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Friday, March 26, 1999

Madness, yes, but there's method to it

George Jonas
National Post

The Supreme Court of Canada spoke yesterday in two cases involving different fact situations and different areas of law. They're tied together by at least one common thread, though, as it seems to me.

It's to make sure that the law, whatever it is, doesn't interfere with social policy -- "social policy" being what it is, or what, in the court's view, it ought to be.

In the case of Marie and Frank Bracklow, Justice Beverley McLachlin wrote the court's unanimous judgment reversing the decisions of two lower courts in British Columbia. The courts below found that Frank didn't have to support his sick and needy ex-spouse Mary indefinitely. The Supreme Court ruled that he may have to. It sent the case back to the trial judge to determine how much, if any, Frank's payments should be.

The Bracklow case turned on a number of facts, including the relative brevity of the union, the financial independence of the parties during marriage, and the lower courts' finding that Mary suffered no detriment from being married to Frank.

There was a time, of course (not so long ago), when marriage was viewed as a sacrament rather than a contract or a tort. A husband's obligation to support his wife or ex-wife in sickness and in health would have been all but axiomatic. In the post-feminist era, however, our Supreme Court had to engage in considerable sophistry to arrive at the same result.

Madame Justice McLachlin proved herself equal to the task by postulating two legal models that govern the demise of modern unions. One, the "clean-break" model, entitles spouses only to compensation for actual losses. The other, the "social-obligation" model, entitles the needier spouse to non-compensatory benefits. This enables courts to mix and match according to the result that seems right to them in given cases -- maybe even taking into account the pre-nuptial wishes of the parties as expressed in contracts, if they feel like it.

The aim of feminist scholars and jurists appears to be forthright enough. It's not to be constrained in their agenda, especially by the very legal models they've helped to fashion. They want women to be free of the obligations of marriage, without foregoing any of its benefits. (Making sure that they can have their cake and eat it, too, may be an even simpler way to put it.)

The case of Nancy Law, though less straightforward, seems to me another example of champions of the Canadian Charter of Rights and Freedoms trying to avoid being hoisted on their own petard. The Canada Pension Plan provides no spousal benefits to people under 35. Ms. Law was 30 when her husband died. When the CPP rejected her application, she sued under Section 15(1) of the Charter, which prohibits discrimination on a number of grounds, including age.

But yesterday the Supreme Court ruled that age limitations under the CPP aren't discriminatory. "The determination of whether a legislative provision infringes a claimant's dignity," wrote the court, "must in every case be considered in the full context of the claim. In the present case, the appellant is more advantaged by virtue of her young age."

I think there's method in the Supreme Court's madness. Simply put, it's to make sure that the social engineers of our "progressive" governing elite, including administrative and legal institutions, are hampered as little as possible by their own laws or principles. The overriding judicial aim is flexibility for the omnipotent state. The key words to secure it are "purposive" and "contextual."

One doesn't have to be unsympathetic to the end result in either the Bracklow or the Law cases (I'm not, as a matter of fact) to be concerned about this.

Take, for instance, Mr. Justice Frank Iacobucci's formulation in the Law case: "A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach."

My translation: "We ought to interpret the law as we see fit, or it may lead us to results we do not like." I'll concede that this is an intemperate way to put it, but I contend that it's not inaccurate.

An old judicial phrase called policy an unruly horse. So it is, but our cowboy jurists have long been determined to mount it. Canada is along for the ride. We can only keep our fingers crossed that journey on which our "purposive" court has embarked will not turn out to be an abysmally bad trip.

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