Remembering the impact of Egan v. Canada
Today, Canadians take for granted that queers are included in all legislation and government programs that target spouses or families. It seems quaint to review the Supreme Court of Canada’s landmark decision Egan v. Canada, a story told in a newly released Heritage Minute from Historica Canada. Though the court recognized in Egan in 1995, for the first time, that lesbians and gay men were protected by the Charter of Rights and Freedoms, the court simultaneously eviscerated that protection by saying the government had the right to discriminate anyway. It was a bittersweet victory that would lead to other milestone wins.
When the Constitution was amended in 1982 it added an equality rights section, which said in part:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Missing from the list of protected grounds was “sexual orientation” or “gender identity.” The Supreme Court of Canada had said that the words “and, in particular” meant that other protected grounds could be added to section 15. The queer community watched anxiously as cases wound their way up to the Supreme Court to see whether the court would include queers among the protected groups.
Queers needed the right case to argue that the chartergranted queers protection under the equality rights section. We needed to challenge a law that was explicitly limited to opposite-sex couples.
Jim Egan and his partner, Jack, brought the case forward. The two had lived together since 1948. When Egan turned 65, he began to receive old-age security and guaranteed income supplements. When Jack turned 60, he applied for a spousal allowance, as a common-law partner — and was denied. The couple met every criterion for benefits, except that they were same-sex. Egan appealed, and the case went all the way to the Supreme Court.
Four of the nine judges of the Court found no discrimination. Five judges held that it was discriminatory to exclude samesex couples. But of those five, one effectively found that though excluding same-sex partners was discriminatory, the government could do so anyway. He reasoned that when the government was extending benefits it could do so in an “incremental” fashion, relying on section 1 of the charter, which notes there are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” even if doing so meant passing discriminatory legislation. The case was lost, 4:4:1. We describe the Egan case as losing the battle, but winning the war. Though Jack Nesbit did not get the spousal pension he deserved, this is the case that established gay rights in Canada. Every gay and lesbian rights case since has relied on the majority opinion in Egan, which found that discrimination based on sexual orientation was contrary to the charter.
In M v. H, a 1999 case of the Supreme Court of Canada, the court followed Egan and ruled that same-sex families have the same rights as opposite-sex families.
In that case, two lesbians had been in a common-law relationship for 10 years. When they broke up, M sought spousal support from H, and challenged the limitation of Ontario’s Family Law Act to opposite-sex common-law couples.
M won. Applying Egan, the court held that the Family Law Act limitation was discriminatory and therefore invalid. In the wake of the decision, Ontario and other provincial governments enacted correcting statutes to extend rights to common-law same-sex couples. Then came marriage. After vigorous fights province by province over gay marriage, the Supreme Court of Canada had ruled on the validity of same-sex marriage legislation, and equal marriage rights were extended by federal legislation across the country on July 20, 2005. Egan opened the door to equality rights for queers. Its legacy has resulted in a Canadian legal regime that recognizes in the Constitution of the country that lesbians and gay men are equal to heterosexual people, both individually and as couples.
But in doing so it incorporated the traditional view of the married family: two people in a monogamous relationship, with or without children.
In folding into the “marriage tent”— or the marriage tent with a foyer for common-law partners — the law has taken in same sex-partners. The cases may assist couples in which one person is transgender, since the gender identity of the couple is no longer relevant. But there are still many people whose families are left out of those legal protections.
So the fight continues.
barbara findlay, Q.C. (Queen's Counsel) is a Vancouver-based queer feminist lawyer. findlay holds a B.A. from Queen's University, a master of arts in Sociology and a LL.B, both from the University of British Columbia.