Friday, March 02, 2007

Equality---Gay Survivors Win Benefits

The Supreme Court of Canada says it was UNCONSTITUTIONAL for Canada Pension Plan to deny Survivors Benefits to Gays and Lesbian, ending one of the last Battles for Equality for Homosexuals.

But instead of ordering the Federal Government of Retro-active payments of Benefits to l985 when the Guarantee of Equality first come into force, the SC bowed to the choice of the Parliament to limit payment back to 2000 when the Government first tried to update its discriminatory law to include Sexual Orientation.

The ruling means the federal government will now pay out about $50 million to $75 million in back payments to about 1,000 gay and lesbian individuals whose spouses are deceased. From now on, those surviving spouses will continue to receive monthly cheques averaging about $500.

Of the 1,500 people who originally joined the class action against the federal government, about 500 have since died, and their estates are not entitled to claim the benefits, the court ruled.

In 1985, the Charter, which protects against discrimination on grounds such as age, colour, race or sex, did not specifically include sexual orientation
Equality Rights: Charter Or Rights and Freedoms-

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

But over the years, the Supreme Court of Canada "read in" such protection, and ruled the Charter does prohibit such unequal treatment against homosexuals. The biggest case was M v H in 1999, when the high court extended spousal support payments under family law to same-sex couples.

In yesterday's ruling, Justices Louis LeBel and Marshall Rothstein wrote that the federal government – whose job it is to decide "the distribution of government resources" – was attempting to correct a wrong soon after that 1999 ruling. They said it acted in "good faith" given the legal uncertainty that existed up until that point, stressing the fact that the law was evolving.

"Just as ignorance of the law is no excuse for an individual who breaks the law, ignorance of the Constitution is no excuse for governments. But where a judicial ruling changes the existing law or creates new law, it may, under certain conditions, be inappropriate to hold the government retroactively liable."

Under the current Chief Justice, the trend of court when face with rights claims and remedies that entails considerable spending, it has the tendency to be much more differential to the expertise of the legislature and the legislative choices.

The Decision although may not all what the claimants want, is still a landmark for now the Equality among individuals is complete...