What is the test for "unfettered choice" under s. 15 of the Charter?

British Columbia, Canada


The following excerpt is from Takacs v. Gallo, 1996 CanLII 1370 (BC SC):

64 I rely also on what must be regarded as powerful obiter dicta in the reasons for judgment of Madam Justice L'Heureux-Dubé in Miron et al v. Trudel et al (1995), 1995 CanLII 97 (SCC), 124 D.L.R. (4th) 693 where at p. 731 she stated: As I noted above, in recognition of this reality, legislatures have intervened in a wide variety of contexts to protect individuals' vested interests in relationships of some permanence and interdependence. These interventions are not anti-marriage. They simply acknowledge that the family unit is evolving in response to changing times. In my respectful view, it would therefore be a significant step backwards for this court none the less to conclude that "unfettered choice" is the only framework by which to measure and evaluate extramarital cohabitation. Such logic would, in effect, entail adopting a narrower approach to the realities of cohabitation under s. 15 of the Charter -- which is supposed to be interpreted broadly and purposively -- than has already been widely accepted both in the common law and in statutes throughout Canada. (my emphasis) ... To recapitulate, the decision of whether or not to marry is most definitely capable of being a very fundamental and personal choice. The importance actually ascribed to the decision to marry or, alternatively, not to marry, depends entirely on the individuals concerned. For a significant number of persons in so-called "non-traditional" relationships, however, I dare say that notions of "choice" may be illusory. It is inappropriate, in my respectful view, to condense the forces underlying the adoption of one type of family unit over another into a simple dichotomy between "choice" or "no choice". Family means different things to different people, and the failure to adopt the traditional family form of marriage may stem from a multiplicity of reasons -- all of them equally valid and all of them equally worthy of concern, respect, consideration, and protection under the law.

Other Questions


What is the test for using s. 10(b) of the Charter to argue that the amended provisions in the Charter do not violate section 8(b)? (British Columbia, Canada)
Is an extradition court a court of competent jurisdiction pursuant to s. 24 of the Charter and has the jurisdiction to grant Charter remedies? (British Columbia, Canada)
How has evidence been excluded from a Charter violation trial where the Charter violation was a serious one? (British Columbia, Canada)
Does an extradition judge have jurisdiction to apply the Charter and grant Charter remedies? (British Columbia, Canada)
What is the test for a Charter voire dire to establish a breach of section 7 of the Charter? (British Columbia, Canada)
What is the test for exclusion under s. 24(2) of the Charter when evidence is recovered after a Charter violation? (British Columbia, Canada)
Does the Charter protect us against a poor choice of friends? (British Columbia, Canada)
When will the Court of Justice LaForme be able to continue to uphold the Charter of Canada's Charter of Human Rights? (British Columbia, Canada)
What is the test for admitting or denying evidence that has been obtained in violation of the Charter of Civil Procedure? (British Columbia, Canada)
In what circumstances has the Charter of Human Rights been expanded by the Court of Appeal? (British Columbia, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.