A recent decision of the Supreme Court of Canada (SCC) Quebec (Attorney General) v A, 2013 SCC 5, seems to have divided the Court on the issue of discrimination and equality in a manner somewhat reminiscent of the fractured Court of the mid 1990s (see the “equality trilogy”: Miron v Trudel,  2 SCR 418; Egan and Nesbit v Canada,  2 SCR 513; and Thibaudeau v Canada,  2 SCR 627).
The Quebec v A decision is 450 paragraphs long. To understand the legal reasoning behind the outcome (as was the case in the 1990s) one might have to draw a detailed chart. Lawyers, courts and the public are going to find it difficult to follow the principles set down in the case. The equality issue was whether excluding de facto (common law) spouses from the Civil Code of Quebec provisions that mandate property sharing and spousal support when either a marriage or civil union breaks down violates section 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”). Then, the Court had to decide whether the violations were saved by Charter s 1.
Charter s. 15 provides:
15. (1) 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.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Justice Abella (writing for herself ), concurred with by Justice Deschamps (also writing for Justices Cromwell and Karakatsanis), and Chief Justice McLachlin (writing for herself ) all agreed that there was a violation of Charter s. 15(1). Justice LeBel (also writing for Justices Fish, Rothstein and Moldhaver), wrote the dissenting judgment, holding that there was no discrimination.
On the second issue of whether the violation of Charter s. 15(1) could be saved by Charter s. 1, Justice McLachlin held that it was saved. Thus, the final outcome of the case that there was no discrimination.
The challenge for students of equality rights in this case was the test for a violation of equality/ discrimination in s. 15(1) that was the focus of the majority and minority judgments. Chief Justice McLachlin and Justice Abella both confirmed that the test for discrimination as outlined in R v Kapp, 2008 SCC 41 (Kapp) should be followed to determine whether s. 15(1) is violated:
(1) Does the law create a distinction based on an enumerated to analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
The Court’s reference to “prejudice” and “stereotyping” in Kapp has raised concerns because it implies that other ways that people experience disadvantage may not be recognized in this test. For example, sometimes the adverse effects of a law or government action are based on harms other than prejudice or stereotyping – these could include oppression or denial of basic goods.
Justice Abella held that the exclusion of de facto spouses from the legal protections for support and property that are given to spouses in formal unions violates Charter s 15(1). She noted that many de facto spouses share the same characteristics that led to the protections for spouses in formal relationships. For example, they form long-standing unions, they divide household responsibilities, they develop a high degree of interdependence, and the economically dependent spouse is faced with the same disadvantages when the relationship dissolves. Yet, the de facto spouses in Quebec have no right to claim support or right to divide family property and are not governed by any matrimonial regime. Justice Abella also noted that, in some cases, the decision to live together unmarried is no choice at all, which addressed the minority assertion that individuals have chosen to live in de facto relationships, when they could choose marriage and the benefits that adhere to that choice.
Justice Abella noted that the SCC’s reference in Kapp to “prejudice and stereotyping” was not intended to “create a new s. 15 test” nor to impose any “additional requirements” on those claiming equality. Instead, stereotyping and prejudice are merely two indicators that are relevant to deciding whether substantive equality (e.g., adverse effects discrimination) is violated. This analysis seems to recognize that the Court is not going to focus merely on direct discrimination, but is also willing to focus on laws that are neutral on their face, but actually have an adverse effect on a particular group. On the other hand, the minority, led by Justice LeBel, indicated that prejudice and stereotyping were “crucial factors” in the identification of discrimination, although they did note that they are not the only factors.
Justice Deschamps, agreeing with Justice Abella that there was discrimination, noted that while society’s perception of de facto spouses has changed in recent decades and there is no indication that the Quebec legislature intended to stigmatize them, the denial of the benefits had the effect of perpetuating the historical disadvantage experienced by de facto spouses.
Justice McLachlin held that although “prejudice and stereotyping” are useful guides to determine discrimination, one must perform a contextual analysis, taking into account a pre-existing disadvantage of the claimant group, the degree of correspondence between the differential treatment and the claimant’s group reality, the ameliorative impact or purpose of the law and the nature of the interests affected. She agreed that the Quebec law is discriminatory. However, she also held that the law was saved by Charter s. 1 (“reasonable and justifiable in a free and democratic society”).
Justice LeBel held that the regime in Quebec dealing with support and property division is available only to those who consent to it by getting married or entering into a civil union. While Justice LeBel was prepared to find that the law created a distinction based on marital status, he held that the distinction was not discriminatory because it did not create a disadvantage by expressing or perpetuating prejudice or by stereotyping. Although de facto spouses were historically the subject of hostility and social ostracism, nowadays they are respected and accepted. If partners participate in marriage or civil unions, they are consenting to the obligations of support and property division. The fact that there are different frameworks for private relationships between partners does not indicate the expression or perpetuation of prejudice, but instead demonstrates respect for the various types of relationships.
The varying approaches to the requirements for proving a violation of Charter s 15(1) are reminiscent of the early days of the Charter when Justice McIntyre in Andrews v Law Society of British Columbia,  1 SCR 143, said that equality is “an elusive concept” that “lacks precise definition”. Although there have been many twists and turns in the SCC with regard to Charter s. 15(1), it appears the Court is not yet settled on the exact considerations involved in the test for equality and discrimination.