By Aoife Quinn, 1L
“Think you're escaping and run into yourself. Longest way round is the shortest way home.” James Joyce, Ulysses
With this quotation, The Honorable Lynn Smith, retired justice of the Supreme Court of British Columbia, brought listeners along on her “Quest for an Equality Test” at the Faculty of Law on February 27, 2013, as the bi-annual Morris A. Gross Memorial Lecture (click here to watch the webcast of this lecture).
Smith focused on the proverbial idea that “the longest way around is the shortest way home.” She took the audience though the various iterations of the Charter equality test, which is used by the courts to determine if the s. 15 equality guarantee is violated.
Smith identified seven early propositions that the s.15 jurisprudence has contained, and stated that all but one had been revisited between Andrews v. Law Society of British Columbia in 1999 and R v. Kapp in 2009. Smith identified Kapp as the start of a new trend in s. 15 jurisprudence, which was continued in Withler v. Canada in 2008 and Quebec v. A. on January 25, 2013.
This s. 15 journey was the “longest way around,” but it comes “home” to the first s. 15 case decided by the Supreme Court: Andrews v. Law Society of British Columbia. The Charter equality test Smith and her colleague Professor Black have proposed brings clarity to the “Andrews test” in the hopes that s. 15 will not become a “B-list” right, to be claimed only in the alternative, after the more articulated s. 2(b) or s.7 rights.
Throughout the lecture, Smith expressed reservations about the decline of s. 15 challenges, which she attributed to the fact that both the test and the right itself are difficult to articulate. Smith called the s. 15 equality right an “elusive shape shifter, but highly adaptable, both a good and a bad thing,” but made it clear that there is still life in s. 15 equality rights and they deserve to be applied. Smith emphasized that clarity about s. 15 is important: for judges, government lawyers, administrative tribunals, citizens who need to know whether they have been treated in a manner consistent with the Charter, and the lawyers who advise them.
The audience was fascinated by the insight Smith had about the latest s. 15 case decided by the Supreme Court, Quebec v. A. The case reformulated the test in s. 15 to ask if the law creates a distinction on the basis of an enumerated or analogous ground and if the distinction creates a disadvantage. Quebec v. A. clarified that the legislature’s justification for the law or action would fall outside the s. 15 test and would be analyzed in the s.1 analysis. The court held 5/4 that the exclusion of de facto spouses from spousal support and division of property legislation infringes s. 15, but was upheld by s. 1.
Smith left the audience with three interesting questions raised by Quebec v. A. What is the shelf life of a Charter case, given the rapidly changing social context of Canada? What will happen to to s. 15 decisions decided after Andrews but before Kapp? And most interestingly, what is the role of voluntary activity or choice in constitutional thinking? That is, can something be held out as an analogous ground if people choose to participate in the group? How much deference should the courts give to choices made by legislatures to draw distinctions between groups? Smith encouraged those in the audience to take up work on these questions.
Appointed to the Supreme Court of British Columbia in 1998, Smith served as a justice until her retirement in September 2012. Prior to her appointment, she practised law at Shrum, Liddle and Hebenton (now McCarthy Tetrault) and taught law at the University of British Columbia from 1981-97. She is currently teaching a seminar on constitutional litigation at the UBC Faculty of Law. Her talk featured some of her current work on the Charter’s s. 15 guarantee of equality rights with her colleague Professor William Black.
The lecture was established in memory of the late Morris A. Gross by the law firm Minden Gross LLP, and by members of his family, friends and professional associates. This lecture was co-sponsored by the John and Mary Yaremko Fund for Multiculturalism and Human Rights.
