Supreme Court striking balance on equality rights

Gay rights advocates are cheering the Supreme Court of Canada ruling, which unanimously confirmed lower courts' conclusion that the Canada Pension Plan's survivor benefits should be available to all couples, homosexual as well as heterosexual.

Lawyers for what the court euphemistically termed "the Hislop class" of CPP contributors had asked for the top court to go even further, by awarding the survivors in same sex relationships to be awarded retroactive benefits back to 1985, when the equality rights provision in the Canadian Charter of Rights and Freedoms (Section 15) came into force.

The court ruled, sensibly, that same-sex couples should be left in the same position as opposite-sex couples (both married and common law), who under terms of the pension plan on applying for the benefit have a right to up to 12 months of arrears.

Although granting the applicants all they wanted might be seen as fair, it would apparently have been extremely costly - perhaps about $100 million - and could have led to other similarly costly consequences.

As a Globe and Mail editorial pointed out, "anyone who persuaded the courts that his or her rights had been denied by government would have had a retroactive claim on public money dating back a generation or more. Taxpayers would be perpetually held hostage to the Charter of Rights, even where government had acted in good faith under the Charter as it was interpreted at the time."

As an example of what might happen, the Globe suggested the wrongful internment of Japanese Canadians during the Second World War and the Chinese immigrants who had to pay a head tax between 1885 and 1923.

The ruling means the federal government will now pay out about $50 million to $75 million in back payments to about 1,000 gay and lesbian individuals whose spouses are deceased. From now on, those surviving spouses will continue to receive monthly cheques averaging about $500.

Of the 1,500 people who originally joined the class action against the federal government, about 500 have since died, and the court ruled that their estates are not entitled to claim the benefits.

Among them is the estate of the class action's representative plaintiff, George Hislop, a long-time Toronto advocate for gay and lesbian equality who died October 2005. He had been denied benefits after his partner died in 1986.

In a 1999 ruling, M. v. H., the court agreed with the Ontario Court of Appeal that spousal support payments under the province's Family Law Act must be available to samesex spouses.

In the recent ruling, Justices Louis LeBel and Marshall Rothstein wrote that the federal government, in deciding "the distribution of government resources," was attempting to correct a wrong soon after the 1999 ruling. They said it acted in good faith given the legal uncertainty that had existed up until that point, stressing the fact that the law was evolving.

"Just as ignorance of the law is no excuse for an individual who breaks the law, ignorance of the Constitution is no excuse for governments. But where a judicial ruling changes the existing law or creates new law, it may, under certain conditions, be inappropriate to hold the government retroactively liable," they said.

Hislop's counsel, Toronto lawyer Douglas Elliott, said the ruling "sets a huge precedent that will be taught in constitutional law classes until the end of time. This is probably one of the most significant cases in the Charter of Rights' history."

As we see it, the decision goes a long way toward righting a wrong, yet does not completely eliminate discrimination and potentially will create "instant gays."

This latest judgment demonstrates once and for all how far we as a country have gone in terms of ensuring that gay and lesbian Canadians have the same rights as heterosexuals.

And what a contrast to the situation we see south of the border, where we have a president who favours a constitutional amendment that would forever prohibit homosexuals from marrying, and where some states have gone even further in preventing same-sex couples from even entering into a form of "civil union."

And that in a country that boasts one of the world's highest divorce rates!