Same-sex rights in the Supreme Court of Canada

Last Friday, the Supreme Court of Canada decided Canada (Attorney General) v. Hislop, which upheld in part and invalidated in part the legislation that restricted access to pension benefits for the surviving partner of a same sex relationship. (The legislation in question had amended earlier legislation that was found invalid in 1999.) One interesting point is the discussion of remedies. Just as in the previous week's security certificates case (where the effect of the invalidity was delayed for a year), the Court reasons its way towards a remedy in a way that at present is beyond the pale in Australia (where unlike Canada is there is no explicit constitutional recognition of the rule of law as a constitutional value). The Canadian court openly acknowledges that the 1999 decision changed the law and that it would therefore be inappropriate to grant a remedy in relation to pre-1999 conduct that imposed a burden on government (absent unusual circumstances). Bastarache J disagrees. Although judicial decisions make and remake the common law,

142 The same cannot be said for judicial decisions which interpret and apply the Constitution. The Constitution exists independently of judicial decisions. Judges do not “make” the Constitution every time they interpret its provisions. Interpretations of what the Constitution requires may change, but the underlying rights and freedoms endure. Charter rights are not created every time that a court expressly overrules or implicitly repudiates a prior decision or gives “content to broad, but previously undefined, rights, principles or norms” (LeBel and Rothstein JJ. at para. 99). The rights and freedoms in the Charter were guaranteed to all Canadians from the moment the Charter came into force.

143 By justifying the denial of retroactive  relief in part on the existence of a “substantial change in the law”, my colleagues give Charter rights an uncertain status. I cannot accept an approach that, for remedial purposes, implies that Charter rights can be here one day and gone the next or, conversely, that they depend on judicial recognition of “a new or newly recognized technological or social environment” (para. 99) for their genesis. Such reasoning represents a watering down of the promise made to all Canadians when the Charter was enacted. By attaching importance to changing social conditions, it makes Charter rights dependent on how the majority of Canadians perceive the claimants’ rights.  With respect, I cannot see why society’s views of Charter claimants — especially in the context of vulnerable minorities — should be a factor for determining whether a Charter right was part of the Constitution in 1985, or whether it sprung into existence later and thereby be a basis for denying retroactive relief.

 144 I should note that I am not advocating for a view of the Constitution that says that it is frozen in time. The “living tree” metaphor aptly describes how through time our Constitution may change to correspond to new realities. But that does not mean that every time a new constitutional interpretation is adopted or a previous decision is overturned that the fundamental rights and freedoms guaranteed in our Charter have changed or that new ones have been created. There is a difference between changes in constitutional interpretation and actual constitutional change. Furthermore, the “living tree” doctrine is a doctrine of “progressive interpretation”(Reference re Same‑Sex Marriage, [2004] 3 S.C.R. 698, 2004 SCC 79, at paras. 22-23 (emphasis added)), necessary to ensure that our Constitution does not become rigid and unresponsive to Canadian society. It should not be used as a justification for denying relief to a particular group of Charter claimants.