Liberty, Equality, Fraternity:
The Forgotten Leg of the Trilogy,
or
Fraternity: The Unspoken Third Pillar of
Democracy
The Honourable Mr. Justice Charles D. Gonthier’
This paper explores the historical and theoretical
foundations of the concept of fraternity, advancing the
thesis that this third forgotten element of the French
Revolution is integral to the proper functioning of a de-
mocracy. The principal concerns of fiaternity-commu-
nity, inclusion, equity and trust, and cooperation-are ex-
amined in their historical and present context. The role of
fraternity in Canadian law is then examined, particularly
in the areas of: constitutional law, taxation law, Good
Samaritan laws, professional responsibility, fiduciary du-
ties, the law of contracts, the law of trusts, and in family
law.
Cet article examine les fondements historiques et
thdoriques du concept de fratemitd, en mettant de
l’avant l’id~e selon laquelle ce dernier 6l6ment, souvent
oubli6, de la trilogie issue de la R6volution franaise
constitue une partie intdgrante des principes qui per-
mettent le bon fonctionnement d’une d6mocratie. Ain-
si, les principaux enjeux relids A la fraternit6 –
la
communaut6, l’inclusion, l’quit6 et la confiance, ainsi
que la coopeation –
sont analyses dans leur contexte
autant historique que contemporain. F’malement, le r8Ie
que ]a fratemit6 est appele A jouer en droit canadien
est ddcrit A travers
‘examen de plusieurs domaines,
dont le droit constitutionnel, le droit fiscal, les lois rela-
tives A l’aide apport e h autmi, la responsabilit6 profs-
sionnelle, les devoirs fiduciaires, le droit des contrats,
les fiducies et le droit de ]a famille.
“Justice of the Supreme Court of Canada. This lecture was delivered at the McGill Faculty of Law
on January 11, 2000 as the keynote address of the McGill Law Journal Alumni Lecture Series / les
Confdrences des anciens de la Revue de droit de McGill. I wish to thank Mr. Derek Bell, Ms. Marie-
Andrde Vermette, and Mr. Philippe Johnson for their assistance in preparing this lecture.
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 45 McGiU LJ. 567
Mode de r6fdrence : (2000) 45 R.D. McGill 567
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
Introduction
I. Historical Overview
II. Conceptual Framework
A. Overview
B. Fraternity and Community
C. Values of Fraternity
D. The Boundaries of Fraternity
Ill. Fraternity in Canadian Law
Introduction
A.
B. Fraternity in Public Law
1. The Canadian Charter of Rights and Freedoms
2. Law of Taxation
C. Fraternity in Private Law
1. The Quebec Charter of Human Rights and Freedoms-Good
Samaritan Laws
2. Professional Ethics and Obligations
3. Fiduciary Duties
4. Law of Contract
a. Doctrine of Unconscionability
b. Good Faith in Contracts
c. Duty to Mitigate
4. Charitable Trusts
5. Family Law
a. Spousal Support
b. Child Support and in Loco Parentis
c. Child Custody
Conclusion
2000]
C.D. GONTHIER – LIBERTY, EQUALITY, FRATERNITY
Introduction
The constitutions of Canada and the United States are founded on precepts of in-
dividuality-the guaranteed rights to life, liberty, and security of the person in Can-
ada, and life, liberty, and the pursuit of happiness in the United States. By contrast, in
France, India, and elsewhere, the motto of the French Revolution, “libert6, 4galit6,
fraternit” shapes the legal structures in those countries. Fraternity is intertwined with
liberty and equality in the very first article of the Universal Declaration of Human
Rights which proclaims:
All human beings are born free and equal in dignity and rights. They are en-
dowed with reason and conscience and should act towards one another in a
spirit of brotherhood. [In French, “esprit de fraternit”. 1’
What happened to the concept of fraternity in North America? Greek philoso-
phers feared the concepts of liberty and equality because of their potential damaging
effect on fraternity. Was this the same reason why fraternity has been largely ignored
in the philosophical writings of North Americans? Was the omission of fraternity
from our constitutions the triumph of individualism over communalism?
In my view, fraternity is simply the forgotten element of democracy which, al-
though rarely identified, is nevertheless present throughout our legal system. It is the
glue that binds liberty and equality to a civil society. It is intuitive. It is the forging
element of a community. It advances goals of fairness and equity, trust and security,
and brings an element of compassion and dedication to the goals of liberty and equal-
ity. It bonds individuals who share similar values and goals not only to their current
neighbours, but also provides a sense of continuity with the past and the future. I be-
lieve that the American philosopher Ralph Barton Perry may have explained it best in
Puritanism and Democracy:
The full spirit of fraternity acknowledges the just pride of others, and gives in
advance that which the other’s self-respect demands. It is the only possible re-
lation between two self-respecting persons. It does not imply intimacy or
friendship, for these must depend upon the accidents of propinquity and tem-
perament; but it implies courtesy, fair-mindedness, and the admission of one’s
own limitations. It must underlie the closer relations of family, neighborhood,
or vocation; but it must be extended to the broader and less personal relations
of fellow citizenship and fellow humanity. It is the essential spirit of that finer
companionship which even kings have coveted; but in a diffused and rarefied
form it is the atmosphere which is vital to a democratic community.3
UN Doc. A/810 (1948) 71 at 72.
‘Universal Declaration of Human Rights, GA Res. 217(m), UN GAOR, 3d Sess., Supp. No. 13,
2 W.C. McWilliams goes further, saying that fraternity is a doctrine that has been almost completely
misunderstood by American theorists (see W.C. McWilliams, The Idea of Fraternity in America (Ber-
keley: University of California Press, 1973) at 5).
3 R.B. Perry, Puritanism and Democracy (New York: Vanguard Press, 1944) at 580-81.
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Liberty and equality are, in a way, antithetical to fraternity. Whereas liberty and
equality emphasize the rights of the individual, fraternity emphasizes the rights of the
community. Whereas liberty protects the right to live free from interference, fraternity
advances the goals of commitment and responsibility, of making positive steps in the
community. Greek philosophers challenged notions of liberty because of this subver-
sive effect on fraternity and civic identity. However, at the same time, fraternity is es-
sential to the well-being of liberty and equality, becanse only with shared trust and
civic commitment can one advance these goals of liberty and equality. Further, the
goal of fraternity is to work together to achieve the highest quality of individual exis-
tence. In short, liberty and equality depend on fraternity to flourish. At the same time,
fraternity may be seen to be dependent upon liberty and equality for the fullness of its
expression.
I invite you to explore with me the expression of fraternity in the North American
legal order. We all know how liberty and equality interests have been advanced in
constitutional law and elsewhere, but what of fraternity? To answer this question, I
begin with a historical overview, outlining the birth of this concept and its develop-
ment through the French Revolution and beyond. I then provide a conceptual frame-
work for the concept of fraternity, reviewing not only the content of fraternity, but un-
derstanding the boundaries of fraternity. I then touch upon the areas of Canadian law
that have advanced the notion of fraternity.
I. Historical Overview
La c61 bre devise de la R6volution frangaise – Libert6, tgalit, Fraternit6 –
vient spontan6ment t l’esprit lorsque le concept de fraternit6 est 6voqu6. Toutefois, ce
concept n’est pas n6 avec la R6volution de 1789. En effet, on retrouve d6jt la notion
de fraternit6 dans les 6crits des philosophes grecs, plus particuli6rement Platon et
Aristote. Pour eux, la fraternit6 constituait une composante essentielle de la vie politi-
que. Ils voyaient la d6mocratie d’un mauvais oeil, car ils croyaient que la notion de li-
bert6 supplanterait le concept de fraternit6 si elle devenait le principe premier. Ils pen-
saient 6galement que la fraternit6 etait une ndcessit6 de la vie, laquelle pouvait 8tre
considdr6e comme 6tant une hi6rarchie de fraternitds: la fraternit6 du sang devant c6-
der celle de l’association, et la fraternit6 de 1’association devant cder L la fratemit6
de la cit65.
La notion de fraternit6 telle que comprise par les philosophes grecs n’a pas surve-
cu h la pdriode des Lumi~res. La pr6misse selon laquelle l’homme est un animal poli-
tique qui a besoin d’une identit6 civique pour se parfaire a 6t6 rejetde par la tradition
libdrale. Contrairement aux philosophes grecs, les penseurs de la pdriode des Lumi6-
res voyaient la fraternit6 comme 6tant un objectif lointain de l’action politique plut~t
4 S. London, “On Fraternity, Social Capital, and the American Community’ (1997), online: Scott
London’s Homepage
‘McWilliams, supra note 2 A lap. 28.
2000]
C.D. GONTHIER – LIBERTY, EQUALITY FRATERNITY
que son point de d6part ; la libert6 et 1’6galit6 reprdsentaient des moyens d’atteindre
l’id6al de fraternit6 plut6t que l’inverse.
L’id6e derriere le concept de fraternit6 a parfois 6t6 d6sign6e par d’autres mots,
notamment le mot
l’essentiel le sentiment de fraternit6 dans son article
cause de ddsaffection du mot de fraternit6, s’en tenir h l’appellation d’humanite. Dans
la socidt6 frangaise, le concept d’humanit6 a suivi le d6clin des valeurs chr6tiennes
pour devenir, au d6but du 18′ sicle, la vertu d’un nouveau type d’humanit6 incarn6
par le philosophe, et prendre une coloration politique. Paul Verni~re 6crit dans son ar-
ticle intitul6 <,id6e d'humanit6 au XVIIJ
si~cle>:
Alors qu’elle 6tait, au debut du sicle des Lumiires, le substitut de la charit6
chr&ienne que le rationalisme opposait t une theologie r6pute obscure et
contestable, l’ide d’humanit6 devenait peu A peu une ide force. Elle n’6tait
plus seulement le sentiment d’une communaut6 et l’exigence d’une commu-
nion: elle postulait un ordre fond6 sur l’6galit6 des hommes.
Puis le terme d’humanit6 a de nouveau c6toy6 celui de fraternit6 dont l’emploi
s’est fait plus frdquent aprhs 1789. Pendant la R6volution frangaise, la devise Liber-
t6, !galit6, Fraternitd
repr6sentait le rejet de l’ancien r6gime et, pour certains des
protagonistes, le rejet de la culture chr6tienne dominante. L’opinion couramment ad-
mise parmi les historiens est que da fratemit6 ne serait devenue composante de la
triade r6publicaine que sous la Seconde r6publique>. Cependant, le terme de frater-
nit6 a 6t6 forg6 et occasionnellement utiuis6 antdrieurement t 1 adoption officielle de la
devise par la Constitution de 1848. Par exemple, Robespierre a demandd que soit ins-
crit le mot de Fratemit6 aupr~s de ceux de Libert6 et d’tgalit6 sur les drapeaux des
gardes nationales au mois de d6cembre 1790.
Le concept de fratemit6 marque une 6tape d6fensive dans l’6volution de l’id6e
d’humanitd: il s’agit de faire front contre ceux qui menacent la cit6 des hommes qui
vient de s’6tablir.
gent le mme ethos. Comme l’6crit Josiane Boulad-Ayoub dans son ouvrage Contre
nous de la tyrannie:
On fera appel aux hommes comme citoyens pour d6fendre, au nom de
l’humanit6, etjusqu’A la mort, la communaut6 qui se trouve menac6e et les va-
leurs sur lesquelles celle-ci s’est fond6e: la libert6 et 1’6galit6. On sera ainsi,
selon les variations des enjeux id~ologiques, tantt frres parce que l’on est
6/bia t lap. 21.
P. VeMire,
universitaires de France, 1987, 186 aux pp. 187-88.
‘M. David, Fraternitd etRvolutionfran~aise, Paris, Aubier, 1987 aux pp. 10-11.
9 J. Boulad-Ayoub, Contre nous de la tyrannie…: Des relations iddologiques entre Lumiares et
Rvolution, Lasalle (Qc.), Hurtubise HMH, 1989 h la p. 58.
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tous enfants de Dieu, tant6t parce que ron est tous les enfants de la Raison,
tant& parce que ron est tous enfants de la Pattie’.
La fraternit6 6tait donc jug6e n6cessaire pour la d6fense des concepts de libert6 et
d’6galit6. Les Ftes nationales institues par Robespierre visaient d’ailleurs express6-
ment A ressouder les citoyens dans une m~me foi civile et L resserrer
Sans sombrer compltement dans l’oubli, le concept de fratemit6 n’a toutefois
jamais retrouv6 l’&lat ou la visibilit6 qu’il a connu pendant la R6volution frangaise. A
mon avis, cependant, ce concept est toujours bien vivant et pr6sent dans notre droit. Je
me propose de discuter de certaines illustrations juridiques de la notion de fraternitd
un peu plus tard. Mais avant de ce faire, je crois qu’il est important d’aborder la ques-
tion du cadre conceptuel de la fraternit6.
II. Conceptual Framework
A. Overview
As I have mentioned, the battle cry of “libert6, dgalit6, fraternit” represented for
the French revolutionaries a break from the existing political order. For some of the
revolutionaries, the words represented a complete rejection of the existing Christian-
dominated culture. For still others, the word “fraternity” was simply a means of ex-
pressing solidarity. Over time, fraternity has meant many things to many people.
Some have thought fraternity to be subsumed into concepts of communalism or so-
cialism. Others have interpreted fraternity to represent an expression of Christian val-
ues-to love one’s neighbour.” Rawls thought fraternity to encompass the “difference
principle” that one should not have greater advantages unless this is to the benefit of
the less advantaged.” Still others find fraternity to be subsumed within the concepts of
liberty and equality.”
In this section, I wish to join this chorus by suggesting that fraternity advances a
number of core values in pursuit of forming a community. These values include: em-
pathy, cooperation, commitment, responsibility, fairness, trust, and equity. These are
not so much independent elements of fraternity as they are interrelated threads weav-
ing the cloth of fraternity. As I show in the final part of this lecture, these threads have
similarly woven their way into the Canadian legal order. From these threads, I then
consider the “boundaries” of fraternity-when we say “love thy neighbour”, ulti-
oMid
“Ibid Map. 234.
‘2Leviticus (19:18).
J. Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971) at 105.
“4 Judge G. Calabresi, “Liberty, Equality, Fraternity” (Cambridge Lectures, Queen’s College, Uni-
versity of Cambridge, 7 July 1997) [unpublished].
200
C. D. GONTHiER – LIBERTY, EQUALITY, FRATERNITY
573
mately one must ask “who then, is my neighbour?” Understanding the boundary lines
is critical for understanding the boundaries of fraternity in the Canadian legal regime.
B. Fraternity and Community
Fraternity is the necessary adjunct of liberty and equality that imports these values
into a community. To be free amongst equals means nothing outside of a community.!’
The concepts of community and fraternity are interrelated. Communities are not sim-
ply the result of individuals pursuing rational self-interest. Nor are they just a means
of providing collective goods. Communities exist, in no small part, because of a desire
to belong to a family. Fraternity is an expression of brotherhood and sisterhood–of
shared interests and beliefs.
Shared values are not the only element of fraternity which help to form a commu-
nity. In addition, as Professor Kymlicka points out, communities depend upon shared
identities. In Multicultural Citizenship, he argues:
People decide who they want to share a country with by asking who they iden-
tify with, who they feel solidarity with. What holds Americans together, despite
their lack of common values, is the fact that they share an identity as Ameri-
cans. Conversely, what keeps Swedes and Norwegians apart; despite the pres-
ence of shared values, is the lack of a shared identity.”1
Fraternity and community are linked in other ways. Part of belonging to a com-
munity is to recognize a shared past. Brothers and sisters have common parents and
grandparents. The concept of diachronic fraternity finds life in the desire of people to
forge a relationship between the generations.’7 When we consider environmental
measures, we act not in rational self-interest, for we as individuals often would not see
the fruits of our sacrifice. Instead, we take these steps so as not to harm future inhabi-
tants of this Earth–in essence, we are protecting the next generation. Forging a rela-
tionship between generations in a community is not rooted in liberty or equality, but
rather, fraternity.
C. Values of Fraternity
Fraternity stands at the same level as liberty and equality in the pursuit of happi-
ness in a community. The constituent elements of fraternity are a number of values
which, like liberty and equality, are fundamentally moral values, values to which we
5 JR. Pennock, Liberal Democracy: Its Merits and Prspects (New York- Rinehart & Company,
1950) at 95: “[A] society in which insistence upon rights is not accompanied by a consideration for
the rights of others, and also by a willingness to be accommodating in making those mutual adjust-
ments without which social life is impossible, is … surely headed for speedy disintegration”
” W. Kymlicka, Multicultural Citizenship (Oxford: Clarendon Press, 1995) at 188.
‘7 Archbishop lean-Marie Cardinal Lustiger, ‘Liberty, Equality, Fraternity” (adapted from Erasmus
Lecture, Institute on Religion and Public Life, New York City [undated]), online: My Right Page
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
aspire but seldom attain. Each of the values interacts with liberty and equality while
also interacting with the other fraternal values. The result of this process, or the result
to which we aspire, is a better community.
The first value of fraternity recognizes that there are certain people within this
community who require special protection and to whom we have a commitment.
Certain vulnerable groups need extra measures to play a meaningful role in the com-
munity. In one respect, this imports to a liberal democracy a notion of empathy. In
another respect, this aspect of fraternity informs our understanding of equality-the
State may be discriminating against individuals by failing to accommodate their spe-
cial needs. But strictly speaking, from an Aristotelian perspective, the right to equality
would not recognize such inaction as discrimination. This aspect of fraternity-that of
inclusion-is essential for the proper functioning of a polyethnic state such as Can-
ada.” As a result, the law is replete with examples of duties imposed on individuals to
take positive steps to assist persons who are disadvantaged or in need of care or pro-
tection.
Further, some relations are such that the law demands a degree of commitment
and responsibility. The concept of fraternity informs the law by acknowledging that
some individuals have special relationships with others, and concordant with that re-
lationship are certain responsibilities. Whether this is the Crown and Aboriginal peo-
ple, two spouses, or parent and child, special obligations will exist in a community
that may not be completely congruent with individualistic notions of liberty or equal-
ity.
Fraternity also recognizes that in certain interactions with other people, one must
do more than just treat them equally or in a manner that respects their liberty and
freedoms. Rather, in certain circumstances, one cannot abuse their position in an un-
fair manner. Fraternity informs the notion that we as a community cannot rest solely
on our “liberty” rights in a manner that is unfair to others. The backbone of civil soci-
ety rests on treating each of our neighbours in a fair manner and with a degree of
trust. Coupled with the concept of inclusion, this aspect of fraternity results in harsh
penalties against those who hold positions of trust and yet abuse that trust. Justice,
equity, fairness, and trust operate simultaneously to guarantee the smooth functioning
of a community in a way that is in accordance with the community’s conscience.
Another aspect of fraternity is that of cooperation. The difference between lib-
erty and equality, on the one hand, and fraternity on the other, is that the former values
promote the free association of individuals, whereas the latter promotes the coopera-
tion of individuals in the community. Cooperation is inspired by the commonality of
interests and gives rise to the pooling of resources in pursuit of a common goal. Asso-
ciation per se connotes a simple fact: people are connected with one another. Coop-
eration connotes something more: people who are connected can work together to ad-
vance common interests. However, fraternity connotes cognizance of the common
” See Kynlicka, supra note 16 at 176-81.
2000,]
C.D. GoNTHIER – LIBERTY, EQUALITY, FRATERNITY
575
good sought by the cooperation, and a desire to arrive at that common good. Professor
Ziniewicz makes the point that individuals on an assembly line may not know the fi-
nal outcome of the product when they attach a widget; they may not even care or de-
sire the end product (instead caring only about getting paid, for example).” The point
of fraternity is not just that people work together, but people know that they are
working together for a common goal.
All of these values-inclusion, fairness and trust, cooperation, empathy, commit-
ment, and responsibility-can be seen interacting with liberty and equality throughout
Canadian law. In some instances, additional duties are imposed on individuals in pur-
suit of these goals. In others, the legal framework provides incentives to those who
pursue such goals. And in still others, the law prescribes penalties against those who
fail to act in a manner that accords with these principles.
D. The Boundaries of Fraternity
The extent to which these principles of fraternity inform the Canadian legal sys-
tem is the subject of the following sections. In a way, the question “who then, is my
neighbour?” is as relevant for the concept of fraternity as it is for the law of negli-
gence. Although fraternity is sometimes expressed as “universality” or “humanit6”, it
is often expressed within defined parameters. W.C. McWilliams said that fraternity “is
limited in the number of persons and in the social space to which it can be ex-
tended”.’ To the extent that fraternity is based on shared values and goals, the class of
people with whom one shares a fraternal relationship may be limited. On the other
hand, fraternity may be universal in its object. Many of the goals advanced by inter-
national organizations involve fraternal concepts.
The question remains: who then, is my neighbour? How does one define the ex-
tent of the fraternal relations? The answer to this question depends in no small part on
the nature of the interest in question. For example, duties imposed on parents to ad-
vance the best interests of the child necessarily involve a notion of limited fraternity.
There is no general obligation on all individuals to treat this individual child in the
manner expected by or of the parents, although at a wider level, children are given
special protection against all people. In other words, the concept or value underlying
the duty may be widely shared, but as applied in law, the duty itself may be imposed
on a limited class of people. It is important to differentiate between the source of the
obligation, i.e., fraternity, and the obligation itself as prescribed by law.
19 G.L. Ziniewicz, Democracy and Imagination: The Practical Idealism of John Dewey (Ph.D. The-
sis, 1992), c. 7, online: Ziniewicz on the Web
17 November 1999).
Supra note 2 at 7.
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III. Fraternity in Canadian Law
A. Introduction
Let me now explore how some of the conceptual imperatives of fraternity have
breathed life into various obligations imposed on individuals to take positive steps for
the benefit of other people. In so doing, I draw a fairly broad distinction between fra-
ternity in public law (as between the State and the individual) and fraternity in private
law (as between two private individuals). In the former, I will refer to the Canadian
Charter of Rights and Freedoms,2′ and taxation law. In the latter part, I seek to explore
how the Quebec Charter of Human Rights and Freedoms,’ the law of professional
obligations, fiduciary duties, the law of contract, the law of trusts, and family law all
provide a regime in which private individuals operate in a manner consistent with the
community-based values advanced by the concept of fraternity.
B. Fraternity in Public Law
1. The Canadian Charter of Rights and Freedoms
In a very real way, the Charter in Canada and the Bill ofRights in the United States
are expressions of community-held values. Often expressed in general terms, the enu-
merated rights contained in the Charter reflect seven values that the Spicer Commission
has identified as being “core values” held by most, if not all, Canadians: ‘
– a belief in equality and fairness in a democratic society
– belief in consultation and dialogue
– importance of accommodation and tolerance
– support for diversity
– compassion and generosity
– attachment to Canada’s environment
– commitment to freedom, peace, and non-violent change
As a vehicle for advancing shared values and fostering a shared identity, the mere ex-
istence of the Charter itself advances fraternal interests.
21 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
2 I&S.Q. c. C-12 [hereinafter Quebec Charter].
U.S.Const. amend. I-XXVI.
2 Canada, Citizens’Forum on Canada’s Future: Report to the People and Government of Canada
(Ottawa: Supply and Services Canada, 1991) (Chairman: K. Spicer) at 34-45.
2000]
C.D. GONTH/ER – LIBERTY, EQUALITY, FRATERNITY
However, also contained within the Charter are numerous examples of fraternity-
based rights. Section 23 contains minority language educational rights, which seek to
ensure that “each [official] language flourishes, as far as possible, in provinces where
it is not spoken by the majority of the population”‘ Again, we are not speaking of
rights informed by strict equality, but rather, of positive rights designed to promote in-
dividuals who may be in a vulnerable position. Further, section 27 contains an inter-
pretive provision dictating that the Charter is to be read in a manner that is consistent
with “the preservation and enhancement of the multicultural heritage of Canadians”
The “enhancemenf’ of the multicultural heritage is not just a protection of the equality
rights of ethnic groups in Canada-it is something more. Finally, section 35 of the
Charter recognizes and affirms the existing Aboriginal and treaty rights of Canada’s
First Nations.
Even those rights contained in the Charter that seem, at first sight, to be liberty or
equality rights are often interpreted in a manner consistent with fraternity. Section 15
provides the basic equality protections in Canada, to be free from discrimination
based on race, national or ethnic origin, colour, religion, sex, age, and disability. In a
series of cases starting with Andrews v. Law Society of British Columbic and con-
tinuing with Law v. Canada.’ the Supreme Court has been engaged in a process of
crafting a workable test for achieving “substantive” equality. In this process, deaf in-
dividuals who were treated similarly to all other people were given access to inter-
preters in hospitals.’ and homosexuals who were not included in a human rights code
stated to be comprehensive were read into the document.’ While one can simply say
that these cases demonstrate a desire to pursue substantive equality, there are at least
threads of fraternity running through them. Again, in order for the deaf appellants in
Eldridge to meaningfully participate in the community (by receiving the benefits
available to all others), the hospitals had to provide additional services specific to their
disability. Where a human rights code purports to remedy all forms of discrimination
in the province, it will not be acceptable to leave out one disadvantaged group in the
process. One can see the elements of fraternity-community, inclusion, fairness, and
cooperation-running through these judgments.
Perhaps most importantly, the Charter imports notions of fraternity through the
use of section 1. Section 1 permits limitations on liberty and equality rights in a man-
ner that is demonstrably justified in a free and democratic society. Our constitutional
rights are not absolute. On occasion, the government may well be justified in placing
reasonable limits on some forms of liberty in order to advance a community goal, or
what Chief Justice Dickson described in R. v. Oakes as “the realization of collective
Mahe v. Alberta (A.G.), [19901 1 S.C.R. 342,68 D.LR (4th) 69.
26[1989] 1 S.C.R 143,27 D.L.R. (4th) 600.
[1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1.
Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624, 151 DL..
Eldridge].
Vriendv. Alberta, [1998] 1 S.C.R. 493, 156 DL.R. (4th) 385.
(4th) 577 [hereinafter
578
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goals of fundamental importance:'”‘ Those collective goals, and fundamental values,
were described by the Chief Justice as being “respect for the inherent dignity of the
human person, commitment to social justice and equality, accommodation of a wide
variety of beliefs, respect for cultural and group identity, and faith in social and politi-
cal institutions which enhance the participation of individuals and groups in society “‘3′
Here we find fraternity. All of the elements of fraternity outlined in the contextual
framework can be located in this one, brief passage of Oakes. Fraternity involves the
advancement of shared values and identities to form a community-what the Chief
Justice labelled as “accommodation” and “respece’ for a wide variety of beliefs and
group identities. Fraternity involves commitment, responsibility, and inclusion-what
the Chief Justice labels here as a commitment to social justice and equality. Fraternity
recognizes that, on occasion, certain additional steps may be necessary to allow all
members of the group to meaningfully play a role in the community. As the Chief
Justice explained, this involves a respect for the inherent dignity of the human person,
and a commitment to taking measures that will “enhance the participation of indi-
viduals and groups in society.” Section 1 opens the door wide to the definition and
implementation of specific rights and duties that are the expression and embodiment
of fraternity in our communities.
2. Law of Taxation
Another aspect of public law in which the values of fraternity are encouraged and
promoted is the Canadian tax regime. The Income Tax Act exempts or reduces the tax
burden of those who are in a position to advance community interests, notably by
conferring upon registered charities a tax-exempt status32 and providing tax credits and
deductions for charitable donations 3 , various other credits and deductions, such as
those for volunteers’, physical or mental impairment” and support of spouses and de-
pendents”, to name but a few.
‘ R v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.].
3 bia at 136.
“Income TaxAct, R.S.C. 1985 (5th Supp.), c. 9, s. 149.1.
,’ Ibia , s. 110.1(1).
Ibid., s. 8.(1).
33Ibid., s. 118.3.
‘4Ibid., s. 118.
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C.D. GONTHIER – LIBERTY, EQUALITY, FRATERNITY
C. Fraternity in Private Law
1. The Quebec Charter of Human Rights and Freedoms-Good
Samaritan Laws
The Quebec Charter of Human Rights and Freedoms’ contains provisions similar
to the Canadian Charter of Rights and Freedoms that are applicable in the private law
context It also contains a Good Samaritan provision that is unique in Canadian law.
Section 2 of the Quebec Charter reads:
Every human being whose life is in peril has a right to assistance.
Every person must come to the aid of anyone whose life is in peril, either per-
sonally or calling for aid, by giving him the necessary and immediate physical
assistance, unless it involves danger to himself or a third person, or he has an-
other valid reason.
In 1994, the National Assembly of Quebec also included in the new Civil Code of
Quebec a provision exempting a person who comes to the assistance of another per-
son from all liability for injury that may result from his or her altruistic actions, unless
the injury is due to his or her intentional or gross fault.’ Arguably, the inclusion of the
obligation to give assistance in the Charter was unnecessary given that the failure to
come to the assistance of another person whose life is in peril may constitute a fault
covered by article 1457 of the Civil Code of Quibec, the general civil liability provi-
sion?’ This argument amounts to saying that a reasonable person must act in a frater-
nal manner. In any event, the adoption of section 2 of the Quebec Charter shows the
government’s increasing awareness that solidarity between individuals belonging to a
community is essential to the common well-being. According to one author, indiffer-
ent and blind individualism is not fashionable anymore given the Quebec Charter’s
preamble and the obligation to give assistance.’ In my view, section 2 of the Quebec
Charter is another manifestation of fraternity values that exist in Canadian law. It en-
compasses many of the themes of fraternity that I have outlined earlier, that is, com-
munity, inclusion, fairness, and cooperation.
2. Professional Ethics and Obligations
The responsibilities that professionals owe to their clients and other third parties
may exist by way of contract, fiduciary duty, or tort liability.” However the duty is
imposed, it is clear that there are certain obligations imposed on professionals that
Supra note 22.
Art. 1471 C.C.Q.
39See the analysis of this position in A. Klotz, ‘7.e droit au secours dans la province du Quebee”
(1991) 21 R.D.U.S. 479 at 504.
40/bid at 516.
4 Tracy v. Atkins (1977), 83 D.L.R. (3d) 46 at 52 (B.C. S.C.), aff’d (1979) 105 D.L.R. (3d) 632
(C.A.).
580
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recognize both their duty to serve and the vulnerable position held by their clients.
Codes of ethics represent a transfer into the legal sphere of an element of moral obli-
gation rooted in fraternity. They reflect that the function of professionals is to provide
personal service to their clients.
The codes of professional conduct for lawyers state clearly that the fundamental
duty of lawyers is to provide competent service in a conscientious, diligent, and effi-
cient manner while, as officers of the court, having a special commitment and respon-
sibility to the administration of justice and society at large.42 Duties are imposed on
lawyers to ensure that they are not counsel for both parties and that they do not have a
personal interest in the file.4 Lawyers are also under strict controls when handling
their clients’ money, and can face severe disciplinary measures for not preserving their
clients property and money in trust.” Here, it is clear that the maxim caveat emptor
simply does not work-the clients are simply at the mercy of their lawyer, and if the
lawyer does not act in a manner that advances the clients’ interest, even if strictly legal
and proper from an individualistic perspective, the client may be powerless to prevent
it.
Lawyers are not the only professionals who owe fiduciary-type duties to their cli-
ents. When a patient enters into a relationship with a doctor, several duties are im-
posed on the doctor flowing from the personal service nature of the relationship and
to ensure that the vulnerable position of the patient is protected.’ The doctor is under
a duty to attend to the patient; failure to comply results in damages for negligence.” If
the doctor is unfamiliar with the patient’s condition or has some remaining doubt, he
or she is under a duty to consult others or refer the patient elsewhere.” The doctor
owes a duty to diagnose the patient’s illness, and must exercise reasonable care in so
doing. The doctor owes a duty to inform the patient of all of the circumstances and
possible risks of the treatment. Possessed of this knowledge of the patient, the doctor
is under a duty to keep this information confidential.
Obligations are also imposed upon stockbrokers entrusted with the savings of
their clients. These include the duty to give advice carefully and completely, to per-
form their obligations with integrity, honesty, good faith and in the best interest of the
42 Law Society of Upper Canada, Professional Conduct Handbook 2d ed. (Toronto: Law Society of
Upper Canada, 1998), Rule 2.
ITbid, Rule 5; Macdonald Estate v. Martin, [1990] 3 S.C.R. 1235,77 D.L.R. (4th) 249.
Law Society of Upper Canada, By-Law No. 19, Handling of Money and Other Property (28
to 28 May 1999), online: Law Society of Upper Canada
January 1999, as amended
4″ Kenny v. Lockwood, [1932] O.R. 141 at 155 (C.A.), 1 D.L.IL 507 (C.A.); Henderson v. Johnston
(1956), 5 D.L.IR (2d) 524 (Ont. H.CJ.), aff’d (1957), 11 D.L.R. (2d) 19 (C.A.), aff’d [1959] S.C.R.
655.
” AJ. Meagher, P.J. Marr & RA. Meagher, Doctors and Hospitals: Legal Duties (Toronto: Butter-
worths, 1991) at 26-27.
4′ Fraser v. Vancouver General Hospital, [1952] 2 S.C.R. 36, 3 D.LR. 785; Jarvis v. International
Nickel Co., [1929] 2 D.L.R 842 at 845 (Ont. HLCJ.).
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C.D. GONTHIER – LIBERTY, EQUALI7Y, FRATERNITY
client, and to avoid any conflict of interest. The broker must also adequately inform
his client of the risks, which involves making the appropriate enquiries to know the
needs of his client and appreciate his level of understanding. ‘ The greater the degree
of inequality in information, knowledge, and power between the parties, the greater
the obligation to inform.” Further, in negotiating contracts, the professional must not
pursue blindly his or her objectives but must always turn an eye to the interests of the
clients who have placed their trust in him or her. This may even force upon the profes-
sional broker courses of action which may run against his or her own best interest, but
which serve those of the client.
All of these duties do not arise out of freedom to contract; nor do they rest on the
shoulders of liberty or equality. Rather, it is a simple recognition of this service rela-
tionship and that in society some people hold positions of power, and have the ability
to abuse the trust inherent to those positions. Society demands that there be a check
on liberty in these circumstances to ensure the proper functioning of the community.
The service relationship reflects a degree of commitment and responsibility that pro-
fessionals have toward their clients. It is true not only for lawyers, doctors, and stock-
brokers, but for an ever-growing body of professionals subject to similar controls.’
3. Fiduciary Duties
One of the most rapidly developing areas of commercial law in Canada relates to
fiduciary relationships. In Lac Minerals v. International Corona Resources, Justice La
Forest said that “[t]here are few legal concepts more frequently invoked but less con-
ceptually certain than that of the fiduciary relationship’ 52 In my view, the conceptual
basis of fiduciary relationships lies, in part, with fraternity.
Fiduciary duties in the commercial context often promote an ethic of service. At
the same time, they also exist to give effect to the moral outrage of society against
violations toward vulnerable people. Vulnerability was described by La Forest J. in
Hodgkinson v. Simms,53 as an “important indicium” of a fiduciary relationship. Where
one person has some scope for the exercise of some discretion or power over the vul-
“Securties Act, R.S.Q. c. V-1.1, s. 161.
4 LI. Beaudoin, Le contrat de gestion de portefeuille de valeurs mobilires, (Cowansville, Qc.:
Yvon Blais, 1994) at 89.
5′ Ibid at 88 and authors cited at n. 203.
5, Architects: District of Surrey v. Carrll-Hatch & Associates Ltd (1979), 101 D.L.R. (3d) 218, 6
W.W.R. 289 (B.C. C.A.); Insurance agents and brokers: see W. D. Lilly, ‘The Expanding Duty to
Keep Informed: The Professional Liability of Insurance Agents and Brokers” in Meredith Memorial
Lectures 1983-1984 (Don Mills, Ont.: De Boo, 1983-84) 147 at 147; Real Estate Brokers: S.E. Lyons
Ltd v. Arthur J. Lennox Contractors Ltd, [1956] O.W.N. 624 (H.C.); Directors and shareholders:
Canada Business Corporations Act, R.S.C. 1985, c. C44, s. 122.
52 [198912 S.C.RL 574 at 643-44,61 D.L.R. (4th) 14 [hereinafter Lac Minerals cited to S.C.R.].
“‘ [1994] 3 S.C.R. 377 at 405, (1995), 117 D.LR. (4th) 161 [hereinafter Hodgkinson cited to
S.C.R].
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nerable person, and can use this power unilaterally to the detriment of the vulnerable
person, then a fiduciary duty will often be identified
Fiduciary duties have been found in a myriad of relationships, ranging from the
relationship between the Crown officials and Aboriginals, to parents and their chil-
dren, to government officials and youth under their care.
Fiduciary duties transcend mere liberty interests that inform duties of care in tort
law. Whereas in tort law, one is protected from an invasion into one’s sphere of physi-
cal or mental integrity or one’s property, in fiduciary relationships, one is protected
from an abuse of loyalty and an abuse of power’ Sanctions for breaches of fiduciary
duties represent equity’s outrage at those who attain an individual’s trust, only then to
abuse that position of trust. For this reason, the law imposes a higher standard than in
other areas of law: we care not about the motive in the breach, but rather, it is the fact
of departure from the beneficiary’s best interests that attracts the law’s sanction:,
The key elements of a fiduciary relationship have little to do with liberty or
equality and everything to do with fraternity. The fiduciary relationship does not sim-
ply arise by virtue of a contract; rather it arises through an acknowledgment of the
fraternal concepts of commitment and responsibility. The fiduciary relationship does
not seek to confer equality to the beneficiaries, but rather it seeks to protect them from
unfair abuses of power. Sanctions for breach of fiduciary duty do not seek to simply
effect restitution; rather, they seek to condemn the wrongful party for his abuse of
trust. In these ways, the two threads of fraternity-inclusion and protection of vulner-
able groups, and concerns over equity and trust-work together to form an emerging
area of law that remains conceptually distinct from others.
4. Law of Contract
One might think that the one area of law free from fraternity concepts would be
the law of contract. Governing a myriad of business relationships, individualism and
liberty interests should be paramount in the law of contract. However, even this area
of law is not immune from fraternity’s influence. Although fraternity can be seen
throughout the law governing private business relations,57 I propose to discuss three
particular areas of contract law-the doctrine of unconscionability, good faith in con-
tracts, and the duty to mitigate-where concepts underlying the fraternity principle
emerge and govern.
TmFrame v. Smith, [1987] 2 S.C.R. 99 at 136-38, 42 D.L.R. (4th) 81, Wilson J.; Lac Minerals, supra
note 52, Sopinka J. at 599, La Forest . at 646.
SHodgkinson, supra note 53 at 406.
M.V. Ellis, Fiduciary Duties in Canada, looseleaf (Scarborough, Ont.: Carswell, 1999) at 1-3.
5, Antitrust law, for example.
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583
a. Doctrine of Unconscionability
The doctrine of unconscionability operates to allow one party to avoid his or her
contractual obligations where to do otherwise would be manifestly unjust. The full
scope of the doctrine has yet to be explored by Canadian courts, but the doctrine’s
seeds have been planted.58 Currently, Canadian courts have set aside contracts where
there are two conditions present: where there is an improvident or unconscientious
bargain and where there is an inequality in the positions of the parties. 9 In Harry v.
Kreutziger, Lambert J.A. said that the sole question when analysing an allegedly un-
conscionable transaction is whether “the transaction, seen as a whole, is sufficiently
divergent from community standards of commercial morality that it should be re-
scinded ..,” Commercial morality? It is difficult to place commercial morality within a
framework of liberty and equality.” Professor Waddams has noted this tension:
Freedom of contract emphasizes the need for stability, certainty, and predict-
ability. But important as these values are, they are not absolute, and there
comes a point where they “face a serious challenge:’ Against them must be set
the value of protecting the weak, the foolish, and the thoughtless from imposi-
tion and oppression … [1]t is not a coincidence that the decline of the highly in-
dividualistic view of society that prevailed in the late nineteenth century has
been accompanied by a greater willingness of courts and legislatures to grant
relief from disadvantageous contracts.62
Again, the relevant aspects of fraternity contained within this aspect of the law of
contract are the concepts of inclusion, fairness, equity, and trust.
b. Good Faith in Contracts
The notion of fraternity is also reflected in one of the fundamental principles re-
lating to contracts in Civil Law, and to a lesser extent in the Common Law tradi-
tion’-the duty to act in good faith. This duty, first recognized by our Court,’ has
been codified in article 6 of the Civil Code of Quibec which provides that “every per-
son is bound to exercise his civil rights in good faith”. In the contractual context, it
Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426, 57 D.L.R. (4th) 321
[hereinafter Hunter].
” Morrison v. Coast Finance Ltd (1965), 55 D.LR. (2d) 710,54 W.W.R. 257 (B.C. C.A.); Harry v.
Kreutziger (1978), 95 D.L.R. (3d) 231, 9 B.C.L.R. 166 (B.C. C.A.) [cited to D.L.R.]; Hunter, ibid
60Ibid at 241.
6″ Leading, in several cases, to a strong disinclination against the doctrine of unconscionability: see
e.g., Miller v. Lavoie (1966), 63 W.W.R. 359 at 365, Wilson C.J, 60 D.L.R. (2d) 495 (B.C. S.C.).
‘2 S.M. Waddams, The Law of Contracts, 4th ed. (Toronto: Canada Law Book, 1999) at 319-21.
“G.H.. Fridman, The Law of Contract in Canada, 3d ed. (Scarborough, Ont.: Carswell, 1994) at
78.
‘National Bank v. Soucisse, [1981] 2 S.C.R. 339, 43 N.R. 283 [hereinafter Soucisse]; Banque de
Montrdal v. Kuet Leong Ng, [1989] 2 S.C.R. 429, 62 D.L.R. (4th) 1; Houle v. Canadian National
Bank, [1990] 3 S.C.R. 122,74 D.L.R. (4th) 577 [hereinafter cited to S.C.R.]; Bank ofMontreal v. Bail
Lte, [199212 S.C.R. 554,93 D.L.R. (4th) 490.
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imposes upon the parties the obligation to act with loyalty and sincerity, with a mini-
mal level of concern for the well-being of others and in the spirit of cooperation.
The notion of good faith relates not only to the execution of a concluded contract,
but also to its formation. It applies to all parties to the contract, irrespective of their
relative power, whether it is a bank who must disclose relevant information to the per-
sonal guarantor ‘ or a client in an insurance contract who must declare, with the ut-
most good faith, those facts which are material to the insurer’s appraisal of the risk.’
In the execution of contractual obligations, the requirements of good faith protect
against an abusive exercise of individualistic rights, however lawful the exercise of
those rights may be in themselves.’ What constitutes abuse of power is intimately tied
to those values that our society covets. As noted by my colleague L’Heureux-Dub6 I.
in Houle v. Canadian National Bank, this principle serves to “sanction marked de-
parture from the general norm of behaviour acceptable in our society”. ‘
This ties in to the core values of fraternity. The concept of good faith, bonafides,
finds its source in Roman law and the notion of fides, at the heart of which lies the
fraternal value of trust.’ In the words of Jean Imbert, “lafides est done une notion mo-
rale, sociale et religieuse tout A la fois, qui traduit l’abandon total et confiant d’une
personne h une autre”.7′ According to another author, the codification of this obliga-
tion in the new Civil Code of Quebec reflects a modernization of our societal values
by seeking to restore equilibrium in contractual relationships and to reduce inequali-
ties in these relationships’
In the words of Edward Belobaba, the focus of good faith
“is on community standards, on commercial decency, and fairness and reasonable-
ness.:” Bad faith violates these values that form the basis of harmonious and mutually
beneficial relationships in our society and runs counter to the spirit and core values of
fraternity.
‘Soucisse, ibid,
“Art 2408 C.C.Q.
6’Art 7 C.C.Q.
“Supra note 64 at 145-46.
6 G. Freyburger, Fides: Aude simantique et religieuse depuis les origines jusqu’t l’poque
augusteenne (Paris: Les Belles Lettres, 1986) at 230-32; E. Charpentier, ‘ILe r6le de la bonne foi dans
l’61aboration de la thaorie du contrat” (1996) 26 RD.U.S. 299 at 304-05.
7j
Imnbert, “De la sociologie du droit: la ftdes’ romaine” in Droit de l’antiquitJ et sociologie ju-
ridique: Mdlanges HenriL Lvy-Bruhl (Paris: Sirey, 1959) 407 at 411.
“‘ B. Lefebvre, La bonnefoi dans lafornation du contrat (Cowansville, Qc.: Yvon Blais, 1998) at
34.
“E.P. Belobaba, “Good Faith in Canadian Contract Law” in Law Society of Upper Canada, Special
Lectures (Don Mills, Ont.: De Boo, 1985) at 78.
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C.D. GONTHIER – LIBERTY, EQUALmI
FRATERNITY
c. Duty to Mitigate
The duty to mitigate has two bases in theory.’ The first is causation. When one
party continues to accrue losses that could be avoided by reasonable steps, then it is
not entirely accurate to say that the wrongful party has “caused” the loss. The second
theoretical basis is more relevant for the concept of fraternity-that the law is con-
cerned with avoiding economic waste. Strictly speaking, there is no individualistic
liberty rationale for the duty to mitigate losses. A strictly libertarian perspective would
simply protect the individual rights against harm by others. If anyone is to stop the
damage from occurring, it should be the wrongdoer, not the victim.
The concern over economic waste is tangentially related to three interrelated ele-
ments of fraternity: equity, fairness, and community. In Red Deer College v.
Michaels,74 Laskin C.J.C. explained that an inquiry into mitigation asks whether the
aggrieved party took reasonable steps to avoid the “unreasonable accumulation” of
losses. Elsewhere, the courts have said that one must consider whether the victim has
done what “they ought to have done as reasonable men”.7 When the courts look for
unreasonableness and what people “ought to do” as reasonable people, these are nor-
mative concepts rooted in fraternity. In some circumstances, it is unacceptable to rest
on individualistic legal rights in a manner which is not productive for the community.
As a whole, the community does not gain by having needless economic waste.
4. Charitable Trusts
The charitable trust embodies the values of fraternity in a different way by en-
couraging persons of wealth to come to the assistance of those less fortunate. Ac-
cording to Professor Waters, the charitable trust “is a vehicle of major significance for
the dedication of property to the service of the community”.!’ This notion of commu-
nity and its betterment to which charitable trusts and the broader concept of charity
attach, are at the core of the concept of fraternity.
Reflecting the importance our society and governments attach to charity, Cana-
dian courts and the legislatures have developed rules favouring charitable trusts, such
as greater flexibility as to the certainty of their object, a benign construction in case of
ambiguity’ and exemptions from the rule against perpetuities.’ Legislatures have also
conferred considerable tax advantages to charitable activities, as noted previously.
As I suggested recently in Vancouver Society v. M.N.R., what constitutes charity
is intimately tied to the values inherent in our communities such that the definition it-
Waddams, supra note 62 at 553.
74[1976] 2 S.C.R. 324 at 331,57 DL.R. (3d) 386.
75 British Westinghouse Electric & Manufacturing Co. v. Underground Electric Railways Co. of
London, [1912] A.C. 673 at 689 (H.L.).
76 D.W.M. Waters, Law of Trusts in Canada, 2d ed. (Toronto: Carswell, 1984) at 502.
See e.g. Jones v. T Eaton Co., [1973] S.C.R. 635,35 D.L.R. (3d) 97.
‘ See Waters, supra note 76 at 516-31.
586
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self of “charity” must “evolve with social developments” and be accorded a progres-
sive interpretation recognizing “changing social needs”.’ These societal values in-
clude those defining the concept of fraternity.
5. Family Law
The Canadian legal regime recognizes that the family is the fundamental unit of
society.’ This role in the community results in a recognition of the distinctive features
of a family. Upon entering a spousal relationship, certain obligations arise. The law
lends preference to those who support one another in a spousal relationship. The obli-
gation to provide support continues to exist even if the relationship breaks down.
When children are involved, the law steps in to ensure that the best interest of the
child is paramount. In all of these ways, family law can be seen as fostering societal
relations in a manner which recognizes the distinctive role and needs of each member
of the family.
a. Spousal Support
Although it may not be semantically correct to describe marriage as a “fraternal”
relationship, it is clear that certain obligations assumed by marriage take on some of
the concepts underlying the fraternity principle. In particular, it is apparent that the
law of spousal obligations represents a positive obligation imposed on one person to
help another. Fraternal concepts of commitment, responsibility, inclusion, and fairness
all inform the law of spousal support. It is not just a contractual obligation; nor is it
simply “compensatory” in an individualistic sense.
Article 392 of the Civil Code of Quebec states that spouses “owe each other re-
spect, fidelity, succour, and assistance:’ Further, the Civil Code directs that spouses
are “bound to live together”-an aspirational clause recognizing the emotional and
intellectual bond between spouses.” The obligation of support transcends a simple
monetary obligation during marriage, and numerous provisions in pension law and
tax law help to foster the development of these obligations.
These obligations also exist after the spousal relationship breaks down. It was
thought, at one time, that spousal support was the simple consequence of terminating
a quasi-contractual relationship. In Moge v. Moge,’ the Supreme Court explained that
spousal support was not concerned with just contractual duties or the reasonable ex-
pectation of the parties to the marriage, but rather, that spousal support was also com-
7′ [1999] 1 S.C.R 10 at 43, 169 D.L.R. (4th) 34.
M. v. H., [1999] 2 S.C.R 3 at 104, Gonthier J., 171 D.L.R. (4th) 577; Egan v. Canada, [1995] 2
S.C.R. 513 at 539, La Forest L, 124 D.L.R. (4th) 609.
8 On this point, see N. Kasirer, ‘What is vie commune? Qu’est-ce que living together.’ in M6-
” [1992] 3 S.C.RI 813,99 D.L.R. (4th) 456.
langes Paul-Andri Crpeau (CowansviUe, Qc.: Yvon Blais, 1997) 487.
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C.D. GONTHIER – LIBERTY, EQUALITY, FRATERNITY
587
pensatory in nature. It was imposed to acknowledge the economic consequences of
marriage or marriage breakdown.
In Bracklow v. Bracklow,’ the Court explicitly acknowledged a third prong of
spousal support, based on non-compensatory factors. This case involved a couple who
were happily married for three years after living together for four years. While to-
gether, they lived independently and the trial judge found that Mrs. Bracklow suffered
no disadvantage as a result of the marriage or its breakdown. At the time of the hear-
ing, Mrs. Bracklow suffered from numerous disabilities. The Court held that, notwith-
standing the absence of a compensatory or contractual foundation for the obligation, a
spousal support order could nonetheless be made. A few of the comments by
McLachlin J. (as she then was) are interesting in this context. First, she said that such
an order “is but to acknowledge the goal of equitably dealing with the economic con-
sequences of marital breakdown .. “2
Further, “it also may well accord, in my belief,
with society’s sense of what is just.”‘ Finally, in upholding a non-compensatory sup-
. concluded that “[j]ustice and considerations of fairness may
port order, McLachlin
demand no less.”‘
As I have explained, these concerns-fairness, equity, justice-are pivotal con-
cerns for the fraternity principle. The law of spousal support, employing these norma-
tive concerns, involves the law imposing an obligation on one person to assist another,
even when there is no need to compensate that person. In this sense, the law of
spousal support can be seen as leaning more toward fraternity concepts than liberty or
equality concepts in some cases.
b. Child Support and in Loco Parentis
The obligation to provide support to one’s children is obviously a duty incurred as
a result of a parental relationship. However, it can be seen that many elements of the
law relating to child support obligations rest squarely on fraternal concepts. The first
and most obvious fraternal aspect is that children form an integral part of the basic
unit of society: the family. Child support obligations are imposed as well because
children are quite obviously incapable of fending for themselves. While a family may
break down, the obligation to take affiative steps to assist the children remains. The
objectives of child support are, as Justice Bastarache said in Chartier v. Chartier,” and
in Francis v. Baker,’ to ensure that children are affected by divorce as little as possi-
ble, or in other words, “to put children firs’.
15bid
[emphasis added].
‘3[1999] 1 S.C.R 420, 169 D.L.R. (4th) 577 [hereinafter cited to S.C.R.].
!4Ibid at 447 [emphasis added].
86!bkL at 448 [emphasis added].
87[1999] 1 S.C.R. 242 at 257, 168 D.L.R. (4th) 540 [hereinafter Char-ier].
8’ [1999] 3 S.C.R. 250 at 269, 177 D.L.R. (4th) 1.
588
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The second aspect of the child support obligation that rests on fraternity is the
special form of equality advanced by child support. For example, child support legis-
lation in Canada dictates that as the non-custodial parent’s income rises, so does the
level of child support. Whereas in other jurisdictions, there is a cap for maximum in-
come to be calculated in child support payments, no such cap exists in Canada. In-
stead, our law dictates that children are entitled to share in the wealth of their parents,
no matter what the current relationship between the parent and child. While there are
limits to this principle, it is generally true that concerns of fairness, equity, and trust
inform the child support legislation and obligations.
Finally, it is important to note that this child support obligation may exist even if
the payor is not the biological parent, but rather, is standing in the place of a parent. In
Chartier, the Supreme Court unanimously held that a person cannot “unilaterally
withdraw” from a relationship with a child where someone has been acting in a pa-
rental relationship with that child. Again, this takes us a step away from a libertarian
understanding of child support law, which some might describe as being a simple ad-
junct of making an individualistic choice to have a child. The duties imposed on peo-
ple upon whom others are dependent transcend mere biology. In this way, child sup-
port might be seen to have certain parallels with fiduciary duties.
c. Child Custody
The final aspect of family law that I wish to touch upon is that of child custody.
When a family breaks down, multiple interests are engaged in the resolution of the
breakdown. On the one hand, one must take into account the interests of both parents
in a manner which both respects their rights and treats them with equality and respect.
On the other hand, the resolution of a marriage breakdown is often a zero-sum game:
either the husband gets the piano, or the wife does. What is interesting for our pur-
poses in a discussion of fraternity is how, when it comes to child custody, the interests
of the parents are almost wholly subsumed into a discussion about the best interests of
the child.
Subsection 16(8) of the federal Divorce Act explains that in making an order for
custody, the reviewing court is to consider “only the best interests of the child of the
marriage as determined by reference to the condition, means, needs and other cir-
cumstances of the child.”” This section has been interpreted purposively. In Gordon v.
Goertz, ‘ Justice McLachlin (as she then was) said that the child’s welfare is the “ulti-
mate and only issue when it comes to custody and access.” For example, subsection
16(9) of the Divorce Act specifically directs that the courts are to ignore the past con-
duct of either of the parties, unless that somehow relates to what is in the best interests
of the child-removing one of the last vestiges of a fault-based divorce system.
8 Supra note 87.
‘R.S.C. 1985 (2d Supp.), c. 3, s. 16(8) [emphasis added].
” [1996] 2 S.C.R. 27 at 47, 134 D.L.R. (4th) 321 [hereinafter Gordon cited to S.C.R].
2000]
C.D. GONTHIER – LIBERTY, EQUALITY, FRATERNITY
589
Again, contrast the rights of the child as compared to the rights of the parents in
this circumstance. In Gordon, McLachlin J. said quite bluntly: “The rights and inter-
ests of the parents, except as they impact on the best interests of the child, are irrele-
vant.” Parliament knew, and the courts have so interpreted, that when there is a con-
test between the rights of an adult and a vulnerable child, the rights of the child will
be the exclusive consideration. This is a form of fraternity.
Conclusion
I have sought to develop the concept of fraternity in the Canadian legal order to
expose an unspoken if not forgotten but subsumed concept which is, in my mind, fun-
damental to the proper functioning of a democratic society. Fraternity stands as a dis-
tinct legal concept, but is intertwined with our notions of liberty and equality. The
latter are informed by the former, and on occasion, are rendered subservient to it.
When our current society comes across seemingly unsolvable problems, such as
youth violence in schools, or hate crimes against vulnerable groups, it may be that
part of the solution should involve an understanding of the balance between liberty,
equality, and fraternity. Liberty can only be enjoyed in its fullest form in a community
that respects and cares for one another. Equality means nothing if it is not informed by
the actual differences between people, which may require those in positions of power
or advantage to take additional steps to assist those less advantaged. This is substan-
tive equality. It is democratic liberalism. It is community. It is fraternity.
Fraternity is many-splendoured. It is essential to the flourishing of communities at
every level from the humblest family to the greatest nation and the world community
itself, as well as the flourishing of each individual. It brings fruition to the law and its
rule in every field. I have hientioned a few but there are many others. For instance,
good faith is the ruling principle of negotiation which is at the heart of our labour
laws, as it is for the amendment of our Constitution. I invite you to look at and exam-
ine law and laws through the lens of fraternity. You may find it to be a catalyst and
source of inspiration for making our society more human.
9/bida at 54 [emphasis added].
