Elaine and Walter Schachtschneider, of Hamilton, are married with children. But if they had decided to live together without getting married they would have saved up to $1,200 a year in taxes.
It’s part of the inequities built into the Canadian tax system which rewards couples for remaining unmarried. Elaine took the case to the courts saying the laws were discriminatory against couples who enter into matrimony.
She lost her case and in the process discovered that some individuals and groups in Canada are considered by the courts more equal than others.
Though the tax-law has since been rectified, married couples should not expect the Charter of Rights and Freedoms to apply as much to them as it does to other groups in Canada, the Federal Court of Appeal said in the ruling.
That’s because married families represent “advantaged groups.” Because married individuals are advantaged they have to work much harder to prove prejudice than individuals from other so-called disadvantaged groups.
Elaine Schachtschneider, argued the tax law infringes her rights as a married woman and discriminates against her religion.
In making the ruling, Mr. Justice Allen Linden said married couples are part of the advantaged groups in society and so “distinctions that disadvantage them are not discriminatory, unless there is clear evidence of prejudice or stereotyping.”
The judge said for disadvantaged groups “evidence that a law further disadvantages them will normally support a claim almost automatically.”
It’s only when the person or group comes from what is deemed advantaged in society that they must show “clear indication of prejudice.”
Mr. Justice Linden, former president of the Law Reform Commission of Canada, was appointed a federal judge by Prime Minister Kim Campbell in 1990 when she was the federal Justice Minister. As member of the Law Reform Commission she oversaw a controversial report advocating abortion on demand up to the first 22 weeks of a mother’s pregnancy.
An editorial in The Globe and Mail on July 14 came out against the Charter of Rights and Freedoms has eroded legal rights.
Where an individual stands before the Charter “depends on where your group sits in society,” the editorial says. “The less historical disadvantage for the group, the less current protection for the individual.” It goes on to say “this is a case of group histories determining individual rights.”
Therefore, individuals, if they are deemed to be members of so-called advantaged groups like married couples, have fewer rights under the Charter than other individual Canadians.
Elaine Schachtschneider, was arguing her case on the basis of Section 15(1) of the Charter of Rights and Freedoms. That section says, in part, “Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination…”
The Globe says “in essence, the courts have decided that ‘every individual’ is not equal under the law, nor does he or she have the right to the equal protection of the law without discrimination.”