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Canada's Supreme Court cares deeply about the rights of gays and lesbians-- unless a lot of money's at stake.

That's the theme emerging from two recent decisions. Most recently, on March 2nd, the high court refused full retroactive payment of survivor pensions to same-sex partners whose lovers had died before 1998.

The government had already been forced by previous lower courts to extend pension benefits to the surviving member of a gay couple where one partner had passed away after the year 1998. A class-action suit led by the late, longtime gay activist George Hislop sought to have benefits paid retroactive to the date equality protection for gays and lesbians came into effect, with the Charter of Rights and Freedoms in 1985. It could have cost the Canada Pension Plan hundreds of millions of dollars in back payments.

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he decision was a waffle. The court ruled that benefits should, indeed, be paid to individuals whose partners died as far back as 1985. But their beneficence was hedged: those benefits, they said, should only be retroactive for 12 months from the date the individual filed a claim for benefits, not necessarily back to the spouse's date of death.

The court argued they wanted to avoid a flood of litigation, and said that parliament had the right to determine when laws should go into effect.

Many gay activists cried foul. "Historically, these individuals were told not to file claims because they would be automatically denied because gay couples were not legally recognized," said lawyer Laurie Arron in an interview. "To turn around now and say they won't be paid retroactively because they followed these instructions and did not apply for benefits seems to me to be deeply unfair."

Egale, Canada's national LGBT lobby group, is calling on the government to voluntarily provide the retroactive payments. "The Hislop case concerns 1100 individuals and 400 estates where the surviving partner did not live long enough to see the outcome of this lengthy litigation," said Egale's Tamara Kronis. "These people made their Canada Pension Plan contributions. The Supreme Court of Canada recognized that their rights have been violated. The government of Canada should do right by them and provide for retroactive survivor benefits in the upcoming spring budget."

"It seems wrong in principle that the only recourse these survivors now have to receive the full pension benefits they paid for is to lobby the government," Kronis goes on. "The Charter was in force during the relevant time period, and the courts at all levels have all recognized... that sexual orientation is a prohibited ground of discrimination... and that the differential treatment of same-sex couples during this time with respect to pension benefits is discriminatory. You'd think that would mean people would get paid."

Censorship: common and ordinary

Penny-pinching when it comes to questions of basic justice is the theme from another high-court ruling. On January 19th, the justices ruled seven-to-two not to force the government to pay upfront costs in a gay bookstore's fight against systemic harassment and censorship by Canada Customs.

In 2000, Vancouver's Little Sister's Book and Art Emporium won a judgment from the Supreme Court declaring that the Customs had illegally harassed the store in seizing gay books coming across the border-- often books that sailed right through when bound for chain stores. Customs was ordered to stop, and Little Sister's was told to come back to the court for a further remedy if the harassment continued. It did, and in fighting the 2001 seizure of four titles that Customs blocked at the border, the British Columbia Supreme Court in July 2004 awarded the store advance costs, a decision reversed on appeal. That reversal was seconded by the Supreme Court, saying the question of the 2001 seizure was not sufficiently "rare and exceptional."

When it comes to cash, "The Court is very deferential to the wishes of parliament and extremely reluctant give out money," says Karen Busby, professor of law at the University of Manitoba.

"The previous ruling from the courts coupled with the ongoing problems of the bookstore certainly seems to me to meet the definition of 'exceptional,'" she said.

So, it would seem that in the land of gay marriage and equality bliss, our rights come with a proviso. We can count on the courts to defend those rights just so long as it doesn't cost them too much.

Author Profile:  Joseph Couture

Joseph Couture is a journalist based on London, Ontario.