Sticky posted this in the Canada forum, and achtung_circus suggested it deserved a wider audience.
The rigorous equality provisions of the 1982 Constitution of Canada (much more stringent than constitutional requirements in the US) took effect in 1985 (to give governments a transitional period in which to bring their legislation into line).
The constitutional Charter of Rights and Freedoms does not expressly prohibit discrimination, in legislation and govt policy, on the basis of sexual orientation, but the Supreme Court eventually interpreted it as including sexual orientation, since gay men and lesbians are a historically stereotyped and disadvantaged group.
The Canada Pension Plan, the public pay-in retirement pension similar to the US's social security plan, pays survivor benefits to the widowed spouses of contributors to the plan. In 2000, the govt enacted legislation to allow same-sex partners to claim survivor benefits in respect of contributors who had died in 1998 or later. (The legislation preceded same-sex marriage.) The question was whether denying benefits to survivors of contributors who died between 1985 and 1998 was unconstitutional.
http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1101465974163&call_pageid=968332188492&col=968793972154&DPL=IvsNDS%2f7ChAX&tacodalogin=yes(The Toronto Star does not require registration or subscription.)
Denying millions of dollars worth of retroactive pension payments to widowed gays and lesbians is an irrational and unconstitutional violation of their rights and Ottawa's commitment to equality, Ontario's highest court ruled today.
In a strongly worded decision, the Appeal Court sided with a landmark lower-court ruling that the federal government was wrong to refuse the Canada Pension Plan backpayments, estimated at about $80 million, when it extended equality rights to same-sex couples in 2000.
George Hislop, the main applicant in this constitutional challenge, is now 77, and has been one of Canada's leading gay rights activists for decades. His partner died in 1986; they had been together 28 years. It's just so fitting that his name be on an important Charter decision like this.
"I always knew that Canadians were interested in fair play and I think the courts have borne that out," said George Hislop, 77, one of five lead plaintiffs in the case. "The Charter says we are all equal and you can't be a little bit equal. You got to be there all the way."
The Justice Minister, once a well-known civil liberties lawyer and now just a Martinite Liberal, is "studying" the case (i.e. whether to appeal to the Supreme Court of Canada). The govt's argument is that it is not up to the courts to set the terms of "federal benefit programs and policy", where the use of public funds is in issue. It lost that argument in a case some time ago about unemployment insurance-paid parental leave for the fathers of adopted children, and we now have a parental leave policy that makes no distinction between mothers and fathers in all cases (except for a short period of leave for delivery).
The Justice Minister should just give up:
It is estimated that about 1,500 gays and lesbians across Canada are eligible for survivor benefits. Initially, the amount of retroactivity was pegged at as much as $400 million, but more recent actuarial data suggested it would be closer to $80 million.
One of those small prices to pay for decency, for a group of mainly aging people who have suffered quite enough indignity in their lives, before they all die.
I know our USAmerican neighbours can only dream of having problems like these, sadly.
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