M v H and Same‐Sex Spousal Benefits
| Author | Emma Hitchings |
| DOI | http://doi.org/10.1111/1468-2230.00282 |
| Published date | 01 July 2000 |
| Date | 01 July 2000 |
unsatisfactory that the extent of an individual’s rights to protest may vary
depending on whether the business one objects to is for export. This lack of clarity
will also have a significant impact on the police who have to exercise a complex
web of powers in contexts where varying values must be applied to the activities
with which they are confronted.
A final problem highlighted by the appeal is the perennial one where legal
doctrines are transplanted from their home soil.89 The House of Lords has revealed
that it prefers to assimilate national law to Community principles like proportion-
ality in an incremental manner, by stressing the similarities between this principle
and existing grounds of judicial review. This is an unsatisfactory method,
particularly from a court at the apex of the judicial hierarchy. Whatever the merits
of the principle of proportionality, its ramifications for existing doctrine and of
constitutional perceptions of the judicial role must be rendered explicit if English
law on the subject is to develop in a predictable, rational and principled manner.
MvHand Same-Sex Spousal Benefits
Emma Hitchings*
MvH
1
concerned the definition of ‘spouse’ in section 29 of Ontario’s Family Law
Act 1990.
2
The two questions at issue were first whether the definition infringed
the right to equality under section 15(1)
3
of the Canadian Charter of Rights and
Freedoms
4
and secondly, if so, whether this infringement could be justified under
section 1 which permits limited, reasonable abrogation of rights and freedoms?
5
89 There is always a risk that judicial techniques will lose their meaning when transplanted from their
original context. A hint of this is already visible in the frequency with which English judges refer to the
concept of the ‘margin of appreciation’, a concept whose relevance to domestic adjudication is
uncertain. T. Jones, ‘The Devaluation of Human Rights under the European Convention’ [1995] PL
430; Sir John Laws in the Golden Metwand and the Crooked Cord n 72 above; D. Pannick, ‘Principles
of interpretation of Convention rights under the Human Rights Act and the discretionary area of
judgment’ [1998] PL 545; N. Lavender, ‘The Problem of the Margin of Appreciation’ [1997] EHRLR
380 and R. Singh, M. Hunt and M. Demetriou, ‘Is there a Role for the ‘Margin of Appreciation’ in
National Law after the Human Rights Act?’ [1999] EHRLR 15. See also RvStratford Justices, ex
parte Imbert (1999) 163 JP 693 and ex parte Kebilene, above n 52, per Lord Hope of Craighead.
* Cardiff Law School.
Thanks to Derek Morgan, Gillian Douglas, Allan Hutchinson and the anonymous referee for helpful
comments on earlier drafts.
1The Attorney General for Ontario vM and H and Others [1999] 171 DLR (4th) 577.
2 Family Law Act, RSO 1990 [hereafter referred to as FLA].
3 s 15(1) provides that: ‘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 based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability’.
4 Part 1 of the Constitution Act 1982, being Sched B to the Canada Act 1982 (UK), [hereafter referred to
as the Charter].
5 s 1 of the Charter; ‘. .. guarantees the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic society’.
July 2000] Police Discretion and the Rule of Law
ßThe Modern Law Review Limited 2000 595
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