Egan v. The Queen

The appellants E and N, a homosexual couple who had lived together for 38 years and publicly represented themselves as partners, were denied a spousal allowance for N under section 19(1) of the federal Old Age Security Act 1985 (“Act”) solely on the basis that their relationship was of a homosexual nature and thus did not meet the definition of spouse set out in section 2.  This section provided that ‘spouse’, in relation to any person, ‘include[d] a person of the opposite sex who is living with that person, having lived with that person for at least one year, if the two persons have publicly represented themselves as husband and wife …’.  The appellants sought a declaration that by discriminating on the basis of sexual orientation, the section 2 definition contravened the right to equal benefit of the law without discrimination (Canadian Charter of Rights and Freedoms, section 15(1)). They argued that the definition should be extended to include partners in same-sex relationships. Their application was dismissed by the trial court judge and by a majority of the Court of Appeal, and they appealed to the Supreme Court.

[Adapted from INTERIGHTS summary, with permission]

The Court held that sexual orientation, although not specified as a prohibited ground of discrimination, fell within the ambit of  section 15(1) protection as it is a deeply personal characteristic that is either unchangeable (or changeable only at unacceptable personal costs) and is therefore analogous to the enumerated grounds (Canada (Attorney General) v Ward[1993] 2 SCR 689 applied). However, not all distinctions resulting in disadvantage to a particular group will constitute discrimination. It would bring the work of the legislature to a standstill if the courts were to question every distinction that had a disadvantageous effect on an enumerated or analogous group (Andrews v Law Society of British Columbia [1989] 1 SCR 143 followed).

The Court held that the Act did not discriminate against homosexuals in violation of section 15(1). The Court reasoned that Parliament clearly intended the Act to provide support to elderly married and common law couples. The biological and social reality of procreation determines that marriage is by nature heterosexual. Parliament was thus justified in supporting and protecting legal marriage and in extending this support and protection to heterosexual couples who were not legally married in order to promote the stability of such relationships. Viewed in the larger context, there was nothing arbitrary about a distinction supportive of heterosexual family units. Whether a particular heterosexual couple have children or not, it is the social unit that uniquely has the capacity to procreate children and generally cares for their upbringing and as such warrants support by Parliament to meet its needs.

The Court further reasoned that none of the couples excluded from benefits under the Act could meet the fundamental social objectives Parliament was seeking to promote. Homosexual couples were not treated any differently than other excluded couples, such as cohabiting siblings or relatives. The support granted by Parliament to heterosexual couples did not exacerbate a historic disadvantage; rather it ameliorated a historic economic disadvantage for couples who were legally married and for those who live in a common law relationship.

[Adapted from INTERIGHTS summary, with permission]