court's approach todiscrimination and justification.Justice La Forest, writing for himself, Dickson C.J. and Gonthier J., states that,assuming the universities' policies could be considered "law", "it seems difficult toargue in light of Andrews v. Law Society of British Columbia ... that they are notdiscriminatory within the meaning of s.15(1) of the Charter since the distinction isbased on the enumerated personal characteristic of age. " 602 Applying the Andrewsdefinition of discrimination, he holds that the policies make a distinction based uponage that imposes a burden on those over 65 by removing from them their ability towork, and are thus in violation of s.15. 603 Noticeable here is the complete lack ofhesitation in finding discrimination. Clearly this is because the breach is obviouslybased on one of the enumerated grounds in s.15. Because of this, the definitionalbalancing that characterized the finding of a Charter breach in the freedom ofexpression and association cases is noticeably absent. The real test of the mandatoryretirement policies therefore falls to their justification under s.1 of the Charter.Once again the Oakes test is briefly outlined, with a warning against itsapplication in a "mechanistic fashion" and the need to "avoid rigid and inflexiblestandards" . 604 This is particularly so, La Forest J. states, in issues concerning126discrimination, where the "degree to which a free and democratic society such asCanada should tolerate differentiation based on personal characteristics cannot beascertained by easy calculus. "605 In such cases, the balancing test must be approachedin a flexible manner, weighing the character of the discriminatory classification, thesocial and constitutional importance of the interests adversely affected, the importanceto the individual of the deprived benefit, and the importance of the state interest. 606That said, the objectives aspect of the s.1 analysis is raised and easily met.Indeed, this part of the test has become all but a mere formality, with the notableexception of McIntyre J. in Irwin Toy. 607 The objectives of the mandatory retirementpolicies, the respondents submit, are intended(1) to enhance and maintain their capacity to seek and maintainexcellence by permitting flexibility in resource allocation and facultyrenewal; and (2) to preserve academic freedom and the collegial form ofassociation by minimizing distinctive modes of performanceevaluation. 608La Forest J. states that these objectives easily meet the "objectives test": "Certainly,excellence in higher education is an admirable aim and should be fostered. Thepreservation of academic freedom is also an objective of pressing and substantialimportance. " 609With respect to the proportionality test, it is evident that once again this hasbeen collapsed into a primary consideration of minimal impairment, with the rationalconnection and effects discussion relatively easily met. In addressing the rationalconnection aspect, La Forest J. states that the mandatory retirement policies areintimately tied to the universities' tenure systems. Tenure, he says, ensures theacademic freedom that is essential to the "free and fearless search for knowledge andthe propagation of ideas" 610 by minimizing interference with or evaluation of facultymembers after rigorous initial assessment. Absent mandatory retirement, stricter127performance appraisal systems might be required, which "would be fraught with manydifficulties, and would probably require an assessment by one's peers or by outsideexperts." This type of appraisal "could not be unilaterally imposed by universityadministration because of the role of the faculty or faculty associations in thegovernance of the university. "611 Mandatory retirement clearly supports the tenuresystem, he says, in that it ensures stability of employment and continuing facultyrenewal, a process crucial to universities' abilities to be centres of excellence. In a"closed system with limited resources", 612 such faculty renewal can only beaccomplished by the orderly departure of other faculty. Mandatory retirement ensuresthis in a manner that permits long term planning by both faculty members anduniversities. Thus the rational connection between the policies of mandatory retirementand the objectives sought to be achieved by them is easily made.The minimal impairment aspect also shows evidence of a declining standard ofscrutiny. Here La Forest J. repeats the standard articulated in Irwin Toy that thegovernment need only demonstrate it had a reasonable basis for concluding that itimpaired the constitutionally guaranteed right as little as possible given its pressing andsubstantial objectives. 613 Given the objectives of enhancing and maintaining academicexcellence by permitting flexibility in resource allocation and faculty renewal, andpreserving academic freedom by minimizing distinctive forms of performanceevaluation, mandatory retirement "contributes significantly to an enriched workinglife" 614 for faculty members. Far from having a detrimental impact, he says, thepolicies ensure academic freedom, minimize supervision and performance reviews,provide security of employment and protection against periods of diminishedproductivity. While the policy may be the cause of considerable anxiety to those whodo not wish to retire, mandatory retirement is part of the "bargain" involved in taking atenured position. 615 Moreover, in universities, characterized as "closed systems with128129limited resources", La Forest J. notes a "significant correlation between those whoretire and those who may be hired," 616 along with evidence of "a significant problem ofan older teaching staff in universities." 617 This raises the consideration of thebalancing of interests between groups competing for the distribution of scarceresources, a matter La Forest J. suggests must be weighed at the s.1 stage, anundertaking that may not be achieved with great certainty. These comments, togetherwith the finding that the universities had a reasonable basis for concluding that theirmandatory retirement policies impaired the appellants' rights as little as possible giventhe objectives of the policies suggests a high degree of judicial deference to policiesreconciling competing claims for scarce resources. The "reasonable basis" standardarticulated here appears a good deal less stringent than the "least restrictive means" testset out in Oakes. Where in earlier s.1 cases the Court indicated that the means taken torestrict the right or freedom should be the least restrictive available618 that is equally aseffective as the means actually chosen, 619 here La Forest J., for the majority, iscomfortable with the party infringing the right simply demonstrating that itsconclusions that the right is impaired as little as possible is reasonable. The Courtappears to be unwilling to look behind the reasonableness of the claim. Given this, it isnot surprising to find that the discussion of the effects of the mandatory retirementpolicies consider the same factors as the minimal impairment aspect and is easilypassed. The result of the s.1 analysis, which in this case essentially consisted of adiscussion of the minimal impairment aspect with the lower standard of reasonablebasis, is that the universities' mandatory retirement policies are a justifiable breach ofthe appellants' equality rights. 620The discussion of whether s.9(a) of the Human Rights Code violated s.15 byconfining protection against age discrimination in employment to those between 18 and65 receives a somewhat more detailed analysis. The discrimination aspect is againeasily dealt with: the Code clearly denies the appellants a benefit of the law on thebasis of their age and thus, according to the test in Andrews, is in conflict with s.15. 621La Forest J. next reviews what he refers to as the "history and place of mandatoryretirement", stating that retirement is "a by-product of industrialization" 622 which ispremised on the orderly transition of older workers leaving the work force in theinterests of younger ones entering. Concurrent with the development of retirement wasthe introduction of social security legislation aimed a providing security for the aged.The adoption of the age of 65 for eligibility for social security appears to be based on awidely accepted consensus that this was the age workers left the work force. Asindividuals who were regularly employed were not eligible to receive social securitybenefits, 65 became the "normal" age of retirement. 623 The development of mandatoryretirement in Canada began with the introduction of private and public pension plansaimed at providing income security to older persons. The development of these planshas been such that one half of the Canadian work force are employed in jobs subject tomandatory retirement, and approximately two-thirds of collective agreements containmandatory retirement provisions at age 65. 624 This, La Forest J. says, "has hadprofound implications for the organization of the workplace -- for the structuring ofpension plans, for fairness and security of tenure in the workplace, and for workopportunities for others." 625The purpose of s.9(a) of the Human Rights Code, it is stated,was to arrive at a legislative compromise between protecting individualsfrom age-based employment discrimination and giving employers andemployees the freedom to agree on a date for the termination of theemployment relationship. Freedom to agree on a termination date is ofconsiderable benefit to both employers and employees. It permitsemployers to plan their financial obligations, particularly in the area ofpension plans and other benefits. It also permits a deferredcompensation system whereby employees are paid less in earlier yearsthan their productivity and more in later years, rather than have a wagesystem founded on current productivity. In addition it facilitates therecruitment and training of new staff. It avoids the stress of continuous130reviews resulting from ability declining with age, and the need fordismissal for cause. It permits a seniority system and the willingness totolerate its continuance having the knowledge that the work relationshipwill be coming to an end at a future date. Employees can plan for theirretirement well in advance and retire with dignity.Another important objective of s.9(a) was the opening up of thelabour market for younger unemployed workers. The problem ofunemployment would be aggravated if employers were unable to retiretheir long-term employees.To put it in its simplest terms, mandatory retirement has becomepart of the very fabric of the organization of the labour market in thiscountry. 626Set in this light, mandatory retirement may be viewed as an essential aspect ofemployment and after-employment organization that forms the foundation of a complexand entrenched social security system. It is premised on the desirability of knowingwith reasonable certainty when older workers would be leaving the workplace andreceiving after-employment benefits, thus creating employment opportunities foryounger workers. Implicit in this is the understanding of workers and employers thatmandatory retirement is, by and large, part of the bargain of the workplace.Employment is taken with the knowledge and understanding that retirement is fixed andcertain.The determination of whether the discrimination in s.9(a) of the Code isjustified under s.1 of the Charter receives a somewhat lengthy consideration.Following the Oakes criteria, the objectives of s.9(a) of the Code are stated to extendprotection against employment discrimination to individuals within a specific age range.Those between the ages of 45 and 65 were deemed to be the most in need of protectionin that generally those over 45 have more difficulty finding work than others, lack theflexibility of younger persons in terms of skills and training, and are paid more andwill work a shorter term of employment than younger persons. 627 Protection wasextended to those between 18 and 45 as youth employment became a more seriousfactor.628 Those 65 years and older were not considered to be as seriously exposed to131the adverse results of unemployment as those under 65, as they were eligible for socialsecurity and pension benefits. 629 An examination of the legislative debates concernings.9(a) of the Code reveals the legislature attempted to strike a balance betweenprotecting those over 65 from age discrimination and fears that extending suchprotection might result in delayed retirement and delayed benefits for older workers,with significant labour market and pension ramifications. 63° Mandatory retirement ispart of a complex socio-economic problem with an effect on pension plans, youthemployment, seniority, tenure and "almost every aspect of the employer-employeerelationship. "631 These issues, La Forest J. says, "are surely of 'pressing andsubstantial concern in a free and democratic society 1 . " 632The rational connection aspect of the proportionality test is easily made and isagain collapsed into the minimal impairment discussion. The legislation's purpose ofmaintaining stability in pension arrangements is rationally connected to that end,according to La Forest J. Moreover, mandatory retirement "is part of a complex webof rules which results in significant benefits as well as burdens to the individualsaffected ...[t]here is nothing irrational in a system that permits those in the privatesector to determine for themselves the age of retirement ...". 633In addressing the minimal impairment aspect, once again the reasonable basistest figures prominently. Given the historical origins of mandatory retirement and itsdevelopment as a crucial structural element in the organization of the workplace, it isnot surprising that La Forest J. would find that the legislature had a reasonable basisfor concluding that the legislation impairs older workers' equality rights as little aspossible. Removing mandatory retirement, part of "a web of interconnected rolesmutually impacting upon each other" , 634 would result in repercussions through hiring,training, dismissals, monitoring and evaluations and compensation. 635 Moreover, since13265 has come to be considered the "normal" age of retirement, there is no stigmaattached to being retired at that age. Indeed, La Forest J. notes an increasing trendtowards early retirement. 636 Within the university system, mandatory retirement isclosely related to issues of faculty renewal, seniority and tenure, which is in turn linkedwith performance review, minimal supervision and stability of employment.Tampering with mandatory retirement would necessitate compensatingadjustments throughout the entire labour and social fields, such as pensions and socialsecurity benefits. In areas such as this, the Court expresses a clear deference tolegislative policy. This minimal intrusion stance by the Court is further evidenced byLa Forest J.'s statement that mandatory retirement is not government policy in respectof which the Charter may be directly invoked, but is an arrangement negotiated in theprivate sector. As an aspect of the employment relationship, it has been negotiated bytrade unions or individual employees and is beneficial, he says, to both employees andemployers, with expectations built up on both sides. 637 Indeed, freedom of employeesand employers to determine for themselves the conditions of employment is "a verydesirable goal in a free society. " 638 Particularly in areas with considerable socio-economic concerns and consequences, the Court is concerned with whether thelegislature had a reasonable basis for concluding the legislation in issue impaired olderworkers' equality rights as little as possible given the government's pressing andsubstantial concern. In this instance, this aspect of the s.1 test is met. 639Turning to the issue of the proportionality between the effects of s.9(a) of theCode on the guaranteed right and the objectives of the legislation, La Forest J. statesthat "this enquiry really involved the same considerations as were discussed in dealingwith the issue of whether the legislation met the test of minimal impairment. "640 yet,he says, it is important to keep in mind that the purpose of the legislation was not to133legislate mandatory retirement, but to protect workers within a certain age range fromage-based employment discrimination. Because of the significant socio-economicconcerns of extending this protection to those over age 65, the legislation did notaccord the same protection beyond 65. The effect, clearly, is to deny those over age65 the equal protection of the law. Again, La Forest J. expresses a high degree ofdeference to the legislature:In looking at this type of issue, it is important to remember that aLegislature should not be obliged to deal with all aspects of a problem atonce. It must surely be permitted to take incremental measures. It mustbe given reasonable leeway to deal with problems one step at a time, tobalance possible inequalities resulting from the adoption of a course ofaction, and to take account of the difficulties, whether social, economicor budgetary, that would arise if it attempted to deal with social andeconomic problems in their entirety, assuming such problems can everbe perceived in their entirety. 641For Justice La Forest, the question becomes whether the cut-off point of age 65 can bereasonably supported. In this instance, he does not believe that such a cut-off point,which is not only reasonable by appropriately defined in terms of age, is necessarilyinvalid because it is in conflict with a prohibited ground of discrimination. 642 It ispossible that s.1 of the Charter may allow for partial solutions to discrimination wherethere exist reasonable grounds for limiting a measure. 643 Thus, although s.9(a) of theHuman Rights Code violates s.15(1) of the Charter, the limit is justified under s.1 ofthe Charter.Wilson J., in a dissenting opinion, reaches the opposite conclusion. First, shebegins her analysis at whether the universities' mandatory retirement policies violates.15 of the Charter. In her opinion, "one would be hard pressed to construe any ruleprohibiting employment past a certain age as anything other than a clear example ofdirect discrimination. "644 The focus of s.15, she states, is clearly prejudice andstereotype:134The purpose of the equality guarantee is the promotion of humandignity. This interest is particularly threatened when stereotype andprejudice inform our interactions with one another, whether on anindividual or collective basis. It is for this reason that the central focusof the equality guarantee rests upon those vehicles of discrimination,stereotype and prejudice. 645For Wilson J. , the focus is whether the mandatory retirement policies constituteprejudice and reflect the stereotype of old age. Further, is there an element of humandignity at issue? And, "are academics being required to retire at age 65 on theunarticulated premise that with age comes increasing incompetence and decreasingintellectual capacity?" 646 For her, the answer to these questions is "clearly yes" andthus s.15 is violated. 647Turning to s.1, Wilson J. states that the mandatory retirement policies fail at theminimal impairment stage. She acknowledges a willingness on the part of the Court toadopt a more flexible approach to the minimal impairment breach of the proportionalitytest set out in Oakes, as evidenced by the Court's approach to this aspect in EdwardsBooks and Irwin Toy. 648 In those cases, she says, judicial deference was particularlyappropriate where something less than a straightforward denial of a right was involved.The Court should exercise deference where the legislature has been forced to strike abalance between competing claims by groups and particularly where the legislature hassought to promote or protect the interests of the less advantaged. 649 In those instances,the requirement of minimal impairment will be met where alternativeways of dealing with the stated objective meant to be served by theprovision in question are not clearly better than the one which has beenadopted by government. It is not a question of the Court refusing toentertain other viable options ... [T]his branch of the Oakesproportionality test will be met where the means chosen by governmentare the most reasonable ones available in light of the objective sought tobe achieved. 65°She dismisses the argument that younger academics constitute a vulnerable group inthat they will be denied employment opportunities if older faculty are not required toretire. Younger academics are not denied employment because of their age, she says,135but for reasons of the universities' (and government) policies of fiscal restraint. 651Only an apparent lack of funding is preventing younger academics from pursuing theircareers.Justice Wilson notes that the stringent application of the minimal impairmenttest may be relaxed in circumstances where competition for scarce resources exists andthe legislature is forced to strike a compromise, but not in instances of legislativeinitiatives aimed at protecting vulnerable members of society; 652 yet, she says, thecourts "should probably not intervene where competing constitutional claims to fixedresources are at stake." 653 In such cases, judicial deference should be exercised.Returning to the issue of mandatory retirement, she says that since young academics donot constitute a vulnerable group and there are no other factors that would justify adeferential standard of review, such as a one to one ratio between the retiring of olderfaculty and the hiring of junior faculty, the more stringent minimal impairmentstandard should be applied. Moreover, she states, the minimal impairment test has notbeen met due to the existence of viable and equally effective means of achieving theobjective. These include voluntary retirement coupled with strong incentives to retire.This has the advantage of not impairing the rights of older academics and not"completely sacrificing the admittedly important objective of achieving facultyrenewal. "654 Since the mandatory retirement policies are not, in Wilson J.'s view,clearly better than the alternatives, they fail the minimal impairment test. At least withrespect to this aspect of her discussion, the minimal impairment test is clearly the mostsignificant of the Oakes criteria, the rational connection and effects aspects not beingmentioned at all. This is further evidence of the test's overall devolution into aconsideration of minimal impairment simpliciter.136Addressing the issue of whether s.9(a) of the Human Rights Code violates s.15by denying protection against employment discrimination based on age to those over65, Wilson J. states that it is discriminatory because it fails to distinguish between"those who are and those who are not able to work", thus perpetuating the stereotype ofolder workers as unproductive, inefficient and lacking in competence. 655 The effect ofs.9(a) of the Code, she says, is to "reinforce the stereotype that older employees are nolonger useful members of the labour force and their services may therefore be freelyand arbitrarily dispensed with. " 656 She finds this is a violation of s.15 of the Charter.The legislation cannot be justified under s.l. Since it is her opinion thatmandatory retirement in the universities violates s.15 and cannot be saved by s.1, itfollows that s.9(a) of the Code cannot be justified at least to the extent that it allowssuch discriminatory practice. 657 For Justice Wilson, however, the greater difficultywith the legislation is that it is overbroad in that it permits all forms of age-baseddiscrimination in employment for those over 65. In failing to confine s.9(a) toinstances of mandatory retirement, the legislature has not met the rational connectionaspect of the s.1 test. 658 This is a breach of such significance that s.9(a) must be struckdown as a whole and declared of no force and effect.In any event, she says, s.9(a) would not pass the minimal impairment aspect ofthe s.1 test. The respondents had argued that pension plans were so closely linked tomandatory retirement that any changes in retirement schemes would significantlydisrupt pension benefits Yet the evidence established that a great number of theworkforce in Ontario, where the case arose, is unorganized and thus are not covered bypension plans in collective agreements. Moreover, immigrant and female workers andthe unskilled constitute a "disproportionately high percentage" of non-unionizedworkers. This group, Wilson J. says, represents the most vulnerable employees who,137"if forced to retire at age 65, will be hardest hit by the lack of legislativeprotection. " 659 More problematic yet is the evidence that women workers are unable toamass adequate pensions because of interrupted work histories due to child bearing andchild rearing. Mandatory retirement for these people could constitute a significanthardship. Thus,when the majority of individuals affected by a piece of legislation willsuffer disproportionately greater hardship by the infringement of theirrights, it cannot be said that the impugned legislation impairs the rightsof those affected by it as little as reasonably possible ... [T]he fact of thematter is that the majority of working people in the province do not haveaccess to such arrangements. 660The contrast between the approach taken by Wilson J. and that of La Forest J. isstriking. La Forest J. takes a formal approach to the issue of equality anddiscrimination and focuses his justification of the legislation on socio-economicgrounds. Clearly for him the interference with mandatory retirement policies wouldcause significant disruption to the labour market and benefit and security schemes. Inareas of such social and economic policy, a high degree of judicial deference isexercised. Of obvious importance to La Forest are such notions as freedom of contractand the high administrative costs of alternative arrangements. Also noticeable is hisreliance on the less stringent standard of the minimal impairment test in justifyinglimitations that are "reasonable" given the governmental objective.Justice Wilson begins her analysis from the position that s.15 is intended toassist the disadvantaged in promoting human dignity and allaying prejudice andstereotype. She then proceeds to view the policies and legislation through thisperspective and finds it lacking. The less stringent minimal impairment standardshould not be applied where the legislature has undertaken to promote or protect theinterests of the disadvantaged. In these cases, a low level of judicial deference should138be exercised. The perspective of the disadvantaged informs each step of her analysisand remains loyal to the sentiments expressed in Andrews that s.15 is intended to act asa sword for those lacking in political power who rely on the courts to protect theirinterests. 661 Here, Wilson J. finds the legislation failing in its very purpose.Justice L'Heureux-Dube, also in dissent, confines her discussion to whethers.9(a) of the Code is in breach of s.15 of the Charter. S.15, she says, is intended toensure that individuals are treated on the basis of their own worth, abilities and merit,and not according to external or arbitrary characteristics that serve to restrict individualopportunity. 662 Drawing from the definition of discrimination set out in Andrews, shestates s.9(a) is discriminatory on its face in that "it clearly excludes designatedsegments of society from the ambit of protection otherwise provided by the Code.Furthermore, the exclusion is predicated on age, a ground specifically enumerated ins.15(1). " 663 The finding of discrimination is easily met as the language in Andrewsclearly encompasses the circumstances of s.9(a): "Distinctions based on personalcharacteristics attributed to an individual solely on the basis of association with a groupwill rarely escape the charge of discrimination, while those based on an individual'smerits and capacities will rarely be so classified." 664 Clearly, s.9(a) denies the equalbenefit of the law to those over age 65 solely on the basis of age, an arbitrary andartificial barrier preventing those affected from raising a complaint where their right toequal treatment with respect to age-based employment discrimination has beeninfringed. This denies the appellants the fundamental values of s.15: "the protectionand enhancement of human dignity, the promotion of equal opportunity, and thedevelopment of human potential based upon individual ability. "665Turning to consider whether the breach of s.15 by s.9(a) of the Code may bejustified under s.1 of the Charter, Justice L'Heureux-Dube embarks on a lengthy139review of the legislative objectives of s.9(a). She disagrees with La Forest J.'sjudgment that mandatory retirement is directly linked to the tenure system. The valueof tenure, she says, is threatened by incompetence rather than age, and the presumptionof academic incapacity at age 65 is not well founded. Further, while there is a fear thatolder faculty "will rest on their laurels and wallow in a perpetual and interminablequagmire of unproductivity and stagnation", 666 there is nothing to suggest that youngertenured faculty would not pursue this course as well. She also challenges theproposition that the abolition of mandatory retirement would threaten tenure as a resultof increased performance evaluations. There is no evidence of this, she says;moreover, performance evaluations are an integral and ongoing part of university life,occurring at the hiring and promotion stages and in determining distribution of researchgrants, merit awards and administrative positions. It has never been suggested thatperformance evaluations threaten tenure, collegiality or academic freedom. 667 Shefurther states that if mandatory retirement were abolished, the number of academicschoosing to remain in active and productive academic life after age 65 is, in heropinion, relatively small, while tenure will continue to exist. The nexus betweentenure and mandatory retirement is simply not made.L'Heureux-Dube J. has significant difficulties with the justification ofmandatory retirement on the basis of declining ability with age. She notes there is noevidence that the aged are less competent than younger persons. Stating that theconclusion that excellence in universities can only be maintained by replacing olderfaculty members with younger ones is overbroad, she says that professional abilitiesshould be gauged on merit rather than on a chronological basis. 668 Just as abilities varyfrom person to person, so does their decline, and the imposition of a cut-off age forany occupation at age 65 is arbitrary. 669 The financial burden argument is similarlyproblematic: some retired professors earn up to 90 per cent of their working salaries,140and thus "economically it makes sense to allow them to contribute fully at a marginal"cost" to the universities of only 10 per cent of their salaries. "670Focussing on La Forest J.'s statement that the legislation interferes with theappellant's equality rights as little as possible given the government's pressing andsubstantial objectives, L'Heureux-Dube J. notes that there is an increasing trendtowards early retirement and the estimates of workers who would choose to workbeyond age 65 varied between 0.1 and 0.4 per cent of the labour force. "These figureshardly pose a 'pressing and substantial' quandary that the government must contendwith", she says. 671 Her comments concerning Justice La Forest's argument that anevaluation scheme would "'constitute a demeaning affront to individual dignity,"672 areeven more pointed:Are objective standards of job performance a demeaning affront toindividual dignity? Certainly not when measured against the prospect ofgetting 'turfed-out' automatically at a prescribed age, and witnessingyour younger ex-colleagues persevere in condoned relative incompetenceon the strength of a 'dignifying' tenure system. The elderly areespecially susceptible to feelings of uselessness and obsolescence. If'[i]n a work-oriented society, work is inextricably tied to the individual'sself-identity and self-worth', does this mean that upon reaching 65 aperson's interest in self-identity and stake in self-worth disappear? Thatis precisely when these values become most crucial, and whenindividuals become particularly vulnerable to perceived diminutions intheir ability to contribute to society. 673This latter sentiment is particularly significant, she says, given the evidence of theimpact of forced retirement on individuals who may suffer trauma and depression uponjob loss, loss of significant social participation and feelings that their skills "areconsigned to the scrap heap overnight." 674 In L'Heureux-Dube J.'s opinion, theobjectives sought to be achieved through mandatory retirement do not warrantoverriding the constitutionally protected rights of the appellants, and thus the inquiryfails at the first stage of the s.1 analysis. 675 However, she goes on to consider the141"means" aspect of the test on the assumption that a legitimate objective does in factexist.The legislation fails at this stage as well on the basis that s.9(a) of the Code notmerely limits the appellants' rights under s.15, it eliminates them because no protectionagainst age-based employment discrimination is provided after age 65. 676 It isinteresting to note the parallels between this statement and the conclusions in A GQuebec v. Quebec Association of Protestant School Boards that legislation that deniesrights will fail to be upheld. 677 Yet it is significant to note the differences as well: inthe Quebec case the finding of a denial of the right caused the legislation to fail beforea consideration of s.1 at all; in the instant case this finding becomes determinative onlyin the "means" aspect of the s.1 analysis. Surely this should be an error on JusticeL'Heureux-Dube's part, for this constitutes a considerable shift in importance of thefinding of a rights denial rather than limitation. It seems unlikely that she could haveintended to diminish the significance of such a finding.Assessing mandatory retirement's impact, L'Heureux-Dube J. finds it is mostpainfully felt by the poor, who are often faced with "staggering financial difficulties"such as pensions which have not kept up with inflation and a dollar diminished invalue. 678 This is particularly true for the 50 per cent of the work force who are non-unionized employees. Moreover, she says, many workers have little or no privatepension incomes, especially women who have a greater chance of employment with nopension coverage due to interrupted work histories partially as a result of childrearingresponsibilities. Finally, she notes that other Canadian provinces have eliminatedmandatory retirement without suffering any adverse effects to tenure systems, pensionplans and benefit schemes. 679 On the whole, there appears to be little justification for ascheme that sets age 65 as a time for mandatory retirement:142It is discriminatory, in the most prejudicial sense of the word, to makegeneralizations about diminished competence or productivity purely onthe basis of the attainment of a certain age. Since the number of peoplewho (a) attain that age, and (b) wish to continue working after that ageand are physically and intellectually capable of doing so, is notoverwhelming, it is difficult to conclude that the labour force will beadversely affected. 680The discrimination found in s.9(a) of the Code cannot be justified under s. I.Agreeing with La Forest J., Justice Sopinka upholds the mandatory retirementpolicies by relying on a combination of judicial deference and a preference for thespecialized competence of trade unions. With respect to judicial deference, he says thefederal government and several provinces have seen fit to legislate on mandatoryretirement. "These decisions have been made by means of the customary democraticprocess and no doubt this process will continue unless arrested by a decision of thisCourt." 681 Clearly he is reluctant to impose the Court's judgment upon that of ademocratically-elected legislature's. Endorsing the freedom of contract argument putforth by La Forest J., he states that employers and employees have been deciding forthemselves matters of mandatory retirement in the collective bargaining process andwish to continue to do so. Holding that mandatory retirement is constitutionallyinvalid, he says, "would impose on the whole country a regime not forged through thedemocratic process but by the heavy hand of the law." 682 Implicitly endorsing a highdegree of judicial deference where freedom of contract is involved, he states that insetting aside mandatory retirement policies, "the Charter would be used to restrict thefreedom of many to promote the interests of a few." 683 In this case, this would be"quite unwarranted." 684Justice Cory also focuses on the impact on collective bargaining should theCourt interfere with mandatory retirement policies. As with Justices La Forest andSopinka, he exhibits a high degree of deference to the collective bargaining process and143suggests that invalidating contractual agreements attacks "the very foundations ofcollective bargaining and might well put in jeopardy some of the hard won rights oflabour. " 685 Such matters are best left to the participants to work out, adding "it wouldbe unseemly and unfortunate for a court to say to a union worker that, although thiscarefully made decision is in the best interests of you and your family, you are notgoing to be permitted to enter into this contract. "686 For Justice Cory, this isunacceptable.Striking in these judgments is the contrast in approaches taken by the majorityand Justices Wilson and L'Heureux-Dube. Central to the majority opinions are thenotions of judicial deference and freedom of contract. The strict adherence to freedomof contract is especially apparent in the reasons of Justices Sopinka and Cory: indeed,they appear unwilling to look beyond these ideas at all. Noticeable in their judgmentsis the absence of any consideration of the impact of mandatory retirement on workerswho are not covered by collective agreements or are otherwise adversely affected bycompulsory retirement. Such considerations form the foundation of the strong dissentsby Justices Wilson and L'Heureux-Dube. The dire predictions of economic chaosfollowing the abandonment of mandatory retirement that form a significant part of LaForest J.'s opinion are pointedly dismissed by L'Heureux-Dube in a judgment stressingthe economic chaos visited upon the elderly poor because of such policies. Absent aswell from the majority judgments is any meaningful consideration of discrimination atall. Rather, the bare formula of Andrews is followed and a finding of discrimination isreached rather easily. Yet it is a careful consideration of the nature of discriminationand its effects that informs the dissenting opinions. Only by considering whatdiscrimination is can its effects be measured. Put in that light, the effects of themandatory retirement policies on the elderly poor cannot be considered justifiable.Here, the contrast is between an examination of discrimination that is lacking in144substance and results in judicial deference and a ringing endorsement of freedom ofcontract, and a reflective analysis of discrimination resulting in the failure of mandatoryretirement policies at the s.1 stage.Very much derivative of the reasoning in McKinney is the second of the threemandatory retirement cases, Stoffman v. Vancouver General Hospital. 687 At issue wasthe hospital's Medical and Allied Professional Staff Regulation 5.04, which establisheda policy of mandatory retirement at age 65, barring a recommendation to the contraryby a medical advisory committee whose decision is based on a personal interview and areview of the health and the continuing performance of the applicant. 688 Theimplementation of this regulation appears to be based on the principle that allphysicians are expected to retire at age 65 "unless it could be shown that they 'hadsomething unique to offer the hospital ." 689 The respondents in this case, a group ofeight physicians whose admitting privileges at the hospital were terminated pursuant toReg. 5.04, sought to have the decision of the board of trustees690 not to renew theiradmitting privileges set aside, and a declaration that Regulation 5.04 violated s.15 ofthe Charter either by its terms or by the manner of its application. 691 VancouverGeneral Hospital, the appellant, is the major acute care hospital for the province ofBritish Columbia and handles approximately 18,000 high risk patients annually. It isalso one of the principal teaching hospitals in the province. Approximately 1,000physicians practice at the hospital, with about three-quarters of those as specialists.The hospital does not employ the physicians; rather, they are retained by their patientsand paid through the provincial medical plan. They practice at the hospital by virtue ofadmitting privileges which are granted on an annual basis. Admitting privileges allowphysicians to book patients into the hospital, to assume primary responsibility forpatients' treatment and, in the case of surgeons, to book operating rooms.145La Forest J., for himself, Dickson C.J. and Gonthier J., Sopinka J. concurring,takes the position that the policy and its application is discriminatory in that they makea distinction based on age, and impose a burden on physicians who have reached theage of 65 that is not imposed on younger physicians. Without the renewal of admittingprivileges, physicians over age 65 will have to drastically curtail their practices or endthem entirely, forcing them into partial or full retirement. The effect of the regulationand its application is to deprive physicians over age 65 of their employment on thebasis of a personal characteristic solely due to their association with a group of thoseover 65. 692 As in McKinney, the discrimination test is passed easily, with a passingreference to the Andrews form. 693In considering whether the regulation and the policy under which it was appliedcould be justified under s. 1, La Forest J. again warns against approaching the balancingtask involved in a "mechanistic fashion". 694 While guaranteed rights must be givenpriority in the balancing equation, the Court must be sensitive to the underlying valuesof the particular context and "other values of a free and democratic society sought to bepromoted by the legislature." 695 He repeats Dickson C.J. 's statement in EdwardsBooks that "[b]oth in articulating the standard of proof and in describing the criteriacomprising the proportionality requirement the court has been careful to avoid rigid andinflexible standards." 696 Following this, La Forest J. acknowledges thatjudicial evaluation of the State's interest will differ depending onwhether the state is the 'singular antagonist' of the person whose rightshave been violated, as it usually will be where the violation occurs in thecontext of the criminal law, or whether it is instead defending legislationor other conduct concerned with 'the reconciliation of claims ofcompeting individuals or groups or the distribution of scarce governmentresources' ... In the former situation, the courts will be able todetermine whether the impugned law or other government conduct is the'least drastic means' for the achievement of the state interest with aconsiderable measure of certainty, given their familiarity with the valuesand operation of the criminal justice system and the judicial systemgenerally. As this court has noted in Irwin Toy, however, the samedegree of certainty may not be achievable in the latter situation. 697146What La Forest J. means here is that a higher degree of judicial deference will beexercised in cases where a legislature has balanced competing interests for theallocation of scarce resources prior to enacting legislation that may give rise to aconstitutional challenge. In such cases the Court has demonstrated a clear reluctance tointerfere with legislative choices.Turning to the application of the s.1 test to the regulation, La Forest J. notesthat the appellant hospital did not specifically define the underlying objectives of Reg.5.04 and its application policy, but did proffer several "institutional concerns" that ithoped the regulation would address. These were the need to limit the growth of staffdue to the hospital's budgetary and resource limitations, the desire to limit the size ofstaff to encourage and preserve a cohesive staff capable of taking a team approach tothe practice of medicine, and the need to make some of the hospital's staff positionsand resources available to younger physicians recently trained in the latest approachesto medicine. 698 La Forest J. holds that this latter point is the fundamental objective ofthe regulation: to maintain and enhance the quality of medical care at the hospital.The regulation and policy were "intended to promote excellence in the hospital'spursuit of its mandate as a centre of medical research and teaching and as the majoracute care hospital in the province of British Columbia." 699 These objectives clearlymeet the first part of the s.1 test. Excellence in the practice of medicine is a highlyimportant goal with obvious social benefits. Central to this is the hospital's pre-eminent role in research, teaching and acute care, which is "beyond the capabilities ofmost, if not all, the other hospitals in the province. "700 As such, the quality oftreatment available at the hospital determines whether patients in all parts of theprovince obtain high quality medical care. 701 This constitutes a pressing andsubstantial objective.147La Forest J. then considers the proportionality aspect of the test. The rationalconnection between Regulation 5.04 and its policy and the underlying objectives ofpromoting excellence in the practice of medicine and the provision of hospital servicesis rather easily made. Hospitals, he says, must be "on the cutting edge of newdiscoveries and ideas", 702 particularly where the hospital provides the type ofsophisticated and specialized treatment, research and teaching functions available at theVancouver General Hospital. Crucial to this is the "continuing infusion of newpeople"703 who enable the hospital to keep up with new discoveries and ideas. This isachieved by making room for younger physicians who, "by virtue of their recenttraining, are fully conversant with the latest theories, discoveries and techniques."704Characterizing the hospital as a "closed system with limited resources", he states that"this regular infusion with the vitality and perspective of the young can only beachieved by the corresponding departure of some of those already on staff." 705Moreover, he says, the mandatory retirement policy ensures that physicians will retireprior to the deterioration that common experience and the evidence suggests befallsthose entering the later stages of life. This is particularly pertinent in the case of thosephysicians who, due to advancing age, "will be increasingly unable to function at thehigh level the Vancouver General must demand of its doctors." 706 Thus the rationalconnection aspect of the s.1 test is met.As may be expected now in the s.1 analysis, the minimal impairment aspectdraws the most consideration. La Forest J. again warns that courts must exhibitconsiderable flexibility in assessing cases relating directly to the allocation of resourcesor that attempt to strike a balance between competing social groups. 707 Because thechoices involved have an impact on "many different and interrelated aspects of societyand government policy", 708 a high degree of judicial deference should be exercisedwhere democratically elected representatives have made choices on the distribution of148scarce resources between competing groups. 709 In such cases, he says, it is appropriatethat the Court consider whether "the hospital authorities had a reasonable basis forconcluding that it impaired the relevant right as little as possible in its attempts toachieve its pressing and substantial objectives. " 710 (Emphasis in original)In this instance, the minimal impairment aspect of the test is also easily met inLa Forest J.'s view. Given the budgetary restraint pervasive in the public sector, hesays, the hospital authorities were "amply justified ... in concluding that its ability tobring new doctors on staff depended on the timely retirement of some of those alreadythere." 711 Further, given the concern that older physicians' abilities deteriorate as theyreach the later stages of their lives, it was not unreasonable for the hospital to concludethat retirement at age 65 would "ensure the departure from staff of those who wouldgenerally be less able to contribute to the hospital's sophisticated practice." 712 LaForest J. acknowledges that the effects of the mandatory retirement policy onphysicians who wish to continue in practice may be onerous, but that the anguish andsense of loss suffered by older physicians must be balanced with the frustration andanger experienced by younger physicians if they were prevented from entering into afull practice after long years of study and preparation. 713One alternative to the mandatory retirement policy is considered and rejected.It was suggested that the hospital could have instituted a program of skills testing orperformance evaluation. La Forest J. dismisses this readily. First, he says, theevidence indicates such a program would be costly both to implement and operate, asignificant consideration given the financial circumstances under which hospitals mustoperate. More important, though, are the effects of such testing and evaluations.According to La Forest J., these would be "invidious and disruptive" to the workenvironment in which hospital staff must function:149[S]kills testing and performance evaluation can be demeaning, especiallywhen applied to highly trained and senior members of a professionalcommunity. As a trigger for the application of a rule of mandatoryretirement, they would be the very antithesis of the kind of dignifieddeparture that should be the crowning moment of a professional career.Just as detrimental is the added pressure which performance-basedretirement would introduce into what must already be a very highpressure work environment. Nor is it difficult to imagine how such ascheme could sow suspicion and dissention among a hospital staff. 714This latter point is significant when considered in light of the hospital's "institutionalconcern" that it encourage and preserve a cohesive staff, La Forest J. says. Finally,again displaying a considerable degree of judicial deference, he states that it is notappropriate for "this court to 'second guess' the government's determination that 65 isthe appropriate age at which to implement its policy of de facto mandatory retirement... [This] 'line-drawing' ... should generally be left to the legislature." 715 In keepingwith the Court's approach to the s.1 analysis, the discussion of whether the effects ofthe regulation and its policy of application are so severe as to outweigh the pressing andsubstantial objectives is simply referred back to the discussion of minimal impairment.Given the latter reasons, there appears to be no reason for La Forest J. to consider theformer.It is obvious that the approach taken here by La Forest J. follows precisely thetrack taken in McKinney. The aspect of discrimination is readily disposed of, and thes.1 analysis proceeds along a deferential path strongly grounded in reasons of economicpolicy. What discussion there is of the impact of the mandatory retirement policy onthose affected is confined to the indignity of suffering performance evaluations.Passing mention is made of the effect of loss of employment, but this is offset againstan equally brief consideration of younger physicians' "anguish" in not being able toenter into full practice. The s.1 analysis itself is essentially collapsed into a somewhatdetailed discussion of minimal impairment, with the deleterious effects aspect receivingvirtually no acknowledgement. Despite La Forest J.'s admonishments to the contrary,150the reasoning here follows a mechanistic, rigid course through the steps to predictableconclusion.As with McKinney, the approach taken by Wilson J. in Stoffman is markedlydifferent from that of the majority. Basing her dissenting opinion on the premise thatthe Charter applies to Vancouver General Hospital, she turns to consider whetherRegulation 5.04 both on its face and in the way it is administered violates s.15.Stating that the Regulation stipulates that physicians wishing to maintain theiradmitting privileges must make special application to the medical advisory committee,the question then is whether the regulation is discriminatory despite the fact that itprovides an exception for those who can demonstrate individual capacity to perform. 716In her view, the answer is yes. Despite the provision of non-discriminatory exceptions,the unarticulated premise of the regulation, in expecting retirement at age 65, is thatwith increasing age comes increasing incompetence and decreasing ability. 717 This, shesays, is the central concept of the regulation and the exceptions do not detract from it.A further difficulty with the regulation is that it obliges those wishing to work to provethat the stereotype does not apply to them. In effect, this exposes older individuals to adiscriminatory double-whammy: "It seems to me clearly discriminatory to impose thisburden upon those who already suffer the burden of stereotype and prejudice and whothereby have suffered a blow to their sense of self-worth and self-esteem as useful andproductive citizens." 718 With respect to the administration of the regulation, this alsofails to pass muster in that the board of trustees interpreted Reg. 5.04 as a mandatoryretirement policy and its practice was to terminate admitting privileges at age 65 subjectnot only to a finding that the applicant was in good health and performingsatisfactorily, but that he or she also possessed "unique" skills. This is clearlydiscriminatory in that it perpetuates and reinforces the stereotype of older workers as151incompetent. 719 Thus it is necessary to examine the hospital's mandatory retirementpolicy in the light of s. 1.With respect to the first aspect of the s.1 test, Wilson J. notes two objectivescited by the hospital in support of its mandatory retirement policy. First, as an acutecare and teaching hospital, it is crucial that it provide the highest standard of modernmedical care, education and research. Vancouver General, the evidence establishes, isa highly specialized institution providing unique treatment and services which otherhospitals in the province can not. This first objective is undoubtedly one that issufficiently important to override a Charter right. 720 The second objective advanced bythe hospital was that mandatory retirement is necessary to allow younger physiciansopportunities to practice medicine, since the hospital can only accommodate a fixednumber of medical personnel. If older physicians did not retire, younger ones wouldbe denied opportunities. However, Wilson J. states that the evidence does not supportthis argument. The trial court and Court of Appeal both accepted that other physicianswould not be prevented from gaining admitting privileges if the respondents in this caseretained theirs. It is incumbent on the hospital to establish and pressing and substantialconcern, and in this instance, where no evidence was put forward to support theallegation that a significant problem exists, the first part of the s.1 test will not be met."The purpose behind this branch of the Oakes test is to ensure that constitutional rightsand freedoms will only be sacrificed where it is reasonable and justifiable to do so." 721There is simply no evidence that the hospital constitutes a "closed" system of the typeenvisaged by La Forest J. Therefore, the only objective to be considered is thehospital's aim of providing high quality health care.The rational connection aspect of the means test is considered next. Wilson J.accepts the rational connection between the imposition of mandatory retirement and152ensuring a high standard of medical care, education and research through the infusionof young physicians with new discoveries and ideas, and that retiring older physiciansfrom and introducing younger physicians to the hospital system will upgrade the qualityof medical service. 722 While she is prepared to accept that the rational connectionbetween the objectives and the measures taken has been made, she warns that "thequestion whether the foundations of prejudice are based upon observable, reliable factsis one which this court should approach in the most cautious manner." 723 Acceptingthe "common knowledge" that with age comes some decline in ability, she makes thisfurther comment:[I] would not wish to be understood as suggesting that all infringementsof equality have some basis in fact and that a rational connectionbetween various objectives and stereotypes will in all cases beestablished. Indeed, this Court will doubtless be obliged in future toaddress whether other forms of discrimination based on different groundshave any foundation in biology or whether they are premised instead onmisplaced notions about the nature and abilities of various groups. Thisis a most delicate determination. History unfortunately demonstrateshow easily such misperceptions can be accepted with untold costs. 724An example of the type of caution she is urging is revealed in the assumption thatincreasing age brings on a decline in skills. Yet, she says, diagnostic ability may wellincrease with years in practice. These comments are made to make the point that therational connection aspect of the proportionality test serves an important function and"should not be forgotten." 725 The purpose of this stage is to examine whether there islogic in the government's pursuit of its aims. These comments are particularlysignificant given that often the connection appears almost as an afterthought. 726As with her decision in McKinney, Wilson J. acknowledges a differing standardof review with respect to the minimal impairment aspect of the s. 1 test. However, it isher opinion that the lower, more deferential standard ought not to apply in this case.The evidence does not establish that the hospital operates within a "closed system"necessitating that older physicians retire to enable younger ones to commence their153practices. Indeed, the evidence indicated that permitting the respondent physicians tocontinue their admitting privileges would have "absolutely no effect" on the availabilityof practice opportunities for younger physicians. 727 Because the evidence does notdisclose there are competing claims for scarce resources, Wilson J. is not prepared toapply the deferential standard.In her opinion, the test for minimal impairment is not met by the mandatoryretirement regulation and its application. Wilson J. is of the view that alternativemeasures are available to achieve the objective of high quality medical care that takesaccount of the abilities of individual physicians aged 65 and over. Prior to thehospital's adopting Reg. 5.04, the hospital ensured it met its goal of providing highquality medical care in the following manner. Admitting privileges were renewed onan annual basis, with renewal assured so long as the board of trustees was satisfied thatthe physician was in good health and was able to continue performing safely andcompetently. Internal auditing procedures were in place by which department headswere charged with the responsibility of ensuring staff competency. 728 The respondentsin this case were seeking a reinstatement of this procedure, abandoned with theintroduction of Reg. 5.04. In Justice Wilson's opinion, the primary reason for theintroduction of Reg. 5.04 was one of administrative convenience: it was easier for thehospital to allow the mechanism of mandatory retirement to remove incompetentphysicians than it was to undertake annual performance reviews as it had done earlier.No evidence was tendered to suggest that annual performance reviews wereunsatisfactory in terms of "weeding out" incompetent physicians. 729 These commentsraise squarely the argument of administrative convenience that was so readily dismissedin earlier s.1 decisions. Indeed, Wilson J. finds them particularly trenchant withrespect to equality rights claims:154It seems to me that it will always be more convenient from anadministrative point of view to treat disadvantaged groups in society asan indistinguishable mass rather than to determine individual merit. Buts.15(1) demands otherwise. In discrimination claims of the kindinvolved here, if the guarantee of equality is to mean anything, it must atleast mean this: that wherever possible an attempt be made to break freeof the apathy of stereotyping and that we make a sincere effort to treatall individuals, whatever their colour, race, sex or age, as individualsdeserving of recognition on the basis of their unique talents and abilities.Respect for the dignity of every member of society demands no less. 730(emphasis in original)Administrative convenience cannot, on its own, serve to support the minimalimpairment aspect of the s.1 test. The previous method of determining physiciancompetence was a constitutionally sound one: the substitution of a method of reviewpremised on stereotyped assumptions about competence based on age renders itconstitutionally invalid. 731Justice L'Heureux-Dube agrees with La Forest J. that Reg. 5.04 is clearly inviolation of s.15 in that it discriminates on the basis of age. 732 Following her reasonsin McKinney, she is unable to agree with him that the policy is justified under s. 1. Inher opinion, and in this she disagrees with Wilson J., the hospital's mandatoryretirement policy fails at the first stage of the s.1 test, as well as at the rationalconnection and minimal impairment aspects. Agreeing with Wilson J. that there wasno evidence to suggest that the hospital is a "closed system", L'Heureux-Dube J. findsthe hospital's objective of promoting opportunities for younger physicians to practicemedicine is not sufficiently pressing to warrant overriding a constitutionally protectedright. 733 She also finds the hospital's objective of maintaining high levels ofcompetency among staff to be problematic. Age alone, she says, is not determinativeof capacity or competence. Physicians fall "below acceptable levels of proficiencythrough inattention to medical advances and, inter alia, inadequate physical staminaand health ... It confounds logic to suggest that these concerns simply occur on thepassing of a given day in all cases." 734 While highly competent staff is clearly155fundamental to a hospital, the nexus between age and competence is not made, and aforced retirement policy remains arbitrary and unfair.L'Heureux-Dube J. next raises the argument advanced by the hospital that themandatory retirement policy is necessary to keep the hospital on the cutting edge withregular staff renewals of physicians trained in the latest techniques. Here the rationalconnection between the mandatory retirement policy and these objectives is not met.Physicians, she says, will almost always be sensitive to new theories and discoveries.Again, age is irrelevant in this respect: "The fact that a practitioner has a 40th, 50th or60th birthday alters this no more than the 65th birthday." 735 The need for continualtraining and learning remains the same irrespective of age.Turning to the minimal impairment consideration, L'Heureux-Dube J. statesthat as this case is not one in which the allocation of resources is a fundamental issue,she is unprepared to apply special considerations in addressing this aspect of the test. 736The hospital's board of trustees is not being forced to choose between two competingsocial groups, but between competent physicians who happen to be over 65, and thoseunder 65, usually entering the practice of medicine. This statement is tacit approval ofa two-tiered approach to the minimal impairment test, with legislative choices ofallocation of resources between competing social groups receiving a lower, morerelaxed and deferential consideration than choices beyond this range.Again focussing on the lack of connection between age and incompetence,Justice L'Heureux-Dube states that the policy pursuant to the regulation that physiciansover age 65 must demonstrate extra competence or special qualities is too great aninfringement of the physician's rights. The effect of the regulation is that physiciansover age 65 are held to a higher standard of competence than those under age 65 simply156on the basis of age. While the health of a physician may be a factor in the review ofhis or her abilities, this is clearly not contingent on age and would remain a factor inany review of any physician's performance. The policy serves to deny practitionersany leeway in its application beyond demonstrating that he or she has "somethingunique" to offer the hospital. These factors represent "a grave intrusion into the rightto be treated equally", 737 and suggest a justification of administrative convenience, ajustification the Court has found wanting. 738The rights of the respondents were not impaired as little as possible. Acceptablealternatives to mandatory retirement were available to encourage retirement.L'Heureux-Dube J. suggests that a recommended age of retirement, based at the pointwhere it is clear physical difficulties are prevalent, be established. Exceptions to therecommended age of retirement could be made in the appropriate cases. Competencyreviews, administered discreetly, could be undertaken semi-annually for those over age70. 739 Such reviews would survive the criticisms mentioned above if the recommendedage of retirement was based on clear evidence of physical difficulty. Finally,L'Heureux-Dube J. adds a pragmatic observation: the number of physicians wishing towork beyond age 70 or 75 will not be great. Yet, she says, many people do makesignificant contributions far beyond their 65th year, and they should be afforded theopportunity to do so, and not be suddenly deemed no longer able to perform.Moreover, people of these ages are usually well aware of any decrease in physicalcapacities, and if handled in a mature and respectful manner, "the retirement processcan be a smooth and dignified transition for both the individual and for the institutionin question." 740 Subjecting physicians over age 65 to stereotypical presumptions ofincompetency based on age is an affront to their dignity. If equality rights are to haveany meaningful content, the dignity of those claiming them must be preserved and157enhanced and not impaired absent compelling evidence. Such evidence was lackinghere.In a brief opinion agreeing with Wilson J., Justice Cory, in dissent, outlines hisreasons for finding that the hospital's mandatory retirement regulations can not besaved by s. 1. He contrasted this with his finding that mandatory retirement regulationscould be justified in universities. 741 There are substantial differences between hospitalsand universities, he says. Mandatory retirement was found to be an essential part ofthe bargain of the tenure system in universities. Since physicians with admitting oroperating privileges are appointed on an annual basis, they cannot be said to have anysecurity of tenure. 742 Moreover, in the university setting, the faculty associationsupported mandatory retirement; the same could not be said of the medicalassociation. 743 Physician's skills testing occurs at least annually, unlike professorswho, upon being granted tenure, enjoy a relatively test-free appointment. Finally,continual testing of physicians skills throughout their years of association with ahospital is essential for the operation of the hospital, and occurs without regard to age.There is no valid reason, in Cory J.'s view, that this testing could not serve to ensurephysicians over age 65 retain high levels of skills. 744As with the majority opinion in McKinney, the approach taken by the majorityhere follows a deferential path through the s.1 analysis. Having made the decision thatthe choices in this case involved claims by competing groups for the allocation ofresources, the outcome is almost a foregone conclusion. Committing themselves to theapplication of the lower, deferential standard of the minimal impairment test, themajority appears reluctant to move beyond the confines of its rigid framework. No realconsideration is made of the impact of discrimination and reliance on stereotypicalassumptions. Rather, the entire judgment appears grounded in considerations of158economic policy and the consequences of the court interfering with these. Whatconsiderations there are of alternative measures to a mandatory retirement policy areagain trapped within an economic framework. Given their reluctance to inquire beyondthose borders, the reasons of the majority can hardly be said to be surprising.Wilson and L'Heureux-Dube JJ. base their reasons on the effect ofdiscrimination and the purpose of s.15. Reasons of economic policy are found wantingand rejected on the basis of administrative convenience. Both agree that the minimalimpairment test, applied to the higher, less deferential standard, is not met due to theavailability of alternative measures for ensuring physician competence. The majorityhad suggested these tests would be an affront to the older physicians' dignity. WilsonJ. reasoned that their dignity would be more impaired by an assumption ofincompetence at an arbitrarily fixed age. What is striking in the difference betweenWilson and L'Heureux-Dube JJ.'s judgments is the latter's readiness to find the firstaspect of the s.1 test lacking. Age alone cannot be used to justify the mandatoryretirement of physicians over 65. Physician competence, the primary objective of theregulation, is not ensured by requiring those over 65 to retire. Incompetence, healthconcerns and lack of stamina can occur at any time. Ensuring competency based on thestereotypical assumption that those over 65 does not satisfy the first part of the s.1 test.Wilson J. appears to accept this without much difficulty.Wilson and L'Heureux-Dube JJ. also disagree as to the rational connection test.Wilson J. accepts that younger physicians are necessary to ensure the hospital keeps upwith the latest theories and techniques. L'Heureux-Dube J. cannot see why this canonly be achieved by replacing older physicians with younger ones. Such a practice, shesays, ignores the lifelong learning most physicians must undertake in stay in practice.Both agree that the minimal impairment test fails because of the availability of159alternative measures for ensuring physician competence, and that the mandatoryretirement policy really appeared to be an administratively convenient means of"weeding out" incompetent physicians. In her strongly worded dissent stressing theunfair treatment of physicians forced to retire on the basis of stereotypical assumptionsabout age, Justice L'Heureux-Dube appears the most aggressive in her scrutiny of thes.1 test.The final case in the mandatory retirement trilogy is Harrison v. University ofBritish Columbia. 745 The issues are similar to those raised in McKinney. Therespondents, a tenured professor and an administrative officer at the university, arguedthat the university's mandatory retirement policy requiring retirement at age 65represented age-based discrimination, contrary to s.15 of the Charter. They furtherargued that the definition of "age" in s.1 of the British Columbia Human Rights Act, 746which limited the prohibition of age-based employment discrimination found in s.8(1)of the Act to those between 45 and 65, also violated s.15 of the Charter.747In a very brief opinion, La Forest J., for himself, Dickson C.J. and Gonthier J.,Sopinka J. concurring, applies the reasoning he set out in McKinney. If the Charterdid apply to the university, the mandatory retirement policy would violate s.15 but isjustified under s. 1. The limitation of protection from age-based discrimination ins.8(1) of the Code is also contrary to s.15 but saved by s.1. 748 Justice Cory is inagreement with these conclusions. 749For the reasons she gave in McKinney, Justice Wilson finds the mandatoryretirement policy to be contrary to s.1 and not justified under s.1. 750 She alsoaddresses the argument raised by the intervening Attorney-General of British Columbiathat s.1 of the Act, where age is defined, should be considered an affirmative action160measure within the meaning of s.15(2) of the Charter and thus could not be in conflictwith s.15(1). The Attorney General argued that older workers under age 65 could notenjoy the benefits and privileges of such programs as social security, guaranteedincome supplements and pension plans. Thus, in order to "redress the balance"between older workers under age 65 and those over 65 who were eligible for thesebenefits, the provincial legislature enacted the prohibition of discrimination based onage "and thus somewhat equalized the income opportunities of persons above andbelow the age of 65". 751 Wilson J. does not find this to be the type of measureenvisioned by the affirmative action section of s.15, stating that while the Court has nothad an opportunity to examine the scope and meaning of s.15(2), at the least it is meantto ensure that measures aimed at ameliorating the conditions of those who have beenthe victims of discrimination are constitutionally valid. In this instance, she says, itcannot be said that older workers under age 65 suffer the burden of prejudice andstereotype by reason of the fact that they are ineligible to enjoy the benefits accorded tothose over 65. The failure to extend benefits to workers under age 65 does not serve toperpetuate or create stereotyping or prejudice against such people. As this type ofdiscrimination has not been made out, s.8(1) of the Act cannot be considered anaffirmative action measure aimed at redressing the drastic effects of discrimination. 752The discriminatory nature of the mandatory retirement policy and s.8(1) of the Act arenot saved by s.1 of the Charter. 753Justice L'Heureux-Dube, confining her reasons to a consideration of whethers.8(1) of the Act contravened s.15, 754 holds that it did so. For the same reasons sheexpressed in McKinney and those of Justice Wilson in the present case, she furtherholds that the breach could not be justified under s.1 of the Charter. 755161But for Justice Wilson's brief remarks concerning affirmative action, Harrisonis completely derivative of the reasoning in McKinney.SAME-SEX SPOUSAL BENEFITS CLAIMS IN LIGHT OF THE CHARTERThe first judicial recognition of sexual orientation as a prohibited ground ofdiscrimination under s.15 occurred in November 1989 with the decision of Dube J. ofthe Federal Court of Canada (Trial Division) is Veysey v. Canada (Commissioner ofthe Correctional Service). 756 Mr. Veysey, an inmate in a federal penal institution, hadapplied to participate in the "Private Family Visiting Program" at the institution withhis homosexual partner. The program includes conjugal visits. The purpose of theprogram was defined as "the maintenance of family ties and the preparation of inmatesfor their return to life in the community outside the penitentiaries." 757 Familymembers eligible to participate in the program were identified as "wife, husband,common-law partners, foster parents, brothers, sisters, grandparents and, in specialcases, in-laws." 758 Mr. Veysey wished to participate in the program with hishomosexual partner because he wanted to maintain his relationship with his partner andbelieved "that his successful reintegration into society [would] depend to a very greatextent on the continuing support" 759 of his closest relationship in the community. Hisapplication was refused on the basis that the program does not apply to common lawpartners of the same sex. He alleged that this constituted a breach of s.15 on the basisof sexual orientation as he was denied a benefit available to heterosexual inmates.The Commissioner of the Correctional Service argued that no such breach hadoccurred, as the program only includes persons related to the applicant "byconsanguinity, marriage (including common law marriages) or affinity." 760 The term"common law partners" is synonymous with common law spouses, which cannot162include same-sex spouses. 761 Thus, Mr. Veysey's application was denied not becauseof his sexual orientation but because the person with whom he wished to participate inthe program is not included among the eligible participants. Mr. Veysey argued thatthe program is discriminatory for exactly these reasons: his homosexual partner is nothis spouse and is not included as family as described in the program. 762 By excludinghomosexual relationships the program discriminates on the basis of sexual orientation.Dube J. noted that sexual orientation was not specifically identified asaprohibited ground of discrimination in s.15 but observed "it is now well-establishedthat discriminatory treatment will infringe s.15 if it is based on grounds analogous tothose specifically enumerated." 763 To determine whether sexual orientation is ananalogous ground, Dube J. referred to the comments by the Supreme Court of Canadadirecting an examination of "the entire social, political and legal fabric of oursociety. "764 For Dube J. this entailed a consideration of existing human rightslegislation that expressly identifies sexual orientation as a prohibited ground ofdiscrimination. 765 He also noted the findings of the House of Commons ParliamentaryCommittee on Equality Rights, 766 which recommended the inclusion of sexualorientation as a prohibited ground of discrimination under the Canadian Human RightsAct in 1985. 767 Dube J. then noted the definition of discrimination as stated byMcIntyre J. in Andrews and stated:... [A] characteristic common to the enumerated grounds is that theindividuals or groups involved have been victimized or stigmatizedthroughout history because of prejudice, mostly based on fear orignorance, as most prejudices are. This characteristic would also clearlyapply to sexual orientation - 768Dube J. concluded that sexual orientation is an analogous ground recognized in severalhuman rights legislations and that Mr. Veysey's equality rights had been breached. 769163Turning to the s.1 analysis, Dube J. found the family visit program to be adesirable goal for both Mr. Veysey and society as a whole, but that this goal was notfurthered by denying Mr. Veysey the benefit of his most supportive relationship. TheCommissioner of the Correctional Service argued that allowing Mr. Veysey toparticipate in the program with his homosexual partner would threaten Mr. Veysey'spersonal safety and the good order of the institution, as many of the inmates within theinstitution had "a high regard for family values and a strong belief in traditionalmorality, coupled with a strict, harsh and retributive inmate code. "77o This argumentwas dismissed on the basis that the reasons were not sufficiently compelling to justifythe violation of a constitutionally protected right. In terms of his safety, it was held,Mr. Veysey was aware of the potential risks he was taking in seeking to participate inthe program. Further, there was evidence before the court that inmates' sexualorientation did not compromise security in the medium-security institution where Mr.Veysey was an inmate. 771Finally, it was held that the refusal to allow Mr. Veysey the benefit ofparticipation in the program with his homosexual partner impaired his right moreseverely than was necessary in the furtherance of the goals of the program. Any risk tothe security of either Mr. Veysey or the institution could be significantly reduced bymerely maintaining the confidentiality of the participants of the program. 772 Theexclusion of homosexual common law partners simply went too far in the balancing ofrights and interests in this particular case. Thus, the refusal to allow homosexualcommon law partners to participate in the program constituted discrimination on thebasis of sexual orientation under s.15 which could not be justified under s.l.A same-sex spousal benefit claim was raised in Knodel v. British Columbia(Medical Services Commission), 773 where Mr. Knodel sought to have his same-sex164partner included as his dependent spouse under his medical services plan coverage.Mr. Knodel's application to the Medical Services Commission (the "Commission") wasdenied on the basis that the definition of "spouse" in s.2.01 of the Medical Service ActRegulations774 applied to both legal marriages and common-law relationships, but onlythose of a heterosexual nature. 775 Mr. Knodel sought a declaration that same-sexcouples are included in the definition of "spouse", and that defining "spouse" so as toexclude same-sex relationships is contrary to the provisions of s.15 of the Charter.Alternatively, he said that if "spouse" is defined so as to exclude same-sexrelationships, he sought a declaration that s.2.01 of the Regulations infringes his rightto equality pursuant to s.15 of the Charter, and that an appropriate and just remedypursuant to s.24(1) of the Charter is to "read in" the inclusion of same-sex couples intothe definition of "spouse" in the regulations. 776 In response, the Commission statedthat the definition of spouse did not inflict any disadvantage or have any adverse impacton Mr. Knodel and thus the impact of the Regulations was not discriminatory and wasnot contrary to s.15 of the Charter. The Commission further stated that s.15 of theCharter does not prohibit the making of distinctions, and that the distinction in this casewas not one based on sexual orientation but one between "spouses" and "non-spouses"who do not consider themselves man and wife but who may live in the same householdunit, such as brother and sister, parent and adult child, and be financially dependent onthe other. 777In an application to the Commission in June 1988, Mr. Knodel sought to havehis same-sex partner included as his dependent spouse under his medical plan coverage.In September 1988 this application was denied on the basis of the interpretation of"spouse". "Spouse" was defined in the Regulations as follows:'Spouse' includes a man or woman who, not being married to each, livetogether as husband and wife. 778165At trial, Mr. Knodel submitted evidence of his relationship with his partner. Theylived together in a monogamous homosexual relationship until his partner's death in1989. They offered each other financial, emotional and moral support, and exchangedwedding bands symbolizing their love and commitment towards each other. Theirrelationship was known and supported by their family and friends. Both their nameswere on the rental agreement of their accommodation. They had a joint chequingaccount into which they both deposited their pay cheques. All household expenses,including the cost of furnishings, were paid from this account. In 1985 Mr. Knodel'spartner was diagnosed as having a potentially fatal illness and was unable to work afterMay 1988. He executed a will naming Mr. Knodel as sole beneficiary and died in1989.An expert report prepared by Dr. Myers, a clinical professor in the Departmentof Psychiatry at the University of British Columbia, was submitted in support of Mr.Knodel. Dr. Myers stated that 'there is a high degree of similarity betweenhomosexual and heterosexual life partners and that they are much more the same intheir attitudes, expectations, and values than are different.' 779 He further stated thatdespite the fact that homosexuality was no longer considered a form of psychiatric ormental illness, "lay persons continue to believe that there is something wrong orstrange with individuals who develop attachments to members of their own sex, andlabel them as 'deviant and immoral'." 780 It was Dr. Myers' opinion that there is noone definition of the term "family", and the language by which families are describedevolves as families evolve. He used the term "familial relationship" to describerelationships outside traditional and legally married families, such as that which existedbetween Mr. Knodel and his partner:There was an expectation of continuance. They were deeply committedto each other (emotionally and sexually), exchanged vows and rings in aprivate ceremony, established a home together, pooled their finances,166and shared bank accounts and credit cards. Further, Mr. Knodel did notseparate from or abandon Mr. Garneau when the latter became ill. Likea heterosexual spouse, Mr. Knodel was named the sole beneficiary inMr. Garneau's will; he assisted and supported his life-partner, includingnursing and comforting him, until his death March 17, 1989. It wasonly after threatening a grievance charge that Mr. Knodel was granted afew days of compassionate leave (as opposed to days deducted from hisvacation leave) from work to organize and attend Mr. Garneau'sfuneral. 781It was also Dr. Myers' opinion that "homosexual persons as a group are stigmatized inour society" 782 and this causes psychological and related social problems:For most [homosexual persons realizing their same-sex attraction], this isvery frightening and lonely because they have come to believe that whatthey are experiencing is not considered normal by most of society. Thisthen leads to isolation, unhappiness, self-loathing, and a sense ofinferiority. I have listened to the life stories of hundreds of homosexualmen and women and I can attest to the pervasive influence ofdiscriminatory ideas, beliefs, and laws on the sense of these individuals.This indifferent or hostile climate not only damages one's worthiness asa free and healthy individual in our society but causes many people tolead double or fragmented lives. They dare not be open for fear offurther ridicule and rejection. Many attempt to pass as heterosexualpeople and do their best to conform. When they meet someone else, fallin love, and become a couple, they are usually much happier and find iteasier to cope with life. 783Against this background of Mr. Knodel's relationship and the evidence of Dr. Myers,Rowles J. considers the structure of the legislation and regulation giving rise to Mr.Knodel's claim.The Medical Service Act784 provides a voluntary medical plan for residents ofBritish Columbia. The regulations provide the institutional structure necessary for theoperation of the plan. The premiums payable by subscribers to the plan are set by theCommission. The definition of "spouse" in s.2.01 of the regulations allows legallymarried couples and common-law heterosexual couples to claim their spouses asdependants under the plan. Under the schedule in place at the time of trial, a singlesubscriber with no dependants who does not qualify for premium assistance would pay$372 per year for medical coverage. Thus, two separate subscribers would pay exactlytwice that amount, $744, per year. Yet the same subscriber with one dependant,167whether "spouse" or "child", would pay $660 per year. Thus, the effect of excludingsame-sex couples from the definition of "spouse" would result in an annual premiumthat is $84 (or 13 per cent) more than that paid by heterosexual couples. 785 Mr.Knodel stated that the effect of the regulation is to discriminate against him solely onthe basis of his sexual orientation by denying him the equal benefit of the law availableto heterosexual spouses. He further stated that the regulation adversely affected hisdignity and self-esteem and perpetuated the homophobia expressed by members insociety. 786In addressing the grounds of discrimination, Rowles J. first considers whethersexual orientation is included in the term "sex" found in s.15 of the Charter. PreviousSupreme Court of Canada cases787 considering that term defined it in terms of genderspecificity or a characteristic that affects one gender primarily. Sexual orientation isneither gender specific nor is it restricted to men, so Mr. Knodel was unable to base hisclaim on discrimination on the basis of sex. This is not significant in that theCommission, in keeping with recent case law, 788 conceded that discrimination based onsexual orientation is contrary to s.15 of the Charter. 789With respect to the definition of "spouse", counsel for Mr. Knodel suggestedthat the term is ambiguous as evidenced by the phrase "live together as man and wife"and the use of the word "includes" clearly indicates that the definition is not exhaustive.Thus, the definition does not expressly or necessarily exclude same-sex spouses.Counsel for the Commission stated that the definition of "spouse" was clearly intendedto cover married and common law heterosexual couples. The distinction the definitionmakes is not based on sexual orientation but simply one between "spouses" and "non-spouses". According to Counsel's submission, "a same-sex couple is not treated anydifferently from any other adult couple whose members do not hold themselves out as168man and wife but share a household." 790 Implicit in this statement is the assumptionthat a same-sex partner cannot be considered a "spouse".Rowles J. states that the definition clearly contemplates legally married andcommon law couples and that the phrase "live together as husband and wife" isintended to exclude other types of relationships such as siblings or adults who livetogether but "do not share an emotional and sexual commitment." 791 Focussing on theword "as", she states that this "suggests a particular type of relationship that involvesboth emotional and sexual aspects." 792 In this case, she says, the evidence "isoverwhelmingly that [Mr. Knodel] and Mr. Garneau lived 'as husband and wife", 793referring to the specific circumstances of their relationship and the evidence of Dr.Myers suggesting the emotional bond between homosexual couples is no different fromthat between heterosexual couples. Yet a review of authorities considering theinterpretation of "spouse" clearly indicates that it has been interpreted to refer to legallymarried couples and opposite-sex partners. 794 Therefore, the next step in the inquiry isto consider whether a definition of "spouse" that excludes same-sex couples is contraryto the equality provisions found in s.15 of the Charter.According to the two-step process for the application of s.15 set out inAndrews,a complainant ... must show not only that he or she is not receivingequal treatment before and under the law or that the law has adifferential impact on him or her in the protection or benefit accorded bylaw but, in addition, must show that the legislative impact of the law isdiscriminatory. 795Discrimination was defined in Andrews asa distinction, whether intentional or not but based on grounds relating topersonal characteristics of the individual or group, which has the effectof imposing burdens, obligations, or disadvantages on such individual orgroup not imposed upon others, or which withholds or limits access toopportunities, benefits, and advantages available to other members of the169society. Distinctions based on personal characteristics attributed to anindividual solely on the basis of association with a group will rarelyescape the charge of discrimination, while those based on an individual'smerits and capacities will rarely be so classified ...796The Supreme Court has also held that groups forming "discrete and insular minorities"are also protected by s.15 of the Charter. Such groups were defined by Wilson J. asfollows:I emphasize, moreover, that this is a determination which is not to bemade only in the context of the law which is subject to challenge butrather in the context of the place of the group in the entire social,political and legal fabric of our society. While legislatures mustinevitably draw distinctions among the governed, such distinctionsshould not bring about or reinforce the disadvantage of certain groupsand individuals by denying them the rights freely accorded to others. 797In order to bring a claim within the ambit of s.15, discrimination must be found basedon the grounds set out in that section or those analogous to it. While sexual orientationis not specifically set out in s.15 as a prohibited ground of discrimination, it has beenheld to be included within s.15. 798Rowles J. states thatthe rights enumerated in [s.15] signify rights according human dignity.The respect for the individual person means respect for the unique anddiverse character of every human person. This implies a large degree oftolerance within a pluralistic society. Discrimination is abhorrentbecause it treats individuals as abstractions rather than as individuals.Personal qualities are lost in the group stereotype. 799Applying s.15 to the facts before her, she states that the effect of the definition of"spouse" in the regulations is to treat homosexual couples differently than heterosexualcouples. This difference in treatment, she says, cannot readily be explained or relatedto the purpose of the legislation. Thus, Mr. Knodel's claim of unequal treatment ismade out. 800 The effect of the distinction is to "exacerbate conditions ofdisadvantage" .801 Recalling the evidence of Dr. Myers of the "'pervasive influence ofdiscriminatory ideas, beliefs, and laws on the sense of" homosexual persons, RowlesJ. notes this serves to "damage one's worthiness as a free and healthy individual in our170society. "802 Moreover, in denying a benefit available to heterosexual couples, theregulation imposes an economic penalty on homosexual couples. She states that theCommission's argument that any burden imposed on Mr. Knodel is minimal orinsubstantial is not properly a matter for consideration under s.15; rather, once aburden is imposed, the balancing of interests between the legislature and an individual'srights occurs at the s.1 stage and not within the substantive structure of s.15. 803Significantly, Rowles J. states that legislation that is underinclusive on the basis of adiscriminatory ground -- here, sexual orientation -- is not constitutionallypermissible. 804 She bases this on the statement by Dickson C.J.C. in Brooks v. CanadaSafeway that "underinclusion may be simply a backhanded way of permittingdiscrimination." 805 Thus, in Rowles J.'s opinion, the way underinclusion plays out isas follows:Where the state makes a distinction between two classes ofindividuals, A and B, that has the effect of imposing a greater burden onindividuals within Class B, and if the individuals within Class B fallwithin the class of individuals protected by s.15(1) of the Charter, themanner in which the legislative provision or law is drafted is irrelevantfor constitutional purposes; i.e., it is immaterial whether the subject lawstates: (1) A benefits; or (2) Everyone benefits except B. In both cases,the impact upon the individual within group B is the same. 806A burden placed on an individual solely on the basis of sexual orientation is thus primafacie a breach of s.15. Any answer to the breach must be found in s.1 of the Charter.Moreover, Rowles J. says, in this instance, the distinction made by the regulation is notone based on Mr. Knodel's merit or capacity, 807 an element the Andrews test suggestsmay save a distinction from being considered discriminatory. Further, recalling theevidence of Dr. Myers that 'homosexual people as a group are stigmatized in oursociety', and Wilson J.'s statement in R. v. Turpin, Rowles J. states that Mr. Knodelfalls within a group that constitutes a discrete and insular minority within the meaningof s.15 and thus is protected by the Charter. 808 The purpose of the equality provisionsof the Charter, she says, is to ensure the full participation in society of those who fall171within its ambit. "Therefore, when the government takes on an obligation and providesa benefit, s.15(1) makes denial of the benefit to other groups questionable." 809 In thisinstance, the definition of "spouse" in s.2.01 of the regulations so as to excludehomosexual couples is discriminatory within the meaning of s.15 of the Charter. 810 Nosubmissions were made with respect to s.1 as counsel for the Commission concededthat a definition of "spouse" contrary to s.15 could not be justified. 811Rowles J. next considers the appropriate remedy available pursuant to s.24(1) ofthe Charter. This section statesAnyone whose rights or freedoms, as guaranteed by this Charter, havebeen infringed or denied may apply to a court of competent jurisdictionto obtain such remedy as the court considers appropriate and just in thecircumstances.The purpose of this section is to provide standing to litigants who allege a violation oftheir Charter rights, and to serve a remedial function. The choice of the remedyappropriate is primarily dictated by the nature of the right infringed. Here, aparticularly important Charter right is infringed, one the Supreme Court of Canadastated has a "large remedial component". 812One option is to strike down the definition of "spouse" by declaring it to be ofno force or effect pursuant to s.52(1) of the Charter. The effect of this would be torender an otherwise constitutionally valid provision invalid and result in the denial ofthe benefit to others. In Judge Rowles' opinion, this option goes too far beyondeliminating the inconsistency of the regulation. 813 Rather, an appropriate remedy inthis instance would be a declaration that the definition of "spouse" in s.2.01 of theregulations includes same-sex couples. This is deemed the least intrusive remedy thatis consonant with the remedial aspect of s.15 of the Charter:Active judicial intervention may be appropriate when adistinction is likely to stigmatize or perpetuate discrimination as in this172case. In such circumstances, it is important to consider whether it ismore intrusive to strike the legislation or 'read in' the benefits to theexcluded class. In the present case, it would clearly be far moreintrusive to strike the legislation and deny the benefits to the individualsreceiving them than it would be to extend the benefits to the smallminority who demonstrated their entitlement to them. 814The economic cost of extending benefits to same-sex couples plays a role inRowles J.' s decision. "The Medical Services Plan", she says, "is presently available toall residents of the province. A declaration would not have the effect of adding anyoneto the plan who had not previously been eligible for coverage." 815 Yet the remedialaspect of s.15 and the effect of stigmatization and perpetuation of discrimination areclearly the most significant factors informing this reasoning.What is interesting about Justice Rowles' judgment is not so much the result butthe way in which that result is reached. In order to support a claim of discriminatorytreatment, Mr. Knodel is obliged to submit evidence as to the nature of his relationshipwith his partner, as well as psychiatric evidence of the similarity of homosexual couplesto heterosexual couples and the effect of discrimination on homosexual persons. Suchevidence is completely unnecessary for heterosexual couples applying for spousalbenefits. Indeed, eligibility for medical coverage appears to be something slightlymore than a formality with virtually no investigation into the nature of a potentialsubscriber's relationship with his or her "spouse". Yet homosexual persons face aninvasive search into the most private and personal aspects of their relationships which isthen exposed to judicial testing to substantiate their claim. That this is undertaken inthe name of promoting their dignity and self-worth through the equality provisions ofthe Charter is ironic indeed. More interesting yet is the assumption that heterosexualcouples structure their lives in the manner set forth in the evidence of Mr. Knodel'srelationship. It is simply assumed that heterosexual couples live together, arecommitted to and morally and financially support each other, share joint bank accounts173and title in property, are each others' beneficiary, and hold themselves out as"spouses". Yet it seems likely that many heterosexual couples do not possess theseindicia of a "spousal relationship". Many couples have separate bank accounts, forinstance, hold property separately and, in the case of couples who pursue separatecareers, may not even live together on a permanent basis. Yet there is never anyquestion of denying spousal benefits to these couples lacking stereotypical indicia ofrelationships. In these cases it could be said that homosexual couples appear moreheterosexual than heterosexual couples. In determining eligibility for spousal benefits,the common denominator between homosexual and heterosexual couples is, or shouldbe, an emotional and sexual commitment to share their lives together. The applicationprocess should simply consist of a declaration of such. This would capture the essenceof a spousal relationship, avoid invasive investigations into applicants' private andpersonal lives, and serve to distinguish spousal relationships from those of a non-spousal form, such as siblings or other adults living together who do not share anemotional and sexual commitment.The reasoning in Knodel may be contrasted with that found in Egan v.Canada. 816 In 1987 Mr. Egan applied to the Department of National Health andWelfare on behalf of his same-sex partner, Mr. Nesbit, for a spouse's allowancepursuant to the Old Age Security Act. 817 He was advised that Mr. Nesbit wasineligible for the spouse's allowance because he did not come within the meaningassigned to the word "spouse" in the Act. The word "spouse" is defined in section 2 ofthe Act as follows:s.2. "Spouse", in relation to any person, includes a person of theopposite sex who is living with that person, having lived with that personfor at least one year, if the two persons have publicly representedthemselves as husband and wife.174Mr. Nesbit similarly applied to the Department of National Health and Welfare in 1989for a spouse's allowance, describing Mr. Egan as his spouse in the application. He wasinformed that his application was denied on the basis that he was not the spouse of Mr.Egan as defined by the Act and that he was therefore ineligible to receive a spouse'sallowance. Mr. Egan and Mr. Nesbit applied to the Federal Court of Canada for adeclaration that the definition of the word "spouse" in the Act violated s.15 of theCharter in that it discriminated against them on the basis of sexual orientation.Mr. Egan and Mr. Nesbit had been living together since 1948. They sharedjoint bank accounts, credit cards and property ownership. They appointed each otheras their executors and beneficiaries in their wills. They travelled and took theirholidays together. At one point, they publicly exchanged rings. To their friends andfamilies they referred to themselves as partners. Judge Martin of the Federal Courtalso made this observation:They have never gone through a marriage ceremony, do not introducethemselves as a married couple, wife, husband or spouse, and do notconsider themselves to be a married couple. 818Judge Martin notes the similarity of the evidence in this case with both Knodeland Karen Andrews, where McRae J. of the Ontario High Court of Justice found therewas no spousal relationship because that relationship required the persons to be of theopposite sex. 819 He further notes that Mr. Egan and Mr. Nesbit's claim for a spouse'sallowance pursuant to the Act was denied because, in the view of that program'sadministrators, they, as a homosexual couple, did not come within the definition of"spouse". Thus, he says, "Given the contradictory interpretation by the Courts to themeaning of the word 'spouse' it must be said that there is a serious issue as to thevalidity of interpreting the word so as to exclude from it a single sex couple. H820175Turning to the claim based on s.15 of the Charter, Martin J. draws on thejurisprudence developed by the Supreme Court of Canada in Andrews and Turpin toframe the issue before him as whether "it can be said then that the appellants' [sic]right to equality before the law has been denied with discrimination?" 821 This, in turn,is further narrowed to two questions to be addressed in determining whether a givenlaw infringes s.15:a) does the law distinguish between different individuals or classesof individuals, i.e. has a distinction been created by the law?b) if a distinction is found to have been created by the law is it onewhich gives rise to discrimination? 822Martin J. notes that s.15 prohibits discrimination not only on the enumeratedgrounds within that section, but also on those analogous to the specified grounds. Hefurther notes that counsel for the defendant Government of Canada conceded thatsexual orientation is an analogous ground in s. 15. Thus, if it is shown that theinterpretation of the word "spouse" discriminates against Mr. Egan and Mr. Nesbit, aviolation of s.15 will be established. The defendant will thus be obliged to demonstratethe justification of the violation pursuant to the provisions of s.1 of the Charter. 823As did the Court in Knodel, here Martin J. first attempts to determine whethersexual orientation is included in the term "sex" in s.15. This is rather easily disposedof: relying on the statement in Knodel that sexual orientation is not gender specific noris it a characteristic that affects one gender primarily, 824 Judge Martin holds that Mr.Egan and Mr. Nesbit are unable to rely on that ground as a basis for discrimination tosupport their claim. 825 He then turns to consider whether they are able to usediscrimination on the basis of sexual orientation as a ground to support their claim.176It is at this point that Knodel and Egan part ways. Addressing the first questionin determining whether a law infringes s.15, set out above, Judge Martin agrees withJudge Rowles in Knodel that the definition of the word "spouse" in the Old AgeSecurity Act does indeed create a distinction:The legislation denies the financial benefits, the Spouse's Allowance, tohomosexual couples which benefits are accorded to heterosexual coupleswhere one spouse has reached the age of 65 and the other is between theage of 60 and 65 ... 826Yet, he says, the distinction made by the legislation is not one made on the basis of thesexual orientation of the applicants and thus it does not discriminate against them onthat basis.827The purpose of the legislation, he says, is to provide a benefit to spouses "as theterm is traditionally understood" 828 who live together and publicly representthemselves as husband and wife:Parliament has chosen to address the needs of persons of theopposite sex who live together in a conjugal state, either statutory orcommon law, as husband and wife. This unit has traditionally beentreated as the basic unit of society upon which society depends for itscontinued existence. 829Here the reasoning of Martin J. closely resembles that of McRae J. in Karen Andrews.A homosexual couple who live together do not fall within the meaning of the word"spouse" any more than any other two individuals who live together and who do notpublicly represent themselves as husband and wife. Martin J. equates a homosexualcouple with other "couples" living together such as brother and sister, brother andbrother, sister and sister, two relatives, two friends, or parent and child. All these, hesays, are within the "non spousal couple category. "830 Thus, a homosexual couple,"just as a bachelor and a spinster who live together ... do not fall within the traditionalmeaning of the conjugal unit or spouses." 831 Martin J. further states that while Mr.Egan and Mr. Nesbit's177lifestyle mirrors many of the characteristics or attributes of the spousalgroup ... that does not, in my view at least, bring them within thetraditionally understood meaning of a spousal couple which forms thefundamental building block of any society. 832It is Judge Martin's opinion that Mr. Egan and Mr. Nesbit are ineligible for the spousalallowance not because of their sexual orientation but because their relationship is not aspousal one. 833Judge Martin's reasoning here is circular. He states that a homosexual couplecannot be considered spouses because their relationship is not spousal, not because oftheir sexual orientation. But he fails to consider that the reason theirs cannot be aspousal relationship is because of their sexual orientation. He makes this observation:"I think it is fair to say that had Nesbit been a woman cohabiting with Egansubstantially on the same terms as he in fact cohabited with Egan he would have beeneligible for the Spouse's Allowance." 834 Martin J.'s reasoning is inconsistent with thatin Knodel, where Rowles J. held that the phrase "live together as husband and wife"suggests a particular type of relationship that involves both emotional and sexualaspects. 835 For Rowles J., this specifically excluded such relationships as siblings,relatives or friends who live together but do not share a relationship of the qualityshared by Mr. Egan and Mr. Nesbit. Yet Martin J. ignores this, which suggests heeither fundamentally misunderstood the nature of the applicants' relationship or wassimply unprepared to grant it judicial validity. Focusing on the traditional meaningascribed to the term "spouse", he states that a spousal couple forms the fundamentalbuilding block of any society. He does not indicate why or how this is, nor does heoffer any explanation as to why a homosexual couple does not constitute a buildingblock of society. He notes that one of the elements of a spousal relationship is that thecouple publicly represent themselves as "husband and wife" and that at no time did Mr.Egan and Mr. Nesbit do so. 836 This ought not to be surprising: the term "husband andwife" does not accurately reflect a homosexual couple. Indeed, Mr. Egan and Mr.178Nesbit referred to themselves as "partners". Moreover, they publicly representedthemselves as partners, and at one point exchanged rings. This appears to be more inaccordance with a spousal relationship than that of a bachelor and a spinster who livetogether.It seems Judge Martin failed to grasp the nature of the relationship shared byMr. Egan and Mr. Nesbit. Rather than focusing on the differences between aheterosexual couple and a homosexual couple, he ought to have addressed thesimilarities. As was found in Knodel, the criteria for a spousal relationship of either aheterosexual or homosexual couple should remain the same: a couple living togetherwith an emotional and sexual commitment. Martin J. does not even raise this. As theystand, his reasons do not contribute much to the jurisprudence in this field.One final development in the law of discrimination on the basis of sexualorientation is found in Haig v. Canada. 837 In this case, the applicant, Joshua Birch,was a member of the Canadian Armed Forces from 1985 to 1990. When he informedhis commanding officer that he was homosexual, he was advised of a policy directivethat would prevent him from qualifying for promotions, postings or further militarycareer training. With no career opportunity left to him, he was released from themilitary on medical grounds. Seeking some sort of redress, he attempted to lodge acomplaint under the Canadian Human Rights Act, 838 only to find that discriminationbased solely on sexual orientation was not included in the Act. Section 3(1) of the Atreads as follows:For all purposes of this Act, race, national or ethnic origin,colour, religion, age, sex, marital status, family status, disability andconviction for which a pardon has been granted are prohibited groundsof discrimination.179Birch sought a declaration pursuant to s.24(1) of the Charter that the exclusionof sexual orientation from the Act violates the guarantee of equality rights found in s.15of the Charter. Mr. Birch was not seeking a declaration that he had been the victim ofdiscrimination on the basis of sexual orientation. Rather, he sought the right to put hiscase before an appropriate tribunal convened under the Canadian Human Rights Act.He argued, simply, that if homosexual persons are not included within s.3(1) of theAct, then they, either as individuals or as a group, are not afforded the equal benefit ofthe law as set out in the equality provisions in s.15 of the Charter. No arguments tothe contrary are set forth in the reasons for judgment.The decision of McDonald J. is concise and to the point. It is worth setting outin its entirety:To put the case in its simplest terms, should any Canadian whoperceives discrimination on sexual grounds not have some recourse to alegislative tribunal? If the Charter purports to give him such a right,then is s.3(1) of the Canadian Human Rights Act not under-inclusive,and therefore discriminatory, as being contrary to the guarantee of equalbenefit of the law set out in s.15 of the Charter?I have concluded in the affirmative and I am, therefore, declaringthat the absence of sexual orientation from the list of prohibited groundsof discrimination in s.3(1) of the Canadian Human Rights Act isdiscriminatory as being contrary to the guarantee of equal benefit of thelaw set out in s.15 of the Charter.So far as I am able, I also declare that this decision shall bestayed for a period of sex months from this date or until an appeal hasbeen heard within which time period the existing legislation shall remainin full force and effect. 839As a result, the Act's provision is declared unconstitutional, but continued in effect forsix months or until the hearing of an appeal.McDonald J. 's reasons do not refer to any case law. It may be inferred that thefinding of discrimination based on under-inclusion derives from Dickson C.J.'scomment in Brooks v. Canada Safeway Ltd. that "under-inclusion may be simply a180backhanded way of permitting discrimination." 840 Absent any reliance on caseauthority, this is merely an assumption. Indeed, it is difficult to see how McDonald J.reaches this decision. Yet its implications are sweeping. While several provincesprohibit discrimination on the basis of sexual orientation, 841 its absence in the CanadianHuman Rights Act has been acutely felt. Absent specific protection in the Act,applicants have been unable to raise discrimination on the grounds of sexual orientationin areas beyond the Charter's reach. This has effectively denied protection to thosediscriminated against in such areas as housing, employment, and the provision ofgoods, services, facilities or accommodation available to the general public 842 on thebasis of their sexual orientation. Thus, this judgment may be taken to state that inorder for s.3(1) of the Canadian Human Rights Act to be constitutional, it must includesexual orientation as a prohibited ground of discrimination.EQUALITY RIGHTS AND SAME-SEX SPOUSAL BENEFITS CLAIMSThe Supreme Court of Canada has indicated that the purpose of s.15 of theCharter is to promote the rights and freedoms of the traditionally disadvantaged. 843Integral to this is the notion of the validation of one's dignity and self-worth. This isparticularly crucial in the case of those who have suffered from the effects of invidiousstereotyping and prejudice that has served to rob them of their dignity, self-esteem andsense of belonging in the community. The denial of equality rights to these individualsdooms them to a life of invisibility and invalidity that is discordant with the values of asociety committed to the equality and full participation of all its members. Thepolitically and socially weak and traditionally disadvantaged are identified as the truebeneficiaries of the protections found in s.15. 844 Discrimination, the Court has said,is unacceptable in a democratic society because it epitomizes the worsteffects of the denial of equality, and discrimination reinforced by law isparticularly repugnant. The worst oppression will result from181discriminatory measures having the force of law. It is against this evilthat s.15 provides a guarantee. 845The Court has exhibited varying approaches to the finding of discrimination asevidenced by the distinctions between Justice La Forest's finding in McKinney ofdiscrimination based on imposition of a burden on those over age 65 on the basis ofage, 846 and Justices Wilson and L'Heureux-Dube in the same case, for whomdiscrimination is found in the reliance on prejudice and stereotypical myths that withaging comes incompetence. 847 Central to the decisions of Wilson and L'Heureux-DubeJJ. is the notion that the purpose of s.15 is to promote human dignity 848 and to ensurethat individuals are treated on the basis of their own worth, abilities and merit, and notaccording to external or arbitrary characteristics that serve to restrict individualopportunity. 849 This approach to s.15 looks beyond the formal finding of an inequalityof treatment by the law and delves deeper into the discriminatory aspect of the law andhow its impact is felt by the individual claiming discrimination. The inquiry, then, isvery much concerned not only with the effects of the law on the individual but alsowith the invidious effects of the perpetuation of prejudice and stereotyping.SEXUAL ORIENTATION AND DISCRIMINATIONWith respect to same-sex spousal benefits claims, the Andrews test as developeddictates a two-part investigation to determine whether s.15 of the Charter has beeninfringed by legislation. First, it is necessary to determine whether a claimant is notreceiving equal treatment before and under the law or that the law has a differentialimpact on him or her in the protection or benefit accorded by law. Secondly, theclaimant must also demonstrate that the legislative impact of the law is discriminatoryin that it makes a distinction based on one of the grounds specified in s.15 or on aground analogous to those set out in s.15.182Sexual orientation, while clearly not an enumerated ground within s.15, hasfound judicial recognition as a ground analogous to those set out in the equality rightsprovisions. Judge Dube in Veysey stated that acharacteristic common to the enumerated grounds is that the individualsor groups involved have been victimized or stigmatized throughouthistory because of prejudice, mostly based on fear or ignorance, as mostprejudices are. This characteristic would also clearly apply to sexualorientation ... 850Further, in the Federal Court of Appeal judgment of this case, the Court was formallyinformed that it was now the position of the Attorney General of Canada that sexualorientation is a ground covered by s.15 of the Charter. 851 This is also the positiontaken by the Province of British Columbia in Knodel852 and Egan. 853 Moreover,sexual orientation is a prohibited ground of discrimination in four provinces and oneterritory. 854 This is compelling evidence that discrimination on this basis isunacceptable as discordant with the full and equal participation of all members ofsociety.Set in this light, it is possible to construct a same-sex spousal benefit claim inaccordance with the jurisprudence of both s.15 and s.1 of the Charter. Using the Egancase as an example, this will demonstrate that a correct application of the s.15 test willresult in a finding of discrimination in legislation denying spousal benefits to same-sexcouples, and that such an infringement of equality rights is unsupportable under s. 1.The legislative provisions at issue in Egan was the definition of the word"spouse" in s. 1 of the Old Age Security Act. 855 This was defined so as to excludehomosexual couples from claiming the spousal allowance available pursuant to the Auby limiting spouses to opposite sex partners. 856 Mr. Egan's application for theallowance for his same-sex partner was denied on the basis that his partner was not a183"spouse" as defined by the Act and that he was therefore ineligible to receive a spouse'sallowance. Mr. Egan claimed that the definition of the term "spouse" violated s.15 ofthe Charter in that it discriminated against his same-sex partner on the basis of sexualorientation.At trial, this claim was dismissed by Judge Martin of the Federal Court TrialDivision on the basis that Mr. Egan was not discriminated against on the basis of sexualorientation but because his same-sex partner could not be considered "spouses" as thatterm has been "traditionally understood". 857 A homosexual couple who live together,he said, do not fall within the meaning of the word "spouse" any more than any othertwo individuals who live together and who do not publicly represent themselves ashusband and wife. Martin J. equates a homosexual couple with other "couples" livingtogether such as brother and sister, brother and brother, sister and sister, two relatives,two friends, or parent and child. All these, he said, fall within what he terms the "non-spousal couple category". 858 Thus, a homosexual couple, "just as a bachelor and aspinster who live together ... do not fall within the traditional meaning of the conjugalunit or spouses." 859 It is thus Martin J.'s opinion that Mr. Egan and his partner areineligible for the spousal allowance not because of their sexual orientation but becausetheir relationship is not a spousal one. 860Viewing these reasons in light of the Andrews test and the jurisprudencedeveloped on sexual orientation, it may be seen that Egan was wrongly decided. Thereis no difficulty with the first aspect of the s.15 analysis. The effect of the legislation isto deny homosexual couples a benefit accorded to heterosexual couples. This aspect ofthe test is satisfied rather easily. It is in the second aspect of the test, the finding ofdiscrimination, that Martin J. misinterprets the law.184His reasoning on the discriminatory aspect of the law is circular. He states thata homosexual couple cannot be considered spouses because their relationship is notspousal, not because of their sexual orientation. What he fails to consider is that thereason theirs cannot be a spousal relationship is because of their sexual orientation. Hestates that Mr. Egan and his partner cannot be considered spouses as that term is"traditionally understood". This suggests an unwillingness on Judge Martin's part tolook beyond the bare and formal interpretation of that word or to consider it in anylight other than that of tradition. Yet such a stance virtually assures the continuedreliance on entrenched and stereotypical assumptions that s.15 is committed toovercoming. Judge Martin's reasoning may thus be seen as ironic indeed. JusticeWilson comments that the purpose of the equality guaranteeis the promotion of human dignity. This interest is particularlythreatened when stereotype and prejudice inform our interactions withone another, whether on an individual or collective basis. It is for thisreason that the central focus of the equality guarantee rests upon thosevehicles of discrimination, stereotype and prejudice. 861She makes this further statement emphasizing s.15's role in promoting human dignityand ameliorating the effects of prejudice:... if the guarantee of equality is to mean anything, it must at least meanthis: that wherever possible an attempt be made to break free of theapathy of stereotyping and that we make a sincere effort to treat allindividuals, whatever their colour, race, sex or age, as individualsdeserving of recognition on the basis of their unique talents and abilities.Respect for the dignity of every member of society demands no less.(emphasis in original). 862It is difficult to see how the denial of a spousal benefit claim to a homosexualcouple could be based on anything but the personal characteristic of sexual orientation,particularly in light of the frank admission that the claim would have been successfulhad Mr. Egan's partner been of the opposite sex. 863 Such a denial of a benefit basedon a personal characteristic brings it squarely within the ambit of s.15's protection, asthe Supreme Court of Canada has stated. 864 There can be no question but that185homosexual persons fall within the range of the politically and socially weak andtraditionally disadvantaged that the Supreme Court has identified as the beneficiaries ofthe protection afforded by s.15. Homosexual persons have for too long been subject tostereotyping and prejudice. 865 There can be no doubt that they are the object of socialprejudice based on their personal or group characteristics, often taken to extrememanifestations. In its least intrusive form this prejudice may mean treatment as a socialpariah. In its most intrusive form it can often mean a threat to one's physical security.Newspapers too often report violent assaults on homosexual persons and are a frequentforum for the expression of opinion that is decidedly homophobic. 866 It is trite tosuggest that people ought not to be subject to this type of treatment. This is one of theinterests s.15 is designed to protect.One further observation concerning Judge Martin's reasoning in Egan: Hedenies spousal benefits on the basis that Mr. Egan and his partner do not fall within thetraditional meaning of the "conjugal unit" or spouses any more than a "bachelor orspinster", brother and brother, sister and sister, two relatives, two friends or parent andchild who live together and do not represent themselves as husband and wife. What hemeans here, of course, is that Mr. Egan and his partner are not the same as"traditional" spouses. That is, they are simply different, and not similarly situated totraditional conjugal units. This reliance on the similarly situated test in untenable. TheSupreme Court of Canada expressly rejected this test as an inappropriate one forfounding equality rights claims. 867 The apparent re-emergence of this test in Rudolph Wolff868 may be explained either as an aberration on the part of the Court or aspointing to the difference between corporate and individual claimants under s.15. Forindividuals claiming a violation of their equality rights, the focus is very much ondignity and self-worth. The same cannot be said of corporations.186It is difficult to see how a denial of a same-sex spousal benefit can be anythingbut a violation of one's dignity and self-worth. Such a denial perpetrates the stigma ofhomosexual persons as undeserving of the equal benefit of the law and full participationin society. It entrenches stereotypical myths of the "deserving" and "undeserving".Lack of judicial recognition of same-sex relationships as equal to heterosexualrelationships serves to invalidate homosexual relationships and thus forces officiallysanctioned invisibility upon these members of society. This can hardly be said topromote the full and equal participation of all members of the community.THE JUSTIFICATION OF LIMITATIONS OF CONSTITUTIONALLYPROTECTED RIGHTS AND FREEDOMSOnce the discriminatory denial of a benefit of the law is made out, it is thennecessary to determine if the infringement can be justified pursuant to s. 1 of theCharter.OBJECTIVES OF THE LEGISLATION MUST RELATE TO PRESSING ANDSUBSTANTIAL CONCERNSA Charter infringement can only be upheld under s. 1 if, at a minimum, itrelates to genuinely substantial concerns. Thus, the first step is to consider whether theobjective of the impugned legislation relates to concerns that are pressing andsubstantial in a free and democratic society. As the jurisprudence has indicated, thisaspect of the s. 1 test is relatively easily met, with the notable exceptions of JusticesMcIntyre in Irwin Toy, 869 Wilson in Stoffmano° and the Dairyworkers case, 871L'Heureux-Dube in Stoffman 872 and Chief Justice Dickson in the AlbertaReference, 873 all in dissenting reasons.187It should be noted that in Knodel counsel for the Province of British Columbiaconceded that if the definition of "spouse" infringed s.15 of the Charter, it could not bejustified under s.1 of the Charter. 874 Yet in both Veysey and Egan the Courtconcluded that if a violation of s.15 is made out, resort to s.1 is necessary. 875In Egan the objective of the spouse's allowance pursuant to the Old AgeSecurity Act was stated in the following terms:It is to ensure that when a couple is in a situation where one of thespouses has been forced to retire, and that couple has to live on thepension of a single person, that there should be a special provision, whenthe breadwinner has been forced to retire at or after 65, to make surethat particular couple will be able to rely upon an income which wouldbe equivalent to both members of the couple being retired [at] 60 yearsof age and over. 876The focus of the legislation, then, is on alleviating the financial burdens placed onelderly couples. The question to be addressed, however, is whether alleviating thefinancial burdens placed on elderly couples constitutes a sufficiently important objectiveto warrant overriding the equality rights of Mr. Egan and his partner. There can belittle doubt that the legislative objective is of some significance. Yet it is questionablewhether this desirable goal is furthered by denying Mr. Egan's same-sex partner abenefit the Court admits he would receive if he were of the opposite sex. Indeed, indenying Mr. Egan the spouse's allowance, the effect is exactly that which thelegislative objective seeks to avoid. It is also important to consider the purpose of theequality rights provisions in light of the legislative objectives. If s.15 is to serve toenhance and promote human dignity and self-worth and to alleviate stereotype andprejudice, the legislative objectives overriding this must be significant indeed. Theeffect of denying the spouse's allowance to same-sex couples thus appears to becontrary both to the principles of s.15 and the objectives of the legislation. Indeed, thedirect effect would appear to be diametrically opposed to the purported purpose. Mr.188Egan and his partner are denied a benefit calculated to alleviate the financial burdensplaced upon them as an elderly couple, and are faced with the continuing prejudicialand stereotypical assumption that a homosexual couple cannot be considered "spouses".This must surely be considered an affront to their dignity and self-worth. It must bequestionable, then, whether the objectives in providing the spouse's allowance are ofsufficient importance to warrant overriding the right to equality in s.15.RATIONAL CONNECTIONIf the objective may be considered of sufficient importance to warrantoverriding the equality rights of Mr. Egan and his partner, it is still necessary toconsider the proportionality aspect of the s. 1 test. The first part of this test is aconsideration of whether the legislation is rationally connected to the objective. It mustbe remembered that the legislation must be "tailored to suit its purpose" 877 such that itcannot be arbitrary, unfair or based on irrational considerations.With respect to the spouse's allowance, the legislature was justified in focussingon the financial plight of elderly couples. The abrupt decline in income suffered whena spouse retires, combined with the fact that the elderly are frequently on inadequatepensions, makes the availability of a spouse's allowance especially relevant. At least inthis respect, the legislation is rationally connected to its objectives. Yet is important tobear in mind Justice Wilson's warning in Stoffman that the rational connection aspectof the proportionality test serves an important function and should not be forgotten. 878The purpose of this stage, she says, is to examine whether there is logic in thegovernment's pursuit of its aims. These comments are particularly significant giventhat often the rational connection appears almost as an afterthought" or is blended intothe minimal impairment discussion. 880189What may be problematic with respect to the rational connection aspect of theproportionality test in this instance is that if the federal government has perceived thatelderly couples are in need of financial assistance, it seems reasonable to exclude otherunmarried heterosexual people such as brothers, sisters and cousins. Yet surely asame-sex homosexual couple with one partner retiring faces the same problems as aheterosexual elderly couple. An elderly homosexual couple facing a reduced incomethrough retirement is denied a benefit accorded to its heterosexual counterpart. Itwould appear that the scope of the legislation is simply not wide enough. Perhaps thedrafters of the legislation were concerned that by providing too wide a scope ofapplication the program would become overburdened by applicants seeking the spouse'sallowance on behalf of their partners, and thus sought to limit eligibility to spouses. Itwould therefore seem reasonable to exclude other individuals not living in a spousalrelationship. But the difficulty in this "floodgates" analogy is that the gates havealready been opened: surely there are far more heterosexual common law couplesseeking the benefit accorded by the spouse's allowance than would homosexual couplesif the benefit was available to them. Heterosexual couples, both married and commonlaw, who are in financial need due to the retirement of one partner, are able to obtain abenefit denied to homosexual couples in financial need due to the retirement of onepartner: if the limiting of a benefit designed to alleviate the burdens placed on elderlycouples by the retirement of one partner to heterosexual couples only is not arbitrary, itis certainly unfair. Indeed, the limitation of the benefit appears based on the irrationalconsideration that homosexual couples cannot be considered spouses. Both Veysey andKnodel suggest otherwise. The conclusion that homosexual couples cannot be spousesappears based upon stereotypical assumptions of "the traditionally understood meaningof a spousal couple". 881 In both Knodel and Egan the Court reviews evidence of therelationship shared by same-sex couples. In both instances this evidence reveals that190the relationship between same-sex couples is remarkably similar to that of heterosexualcouples. What is significant to note is the degree to which homosexual couples areobliged to "prove" their relationship, while such evidence is completely unnecessary forheterosexual couples applying for spousal benefits. Homosexual persons face aninvasive search into the most private and personal aspects of their relationship, which isthen exposed to judicial weighing to substantiate their claim. That this is undertaken topromote their dignity and self-worth through the equality provisions of the Charter isironic indeed, particularly in light of Chief Justice Dickson's comment in EdwardsBooks that "state sponsored inquiries" should be avoided wherever possible "since theyexpose an individual's most personal and private beliefs to public airing and testing in ajudicial or quasi-judicial setting. H882More interesting yet is the assumption that heterosexual couples structure theirlives in the manner set forth in the evidence in Knodel and Egan. It is simply assumedthat heterosexual couples live together, are committed to and morally and financiallysupport each other, share joint bank accounts, credit cards, title in property, are eachothers' beneficiary and hold themselves out as "spouses". Yet it seems likely thatmany heterosexual couples do not possess these indicia of a "spousal relationship".Many couples have separate bank accounts and credit cards, for instance, hold propertyseparately and, in the case of couples who pursue separate careers, may not even livetogether on a permanent basis. Yet there is never any question of denying spousalbenefits to these couples lacking stereotypical indicia of relationships. In these cases itcould be said that homosexual couples appear more heterosexual than someheterosexual couples.In determining eligibility for spousal benefits, the common denominatorbetween heterosexual and homosexual couples is, or ought to be, an emotional and191sexual commitment to share their lives together. The application process should simplyconsist of a declaration of such. This would capture the essence of a spousalrelationship, avoid invasive investigations into private and personal lives, and serve todistinguish spousal relationships from those of a non-spousal nature, such as siblings orother adults living together who do not share an emotional and sexual commitment.The latter would be excluded from spousal benefits because they are not spouses in thesense that heterosexual and homosexual couples are, not would they want to be. Thedistinguishing feature between couples and people sharing living space together is thedegree of emotional and sexual commitment that couples share. The nature of therelationship is fundamentally different. Couples characteristically think of themselvesas family; roommates may as well, but are seldom legislatively sanctioned as such.Hence the difference in treatment between couples and "other unmarrieds". The denialof a spousal benefit to homosexual couples that is available to heterosexual couplesappears not only to be illogical and based on irrational considerations, but is alsoarbitrary and unfair. It would appear that the rational connection between thelegislative means and its objective is not made out.MINIMAL IMPAIRMENTIf the nexus between the legislative objectives and means is, in fact, so carefullydesigned that it meets the rational connection test, the next step in the proportionalitytest is to consider whether the means impair as little as possible the equality rights ofMr. Egan and his partner. The jurisprudence on s.1 has revealed that this aspect of theinquiry receives the most attention.It is clear that the minimal impairment test has been subject to varying degreesof scrutiny in its application. Perhaps most significant has been the devolution of the192requirement that the legislative measure impair the affected right by the least possiblemeans. Initially developed in Big M Drug Mart and Oakes, this particular aspect atone time triggered a judicial investigation into whether there was some reasonablealternative scheme which would allow the government to achieve its objective withfewer detrimental effects on the constitutionally guaranteed right or freedom, assuggested by Chief Justice Dickson in Edwards Books. 883 The implication there wasthat an alternative scheme must be equally effective as the means actually chosen 884 andthat a serious attempt must be made to minimize the adverse effect of legislation onthose whose rights are infringed. 885 Failure to adequately ensure the minimal adverseeffects of legislation infringing employees' right to strike caused Dickson C.J. to findthis aspect of the s. 1 test had not been met in his dissenting opinion in the AlbertaReference. 886 A finding of other, less drastic means of accomplishing the legislativeobjective was instrumental in the dissenting opinion of Wilson J. in Edwards Books, 887the Dairyworkers case, 888 McKinney889 and Stoffman. 890 Justice L'Heureux-Dubemade similar findings in McKinney891 and Stoffman. 892Irwin Toy signals a significant departure from the necessity of an equallyeffective lest drastic means of achieving the legislative objective. In this case the Courtis content to find that the government has met the minimal impairment test so long as itdemonstrates it had a reasonable basis for concluding the legislation impairs rights orfreedoms as little as possible given its objectives. 893 This standard was also applied inthe majority decisions in Butler, 894 McKinney895 and Stoffman. 896 The "reasonablebasis" standard appears a good deal less stringent than the "least restrictive means" testarticulated earlier. It seems to remove from judicial scrutiny any serious inquiry intothe impact of the legislation infringing rights or freedoms once the government hasdemonstrated that its conclusions that the right is impaired as little as possible isreasonable. Indeed, the Court appears unwilling to look behind the reasonableness of193the claim. This is demonstrated particularly well in the contrast between Justices LaForest's and Wilson's opinions in McKinney. For La Forest J., the inquriy ends withthe determination that mandatory retirement at age 65 can be reasonably supported.Yet for Wilson J., the inquiry begins here. Looking beyond this finding, shedetermines that mandatory retirement policies adversely affect women and non-unionized workers who have much to lose when obliged to retire. The existence ofequally effective alternative means of achieving the objectives sought by mandatoryretirement causes the policies to fail the minimal impairment test.Reducing the level of scrutiny from the least drastic means to the reasonablebasis standard also seems to shift the onus for determining the reasonableness of theimpairment of a right to the government -- usually the party seeking to uphold alimitation on a right or freedom. It is possible this may be perceived as somewhatbiased or unfair.This reduced standard points to an increasing deference on the part of the Courtwhere democratically elected representatives have made choices on the distribution ofscarce resources between competing groups, as articulated by La Forest J. inMcKinney897 and Stoffman. 898 It is significant to note that Wilson J. in McKinneysuggested that the Court should exercise deference particularly where the legislature hassought to promote or protect the interests of the less advantaged or vulnerable membersof society. 899 Absent these legislative aims, it is open to suggest that the higher, lessdeferential standard of least drastic means ought to be employed in considering whetherlegislation impairs rights as little as possible.Curious as well is the apparent decline in the nature and quality of the evidencenecessary to establish that rights have been minimally impaired. In Jones, for instance,194the majority upheld provincial legislation despite the fact that the province did nottender any evidence that the compelling objective of the legislation could beaccomplished by other, less drastic means. 900 Indeed, this point was the focus of thedissenting opinion in that case."' Further, the dissenting reasons of Dickson C.J. inthe Alberta Reference squarely address the lack of evidence tendered by thegovernment that all work covered by the legislation in question was essential. 902Similarly, in the Dairyworkers case, Wilson J., in dissent, was unable to acceptarguments of economic harm and harm to the communities' health absent compellingevidence. 903 In Butler, the evidence relied on to support the finding of minimalimpairment was tenuous at best. Sopinka J. defended his abstract definition ofobscenity on the grounds that "the intractable nature of the problem ... [made] thepossibility of a more explicit provision remote" .904 Yet his definition is replete withterms that do not lend themselves to easy definition or determination. To seek anabstract definition of obscenity appears to ensure a certain level of indeterminacy. TheCourt made it clear in Irwin Toy and Butler that in applying the more deferentialstandard of the minimal impairment test it will not "take a restrictive approach to socialscience evidence and require legislatures to choose the least ambitious means to protectvulnerable groups." 905 Yet its next statement in that case is that "[t]here mustnevertheless be a sound evidentiary basis for the government's conclusions." 906 Itseems in some cases the Court does not follow its own directives.Relating these concerns back to the denial of a spouse's allowance to Mr.Egan's same-sex partner, it can be demonstrated that the equality rights of Mr. Eganand his partner were not impaired as little as possible.The Supreme Court of Canada has indicated that the higher, more deferentialstandard that the government need only demonstrate it had a reasonable basis for195concluding that rights were minimally impaired ought to be applied in cases wheredemocratically elected representatives have made choices on the distribution of scarceresources between competing groups, and particularly where the legislature has soughtto promote or protect the interests of disadvantaged groups and vulnerable members ofsociety.No evidence was tendered in Egan to demonstrate that Parliament explicitlychose to confer a benefit on financially vulnerable heterosexual couples only. Indeed,it is possible that Parliament simply failed to consider financially vulnerablehomosexual couples at all. It is possible this omission was simply one based on a lackof awareness rather than a deliberate attempt to exclude this group from the benefit ofthe spouse's allowance. There is certainly no evidence to suggest otherwise. If thepurpose of the spouse's allowance is to protect the vulnerable, here, elderly couplesfacing the retirement of one partner, the legislation is underinclusive in that it fails toprotect a segment of the group at which the legislation is aimed. The Supreme Courtof Canada has stated that underinclusion may simply be a backhanded way ofpermitting discrimination and is thus constitutionally suspect. 907 More problematic,though, is that in this case it may not be said that there exists competition betweensocial groups for the allocation of scarce resources. Parliament has already made acommitment to provide a benefit to vulnerable members of society. In deciding todistinguish between "spouses" and "non-spouses" in terms of eligibility for the benefit,it failed to consider all elderly couples in financial hardship due to the retirement of onepartner. Indeed, it may be argued that an elderly lesbian couple facing retirementwould suffer considerably greater hardship than an elderly heterosexual couple, givenwomen's lower income and pension levels, as stated in McKinney. 908 There is adifference between explicitly deciding to exclude a group and simply failing to considerit. There does not appear to be any evidence that Parliament explicitly considered two196competing groups for the allocation of scarce resources. In its decision to confer abenefit on the elderly, Parliament chose to distinguish between "spouses" and "non-spouses". In failing to include elderly homosexual couples within the meaning of theterm "spouse", Parliament failed to consider this group, rather than having consideredan rejected its eligibility for the benefit available. Thus, the higher, more deferentialstandard set out in Irwin Toy, McKinney and Stoffman ought not to apply to theminimal impairment aspect of the proportionality test.In any event, it is difficult to see how Parliament could have reasonablyconcluded that the denial of the spouse's allowance impaired the equality rights ofhomosexual couples as little as possible absent the "sound evidentiary basis" Irwin Toystates is necessary for the government's conclusions. 909 It is important to rememberthat the Court does not always follow its own instructions with respect to theevidentiary basis needed to substantiate the government's conclusions, as was shown inJones where no evidence was tendered demonstrating that the governmental objectivecould be established by other, less drastic means. It is possible to distinguish Jones onthe basis that the compelling objective of the legislation was the education of youngpeople, an objective of such patently obvious importance as to obviate the need forordinary proof. Indeed, La Forest J., in his majority opinion, suggests as much. 910Similarly, the evidence relied on to support the governmental objectives of thelegislation in question in Butler and the Dairyworkers case could be described astenuous indeed, a point that did not escape the attention of the dissenting opinion in thelatter case.Yet is is significant to note that there is a difference between a "soundevidentiary basis" (Irwin Toy), "some evidence" (the Alberta Reference), "tenuousevidence" (Butler and the Dairyworkers case) and no evidence at all in the absence of197judicial notice of the importance of a governmental objective (Jones). It seems difficultto argue that Parliament's conclusion that the equality rights of elderly homosexualcouples were impaired as little as possible could be a reasonable one absent anyevidence that this group was considered at all. Surely, in order for a conclusion tohave a "reasonable basis", some evidence must be required, without which thatparticular term becomes meaningless. The term "reason" connotes a degree of logicaland rational consideration. It cannot be established that homosexual couples weregiven any such consideration in the determination for eligibility for the spouse'sallowance, and thus it cannot be said that Parliament's conclusion that their equalityrights were impaired as little as possible by their ineligibility for the benefit is areasonable one. It may be said, therefore, that even in applying the more deferentialstandard of "reasonable basis" in denying eligibility for the spouse's allowance, theequality rights of homosexual couples have not been impaired as little as possible.Even applying the higher, "least drastic means" standard of the minimalimpairment test will result in the conclusion that the denial of the spouse's allowance tohomosexual couples cannot be sustained under s. 1. This formulation of the testsuggests that the legislative measure must impair the affected right by the least possiblemeans, and will trigger an investigation into whether there exists some reasonablealternative scheme that would allow the government to achieve its objective with fewerdetrimental effects on the infringed right or freedom. 911 The alternative scheme mustbe equally as effective as the means actually chosen. 912 Further, there must be aserious attempt made to minimize the adverse effect of the legislation on those whoserights are infringed. 913The context in which this s.1 analysis is being considered must be remembered.In Andrews, Justice McIntyre stated that the purpose of s.15198is to ensure equality in the formulation and application of the law. Thepromotion of equality entails the promotion of a society in which all aresecure in the knowledge that they are recognized at law as human beingsequally deserving of concern, respect and consideration. It has a largeremedial component - 914Wilson J. in Andrews added that the politically and socially weak and the traditionallydisadvantaged are the true beneficiaries of the protection of s.15. 915 She further statedthat it is necessary to examine politically vulnerable groups within the context of. the entire social, political and legal fabric of our society. Whilelegislatures must inevitably draw distinctions among the governed, suchdistinctions should not bring about or reinforce the disadvantage ofcertain groups and individuals by denying them the rights freelyaccorded to others.I believe also that it is important to note that the range of discreteand insular minorities has changed and will continue to change withchanging political and social circumstances. For example, Stone J.,writing in 1938, was concerned with religious, national and racialminorities. In enumerating the specific grounds in s.15, the framers ofthe Charter embraced these concerns in 1982 but also addressedthemselves to the difficulties experienced by the disadvantaged on thegrounds of ethnic origin, colour, sex, age and physical and mentaldisability. It can be anticipated that the discrete and insular minorities oftomorrow will include groups not recognized as such today. It isconsistent with the constitutional status of s.15 that it be interpreted withsufficient flexibility to ensure the 'unremitting protection' of equalityrights in the years to come. 916She further pointed out in Turpin the importance of the "larger social, political andlegal context" within which "discrimination on grounds relating to the personalcharacteristics of the individual or group" 917 occurs:... Mt is only by examining the larger context that a court can determinewhether differential treatment results in inequality or whether,contrariwise, it would be identical treatment which would in theparticular context result in inequality or foster disadvantage. A findingthat there is discrimination will, I think, in most but perhaps not allcases, necessarily entail a search for disadvantage that exists apart fromand independent of the particular legal distinction being challenged. 918(emphasis added)She noted there that s.15 serves to remedy or prevent "discrimination against groupssuffering social, political and legal disadvantage in our society" 919 and that the indiciaof discrimination included "stereotyping, historical disadvantage or vulnerability to199potential and social prejudice." 920 These are clear signals that the Court is prepared toactively promote the rights of the historically disadvantaged to ensure that thoseindividuals or groups who have been denied any of the equalities of s.15 are not deniedtheir rights by operation of the law. Section 15 is thus not merely about "anti-discrimination"; 921 rather, it has an active and progressive element that seeks toameliorate disadvantage by asserting rights against the relatively advantaged. In thissense s.15 may be seen as not merely maintaining the status quo but actively workingto overcome it.Justice Wilson expanded her view of the purpose of s.15 in McKinney. Thefocus, she states, is clearly on prejudice and stereotype:The purpose of the equality guarantee is the promotion of humandignity. This interest is particularly threatened when stereotype andprejudice inform our interactions with one another, whether on anindividual or collective basis. It is for this reason that the central focusof the equality guarantee rests upon those vehicles of discrimination,stereotype and prejudice. 922For Justice L'Heureux-Dube, the fundamental values of s.15 are "the protection andenhancement of human dignity, the promotion of equal opportunity, and thedevelopment of human potential based upon individual ability." 923 This was furtherdeveloped by Wilson J. in Stoffman, where she stated:In discrimination claims of the kind involved here, if the guarantee ofequality is to mean anything, it must at least mean this: that whereverpossible an attempt be made to break free of the apathy of stereotypingand that we make a sincere effort to treat all individuals, whatever theircolour, race, sex or age, as individuals deserving of recognition on thebasis of their unique talents and abilities. Respect for the dignity ofevery member of society demands no less. 924(emphasis in original)This emphasis on dignity and the invidious effects of stereotype was picked upby Rowles J. in Knodel, where she stated that200the rights enumerated in [s.15] signify rights according human dignity.The respect for the individual person means respect for the unique anddiverse character of every human person. This implies a large degree oftolerance within a pluralistic society. Discrimination is abhorrentbecause it treats individuals as abstractions rather than individuals.Personal qualities are lost in the group stereotype. 925In these passages may be heard the echoes of the European sentiment of theright to respect for one's private life and its concomitant right to fulfillment of one'spersonality in a manner that is officially validated. The emphasis on respect and humandignity in the Canadian cases clearly points to judicial validation of individuals who fortoo long have lived in the shadow of stereotype and prejudice. Legislation that has theeffect of denying equality rights thus serves to entrench stereotype and prejudice and isan affront to the principle of human dignity and self-worth.Relating this back to the minimal impairment aspect of the s.1 test, it may beseen that the denial of a spouse's allowance to homosexual couples does not impairtheir equality rights as minimally as possible. It cannot be said that a serious attempthas been made to minimize the adverse effects of the legislation on those who rightshave been infringed because there is no evidence whatever of the interests ofhomosexual couples being considered at all. If they have not been considered, it is notpossible to suggest that a serious attempt to minimize adverse effects on them has beenmade. While it is true that the Supreme Court of Canada has not always followed itsown directives with respect to the evidence that the legislature considered less drasticmeans of impairing rights, Irwin Toy suggested that such evidence must be sound. 926In this case, this is simply non-existent. In Jones, legislation was upheld despite avirtual lack of evidence that the governmental objective could be accomplished byother, less drastic means. 927 Jones may be distinguished on the basis that the objectiveof educating young people was of such patently obvious importance that no evidencewas required. The failure to consider elderly homosexual couples' eligibility for the201spouse's allowance more reasonably points to their invisibility rather than a consciousdecision to exclude. This invisibility is precisely the focus of the remedial aspect of theequality rights in s.15. Homosexual couples suffer not only from stereotypicalassumptions (they don't exist) and prejudice (they don't deserve benefits), but alsofrom a lack of visibility and judicial recognition that directly impairs their sense ofdignity and self-worth. Decisions such as that by the Ontario High Court in KarenAndrews and the Federal Court of Appeal in Mossop serve to suggest that homosexualpersons are somehow undeserving of the benefits so easily accorded their heterosexualcounterparts. In denying benefits, these decisions rely on, validate and perpetuatestereotypes and prejudices that directly attack homosexual people's dignity, respect andself-worth. It would be ironic indeed if this were considered a minimal impairment ofthe equality rights of homosexual persons. In fact, such a finding flies directly in theface of the very purposes of s.15. It cannot be said that a finding that completelyeviscerates the fundamental purposes of a right nevertheless constitutes a minimalimpairment of that right.A reasonable alternative scheme that would allow the government to achieve itsobjective of alleviating the financial hardship faced by elderly couples when one partnerretires, exists. This alternative is to simply extend the spouse's allowance to elderlyhomosexual couples as well. This would allow the government to achieve its objectivewith no detrimental effects on homosexual persons whose equality rights have beeninfringed by the denial of the benefit. The term "spouse" in s.2 of the Old AgeSecurity Act could be interpreted to include two individuals who express an emotionaland sexual commitment to share their lives together. This would capture the essence ofa spousal relationship and serve to distinguish spousal relationships from those of anon-spousal nature, such as siblings or other adults living together who do not share anemotional and sexual life commitment. Moreover, such a definition would thus avoid202invasive investigations into applicants' private and personal lives, a procedure deemedundesirable by Chief Justice Dickson in Edwards Books. 928The financial cost of extending the spouse's allowance to homosexual coupleswould not be so great as to be considered so prohibitive as to justify the limitation ofhomosexual persons' equality rights, as suggested in Singh. 929 In McKinney andStoffman Justice L'Heureux-Dube made the observation that the financial burden ofallowing workers past 65 to continue working rather than face mandatory retirement isnot onerous given the small number of individuals who would choose to do so. 93'3 Thesame argument may be made with respect to the extension of spousal benefits tohomosexual couples with even greater conviction. It may be fair to say that there arefar more workers facing retirement in Canada than there are homosexual persons livingin spousal relationships. Estimates place the number of homosexual persons atapproximately ten percent of the population, not all of whom are living in committedspousal relationships. Of that number, some may not wish to apply for spousal benefitsfor reasons of their own. Thus, it could be said that the increased cost to thegovernment in extending eligibility for the spouse's allowance to homosexual coupleswould not be great. It should be remembered that cost arguments usually do not statethat funding for a particular program is a prohibitive burden itself; rather, the argumentstates that the funding is an excessive burden given prevailing resource allocations. 931However, in rejecting this argument the Court indicated that the government cannotescape "Charter commitments by failing to fund a particular department or programmesufficiently to meet constitutional standards."932 This implies that constitutionallyguaranteed rights, including, here, equality rights, must receive higher priority in thedistribution of financial resources than non-constitutional rights. Clearly this hassignificant meaning to traditionally disadvantaged groups who have experienceddifficulty gaining access to resources and programs. The constitutional guarantees set203204forth in the Charter cannot be abridged by the government resorting to arguments ofgreater cost.The alternative of extending the spouse's allowance to homosexual coupleswould enable the government to achieve its objective of alleviating the financialhardship imposed on elderly couples facing retirement even more effectively thanrestricting it to heterosexual couples only. By extending the benefit, all elderly couplescould be assisted. By restricting eligibility for the benefit, the government succeededin failing to assist a small but significant number of potential applicants. Such anomission is contrary to the principles of the equality guarantees in s.15.Given the foregoing, it cannot be said that the denial of the spouse's allowanceto homosexual couples represents a minimal impairment of their equality rights.DELETERIOUS Et li ECTSFinally, there must be proportionality between the effects of the legislationresponsible for limiting the equality rights of homosexual persons and the governmentalobjective. The greater the deleterious effect of the measure, the more important theobjective must be in order to survive at the s.1 stage.The effect of the denial of the spouse's allowance to homosexual couples is tocontinue an economic burden on them that is specifically alleviated for heterosexualcouples. Parliament clearly considered the financial hardship of elderly couples facingretirement to be of such significant concern that it created a spouse's allowance to helpalleviate it. The financial hardship faced by elderly homosexual couples should be noless significant, and arguably even more so for elderly lesbian couples whose incomesand pensions are usually significantly lower than their male counterparts'.Perhaps more significant is that the denial of spousal benefits to homosexualcouples represents a serious affront to their dignity, respect and self-worth. If thepurpose of equality rights is to promote and enhance human dignity and respect, it isdifficult to imagine that legislation having exactly the opposite effect could beconsidered anything but disproportionately effective. It seems incongruous that s.15can be used to actively promote the dignity of the socially and historicallydisadvantaged while s. 1 may be used to sustain legislation that serves to invalidate it.More significant yet is that the effect of the denial of the spouse's allowance tohomosexual couples is to reinforce and perpetuate prejudice, stereotype anddisadvantage. The decisions in Karen Andrews, Mossop in the Federal Court and Eganserve to reinforce the idea that homosexual persons are undeserving or unworthy of thebenefits so easily accorded others. This only serves to entrench social views of them as"others". The value-laden language used in Mossop is particularly revealing of this,and suggestive of the judgmental terms used to describe homosexual persons in theEuropean Human Rights Commission's findings in X. v. Federal Republic ofGermany. 933 The denial of spousal benefits judicially validates and reinforcesinvidious stereotypes of homosexual persons incapable of spousal or familialrelationships. That such decisions are themselves based on stereotypical assumptionsthat homosexual persons cannot have spousal or familial relationships reveals the depthof prejudice against them. Continued denial of spousal benefits will only serve tofurther entrench stereotypical assumptions about, prejudice against and disadvantage ofhomosexual persons.205These deleterious effects fly directly in the face of the purpose and focus of theequality provisions in s.15 of the Charter. Rather than enhance human dignity andrespect, they deny it; rather than promote tolerance in society, they impede it; ratherthan ensure self-worth, they invalidate it.Relating these comments back to the denial of a spouse's allowance to Mr.Egan's same-sex partner, it may be seen that this constitutes an infringement of theirequality rights that cannot be supported under s.1 of the Charter.CONCLUSIONIncluding same-sex couples within the meaning of spouse would accomplishmore than the extension of the equal benefit of the law to a hitherto disadvantagedgroup. Equally importantly it would serve to publicly validate homosexual personsthrough official recognition and sanction of their relationships and sexuality. In thissense, a successful s.15 challenge to legislation that discriminates on the basis of sexualorientation would be consonant with the European right to respect for one's private lifeand its dual aspects: to establish and develop emotional and sexual relationships andthus fulfil one's personality and identity, and the corresponding right to governmentrecognition of one's private life -- including one's sexuality -- in the public sphere.This latter aspect of public recognition is particularly critical, for a right without apublic identity is tantamount to no right at all. Public recognition is all the moreimportant when one's identity has been subject to legislative and social invalidation fortoo long. The groups and interests society is willing to protect through itsconstitutional guarantees of equality says much about the nature of the society and whatit aspires to, as does an examination of the groups and interests a society will notprotect. The Charter is a signal that this society is committed to the protection and206promotion of the equal rights of all citizens and particularly to the promotion of therights of the traditionally disadvantaged and socially prejudiced. Homosexual personsclearly suffer all the evils of prejudice, yet it is naive to believe that mere public andofficial recognition will change attitudes. However, this is an important step towardsthe full and equal participation of all persons in society. The participation of thegovernment and courts in this journey is crucial, for the government defines and thecourts defend the rights that collectively constitute society's aspirations. We look toour governments and courts as role models to promote the rights of the disadvantaged.The Charter's mandate demands this.The decisions in Veysey and Knodel represent precisely the type of officialvalidation that is needed to make equality rights meaningful for homosexual persons.The recognition of homosexual couples represents a significant departure from the wayhomosexual relationships have been viewed by courts in the past. The willingness ofthe courts in these decisions to look beyond mere surface appearance to craft adefinition of partner or spouse that is alive to both historical disadvantage and presentreality is a ringing endorsement of the philosophy that underlies the Charter and itsequality guarantees. These decisions give homosexual persons the public identity theyhave been so long denied. These are important steps towards the equal participation ofall in a society committed to equality.It is important to continue to move forward on the momentum of thesedecisions. The courts have demonstrated that they take the Charter's mandate inalleviating disadvantage seriously, and the importance of judicial recognition ofhomosexual relationships cannot be overemphasized. Having determined thathomosexual persons have historically suffered discrimination, these decisions provideimportant precedents for the advancement of future claims. This must be seen as207particularly heartening to those seeking same-sex spousal benefits, for there is now anescape to the circuitous reasoning that served to deny benefits previously.Having found that homosexual persons come from a tradition of discrimination,it would be contrary to the principles of the Charter to condemn them to the samefuture. Moreover, judicial validation not only frees homosexual persons from theprison of discrimination, it also serves to promote the respect for one's private life thatis so central to any concept of rights.2082091^Constitution Act, 1982, as enacted by Canada Act 1982 (U.K.), 1982, c.11.2^For the purposes of this paper, only subsection 1 of section 15 will be considered. Thisreads as follows:every individual is equal before and under the law and has the right to the equalprotection and equal benefit of the law without discrimination and, inparticular, without discrimination based on race, national and ethnic origin,colour, religion, sex, age or mental or physical disability.All references to s.15(1), except as otherwise noted, will be in the form of "s.15".It is significant to note that s.15 is subject to the limitation of s.1, which provides:The Canadian Charter of Rights and Freedoms guarantees the rights andfreedoms set out in it subject only to such reasonable limits prescribed by lawas can be demonstrably justified in a free and democratic society.3^The term homosexual persons refers to both homosexual men and lesbians. Althoughhomosexual men and lesbians is a more accurate description, it is too cumbersome forpersistent use.4^Signed 1950, entered into force September 3, 1953, 213 U.N.T.S. 222.5^See Articles 2 through 14 and Protocols No.1, Articles 1 through 3; No.4, Articles 1through 4; and No.6, Article 1. For discussions concerning the development of theCommission and the mechanics of bringing a human rights complaint before it, see J.A.Joyce, Human Rights: International Documents Vol. III (Alphen aanden Rijn: Sythoff &Noordhoff, 1978) at 1273-81 and H. Kindred et al., International Law Chiefly as Interpretedand Applied in Canada (Toronto: Emond Montgomery, 1987) at 682-83.6^Article 8 reads:1. Everyone has the right to respect for his private and family life, hishome and his correspondence.2. There shall be no interference by a public authority with the exercise ofthis right except such as in accordance with the law and is necessary ina democratic society in the interests of national security, public safetyor the economic well-being of the country, for the prevention ofdisorder or crime, for the protection of health or morals, or for theprotection of the rights and freedoms of others.7^1960 Yearbook of the European Convention on Human Rights 186.8^Ibid. at 194.9^1962 Yearbook of the European Convention on Human Rights 120.10^Ibid.11^Ibid. at 234.12^Ibid.13^Ibid. at 236.14^Ibid.15^Supra, note 7 at 188; supra, note 9 at 232.16^Supra, note 13.17^X. v. Federal Republic of Germany (1976), 3 D.R. 46.18^Ibid. at 54.19^Supra, note 17. Article 14 reads as follows:The enjoyment of the rights and freedoms set forth in this Conventionshall be secured without discrimination on any ground such as sex, race,colour, language, religion, political or other opinion, national or social origin,association with a national minority, property, birth or other status.20^Supra, note 17 at 54-5.21^Ibid. at 55.22^Ibid. at 53.23^Ibid. at 56.24^Ibid.21025^X. v. United Kingdom (1981), 3 E.H.R.R. 63; 9721/82 v. United Kingdom (1985), 7E.H.R.R. 145; Johnson v. United Kingdom (1987), 9 E.H.R.R. 386.26^X. v. Iceland (1976), 5 D.R. 86.27^Ibid. at 87.28^(1981), 3 E.H.R.R. 244.29^Ibid. at 252.3031^Van Oosterwijck v. Belgium (1981), 3 E.H.R.R. 557 at 584.32^(1982), 4 E.H.R.R. 149.33^Ibid. at 161.34^Ibid. at 164.35^Ibid.36^Ibid. at 165.37^Ibid. at 167.38^L. Tribe, American Constitutional Law (2d) (Mineola, N.Y.: Foundation Press, 1988)p. 1303.39^"The Constitutional Status of Sexual Orientation: Homosexuality as a SuspectClassification", (1985), 98 Harvard Law Review 1285 at 1288. For discussions relating toequality rights arguments for homosexual persons in American jurisprudence, see,additionally, R.G. Bagnall et al, "Burdens on Gay Litigants and Bias in the Court System:Homosexual Panic, Child Custody, and Anonymous Parties", (1984) 19 Harvard CivilRights - Civil Liberties Law Review 497; "Custody Denials to Parents in Same-SexRelationships: An Equal Protection Analysis", (1989) 102 Harvard Law Review 617; H.M.Miller III, "An Argument for the Application of Equal Protection Heightened Scrutiny toClassifications Based on Homosexuality", (1984) 57 Southern California Law Review 797.40 The right to privacy is not specifically articulated in the United States Constitution.Rather, this right has been judicially developed as an aspect of the "due process" clause ofthe 14th Amendment to the Constitution.Article XIVPassed by Congress June 13, 1866, ratified July 9, 1868. Section 1 reads asfollows:All persons born or naturalized in the United States, and subject tothe jurisdiction thereof, are citizens of the United States and the State whereinthey reside. No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States; nor shall any Statedeprive any person of life, liberty or property, without due process of law; nordeny to any person within its jurisdiction the equal protection of the laws ...41 Omstead v. United States (1928), 277 U.S. 438 at 478 (Brandeis, dissenting opinion).See also Griswold v. Connecticut (1965), 381 U.S. 479 at 484; Eisenstadt v. Baird (1972),405 U.S. 438 at 453 and Stanley v. Georgia (1969), 394 U.S. 557 at 564: "[A]lsofundamental is the right to be free, except in very limited circumstances, from unwantedgovernmental intrusions into one's privacy."42^As of 1986, 25 States plus the District of Columbia had in force criminal statutesprohibiting private, consensual sodomy: Bowers v. Harwick (1986), 478 U.S. 186 at 198note 1. The statutes typically define sodomy as "any sexual act involving the sex organs ofone person and the mouth or anus of another": Georgia Code Ann s. 16-6-2 (1984). Ibid. at188 note 1.43^(1975), 403 F. Supp. 1199. U.S. District Court, E.D. Virginia.44^Supra, note 41.45^Supra, note 43 at 1201 and 1203.46^Ibid. at 1202.47^Ibid.48^Ibid.49^Ibid.21150^Ibid. at 1203.51^Ibid.52^Ibid. at 1204.53^Ibid. at 1205.54^Ibid.55^(1976), 425 U.S. 810, May 19.56^State v. McCoy (1976), 337 So. 2d 192.57^(1976), 530 F. 2d 247.58^Ibid. at 255.59^Ibid.60^Ibid. at 253.61^(1984), 741 F. 2d 1388. Of note, the Judges on this panel were Bork, Scalia andWilliams. Born was nominated for a position on the United States Supreme Court, butfailed to obtain the necessary Senate approval; Scalia was elevated to that Court shortlythereafter.62^Ibid. at 1395-96.63^Supra, note 46.64^Supra, note 61 at 1392.65^Ibid. at 1398.66^Supra, note 57.67^Supra, note 65.68^Ibid.69^(1980), 415 N.E. 2d 936.70^Supra, note 51.71^Supra, note 69 at 939.72^Ibid. at 941.73^Ibid. at 940 note 3.74^Ibid.75^Ibid.76^Supra, note 42.77^Ibid. at 188 note 1.78^Ibid. at 190.79^Ibid.80^Ibid. at 190-91.81^Ibid. at 191-92.82^Ibid. at 192.83^Ibid.84^Ibid. at 193.85^Ibid. at 194.86^Ibid. at 196.87^Ibid. at 197.88^Ibid. at 199.89^Ibid.90^Ibid. at 204.91^Ibid.92^Ibid. at 205.93^Supra, note 41.94^Supra, note 42 at 207.95^Ibid. at 208.96^Ibid.97^Ibid. at 211-12.98^Supra, note 69.99^Supra, note 43.100^Supra, note 42.212101^Supra, note 38.102^The capacity reasoning thus places homosexual couples who wish to obtain the benefitsthat flow from being "married" and "spouses" in an impossible catch-22: they cannot marrybecause they do not have the capacity, and they do not have the capacity because they cannotmarry. The benefits of "marriage" remain, of course, utterly out of reach.103^(1866), L.R. 1 P & D 130.104^Ibid. at 133.105^[1970] 2 All E.R. 33.106^Ibid. at 48.107^(1975), 52 D.L.R. (3d) 280.108^R.S.M.. 1970 C. M50 [since repealed S.M. 1982-83-84, c.57, s.35].109^Supra, note 107 at 282.110^Supra, note 103.111^Supra, note 105.112^Supra, note 107 at 285.113^C. Davis, Family Law in Canada (4th) (Calgary: Carswell, 1984) at 64.114^(1985), 42 R.F.L. (2d) 449.115^R.S.R.C. 1979 c.131 s.l.116^Supra, note 114 at 446-7.117^49 D.L.R. (4th) 584, 64 O.R. (2d) 258, 9 C.H.R.R.D/5089, 88 C.L.L.C. 17,023[Karen Andrews, cited to D.L.R.].118^R.S.O. 1980, c.197.119^Supra, note 117 at 587.120^Ibid. at 589.121^Ibid.122^Ibid. at 591.123^Ibid.124^Supra, note 120.125^Ibid.126^Ibid. at 589-90.127^R.S.C. 1985, c. H-6.128^Attorney General of Canada v. Brian Mossop [1991] 1 F.C. 18, 71 D.L.R. (4th) 661,(1990) 32 C.C.E.L. 276, 90 C.L.L.C. 17,021, 12 C.H.R.R. D355 [Mossop, cited to F.C.)129^Mossop v. Canada (Secretary of State), (1989), 10 C.H.R.R. D/6064.130^Ibid. at D/6066131^Ibid. at D/6067132^Supra, note 127133^Supra, note 129 at D/6064-65.134^Supra, note 127, s.3(1).135^Ibid. at D/6073136^Ibid. at D/6072137^Ibid. at D/6093138^Ibid. at D/6080139^Ibid.140^Ibid. at D/6079141^Ibid. at D/6082142^Ibid. at D/6089143^Ibid. at D/6094144^Ibid.145^Ibid. at D/6091146^Ibid.147^Supra, note 143.148^Ibid.149^Ibid. at D/6095213150^Supra, note 130.151^Ibid. at D/6097152^Supra, note 128 at 34.153^Ibid.154^Ibid.155^Ibid.156^Ibid. at 34-35157^Ibid. at 35158^Ibid. at 36159^Ibid.160^Ibid. at 37161^Ibid.162^Supra, notes 155, 156 and 158.163^Veysey v. Commissioner of the Correctional Services of Canada [1990] 1 F.C. 321,affirmed on other grounds by the Federal Court of Appeal (1990), 109 N.R. 300,43 Admin.L.R. 319, and Brown v. B.C. Minister of Health (1990), 42 B.C.L.R. (2d) 294 (B.C.S.C.)164^Supra, note 128 at 38.165^Ibid. at 38-39166^Supra, note 164.167^Supra, note 154.168^Supra, note 115169^Supra, note 118170^[1984] 2 S.C.R. 145 at 155, 11 D.L.R. (4th) 641, 55 N.R. 241, 14 C.C.C. (3d) 97,[1984] 6 W.W.R. 577, 33 Alta L.R. (2d) 193, 41 C.R. (3d) 97 (sub nom. Dir. ofInvestigation & Research. Combines Investigation Branch v. Southam Inc.), 9 C.R.R. 355.[Hunter v. Southam, cited to S.C.R.]171^Ibid.172^Ibid.173^[1988] 1 S.C.R. 30, 37 C.C.C. (3d) 449, 60 C.R. (3d) 1, 31 C.R.R. 1, 82 N.R. 1, 63O.R. (2d) 281n, (1988) 44 D.L.R. (4th) 385.174^Ibid. at 485-86 D.L.R.175^Supra, note 30 at 252.176^See the European Convention Article 12: Men and women of marriageable age havethe right to marry and found a family, according to the national laws governing the existenceof this right. See also Loving v. Virginia (1967), 388 U.S. 1.177^Supra, note 115.178^Supra, note 118.179^[1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1, 91 N.R. 255, 34 B.C.L.R. (2d) 273, [1989] 2W.W.R. 289, 25 C.C.E.L. 255, 10 C.H.R.R. D/5719, 36 C.R.R. 193. [Andrews, cited toD.L.R.]180^[1979] 1 S.C.R. 183, [1978] 6 W.W.R. 711, 23 N.R. 527, 78 C.L.L.C. 14, 175, 92D.L.R. (3d) 417.181^In Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R.. 1219, the Supreme Court ofCanada held that Bliss was wrongly decided, or in any event would not be decided now as itwas then: at 1243.182^R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295 at 344, 18 D.L.R. (4th) 321,18 C.C.C. (3d) 385, 37 Alta L.R. (2d) 97, [1985] 3 W.W.R. 481, 85 C.L.L.C. 14, 023, 13C.R.R. 64, 60 A.R. 161, 58 N.R. 81.183^Supra, note 179 at 14.184^For discussions concerning the inadequacies of the Canadian Bill of Rights [(1960), 8-9Eliz II, c.44 (Can.)], the precursor of the Charter, and the legislative history of s.15, see A.Bayefsky, "Defining Equality Rights" in A. Bayefsky and M. Eberts, eds., Equality Rightsand the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) at pp. 5-25;M. Gold, "Equality Before the Law in the Supreme Court of Canada: A Case Study" (1980)18 Osgoode Hall Law Journal 338; W. Tarnopolsky and G. Beaudoin, eds., The CanadianCharter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982) at pp. 407-22,W. Tarnopolsky and W. Pentney, Discrimination and the Law (2d) (Toronto: R. De Boo,1985) at 16-7 to 16-11; and J. Weiler and R. Elliot, eds., Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1986) at pp. 1-77.^185^Supra, note 179 at 15.186^Ibid. at 16.187^Ibid. at 18.188^Ibid. at 22-23.189^Ibid. at 22.190^Ibid. at 23-24.191^The onus of justifying a limitation on a right or freedom found in the Charter is on theparty seeking to limit: Hunter v. Southam Inc., supra, note 170 at 169 S.C.R.192^Supra, note 179 at 25.193^Ibid. at 32.194^Ibid. at 32-33.195^[1989] 1 S.C.R. 1296, 96 N.R. 115, 48 C.C.C. (3d) 8, 69 C.R. (3d) 97, 34 O.A.C.115, 39 C.R.R. 306. [Turpin, cited to C.C.C.]196^Ibid. at 34.197^Ibid.^198^Ibid. at 35.199^Ibid.^200^For further discussions on this point, see A. Bayefsky, "The Orientation or Goal ofSection 15 of the Canadian Charter of Rights and Freedoms" in J. Weiler and R. Elliot,supra, note 140, W. Black and L. Smith, "The Equality Rights" in G. Beaudoin and E.Ratushny, The Canadian Charter of Rights and Freedoms (2d) (Toronto: Carswell, 1989),M. Gold, supra, note 140, L. Smith, "A New Paradigm for Equality Rights" in L. Smith,ed., Righting the Balance: Canada's New Equality Rights (Saskatoon: Canadian HumanRights Reporter, 1986), J. Vickers, "Major Equality Issues of the Eighties", (1983) 1Canadian Human Rights Yearbook 47, J. Vickers, "Equality Seeking in a Cold Climate", inL. Smith, ed., supra.^201^[1990] 1 S.C.R. 695, 39 O.A.C. 1, 69 D.L.R. (4th) 392, 106 N.R.1, 43 Admin L.R.1, 41 C.P.C. (2d) 1. [Wolff, cited to S.C.R.]202^Ibid. at 698.203^Ibid. at 701.204^Ibid. at 702.205^Supra, note 179 at 23.206^[1990] 1 S.C.R. 705 at 709-710, 68 D.L.R. (4th) 147, 106 N.R. 11.207^[1984] 2 S.C.R. 66, 10 D.L.R. (4th) 321, 54 N.R. 196, 9 C.R.R. 133 (cited toS.C.R.).208^Ibid. at 75.209^Ibid. at 88.210^Ibid. at 83-84.211^Ibid. at 84.212^Ibid. at 86.213^Supra, note 209.214^Supra, note 212.215^For greater discussion of this point, see R.M. Elliot, "The Supreme Court of Canadaand Section 1 - The Erosion of the Common Front" (1987) 12 Queen's Law Journal 277 at304, S.R. Peck, "An Analytical Framework for the Application of the Canadian Charter ofRights and Freedoms" (1987) 25 Osgoode Hall Law Journal 1 at 41-44, and L.E. Weinrib,"The Supreme Court of Canada and Section One of the Charter" (1988) 10 Supreme CourtLaw Review 469 at 479-483.216^Supra, note 170.214215217^Ibid. at 154.218^Ibid. at 169.219^Ibid.220^Supra., note 207.221^[1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, 58 N.R. 1, 14 C.R.R. 13.222^1976-77 (Can.), c. 52.223^Supra, note 221 at 214.224^Beetz, Estey and McIntyre J.J. found the procedures for determining refugee statuswere in conflict with s.2(e) of the Canadian Bill of Rights, R.S.C. 1970, App. III. Ritchie J.took no part in the judgment.225^Supra, note 221 at 216.226^Ibid. at 217.227^Ibid.228^Ibid. at 218.229^Ibid.230^Ibid. at 219.231^Supra, note 228.232^Ibid. at 220.233^Supra, note 230.234^[1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81, 18 C.C.C. (3d) 385, [1985] 3W.W.R. 481, 37 Alta L.R. (2d) 97, 13 C.R.R. 64, 85 C.L.L.C. 14,023. [Big M DrugMart, cited to S.C.R.]235^Ibid. at 331.236^Ibid.237^Ibid.238^Ibid. at 331-332.239^Ibid. at 334-335.240^Ibid. at 334.241^Ibid. at 351.242^Ibid. at 352.243^Supra, notes 211 and 218.244^Supra, note 241.245^Supra, note 230.246^Supra, note 240.247^Ibid. at 353.248^Ibid.249^Ibid. at 358.250^Ibid. at 360.251^Ibid.252^Ibid. at 360-361.253^Ibid. at 361.254^[1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536, 63 N.R. 266, 23 C.C.C. (3d) 289, [1986] 1W.W.R. 481, 69 B.C.L.R. 145, 18 C.R.R. 30. [Motor Vehicle Reference, cited to S.C.R.]255^R.S.B.C. 1979, c. 63.256^Section 7 of the Charter states:Everyone has the right to life, liberty and security of the person and the rightnot to be deprived thereof except in accordance with the principles of fundamentaljustice.257^Supra, note 254 at 498.258^Ibid. at 499.259^Ibid. at 501-502.260^Ibid. at 514-515.261^Ibid. at 518.262^Ibid. at 520.216263^Ibid. at 521.264^Elliot, supra, note 215 at 310.265^Supra, note 254 at 523.266^Ibid.267^Ibid., at 523-524.268^Ibid., at 534.269^Elliot, supra, note 215 at 310.270^Supra, notes 207 and 170.271^Supra, note 209.272^Weinrib, supra, note 215 at 482. Weinrib raises the interesting notion of rightsexisting at the core and penumbra. For instance, in A.G. Ouebec v. Ouebec Association ofProtestant School Boards, supra, note 207, the definition of the rights holder in s.23 of theCharter appears to be an essential feature of the right guaranteed, and thus exists at its core.273^Supra, note 240.274^Peck, supra, note 215 at 10.275^For a further discussion of this point, see Peck, ibid. at 6-21.276^Supra, notes 230, 244 and 261.277^Supra, note 221 at 218-219.278^Supra, note 272 at 486.279^Ibid. See also note 247.280^Supra, note 242.281^Ibid.282^[1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 24 C.C.C. (3d) 321, 50 C.R.(3d) 1, 14 O.A.C. 335, 19 C.R.R. 308. [Oakes, cited to S.C.R.]283^R.S.C. 1970, c. N-1.284^Section 11(d) of the Charter states:11.^Any person charged with an offence has the right(d) to be presumed innocent until proven guilty according to law in afair and public hearing by an independent and impartial tribunal.285^Supra, note 282 at 135.286^Ibid. at 136.287^Ibid.288^Ibid. at 138.289^Ibid.290^Ibid. at 138-140.291^Ibid. at 141-142.292^Ibid. at 142.293^Supra, note 289.294^This example raises the issues found in the arguments that the concepts of breach andjustification should be kept analytically distinct, on the one hand, and the arguments that"definitional balancing", that is, that certain activities are not given constitutional protection,on the other. These issues will be explored in greater detail later in this paper.295^Supra, note 170 at 155.296^Supra, note 172.297^Supra, note 286.298^Elliot, supra, note 215 at 281.299^T.A. Cromwell & A.W. MacKay, "Oakes in the Supreme Court: A Cautious InitiativeUnimpeded by Old Ghosts" (1986) 50 C.R. (3d) 34 at 42-43. See also Weinrib, supra, note215 at 494.300^Supra, note 286.301^Weinrib, supra, note 215 at 496.302^The arguments based on administrative expediency and convenience were found inSingh, supra, note 219, Big M, supra, note 242 and the Motor Vehicle Reference, supra,note 261. The argument based on adherence to tradition or custom was articulated in Big MDrug Mart, ibid. The increased cost element of broadening the programs to be moreinclusive ran throughout these arguments.303^Supra, note 285.304^Supra, note 286.305^Weinrib, supra, note 215 at 495.306^Supra, note 286.307^[1986] 2 S.C.R. 284, 31 D.L.R. (4th) 569, 69 N.R. 241, 28 C.C.C. (3d) 513, [1986] 6W.W.R. 577, 25 C.R.R. 63.[Jones, cited to S.C.R.]308^R.S.A. 1980, c. S-3.309^Supra, note 307 at 295.310^Ibid. at 304.311^Ibid.312^On this issue, Dickson C.J., Beetz, McIntyre, Lamer and Le Damn J.J. concurred withLa Forest J.313^Supra, note 307 at 294.314^Ibid. at 296-297.315^Ibid. at 309.316^Ibid. at 315.317^Ibid. at 318.318^Ibid. at 319.319^Ibid. at 321.320^Supra, note 267.321^Supra, note 307 at 322.322^[1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174, 71 N.R. 83, [1987] 1 W.W.R. 477, 9B.C.L.R. (2d) 273, 25 C.R.R. 321, 87 C.L.L.C. 14,002.[Dolphin Delivery, cited to S.C.R.]This case is probably better remembered for what it says about theCharter's applicability to common law and that the Charter does not apply tolitigation between private parties, defined here as a party completely divorced fromany connection with government.323^Section 2(b) of the Charter states:2.^Everyone has the following fundamental freedoms:(b) freedom of thought, belief, opinion and expression, includingfreedom of the press and other media of communication[.]324^Supra, note 322.325^Ibid. at 588.326^Ibid.327^Ibid. at 590.328^Ibid. at 591.329^Ibid.330^Ibid. at 592.331^Ibid.332^Supra, note 325.333^Supra, note 285.334^Supra, notes 172 and 228.335^Supra, note 287.336^J. Cameron, "The Original Conception of Section 1 and its Demise: A Comment onIrwin Toy Ltd. v. Attorney-General of Ouebec" (1989) 35 McGill Law Journal 253 at 258.For greater discussion of the issues of breach and justification generally, see also J.Cameron, "The Forgotten Half of Dolphin Delivery: A Comment on the Relationship217between the Substantive Guarantees and Section 1 of the Charter" (1988) 22 U.B.C. LawReview 147.337^[1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1, 71 N.R. 161, 30 C.C.C. (3d) 385, 55 C.R.(3d) 193 (sub nom. R. v. Videoflicks Ltd.), 19 O.A.C. 239, 28 C.R.R. 1, 87 C.L.L.C.14,001.[Edwards Books, cited to S.C.R.]338^R.S.O. 1980, c.453.339^Supra, note 337 at 744.340^Ibid. at 746.341^Ibid. at 765-766.342^Ibid. at 768-769.343^Ibid. at 770.344^Ibid.345^Ibid. at 771.346^Ibid.347^Ibid. at 772.348^Ibid. at 772-773.349^Elliot, supra, note 215 at 329.350^Supra, note 337 at 773.351^Ibid. at 779.352^Ibid. at 781.353^Ibid. at 780.354^Ibid. at 783.355^Ibid. at 794-795.356^Ibid. at 795.357^Ibid. at 795-796.358^Ibid.359^Ibid. at 794.360^Ibid. at 807.361^Ibid. at 808.362^Ibid.363^Ibid. at 809.364^Ibid. at 810.365^A fourth opinion was given in Edwards Books, that of Beetz and McIntyre J.J., writtenby Beetz J. He was of the view that freedom of religion was not infringed by the legislationand thus resort to s.1 was unnecessary. In his opinion, the economic harm suffered by aSaturday observer who closes shop on Saturdays is not caused by the legislation but isindependent of it, resulting from the shopkeeper's deliberate choice to give priority to thetenets of his or her religion over any financial benefit. In the absence of any Sundayobservance legislation, a Saturday observer would still have to choose between observing hisor her religion or opening shop to meet competition. The financial disadvantage would stillbe present. Moreover, there was no evidence with respect to the religion of employees orthe possible impact of the legislation upon freedom of religion: supra, note 337 at 788-791.366 [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161, 74 N.R. 99 (sub nom. Reference ReCompulsory Arbitration), [1987] 3 W.W.R. 577, 51 Alta L.R. (2d) 97, 28 C.R.R. 305 (subnom. Alberta Union of Public Employees v. A.G. Alberta).[Alberta Reference, cited to S.C.R.]367^Ibid. at 390.368^Ibid. at 392.369^Ibid. at 395.370^Ibid. at 396-397.371^Ibid. at 397.372^Ibid. at 398-399.373^Ibid. at 399.218219^374^Ibid. at 400.^375^Ibid. at 401.376^Ibid.^377^Ibid. at 404.378^Ibid. at 405.379^Ibid.^380^Ibid. at 406.381^Ibid. at 407.382^Ibid. at 407-408.383^Ibid. at 412.384^Ibid. at 413.385^Ibid.^386^Ibid. at 416.387^Ibid. at 417.388^Ibid. at 419-420.389^Ibid. at 391.390^Ibid. at 391-392.391^Ibid. at 334.392^Ibid. at 335.393^Ibid. at 335-336.394^Ibid. at 347.395^Ibid. at 362-363.396^Ibid. at 363 and supra, note 171.397^Ibid. at 364.398^Ibid.^399^Ibid. at 365.400^Ibid. at 368.401^Ibid.^402^Ibid.^403^Ibid. at 370-371.404^Ibid. at 371.405^Ibid. at 374.406^Ibid. at 374-375.407^Ibid. at 376.408^Ibid. at 377.409^Ibid. at 376-378.410^Ibid. at 378.411^Ibid. at 378-379.412^Ibid. at 379-380.413^Ibid. at 380-381.414^Ibid. at 381-383.415^Ibid. at 384.416^Ibid.^417^Ibid. at 385.418^Ibid.419^[1987] 1 S.C.R. 424, 38 D.L.R. (4th) 249, 75 N.R. 161, 32 C.R.R. 114, 87 C.L.L.C.14,022.[PSAC, cited to S.C.R.]420^S.C. 1980-81-82-83, c. 122.421^Supra, note 419 at 438-439.422^Ibid. at 439-440.423^Ibid. at 442.424^Ibid.425^Ibid.426427428429430431432433434435436437438439440441442443444445446447448449Ibid. at 445.Ibid. at 444.Supra, note 427.Ibid.Ibid. at 446.Ibid. at 446-447.Ibid. at 448.Ibid. at 449.Ibid. at 450.Ibid. at 451.Ibid. at 452-453.Ibid. at 453.Ibid.Ibid. at 454.Ibid.Supra, note 417.Supra, note 433.Supra, note 434.Supra, note 419 at 455.Ibid. at 457.Ibid.Ibid.Ibid. at 458.[1987] 1 S.C.R. 460, 38 D.L.R. (4th) 277, 74 N.R. 321, [1987] 3 W.W.R. 6734, 56Sask. R. 277, 87 C.L.L.C. 14,023.[Dairyworkers, cited to S.C.R.]450^S.S. 1983-84, c. D-11.451^Supra, note 449 at 466-467.452^Ibid. at 469.453^Ibid. at 484-485.454^Ibid. at 475.455^Ibid. at 476.456^Ibid.457^Ibid.458^Ibid. at 477.459^Ibid. at 477-478460^Ibid. at 479.461^Ibid. at 479.462^Ibid. at 479 and 480.463^Ibid. at 480.464^Ibid. at 483.465^Ibid.466^Ibid. at 488.467^Ibid. at 489.468^Ibid. at 486.469^Ibid. at 487.470^Ibid.471^Ibid.472^Supra, note 465.473^Ibid. at 491 and 492.474^Ibid. at 490-491.475^Ibid. at 490.476^Ibid. at 493.477^Ibid.220221^478^Ibid. at 478.^479^Ibid. at 494.480^Ibid. at 495.481^Ibid. at 495-496.482^Supra, note 410.483^Supra, note 433.484^Supra, note 430.485^Supra, note 463.486^Supra, note 478.487^Supra, note 448.488^Supra, note 480.489^Forming the majority in this decision is Dickson C.J.C., Lamer and Wilson J.J.Dissenting are McIntyre and Beetz J.J.^490^[1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577, 94 N.R. 167, 24 Q.A.C. 2, 25 C.P.R. (3d)417.[Irwin Toy, cited to D.L.R.]491^S.Q. 1978, c.9 (R.S.Q., c. P-40.1)492^R.R.Q. 1981, r.l.493^Other issues were raised in this appeal as well, including distribution of powersbetween federal and provincial legislatures, paramountcy, whether the provincial legislationin question was protected by the legislative override provision in s. 33 of the Charter, andwhether the legislation violated s.7 of the Charter. The issue of whether commercialexpression was included in s.2(b) of the Charter was affirmed in the Court's decision inFord v. Ouebec (A.G.) [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577, 90 N.R. 84, 36 C.R.R.1 These comments focus exclusively on the freedom of expression and s.1 issues.494^Supra, note 490 at 605.495^Ibid.^496^Ibid. at 606.497^Ibid. at 607.498^Ibid.^499^Ibid.^500^Ibid.^501^Ibid. at 608.502^Ibid. at 611.503^Ibid. at 613.504^Ibid.^505^Ibid.^506^Ibid.^507^Supra, note 496.508^Supra, note 490 at 620.509^Ibid. at 621.510^Ibid.511^Ibid. at 623.512^Ibid.513^Ibid. at 624.514^Ibid.515^Supra, note 290.516^Supra, note 511.517^Supra, note 490 at 626.518^Ibid. at 627.519^Ibid.520^Ibid. at 682.521^Ibid. at 628-629.522^Ibid. at 629.222^523^Ibid. at 629-630.^524^Ibid. at 630.525^Ibid. at 636.526^Ibid.^527^Ibid. at 637.528^Supra, note 526.529^Supra, note 336.530^Unreported (27 February 1992) Ottawa 22191 (S.C.C.)531^R.S.C. 1985, c. C-46.532^Supra, note 530 at 2-4.533^Ibid. at 14-15.534^Ibid. at 14.535^The reasons for judgment of Sopinka J. were concurred in by Lamer C.J., La Forest,Cory, McLachlin, Stevenson and Iacobucci JJ.536^Supra, note 530 at 17.537^Ibid.^538^Ibid. at 20.539^Ibid. at 21.540^Ibid. at 22.541^Ibid. at 25.542^Ibid.^543^Ibid.^544^Ibid. at 26-27.545^Ibid. at 28.546^Ibid. at 28-29.547^Ibid.^548^Ibid. at 30-31.549^Ibid. at 31.550^Ibid.551^Ibid. at 31-32.552^Ibid. at 32.553^Ibid. at 33.554^Ibid.555^Ibid. at 35.556^Ibid.^557^See, for example, the text on page 96.558^Supra, note 530 at 36.559^Ibid. at 34.560^Ibid.^561^Supra, note 559.562^Supra, note 530 at 37.563^Ibid. at 40.564^Ibid. at 41.565^Ibid. at 43.566^Ibid. at 47.567^Ibid. at 48.568^Ibid.^569^Ibid.^570^Ibid. at 51.571^Ibid. at 50.572^Supra, note 569.573^Supra, note 530 at 52.574^Supra, note 559.575^Supra, note 530 at 53.223576^Ibid. at 54.577^Ibid. at 55.578^See, for example, the arguments concerning expression in Dolphin Delivery, supra,note 322 and Irwin Toy, supra, note 490.579^Supra, note 575.580^Supra, note 228.581^Supra, note 530 at 58.582^Ibid.583^Ibid. at 57.584^Ibid.585^Ibid.586^Ibid. at 62.587^Ibid.588^Reasons for judgment of Justice Gonthier, released concurrently, at 2.589^Supra, page 108.590^Supra, note 382 at 9.591^Ibid. at 10.592^Ibid. at 11.593^Ibid.594^Ibid.595^Ibid.596^Supra, note 578.597^Supra, note 555.598^Supra, note 182.599^[1990] 2 S.C.R. 229, 76 D.L.R. (4th) 545, 118 N.R.1, 45 O.A.C.1, 13 C.H.R.R.D/171, 91 C.L.L.C. 17,004. [McKinney, cited to S.C.R.] One of the central issues in thiscase was the Charter's applicability to universities. Much of the discussion thus turned onwhether the University constituted "government" so as to attract a Charter review of itsmandatory retirement policies pursuant to s.32 of the Charter. Also of significance waswhether the mandatory retirement policies constituted "law so as to attract review pursuantto ss. 15 and 1 of the Charter. For a discussion of the elements of the term "prescribed bylaw" generally, see Weinrib, supra, note 215 at 472-478. For the purposes of this paper,these comments focus exclusively on the ss. 15 and 1 issues.600^S.O. 1981, c. 53.601^Supra, note 599 at 256.602^Ibid. at 278.603^Ibid. at 279.604^Ibid. at 280.605^Ibid.606^Ibid. at 281.607^Supra, page 102.608^Supra, note 606.609^Ibid.610^Ibid. at 282.611^Ibid. at 283.612^Ibid. at 284.613^Ibid. at 286.614^Ibid. at 287.615^Ibid.616^Ibid.617^Ibid. at 288.618^Supra, notes 181 and 290.619^Supra, notes 349 and 350.620^Supra, note 599.224^621^Ibid. at 291.^622^Ibid. at 292.623^Ibid. at 293.624^Ibid. at 294.625^Ibid.^626^Ibid. at 294-295.627^Ibid. at 299.628^Ibid.^629^Ibid.^630^Ibid. at 300-301.631^Ibid. at 302.632^Ibid.^633^Ibid. at 304.634^Ibid. at 306.635^Ibid. at 307.636^Ibid. at 306.637^Ibid. at 312.638^Ibid. at 313.639^Ibid. at 315.640^Ibid. at 316.641^Ibid. at 317.642^Ibid. at 318.643^Ibid.^644^Ibid. at 389.645^Ibid. at 391.646^Ibid. at 393.647^Ibid.^648^Ibid. at 400.649^Ibid. at 401.650^Ibid. at 401-402.651^Ibid. at 402.652^Ibid. at 403.653^Ibid. at 404.654^Ibid. at 405.655^Ibid. at 413.656^Ibid.^657^Ibid. at 414.658^Ibid.^659^Ibid. at 416.660^Ibid.661^Supra, note 193.662^Supra, note 599.663^Ibid. at 423.664^Ibid.665^Ibid. at 424.666^Ibid. at 426.667^Ibid. at 427.668^Ibid. at 428.669^Ibid. at 437.670^Ibid. at 429.671^Ibid. at 430.672^Ibid.673^Ibid. at 430-431.674^Ibid. at 431.225675^Ibid. at 432.676^Ibid. at 437.677^Supra, note 211.678^Supra, note 599 at 433.679^Ibid. at 435.680^Ibid.681^Ibid. at 446.682^Ibid.683^Ibid.684^Ibid.685^Ibid. at 447-448.686^Ibid. at 448.687^76 D.L.R. (4th) 700, 118 N.R. 241, (1990) 52 B.C.L.R. (2d) 1, 13 C.H.R.R. D/337, 2C.R.R. (2d) 215, sub nom. Vancouver General Hospital v. Stoffman) 91 C.L.LO.C.17,003, [1991] 1 W.W.R. 577. [Stoffman cited to D.L.R.] Once again, the central issuefor the majority is the applicability of the Charter to the hospital. As with McKinney,supra, it is held that the Charter does not apply to Vancouver General Hospital, and thus thediscussion of s.15 is obiter, but clearly of significant interest.688^Regulation 5.04 reads as follows:5.04 Retirement: Members of the Staff shall be expected to retire at the end ofthe appointment year in which they pass their 65th birthday. Membersof the staff who wish to defer their retirement may make specialapplication to the board [of trustees, empowered to manage the propertyand affairs of the hospital]. The board shall request the MedicalAdvisory Committee for a recommendation in each such case. TheMedical Advisory Committee shall, in making its recommendation,consider the report of a personal interview which shall take placebetween the applicant and the Department Head concerned which shallinclude a review of the health and continuing performandce of theapplicant.689^Supra, note 687 at 728-729.690^See note 688, supra.691^Supra, note 687 at 728.692^Ibid. at 744.693^Ibid. at 743.694^Ibid. at 745695^Ibid.696^Supra, note 342.697^Supra, note 687 at 745-746.698^Ibid. at 746.699^Ibid.700^Ibid. at 747.701^Ibid.702^Ibid. at 748.703^Ibid.704^Ibid.705^Ibid.706^Ibid. at 749.707^Ibid.708^Ibid. at 750.709^Ibid.710^Ibid.711^Ibid. at 751.712^Ibid.226713^Ibid.714^Ibid. at 752.715^Ibid. at 752-753.716^Ibid. at 715.717^Ibid. at 716.718^Ibid.719^Ibid. at 717.720^Ibid. at 718.721^Ibid.722^Ibid. at 719.723^Ibid.724^Ibid.725^Ibid. at 720.726^For example, see pages 89-90, 99-100, 128 and 132, this text.727^Supra, note 687 at 721.728^Ibid.729^Ibid. at 722.730^Ibid.731^Ibid. at 723.732^Ibid. at 755.733^Ibid. at 756.734^Ibid.735^Ibid. at 757.736^Ibid.737^Ibid. at 758.738^Ibid. at 759.739^Ibid.740^Ibid.741^Supra, note 599 at 446-448.742^Supra, note 687 at 761.743^Ibid.744^Ibid. at 762.745^[1990] 3 S.C.R. 451, 77 D.L.R. (4th) 55, [1991] 1 W.W.R. 681, 52 B.C.L.R. (2d)105, 13 C.H.R.R. D/317, 2 C.R.R. (2d) 193, (sub nom. Connell v. University of BritishColumbia) 91 C.L.L.C. 17,001, 120 N.R. 1 [Harrison, cited to D.L.R.)746^S.B.C. 1984, c.22.The relevant portions of the Act read as follows:1.^In This Act"age" means an age of 45 years or more and less than 65 years;8(1) No person or anyone acting on his behalf shall(a) refuse to employ or refuse to continue to employ a person, or(b) discriminate against a person with respect to employment or any term orcondition of employment, because of the ... age of that person...747^As with both McKinney and Stoffman, the case turned on the applicability of theCharter to the University of British Columbia. The fact that in this instance the Lieutenant-Governor appointed the majority of the members to the University's board of governors andthat the Minister of Education may require that the University submit reports or other formsof information, did not, in the majority's view, constitute government action so as to renderthe Charter applicable. Government control or influence upon the core function of theUniversity and particularly upon the mandatory retirement policy and employment contractswas not established by the fact that the University was fiscally responsible to theGovernment of British Columbia.748^Supra, note 745 at 73.749^Ibid. at 77.227750^Ibid. at 64.751^Ibid. at 65.752^Ibid. at 67.753^Ibid. at 68.754^L'Heureux-Dub6 J., following her reasons in McKinney, held that the Charter did notapply to the University of British Columbia, and thus did not have to address the issue ofwhether the University's mandatory retirement policy violated s.15 of the Charter. Ibid. at76-77.755^Supra, note 745 at 74-75.756^[1990] 1 F.C. 321. Appeal to the Federal Court of Appeal dismissed on other grounds,109 N.R. 300.757^Ibid.758^Ibid.759^Ibid.760^Ibid. at 325.761^Ibid.762^Ibid. at 326.763^Ibid.764^Ibid.765^Ibid. at 327 through 328. Currently, four provinces and one territory expressly includesexual orientation in their human rights legislation as a prohibited ground of discrimination:The Charter of Human Rights and Freedoms of Quebec, R.S.Q. 1987, c-12, s.10; theManitoba Human Rights Act, S.M. 1987-88, c.45, s.9(2); the Human Rights Act of theYukon Territory, S.Y. 1987, c.3, s.6; the Nova Scotia Human Rights Act, R.S. 1989,c.214, s.5; and the Ontario Human Rights Code, R.S.O. 1986, c.64, s.19. The court didnot cite the Ontario legislation.766^Report of the Parliamentary Committee on Equality Rights, October, 1985.767^Ibid. at 30.768^Supra, note 756 at 13.769^Ibid. at 207.770^Ibid. at 330.771^Ibid. at 331.772^Ibid.773^(1991), 58 B.C.L.R. (2d) 356.774^B.C. Reg. 144/68.775^Supra, note 773 at 359.776^Ibid.777^Ibid.778^Supra, note 774.779^Supra, note 773 at 363.780^Ibid.781^Ibid. at 364.782^Ibid.783^Ibid. at 364-365.784^R.S.B.C. 1979, c.255.785^Supra, note 773 at 367.786^Ibid. at 370.787^Supra, note 181 and Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252, [1989] 4W.W.R. 39, 25 C.C.E.L. 1, 89 C.L.L.C. 17,011, 59 D.L.R. (4th) 352, 10 C.H.R.R.D/6205, 47 C.R.R. 274, 95 N.R. 81, 58 Man. R. (2d) 1.788^Supra, note 163.789^Supra, note 773 at 371.790^Ibid. at 372.791^Ibid. at 373.792 Ibid.793 Ibid.794 Ibid. at 373-375.795 Ibid. at 378.796 Ibid.797 Ibid.798 Ibid. at 381.799 Ibid. at 382.800 Ibid. at 383.801 Ibid.802 Ibid.803 Ibid. at 383-384.804 Ibid. at 385.805 Ibid. at 384.806 Ibid. at 384-385.807 Ibid. at 385.808 Ibid. at 386.809 Ibid. at 387.810 Ibid.811 Ibid.812 Ibid. at 388.813 Ibid. at 389.814 Ibid. at 391.815 Ibid.816 2 December^1991, Vancouver, T-2425-88, unreported. (Federal Court - TrialDivision).817^R.S.C. 1970, C. 0-6.818^Supra, note 8163 at 7.819^Supra, note 119.820^Supra, note 816 at 9.821^Ibid. at 10.822^Ibid.823^Ibid. at 11.824^Ibid. at 12.825^Ibid.826^Ibid. at 13.827^Ibid.828^Ibid.829^Ibid.830^Ibid. at 14.831^Ibid.832^Ibid.833^Ibid.834^Ibid. at 6.835^Supra, note 792.836^Supra, note 818.837^(1991) 5 O.R. (3d) 245838^R.S.C. 1985, c. H-6.839^Supra, note 837 at 247-248.840^Supra, note 805.841^Supra, note 765.842^Such discriminatory practices as are set out in ss. 5, 6 and 7 of the Act, supra, note836.843^Supra, note 198.228229844^Supra, p.38.845^Supra, note 186.846^Supra, note 603.847^Supra, notes 646 and 665.848^Supra, note 646.849^Supra, notes 662 and 665.850^Supra, note 768.851^Supra, note 163 at 304 N.R.852^Supra, note 789.853^Supra, note 823.854^Supra, note 765.855^Supra, note 817.856^Ibid., Section 12 of the Act.857^Supra, note 828.858^Supra, note 830.859^Supra, note 831.860^Supra, note 833.861^Supra, note 645.862^Supra, note 730.863^Supra, note 834.864^Supra, note 662.865^See, generally, commentaries noted at note 39.866^The October 24, 1989 edition of the Vancouver Sun newspaper (Vancouver, B.C.)carried an item on p. B7 entitled "God's Judgment Claimed". The article in its entirety read:The San Francisco earthquake should shake Vancouverites into turning to JesusChrist and putting an end to abortions, homosexuality and 'liberal sexualattitudes', say some Fraser Valley Christians."Every Christian I've talked to says it's God's judgment", John Funksaid. He is a member of a group called Concerned Christians that spentthousands of dollars last spring on newspaper ads warning that God woulddevastate an immoral Vancouver with an earthquake in July.Similarly, the Vancouver Sun ran a full page ad on Novermber 4, 1989on p. A9 entitled "Time Is Running Out", concerning the 1990 Gay Games tobe held in Vancouver. The ad was sponsored by "Christian Leaders of GreaterVancouver" and stated in part: "We believe that homosexuality and thereforethese gay games are contrary to the Judeo-Christian Bible. They symbolizerebellion against God, and will therefore bring disgrace to Vancouver."Finally, advice columnist Ann Landers devoted two columns to the topicof same-sex marriage in the Vancouver Sun on November 27 and 28, 1989.Readers were invited to express their opinions on the topic. Comments byreaders included: "The way you [Ms. Landers] stick up for these queers isdisgusting ... I would like to say that San Francisco, which is 50-per-cent gay,is the armpit of America." "We are against legalizing homosexualrelationships. It is wrong to encourage these sick people who are killingthemselves and infecting others because of their filthy lifestyle." "The notionthat members of the same sex should have the rights and privileges of normalcouples is outrageous ... Those faggots should go back in the closet where theybelong." "You are sure to be swamped with letters from every queer in thecountry. I hope enough normal people write so that you will get an accuratereading of what decent folks think. Those of us in our right minds find theconcept of homosexuals being allowed to marry as just plain nuts." "Why givethis special privilege to a segment of society that has given us AIDS?" and:"Homosexuality is against the law of nature, God and Texas. Remember that230commercial, 'It is not nice to fool Mother Nature'? Well, that's what theseperverts are trying to do and it doesn't work.Ms. Landers noted in her column that she had received more than 55,000responses on this issue, with responses against same-sex marriages outnumbering positiveones two to one. Content of the opinions aside, the number alone speaks volumes aboutfeelings towards homosexual persons generally.867^Supra, note 205.868^Supra, note 201.869^Supra, p.102.870^Supra, pp.152-153.871^Supra, pp.191-192.872^Supra, p.155.873^Supra, pp.79-80.874^Supra, note 811.875^Supra, notes 816 and 756.876^Supra, note 816 at 2-3.877^Supra, note 344.878^Supra, note 725.879^See, for example, the discussions of the rational connection aspect of the proportionalitytest in Chief Justice Dickson's dissenting opinion in the Dairyworkers case, supra, note 463and accompanying text, the majority opinon in Irwin Toy, supra, notes 508 through 512accompanying text, the majority opinions in McKinney, supra, notes 610 through 612 andnote 633, and Stoffman, supra, note 703 through 706 and accompanying text.880^In Butler, Sopinka J. appears to have imported facets of the minimal impairment testinto the rational connection aspect, supra, notes 575 and 576 and accompanying text.881^Supra, note 832.882^Supra, note 351.883^Supra, note 348.884^Supra, note 349.885^Supra, notes 352 and 354.886^Supra, notes 415 through 418 and accompanying text887^Supra, note 364.888^Supra, p.92.889^Supra, p.136.890^Supra, pp.154-155.891^Supra, pp.141-143.892^Supra, p.157.893^Supra, note 517.894^Supra, p.114.895^Supra, pp. 128-129 and 133.896^Supra, pp. 149-150.897^Supra, p.129.898^Supra, p.149.899^Supra, notes 649 and 652.900^Supra, p.61.901^Supra, note 316.902^Supra, note 408.903^Supra, note 481.904^Supra, note 581.905^Supra, notes 523 and 584.906^Supra, note 523.907^Supra, note 805.908^Supra, note 659.909^Supra, note 523.231910^Supra, note 314.911^Supra, note 348.912^Supra, note 349.913^Supra, notes 352 and 354.914^Supra, note 185.915^Supra, note 193.916^Supra, note 194.917^Supra, note 196.918^Supra, note 197.919^Supra, note 198.920^Supra, note 199.921^Supra, note 200.922^Supra, note 645.923^Supra, note 665.924^Supra, note 730.925^Supra, note 799.926^Supra, note 523.927^Supra, note 314.928^Supra, note 351.929^Supra, note 277.930^Supra, note 671 and p.157.931^Supra, note 278.932^Supra, note 279.933^Supra, note 17.232BIBLIOGRAPHYBackhouse, C., "Pure Patriarchy: Nineteenth-Century Canadian Marriage" (1985-1986) 31 McGill Law Journal 265.Bagnall, R.G. et al, "Burdens on Gay Litigants and Bias in the Court System:Homosexual Panic, Child Custody and Anonymous Parties" (1984) 19 HarvardCivil Rights - Civil Liberties Law Review 497.Barratt, M. and M. 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