Law v.
Nancy Law Appellant
v.
Minister of Human
Resources Development Respondent
Indexed
as: Law v.
on appeal from the
federal court of appeal
Judgment: March
25, 1999.
Constitutional law
-- Charter of Rights -- Equality rights -- Canada Pension Plan
gradually discounting survivor=s benefits for able-bodied claimants without dependent
children until threshold minimum age of 35 reached and delaying those benefits
until retirement age -- Survivors benefits delayed to retirement age
-- Appellant able-bodied, under 35 and without dependent children -- Whether
denial of benefits discrimination on basis of age -- Whether denial of benefits
an infringement of Charter=s equality
provision -- Canadian Charter of Rights and Freedoms, s. 15 -- Canada
Pension Plan, R.S.C., 1985, c. C-8, ss. 44(1)(d), 58.
The appellant, a
30-year-old woman without dependent children or disability, was denied survivor=s benefits under the Canadian Pension Plan (CPP). The CPP gradually reduces the survivor=s pension for able-bodied surviving spouses without
dependent children who are between the ages of 35 and 45 by 1/120th of the full
rate for each month that the claimant=s age is less than
45 years at the time of the contributor=s
death so that the threshold age to receive benefits is age 35.
The appellant unsuccessfully appealed first to
the Minister of National Health and Welfare and then to the Pension Plan Review
Tribunal, arguing that these age distinctions discriminated against her on the
basis of age contrary to s. 15(1) of the Canadian Charter of Rights and
Freedoms. A further appeal was made
to the Pension Appeals Board, which, in a trial de novo, concluded that
the impugned age distinctions did not violate the appellant=s equality rights.
The majority of the Board also found that, even if the distinctions did
infringe s. 15(1) of the Charter, they could be justified under
s. 1. A subsequent appeal to the
Federal Court of Appeal was dismissed largely for the reasons of the Pension
Appeals Board. The constitutional
questions here queried whether ss. 44(1)(d) and 58 of the Canada
Pension Plan infringe s. 15(1) of the Charter on the ground
that they discriminate on the basis of age against widows and widowers under
the age of 45, and if so, whether this infringement is demonstrably justified
in a free and democratic society under s. 1.
Held: The appeal should be dismissed. The first constitutional question should be
answered in the negative; the second constitutional question did not need to be
answered.
In the brief
history of this Court=s interpretation of
s. 15(1) of the Charter, there have been several important substantive
developments in equality law. Throughout
these developments, although there have been differences of opinion among the
members of this Court as to the appropriate interpretation of s. 15(1), there
has been and continues to be general consensus regarding the basic principles
relating to the purpose of s. 15(1) and the proper approach to equality
analysis. The present case is a
useful juncture at which to summarize and comment upon these basic principles,
in order to provide a set of guidelines for courts that are called upon to
analyze a discrimination claim under the Charter.
It is sensible to
articulate the basic principles under s. 15(1) as guidelines for analysis, and
not as a rigid test which might risk being mechanically applied. Equality analysis under the Charter must
be purposive and contextual. The
guidelines set out here are just that -- points of reference which are designed
to assist a court in identifying the relevant contextual factors in a
particular discrimination claim, and in evaluating the effect of those factors
in light of the purpose of s. 15(1).
Inevitably, the guidelines summarized here will need to be supplemented
in practice by the explanation of these guidelines in these reasons and those
of previous cases, and by a full appreciation of the context surrounding the
specific s. 15(1) claim at issue. As s.
15 jurisprudence evolves it may well be that further elaborations and
modifications will emerge.
General Approach
(1) It is
inappropriate to attempt to confine analysis under s. 15(1) of the Charter
to a fixed and limited formula. A
purposive and contextual approach to discrimination analysis is to be
preferred, in order to permit the realization of the strong remedial purpose of
the equality guarantee, and to avoid the pitfalls of a formalistic or
mechanical approach.
(2) The approach
adopted and regularly applied by this Court to the interpretation of
s. 15(1) focuses upon three central issues: (A) whether a law imposes differential
treatment between the claimant and others, in purpose or effect; (B) whether
one or more enumerated or analogous grounds of discrimination are the basis for
the differential treatment; and (C)
whether the law in question has a purpose or effect that is discriminatory within
the meaning of the equality guarantee.
The first issue is concerned with the question of whether the law causes
differential treatment. The second and
third issues are concerned with whether the differential treatment constitutes
discrimination in the substantive sense intended by s. 15(1).
(3) Accordingly, a
court that is called upon to determine a discrimination claim under
s. 15(1) should make the following three broad inquiries:
A. Does the impugned law (a) draw a formal
distinction between the claimant and others on the basis of one or more
personal characteristics, or (b) fail to take into account the claimant=s already disadvantaged position within Canadian
society resulting in substantively differential treatment between the claimant
and others on the basis of one or more personal characteristics?
B. Is the claimant subject to differential
treatment based on one or more enumerated and analogous grounds?
and
C. Does the differential treatment discriminate,
by imposing a burden upon or withholding a benefit from the claimant in a
manner which reflects the stereotypical application of presumed group or
personal characteristics, or which otherwise has the effect of perpetuating or
promoting the view that the individual is less capable or worthy of recognition
or value as a human being or as a member of Canadian society, equally deserving
of concern, respect, and consideration?
Purpose
(4) In general
terms, the purpose of s. 15(1) is to prevent the violation of essential
human dignity and freedom through the imposition of disadvantage, stereotyping,
or political or social prejudice, and to promote a society in which all persons
enjoy equal recognition at law as human beings or as members of Canadian
society, equally capable and equally deserving of concern, respect and
consideration.
(5) The existence
of a conflict between the purpose or effect of an impugned law and the purpose
of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict
exists is to be made through an analysis of the full context surrounding the
claim and the claimant.
Comparative
Approach
(6) The equality
guarantee is a comparative concept, which ultimately requires a court to
establish one or more relevant comparators.
The claimant generally chooses the person, group, or groups with whom he
or she wishes to be compared for the purpose of the discrimination
inquiry. However, where the claimant=s characterization of the comparison is insufficient,
a court may, within the scope of the ground or grounds pleaded, refine the
comparison presented by the claimant where warranted. Locating the relevant comparison group
requires an examination of the subject-matter of the legislation and its
effects, as well as a full appreciation of context.
Context
(7) The contextual factors
which determine whether legislation has the effect of demeaning a claimant=s dignity must be construed and examined from the
perspective of the claimant. The focus
of the inquiry is both subjective and objective. The relevant point of view is that of the
reasonable person, in circumstances similar to those of the claimant, who takes
into account the contextual factors relevant to the claim.
(8) There is a
variety of factors which may be referred to by a s. 15(1) claimant in
order to demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Guidance as to these factors may be found in
the jurisprudence of this Court, and by analogy to recognized factors.
(9) Some important
contextual factors influencing the determination of whether s. 15(1) has
been infringed are, among others:
(A) Pre-existing disadvantage, stereotyping, prejudice, or
vulnerability experienced by the individual or group at issue.
The effects of a
law as they relate to the important purpose of s. 15(1) in protecting
individuals or groups who are vulnerable, disadvantaged, or members of Adiscrete and insular minorities@ should always be a central consideration. Although the claimant=s
association with a historically more advantaged or disadvantaged group or
groups is not per se determinative of an infringement, the existence of
these pre-existing factors will favour a finding that s. 15(1) has been
infringed.
(B) The correspondence, or lack thereof, between the ground or grounds
on which the claim is based and the actual need, capacity, or circumstances of
the claimant or others.
Although the mere
fact that the impugned legislation takes into account the claimant=s traits or circumstances will not necessarily be
sufficient to defeat a s. 15(1) claim, it will generally be more difficult
to establish discrimination to the extent that the law takes into account the
claimant=s actual situation in a manner that respects his or
her value as a human being or member of Canadian society, and less difficult to
do so where the law fails to take into account the claimant=s actual situation.
(C) The ameliorative purpose or effects of the impugned law upon a more
disadvantaged person or group in society.
An ameliorative
purpose or effect which accords with the purpose of s. 15(1) of the Charter
will likely not violate the human dignity of more advantaged individuals where
the exclusion of these more advantaged individuals largely corresponds to the
greater need or the different circumstances experienced by the disadvantaged
group being targeted by the legislation.
This factor is more relevant where the s. 15(1) claim is brought by
a more advantaged member of society.
and
(D) The nature and scope of the interest affected by the impugned law.
The more severe and
localized the consequences of the legislation for the affected group, the more
likely that the differential treatment responsible for these consequences is
discriminatory within the meaning of s. 15(1).
(10) Although the
s. 15(1) claimant bears the onus of establishing an infringement of his or
her equality rights in a purposive sense through reference to one or more
contextual factors, it is not necessarily the case that the claimant must
adduce evidence in order to show a violation of human dignity or freedom. Frequently, where differential treatment is
based on one or more enumerated or analogous grounds, this will be sufficient
to found an infringement of s. 15(1) in the sense that it will be evident
on the basis of judicial notice and logical reasoning that the distinction is
discriminatory within the meaning of the provision.
As a result of the
ages specified under the CPP, a clear distinction is drawn between the
appellant and others on the basis of age.
Both the delay in the receipt of benefits and the reduced entitlement to
benefits constitute a denial of equal benefit of the law under the first step
of the equality analysis.
Even if entitlement
to a survivor=s pension benefit were dependent upon the interplay of
age, disability, and parental status, this interplay would not preclude the
appellant from establishing that a distinction had been drawn on one or more of
the grounds in s. 15(1) of the Charter. A claimant can articulate a discrimination
claim under more than one of the enumerated and analogous grounds. Such an approach to the grounds of
discrimination accords with the essential purposive and contextual nature of
equality analysis under s. 15(1) of the Charter. Where a party brings a discrimination claim
on the basis of a newly postulated analogous ground, or on the basis of a
combination of different grounds, this part of the discrimination inquiry must
focus upon whether and why a ground or confluence of grounds is analogous to
those listed in s. 15(1). This
determination is made on the basis of a complete analysis of the purpose of
s. 15(1), the nature and situation of the individual or group at issue,
and the social, political and legal history of Canadian society=s treatment of the group. A ground or grounds will not be considered
analogous under s. 15(1) unless it can be shown that differential
treatment premised on the ground or grounds has the potential to bring into
play human dignity. If the court
determines that recognition of a ground or confluence of grounds as analogous
would serve to advance the fundamental purpose of s. 15(1), the ground or
grounds will then be so recognized.
A discrimination
claim positing an intersection of grounds can be understood as analogous to, or
as a synthesis of, the grounds listed in s. 15(1). If the CPP had based entitlement on a
combination of factors, the appellant would still have been able to establish
the requisite distinction, whether on the basis of age alone, or based on a
combination of grounds.
Relatively speaking,
adults under the age of 45 have not been consistently and routinely subjected
to the sorts of discrimination faced by some of
Neither the purpose
nor the effect of the impugned legislative provisions was demonstrated to violate
the appellant=s human dignity so as to constitute discrimination
even though reference was made to government reports and other sources which
favour extending survivor=s pensions to
younger spouses on the basis that they suffer immediate financial need. The purpose and function of the impugned CPP
provisions is not to remedy the immediate financial need experienced by widows
and widowers, but rather to enable older widows and widowers to meet their
basic needs during the longer term. The
notion that young persons experience fewer impediments to long-term labour
force participation and are generally in a better position than older persons
to replace independently the income of a deceased spouse over the long run as a
working member of Canadian society is reflected in the survivor=s pension provision of the CPP. The increasing difficulty with which one can
find and maintain employment as one grows older is a matter of which a court
may appropriately take judicial notice.
Although the law
imposes a disadvantage on younger spouses in this class, it is unlikely to be a
substantive disadvantage, viewed in the long term. The differential treatment of younger people
does not reflect or promote the notion that they are less capable or less
deserving of concern, respect, and consideration, when the dual perspectives of
long-term security and the greater opportunity of youth are considered. Nor does the differential treatment
perpetuate the view that people in this class are less capable or less worthy
of recognition or value as human beings or as members of Canadian society. Given the contemporary and historical context
of the differential treatment and those affected by it, the legislation does
not stereotype, exclude, or devalue adults under 45. The law functions not by the device of
stereotype, but by distinctions corresponding to the actual situation of
individuals it affects. By being young,
the appellant, a fortiori, has greater prospect of long-term income
replacement.
The clear
ameliorative purpose of the pension scheme for older surviving spouses is
another factor supporting the view that the impugned CPP provisions do not
violate essential human dignity.
Parliament=s intent in enacting a
survivor=s pension scheme with benefits allocated according to
age appears to have been to allocate funds to those persons whose ability to
overcome need was weakest. The concern
was to enhance personal dignity and freedom by ensuring a basic level of
long-term financial security to persons whose personal situation makes them
unable to achieve this goal which is so important to life and dignity. This legislative purpose accords well with
the fundamental purposes of s. 15(1) of the Charter.
Legislation need
not always correspond perfectly with social reality in order to comply with
s. 15(1) of the Charter. The
determination of whether a legislative provision infringes a claimant=s dignity must in every case be considered in the full
context of the claim. In the present
case, the appellant is more advantaged by virtue of her young age. The legislation has an egalitarian purpose
and function and its provisions correspond to a very large degree with the
needs and circumstances of the persons whom the legislation targets. No other factors suggest that the appellant=s dignity as a younger adult is demeaned by the
legislation, either in its purpose or in its effects.
The fact that the
legislation is premised upon informed statistical generalizations which may not
correspond perfectly with the long-term financial need of all surviving spouses
does not affect the ultimate conclusion that the legislation is consonant with
the human dignity and freedom of the appellant.
Parliament is entitled, under these limited circumstances at least, to
premise remedial legislation upon informed generalizations without running
afoul of s. 15(1) of the Charter and being required to justify its
position under s. 1. Under other
circumstances a more precise correspondence would undoubtedly be required in
order to comply with s. 15(1). In
particular, a more precise correspondence will likely be important where the
individual or group which is excluded by the legislation is already
disadvantaged or vulnerable within Canadian society. The availability of the pension to the
appellant at age 65 strengthens the conclusion that the law does not reflect a
view of the appellant that suggests she is undeserving or less worthy as a
person, only that the distribution of the benefit to her will be delayed until
she is at a different point in her life cycle, when she reaches retirement age.
Cases Cited
Considered: Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; McKinney v.
University of Guelph, [1990] 3 S.C.R. 229; Tétreault-Gadoury v. Canada
(Employment and Immigration Commission), [1991] 2 S.C.R. 22; Egan v.
Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Eaton
v. Brant County Board of Education, [1997] 1 S.C.R. 241; Vriend v.
Alberta, [1998] 1 S.C.R. 493; Weatherall v. Canada (Attorney General),
[1993] 2 S.C.R. 872; referred to:
R. v. Swain, [1991] 1 S.C.R. 933; R. v. Hess; R. v. Nguyen,
[1990] 2 S.C.R. 906; Symes v. Canada, [1993] 4 S.C.R. 695; Thibaudeau
v. Canada, [1995] 2 S.C.R. 627; Benner v. Canada (Secretary of State),
[1997] 1 S.C.R. 358; Eldridge v. British Columbia (Attorney General),
[1997] 3 S.C.R. 624; Haig v. Canada, [1993] 2 S.C.R. 995; Hunter v.
Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295; Kask v. Shimizu, [1986] 4 W.W.R. 154; Rodriguez
v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; Brooks v.
Canada Safeway Ltd., [1989] 1 S.C.R. 1219; R. v. Oakes, [1986] 1
S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Machtinger
v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Moge v. Moge, [1992] 3
S.C.R. 813.
Statutes and Regulations Cited
Canada Pension Plan, R.S.C., 1985,
c. C-8, ss. 44(1)(d) [am. c. 30 (2nd Supp.), s. 13],
58(1)(a) [am. idem., s. 26].
Canadian Charter of
Rights and Freedoms, ss. 1, 15(1), (2).
Authors Cited
Sopinka, John,
Sidney N. Lederman and Alan W. Bryant. The
Law of Evidence in
APPEAL from a
judgment of the Federal Court of Appeal (1996), 135 D.L.R. (4th) 293, 196 N.R.
73, [1996] F.C.J. No. 511 (QL), dismissing an application to set aside a
decision of the Pension Appeals Board (1995), C.E.B. & P.G.R. 8574, finding
certain age distinctions in the Canada Pension Plan to be constitutional. Appeal dismissed.
James Sayre, for the
appellant.
Susan L. Van Der
Hout,
Virginia McRae and Julie Lalonde-Goldenberg, for the respondent.
The judgment of the
Court was delivered by
//Iacobucci J.//
IACOBUCCI J.--
I. Introduction and Overview
1
This appeal
concerns the constitutionality of ss. 44(1)(d) and 58 of the Canada
Pension Plan, R.S.C., 1985, c. C-8, which draw distinctions on the basis of
age with regard to entitlement to survivor's pensions. The issue is whether the provisions infringe
s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground
that they discriminate against persons under the age of 45 on the basis of age
and, if so, whether the infringement is justified under s. 1 of the
Charter. In my view, a purposive
reading and application of s. 15(1) results in the conclusion that the
appellant has not established discrimination within the meaning of the Charter.
2
Section 15 of the
Charter guarantees to every individual the right to equal treatment by the
state without discrimination. It is
perhaps the Charter=s most
conceptually difficult provision. In
this Court=s first s. 15 case, Andrews v. Law Society of
British Columbia, [1989] 1 S.C.R 143, at p. 164, McIntyre J. noted that, as
embodied in s. 15(1) of the Charter, the concept of equality is Aan elusive concept@,
and that Amore than any of the other rights and freedoms
guaranteed in the Charter, it lacks precise definition@. Part of the
difficulty in defining the concept of equality stems from its exalted
status. The quest for equality expresses
some of humanity=s highest ideals and aspirations, which are by their
nature abstract and subject to differing articulations. The challenge for the judiciary in
interpreting and applying s. 15(1) of the Charter is to transform these
ideals and aspirations into practice in a manner which is meaningful to
Canadians and which accords with the purpose of the provision.
3
In Andrews,
McIntyre J., who delivered the unanimous reasons of the Court on the issue of
the proper approach to s. 15(1), cautioned at p. 168 that it would be
inappropriate to attempt to confine analysis under s. 15(1) to a Afixed and limited formula@. This
sentiment has been echoed in subsequent decisions: see, e.g., R. v. Turpin,
[1989] 1 S.C.R. 1296, at p. 1326, per Wilson J., and R. v. Swain,
[1991] 1 S.C.R. 933, at pp. 991-92, per Lamer C.J. McIntyre J. advocated a contextual and
purposive approach to discrimination analysis under the Charter, and
contrasted this preferred approach to the rigid formalism which had
characterized this Court=s approach under the equality provision in the Canadian
Bill of Rights. As he suggested, a
flexible and nuanced analysis under s. 15(1) is preferable because it permits
evolution and adaptation of equality analysis over time in order to accommodate
new or different understandings of equality as well as new issues raised by
varying fact situations. Such an
approach also accords far better with the strong remedial purpose of s. 15,
permitting the realization of that purpose.
4
Indeed, in the
brief history of this Court=s
interpretation of s. 15(1) of the Charter, there have been several
important substantive developments in equality law, relating to, among other
things, the meaning of adverse effects discrimination, the role of context in
identifying discrimination more generally, and the indicia of an
analogous ground. All of these
developments have been guided by the Court=s
evolving understanding of the purpose of equality protection under s.
15(1). All have augmented and enriched
anti-discrimination jurisprudence under the Charter.
5
Throughout these
developments, although there have been differences of opinion among the members
of this Court as to the appropriate interpretation of s. 15(1), I believe it is
fair to say that there has been and continues to be general consensus regarding
the basic principles relating to the purpose of s. 15(1) and the proper
approach to equality analysis. In my view, the present case is a useful
juncture at which to summarize and comment upon these basic principles, in
order to provide a set of guidelines for courts that are called upon to analyze
a discrimination claim under the Charter.
6
In accordance
with McIntyre J.=s caution in Andrews, supra, I think it
is sensible to articulate the basic principles under s. 15(1) as guidelines for
analysis, and not as a rigid test which might risk being mechanically applied. Equality analysis under the Charter
must be purposive and contextual. The
guidelines which I review below are just that -- points of reference which are
designed to assist a court in identifying the relevant contextual factors in a
particular discrimination claim, and in evaluating the effect of those factors
in light of the purpose of s. 15(1).
7
The analysis in
these reasons proceeds from the general to the more specific. I begin, after describing the background of
the case, with a review of general principles regarding the proper approach to
be followed in analyzing a discrimination claim. This portion of the reasons is concerned with
outlining elements or stages of analysis, whose content and application I then
develop. The second portion of my
analysis is a discussion of the basic principles which this Court has
articulated in past jurisprudence regarding the purpose of s. 15(1), and the
fundamentally purposive nature of each stage of analysis under the provision. Next, on the basis of previous cases, I
review some of the contextual factors which may assist a court in determining
whether the purpose of s. 15(1) has been engaged within the context of a
particular case. A summary of the
elements of a discrimination claim, the purpose of s. 15(1), and the contextual
factors then follows. Finally, I apply
the principles articulated in this analysis to the case at bar.
II. Background
A. The
Legislation
8
The Canada
Pension Plan (the ACPP@) is a
compulsory social insurance scheme which was enacted in 1965 in order to
provide contributors and their families with reasonable minimum levels of
income upon the retirement, disability or death of the wage earner: see House
of Commons Debates, vol. VI, 2nd Sess., 26th Parl., August 10, 1964, at p.
6636. Among the benefits available under
the CPP is the survivor=s pension. This
monthly benefit is paid to a surviving spouse whose deceased partner has made
sufficient contributions to the CPP, and who meets the eligibility criteria
specified in s. 44(1)(d), namely, an age threshold, responsibility for
dependent children or disability.
9
A claimant who is
over the age of 45 at the time of the contributor=s death, or is maintaining dependent children of the deceased
contributor, or is (or becomes) disabled, is entitled to receive the survivor=s pension at the full rate. However, s. 58 gradually reduces that pension
for able-bodied surviving spouses without dependent children who are between
the ages of 35 and 45 by 1/120th of the full rate for each month that the
claimant=s age is less than 45 years at the time of the
contributor=s death.
Pursuant to s. 44(1)(d), unless they should become disabled,
able-bodied surviving spouses without dependent children who are under 35 at
the time of the death of the contributor are precluded from receiving a
survivor=s pension until they reach the age of 65.
B. Facts
10
The appellant,
Nancy Law, married Jason Law in 1980.
Mr. Law died in 1991, at the age of 50, having contributed to the CPP
for 22 years. At the time of his death,
the appellant was 30 years old. Prior to
Mr. Law=s death, the couple had co-owned a small
business. The appellant was responsible
for business operations and her husband had the requisite technical knowledge
and expertise. The business failed soon
after Mr. Law=s death.
11
The appellant
applied to receive survivor=s benefits
under the CPP. Her husband had made
sufficient contributions under the CPP such that she would qualify for survivor
benefits if she came within the class of persons entitled to receive them. However, her application was refused because
she was under 35 years of age at the time of her husband=s death, she was not disabled, and she did not have
dependent children.
12
The appellant
appealed this decision to the Minister of National Health and Welfare, who
rejected the appeal in May, 1992. She
then appealed to the Pension Plan Review Tribunal, arguing that the age
distinctions in ss. 44(1)(d) and 58 of the CPP discriminate against her
on the basis of age contrary to s. 15(1) of the Charter. The tribunal found that the legislation
discriminates against those who, at the time of the contributor=s death, have not reached age 35, have no dependent
children and are not disabled. However,
the tribunal was unable to reach a consensus regarding s. 1 of the Charter. The majority concluded that the
discrimination was justified under s. 1 and, although a more precise test of
need could have been crafted, the measures adopted were a reasonable attempt by
Parliament to achieve the objective of the CPP.
The dissenting member of the tribunal found that the age distinctions in
the impugned provisions were arbitrary and that Parliament could have targeted
needy dependents without discrimination by legislating a test to determine
need.
13
The appellant
then appealed to the Pension Appeals Board, which, in a trial de novo,
concluded that the impugned age distinctions do not violate the appellant=s equality rights.
The majority of the board also found that, even if the distinctions did
infringe s. 15(1) of the Charter, they would be justified under s.
1. A subsequent appeal to the Federal
Court of Appeal was dismissed largely for the reasons of the Pension Appeals
Board.
III. Relevant
Statutory and Constitutional Provisions
1
Canada Pension
Plan, R.S.C., 1985, c. C-8
44. (1)
Subject to this Part,
.
. .
(d) a survivor=s pension shall be paid to the surviving spouse, as determined pursuant
to this Act, of a deceased contributor who has made contributions for not less
than the minimum qualifying period, if the surviving spouse
(i) has reached sixty-five years of age, or
(ii) in the case of a surviving spouse who has not
reached sixty-five years of age,
(A) had at the time of the death of the contributor
reached thirty-five years of age,
(B) was at the time of the death of the contributor a
surviving spouse with dependent children, or
(C) is disabled;
.
. .
58. (1)
Subject to this section, a survivor=s
pension payable to the surviving spouse of a contributor is a basic monthly
amount as follows:
(a) in the case of a surviving spouse who has
not reached sixty-five years of age and to whom no retirement pension is
payable under this Act or a provincial pension plan, a basic monthly amount
consisting of
(i) a flat rate benefit, calculated as provided in
subsection (1.1), and
(ii) 372
per cent of the amount of the contributor=s
retirement pension, calculated as provided in subsection (3),
reduced, unless the surviving spouse was at the time
of the death of the contributor a surviving spouse with dependent children or
unless he is disabled, by 1/120 for each month by which the age of the
surviving spouse at the time of the death of the contributor is less than
forty-five years, and reduced, if at any time after the death of the
contributor the surviving spouse ceases to be
(iii) a surviving spouse with dependent children and
is not at that time disabled, or
(iv) disabled and is not at that time a surviving
spouse with dependent children,
by 1/120 for each month by which the age of the
surviving spouse at that time is less than forty-five years; . . .
Canadian Charter of Rights and Freedoms
15. (1)
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 and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
IV. Judicial
History
A. Pension
Appeals Board (1995), C.E.B. & P.G.R. 8574
(1) Rutherford
J., Dureault J. concurring
2
Following an
extensive extract from the respondent=s
expert report, adduced at the trial de novo before the Pension Appeals
Board, Rutherford J. stated that, although many laws create legal distinctions,
not all amount to discrimination within the meaning of s. 15(1) of the Charter. He went on to find that although age is a
factor in determining eligibility for survivor=s benefits under the CPP, it is not the sole criterion. Rather, it is a combination of age, healthful
employability, and freedom from the responsibility of dependent children which
may lead to exclusion from benefits.
Moreover, he held that, to the extent that age is a factor in the denial
of benefits, ss. 44(1)(d)(ii)(A) and 58 do not create the kind of
distinction that has been characterized as Adiscrimination@ in the constitutional sense.
3
Rutherford J.
noted that the Supreme Court of Canada has used s. 15(1) of the Charter
as a means of protecting discrete and insular minorities and of shielding
vulnerable groups against stigmatization, stereotyping, and prejudice. Quoting with approval from the remarks of
Wilson J. in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, he
found that none of the evidence in the present case suggested that the
appellant is a member of a group that suffers Adiscrimination@ in Charter terms. Nor, he observed, did the evidence suggest
that able-bodied and young surviving spouses without responsibility for
children are treated differently, on the basis of an irrelevant personal
characteristic, from those who do receive survivor=s pension benefits.
Rather, Rutherford J. found that age is a very relevant characteristic
to be considered in determining relative need for survivor=s benefits. He
also noted that the appellant is not a member of a traditionally disadvantaged
group, an insular minority or a segment of society that is or may be
stigmatized, stereotyped or subjected to prejudice. Accordingly, he concluded that, even though
the impugned provisions draw a distinction based on age, this does not
constitute discrimination within the meaning of s. 15(1) of the Charter.
4
Although it was
not necessary to do so in order to dispose of the appeal, Rutherford J. went on
to find that even if the impugned provisions of the CPP did infringe s. 15(1)
of the Charter, the infringement would be justified under s. 1 of the Charter. He acknowledged that the extension of
benefits to widowers and the elimination of remarriage as a bar to continuing
survivor=s benefits had diluted the original legislative
objective, making it difficult for ss. 44(1)(d)(ii)(A) and 58 to pass
the justificatory test under s. 1 of the Charter without being found
vulnerable on one point or another.
However, in his view, the complexity of the CPP, its status as an
over-arching federal-provincial benefits system, and its onerous amendment
requirements justify deference to Parliament=s
choice of measures.
(2) Angers J.A.
5
Angers J.A.
agreed with his colleagues= reasons
regarding discrimination on the basis of age, but preferred not to comment on
the effect of s. 1 of the Charter.
B. Federal
Court of Appeal (1996), 135 D.L.R. (4th) 293
6
Isaac C.J.,
delivering judgment on behalf of a unanimous court, was not convinced that the
Pension Appeals Board had committed a reviewable error. He stated that the court substantially agreed
with the reasons of the board that neither s. 44(1)(d) nor s. 58 of the
CPP infringes upon the appellant=s
equality rights guaranteed by s. 15(1) of the Charter. The Court of
Appeal was also in substantial agreement with the majority opinion that, even
if those provisions do infringe s. 15(1) of the Charter, they constitute
a reasonable limit under s. 1 of the Charter. Accordingly, the appeal was dismissed.
V. Issues
7
By order of the
Chief Justice dated March 26, 1997, the following constitutional questions were
stated for this Court=s consideration:
1. Do ss.
44(1)(d) and 58 of the Canada Pension Plan, R.S.C., 1985, c.
C-8, infringe on s. 15(1) of the Canadian Charter of Rights and Freedoms
on the ground that they discriminate against widows and widowers under the age
of 45 on the basis of age?
2. If so, can
this infringement be demonstrably justified in a free and democratic society
under s. 1 of the Canadian Charter of Rights and Freedoms?
VI. Analysis
A. Approach
to s. 15(1)
8
Subsection 15(1)
of the Charter states as follows:
15. (1)
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 and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
9
On its face, s.
15(1) guarantees the equal treatment of individuals by the state without
discrimination. The concepts of Aequality@
and Adiscrimination@
lie at the heart of the provision. What
do these concepts mean, and how are they to be established? An excellent starting point in answering
these questions is the Andrews decision, supra, which articulates
many of the basic principles which continue to guide s. 15(1) analysis to the
present day.
(1) Andrews
Revisited
10
McIntyre J. in Andrews
adopted an approach to s. 15(1) which focuses upon three central elements: (1)
whether a law imposes differential treatment between the claimant and others;
(2) whether an enumerated or analogous ground of discrimination is the basis
for the differential treatment; and (3) whether the law in question has a Adiscriminatory@
purpose or effect. In these reasons, for
the sake of convenience, I will refer only to discriminatory laws, and not to
the various other forms of potentially discriminatory state action. The first
element -- differential treatment -- relates to, but is not determinative of,
the issue of equality for the purpose of s. 15(1). The second and third elements in McIntyre J.=s approach determine whether the differential
treatment in question constitutes discrimination within the meaning of s. 15(1)
of the Charter. In his detailed
discussion of these three elements, McIntyre J. made clear that the analysis of
each element is to be undertaken in a purposive and contextualized manner,
taking into account the Alarge remedial component@ (p. 171) of s. 15(1), and the purpose of the provision in fighting the
evil of discrimination.
11
McIntyre J. began
his discussion of the requirement of differential treatment by noting, at p.
164, that equality is a comparative concept, Athe condition of which may only be attained or discerned by comparison
with the condition of others in the social and political setting in which the
question arises@. It is
impossible to evaluate a s. 15(1) claim without identifying specific personal
characteristics or circumstances of the individual or group bringing the claim,
and comparing the treatment of that person or group to the treatment accorded
to a relevant comparator. This
comparison determines whether the s. 15(1) claimant may be said to experience
differential treatment, which is the first step in determining whether there is
discriminatory inequality for the purpose of s. 15(1).
12
At the same time,
McIntyre J. emphasized that true equality does not necessarily result from
identical treatment. Formal distinctions
in treatment will be necessary in some contexts in order to accommodate the
differences between individuals and thus to produce equal treatment in a
substantive sense: see pp. 164-69.
Correspondingly, a law which applies uniformly to all may still violate
a claimant=s equality rights.
The main consideration, McIntyre J. stated, at p. 165, must be
the impact of the law upon the individual or group to whom it applies,
as well as upon those whom it excludes from its application. He explained that the determination of the
impact of legislation, by its nature, must be undertaken in a contextual
manner, taking into account the content of the law, its purpose, and the
characteristics and circumstances of the claimant, among other things. Hence, equality in s. 15 must be viewed as a
substantive concept. Differential
treatment, in a substantive sense, can be brought about either by a formal
legislative distinction, or by a failure to take into account the underlying
differences between individuals in society.
13
Moving on to
discuss the requirement that a s. 15(1) claimant show that differential treatment
is discriminatory in order to establish a Charter violation, McIntyre J.
defined Adiscrimination@ in
the following terms, at pp. 174-75:
. . . discrimination may be described as a
distinction, whether intentional or not but based on grounds relating to
personal characteristics of the individual or group, which has the effect of
imposing burdens, obligations, or disadvantages on such individual or group not
imposed upon others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society. Distinctions based on personal
characteristics attributed to an individual solely on the basis of association
with a group will rarely escape the charge of discrimination, while those based
on an individual's merits and capacities will rarely be so classed.
14
Importantly,
McIntyre J. explained that the determination of whether a distinction in
treatment imposes a burden or withholds a benefit so as to constitute Adiscrimination@
within the meaning of s. 15(1) is to be undertaken in a purposive way. As he stated, at pp. 180-81, A[t]he words >without
discrimination= require more than a mere finding of distinction
between the treatment of groups or individuals@. Moreover, Ain assessing whether a complainant=s rights have been infringed under s. 15(1), it is not
enough to focus only on the alleged ground of discrimination and decide whether
or not it is an enumerated or analogous ground@ (p. 182). Rather, Aa role must be assigned to s. 15(1) which goes beyond
the mere recognition of a legal distinction@ on
such a ground. The protection of
equality rights is concerned with distinctions which are truly discriminatory.
A discriminatory burden or denial of a benefit, McIntyre J. stated, is to be
understood in a substantive sense and in the context of the historical
development of Canadian anti-discrimination law, notably the human rights
codes: AThe words >without
discrimination= . . . are a form of qualifier built into s. 15 itself
and limit those distinctions which are forbidden by the section to those which
involve prejudice or disadvantage@
(pp. 180-81).
15
Further
discussion of McIntyre J.=s statements regarding the purpose of s. 15(1) in
remedying prejudice and disadvantage occurs below, where I discuss the purpose
of s. 15(1) in more detail. At this
point, it is sufficient to note that the Court in Andrews held that the
fact that a distinction is drawn on the basis of a ground expressly enumerated
in s. 15(1) or one analogous thereto, although generally sufficient to
establish discrimination, does not automatically give rise to this
conclusion. In some circumstances a
distinction based upon an enumerated or analogous ground will not be
discriminatory. As mentioned, McIntyre
J. in Andrews gave an indication as to one such type of permissible
distinction, namely a distinction which takes into account the actual
differences in characteristics or circumstances between individuals in a manner
which respects and values their dignity and difference.
16
Finally,
regarding the role of the various grounds of discrimination expressly listed in
s. 15(1), McIntyre J. stated, at p. 175, that they Areflect the most common and probably the most socially
destructive and historically practised bases of discrimination@, but noted that a s. 15(1) claim may also be brought
on an analogous ground, in accordance with the provision=s wording and with a proper interpretation of its
remedial purpose. In her majority
reasons elaborating on the specific issue of analogous grounds, Wilson J. explained,
at p. 152, that a ground may qualify as analogous to those listed in s. 15(1)
if persons characterized by the trait in question are, among other things, Alacking in political power@, Avulnerable to
having their interests overlooked and their rights to equal concern and respect
violated@, and Avulnerab[le] to
becoming a disadvantaged group@ on the basis
of the trait. Just as for the other two
elements of the s. 15(1) analysis outlined by McIntyre J., Wilson J. emphasized
at p. 152 that the determination of whether a ground qualifies as analogous
under s. 15(1) is to be undertaken in a contextual manner:
. . . this is a determination which is not to be made
only in the context of the law which is subject to challenge but rather in the
context of the place of the group in the entire social, political and legal
fabric of our society. While
legislatures must inevitably draw distinctions among the governed, such
distinctions should not bring about or reinforce the disadvantage of certain
groups and individuals by denying them the rights freely accorded to others.
17
In summary, then,
the Andrews decision established that there are three key elements to a
discrimination claim under s. 15(1) of the Charter: differential
treatment, an enumerated or analogous ground, and discrimination in a
substantive sense involving factors such as prejudice, stereotyping, and
disadvantage. Of fundamental importance,
as stressed repeatedly by all of the judges who wrote, the determination of
whether each of these elements exists in a particular case is always to be
undertaken in a purposive manner, taking into account the full social,
political, and legal context of the claim.
(2) Post-Andrews
Jurisprudence
18
The general
approach adopted in Andrews was regularly applied in subsequent
decisions of the Court: see, e.g., Turpin, supra; R. v. Hess;
R. v. Nguyen, [1990] 2 S.C.R. 906; McKinney, supra; Tétreault-Gadoury
v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Swain,
supra; Symes v. Canada, [1993] 4 S.C.R. 695; Egan v. Canada,
[1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Thibaudeau
v. Canada, [1995] 2 S.C.R. 627; Benner v. Canada (Secretary of State),
[1997] 1 S.C.R. 358; Eaton v. Brant County Board of Education, [1997] 1
S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3
S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493.
19
In Egan, supra,
at paras. 130-31, Cory J., for himself and Iacobucci J., summarized the
approach set out in Andrews, supra, as a two-step analysis with two
components to the second step, in the following terms:
In Andrews, supra, and Turpin, supra,
a two-step analysis was formulated to determine whether a s. 15(1) right to
equality had been violated. The first
step is to determine whether, due to a distinction created by the questioned
law, a claimant's right to equality before the law, equality under the law,
equal protection of the law or equal benefit of the law has been denied. During this first step, the inquiry should
focus upon whether the challenged law has drawn a distinction between the
claimant and others, based on personal characteristics.
Not every distinction created by legislation gives
rise to discrimination. Therefore, the
second step must be to determine whether the distinction created by the law
results in discrimination. In order to
make this determination, it is necessary to consider first, whether the
equality right was denied on the basis of a personal characteristic which is
either enumerated in s. 15(1) or which is analogous to those enumerated, and
second, whether that distinction has the effect on the claimant of imposing a
burden, obligation or disadvantage not imposed upon others or of withholding or
limiting access to benefits or advantages which are available to others.
20
In Miron, supra,
McLachlin J. (Sopinka, Cory and Iacobucci JJ. concurring) outlined a similar s.
15(1) framework as follows, at para. 128:
The analysis under s. 15(1) involves two steps. First, the claimant must show a denial of
"equal protection" or "equal benefit" of the law, as
compared with some other person. Second,
the claimant must show that the denial constitutes discrimination. At this second stage, in order for
discrimination to be made out, the claimant must show that the denial rests on
one of the grounds enumerated in s. 15(1) or an analogous ground and that the
unequal treatment is based on the stereotypical application of presumed group
or personal characteristics. If the
claimant meets the onus under this analysis, violation of s. 15(1) is
established.
21
As was noted by
Iacobucci J. for the full Court in Benner, supra, at para. 62,
the approaches adopted by Cory J. in Egan and by McLachlin J. in Miron
are Aessentially alike@. Although Cory J. did not, in the passage just
quoted from the Egan decision, specifically advert to the role of
factors such as stereotyping, prejudice, and historical disadvantage in the
second step of the discrimination analysis, the remainder of his analysis in
that case clearly reveals the fundamental importance of such factors, in
accordance with the framework established in Andrews.
22
Each of the
elements of the approach to s. 15(1) articulated by the Court in Andrews
and confirmed in later cases has developed and been enriched by the subsequent
jurisprudence.
23
In Eaton, supra,
at paras. 66-67, Sopinka J. for the full Court elaborated upon the point made
by McIntyre J. in Andrews that, although in many cases a claimant will
be able to establish substantively differential treatment by pointing to a
formal distinction drawn by the impugned legislation, there are other ways to
establish differential treatment. In
particular, Sopinka J. noted that an approach which requires proof of an
express legislative distinction is not necessarily applicable where a claim
of Aadverse
effects@ discrimination is made. In such cases, it is the legislation=s failure to take into account the true
characteristics of a disadvantaged person or group within Canadian society
(i.e., by treating all persons in a formally identical manner), and not the
express drawing of a distinction, which triggers s. 15(1). Sopinka J.=s
statements to this effect in Eaton were echoed in the subsequent cases
of Eldridge, supra, at paras. 60-80, and Vriend, supra,
at para. 72, per Cory and Iacobucci JJ.
24
In a similar
vein, relating to the issue of enumerated and analogous grounds, the Court has
had the opportunity to develop the principles relating to the indicia of
an analogous ground in such cases as Turpin, supra, Miron,
supra, and Egan, supra, among several others. Notably, in Symes, supra, this
Court recognized that, although Andrews spoke of differential treatment
being based upon one enumerated or analogous ground, it is open to a s.
15(1) claimant to articulate a discrimination claim on the basis of more than
one ground. As is discussed in more
detail below, the claimant may place the evidentiary focus of the claim upon a
person or subgroup identified by several grounds: see Symes, supra,
at paras. 138 et seq., per Iacobucci J.
25
In the same way,
the jurisprudence of the Court has affirmed and clarified McIntyre J.=s emphasis in Andrews upon the necessity of
establishing discrimination in a substantive or purposive sense, beyond mere
proof of a distinction on enumerated or analogous grounds: see Hess, supra, at pp. 927-28;
per Wilson J.; McKinney, supra, at pp. 392-93, per
Wilson J.; Swain, supra, at p. 992, per Lamer C.J.; Weatherall
v. Canada (Attorney General), [1993] 2 S.C.R. 872; Haig v. Canada,
[1993] 2 S.C.R. 995, at pp. 1043-44, per L=Heureux-Dubé J.; Benner, supra, at para. 69; Eaton,
supra, at para. 66. In Miron,
supra, at para. 132, McLachlin J. confirmed that Adistinctions made on enumerated or analogous grounds
may prove to be, upon examination, non-discriminatory@. She explained
that a distinction Amay be found not to engage the purpose of the Charter
guarantee@, or it may Anot
have the effect of imposing a real disadvantage in the social and political
context of the claim@.
26
In my view, the
proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter
involves a synthesis of these various articulations. Following upon the analysis in Andrews,
supra, and the two-step framework set out in Egan, supra,
and Miron, supra, among other cases, a court that is called upon
to determine a discrimination claim under s. 15(1) should make the following
three broad inquiries. First, does the
impugned law (a) draw a formal distinction between the claimant and others on
the basis of one or more personal characteristics, or (b) fail to take into
account the claimant=s already disadvantaged position within Canadian
society resulting in substantively differential treatment between the claimant
and others on the basis of one or more personal characteristics? If so, there is differential treatment for
the purpose of s. 15(1). Second, was the claimant subject to differential
treatment on the basis of one or more of the enumerated and analogous
grounds? And third, does the
differential treatment discriminate in a substantive sense, bringing into play
the purpose of s. 15(1) of the Charter in remedying such ills as
prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned
with whether the differential treatment constitutes discrimination in the substantive
sense intended by s. 15(1).
B. The
Purpose of s. 15(1)
27
As was
emphasized in early Charter decisions such as Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R.
295, and reiterated by McIntyre J. in Andrews, supra, the proper
approach to the definition of rights guaranteed by the Charter is a
purposive one. The purpose of s. 15(1)
is to be sought, in the words of Dickson J. (as he then was) in Big M, supra,
at p. 344, Aby reference to the character and the larger objects
of the Charter itself, to the language chosen to articulate the specific
right or freedom, to the historical origins of the concepts enshrined, and . .
. to the meaning and purpose of the other specific rights and freedoms with
which it is associated within the text of the Charter@.
28
Since the
beginning of its s. 15(1) jurisprudence, this Court has recognized that the
existence of a conflict between an impugned law and the purpose of s. 15(1) is
essential in order to found a discrimination claim. This principle holds true with respect to
each element of a discrimination claim. The determination of whether
legislation fails to take into account existing disadvantage, or whether a
claimant falls within one or more of the enumerated and analogous grounds, or
whether differential treatment may be said to constitute discrimination within
the meaning of s. 15(1), must all be undertaken in a purposive and contextual
manner.
29
What is the
purpose of the s. 15(1) equality guarantee?
There is great continuity in the jurisprudence of this Court on this
issue. In Andrews, supra,
all judges who wrote advanced largely the same view. McIntyre J. stated, at p. 171, that the
purpose of s. 15 is to promote Aa society in
which all are secure in the knowledge that they are recognized at law as human
beings equally deserving of concern, respect and consideration@. The provision
is a guarantee against the evil of oppression, he explained at pp. 180-81,
designed to remedy the imposition of unfair limitations upon opportunities,
particularly for those persons or groups who have been subject to historical
disadvantage, prejudice, and stereotyping.
30
Similarly, La Forest J., concurring with
respect to the proper approach to s. 15(1), stated that the equality guarantee
was designed to prevent the imposition of differential treatment that was
likely to Ainhibit the sense of those who are discriminated
against that Canadian society is not free or democratic as far as they are
concerned@, and that was likely to decrease their Aconfidence that they can freely and without
obstruction by the state pursue their and their families= hopes and expectations of vocational and personal
development@ (p. 197, quoting from Kask v. Shimizu, [1986]
4 W.W.R. 154 (Alta. Q.B.), at p. 161, per McDonald J.). As discussed above, Wilson J. focussed upon
issues of powerlessness and vulnerability within Canadian society, and
emphasized the importance of examining the surrounding social, political, and
legal context in order to determine whether discrimination exists within the
meaning of s. 15(1).
31
The principles
expressed in Andrews were echoed in subsequent cases, dealing with all
three primary elements of the discrimination analysis. For example, Wilson J., writing for a
unanimous Court in Turpin, supra, engaged in a purposive analysis
of s. 15(1) in order to determine whether it was appropriate to consider Aprovince of residence@ (p. 1333) as an analogous ground of discrimination in the
circumstances of the particular case.
The appellants in that case, both charged with murder in Ontario, argued
that they were denied their right to equal treatment because, unlike persons
accused of murder in Alberta, they were denied the right to elect to be tried
by a judge alone, without a jury. Wilson
J. stated that some of the central indicia of discrimination within the
meaning of s. 15(1) were stereotyping, historical disadvantage, and
vulnerability to political and social prejudice. Finding that no such indicia were
present, Wilson J. dismissed the appeal, stating, at p. 1333: ADifferentiating for mode of trial purposes between
those accused of s. 427 offences in Alberta and those accused of the same
offences elsewhere in Canada would not, in my view, advance the purposes of s.
15 in remedying or preventing discrimination against groups suffering social,
political and legal disadvantage in our society.@
32
A similar
purposive approach was applied by La Forest J., writing for a unanimous Court
in Weatherall, supra, dealing with the question of whether a
formal distinction in treatment on an enumerated ground could be said to
qualify as discrimination within the meaning of the Charter. The appellant, a male inmate at a federal
penitentiary, challenged the practices of frisk searching and patrolling of cell
ranges by female guards as, inter alia, a violation of his right to
equal treatment on the basis of sex under s. 15(1) of the Charter. In suggesting that these practices did not
violate s. 15(1), La Forest J. explained, at pp. 877-78, that an examination of
the larger historical, biological, and sociological context made clear that the
practices in question had a different, more threatening impact on women, such
that it was not discriminatory in a substantive or purposive sense to treat men
and women differently in this regard.
33
Similarly, in Eaton,
supra, Sopinka J. applied a purposive approach to the determination of
whether the state=s failure to take into account the underlying
difference of the disabled qualified as differential treatment or inequality
within the meaning of s. 15(1). Sopinka J. stated, at para. 66, that in light
of the underlying context surrounding disabled persons in Canadian society,
avoidance of discrimination on the ground of disability would frequently
require formal distinctions in treatment to be made in order to effect
substantive equality. He explained that A[t]his emphasizes that the purpose of s. 15(1) of the Charter
is not only to prevent discrimination by the attribution of stereotypical
characteristics to individuals, but also to ameliorate the position of groups
within Canadian society who have suffered disadvantage by exclusion from
mainstream society as has been the case with disabled persons@.
34
The purpose of s.
15(1) has been variously expressed by the members of this Court. In McKinney, supra, Wilson J.,
writing in dissent, described the purpose of the section as both protection Aagainst the evil of discrimination by the state
whatever form it takes@ (p. 385) and the Apromotion
of human dignity@ (p. 391). In Swain, supra, Lamer C.J.
stated, at p. 992, that the overall purpose of the section is Ato remedy or prevent discrimination against groups
subject to stereotyping, historical disadvantage and political and social
prejudice in Canadian society@. In Tétreault-Gadoury, supra, at
pp. 40-41, La Forest J. referred to the stigmatizing effect of discriminatory
treatment, and to the role of s. 15(1) in preventing the imposition of such
stigma and the perpetuation of negative stereotypes and vulnerability.
35
Similar observations
were made in Miron, supra, by McLachlin J. and in Egan, supra,
by L=Heureux-Dubé J. and Cory J., all of whom found that
the fundamental purpose of s. 15(1) is the protection of human dignity. Cory J. stated in Egan, supra,
at para. 128, that the equality guarantee Arecognizes
and cherishes the innate human dignity of every individual@. As he
explained, at para. 179, Athe existence of discrimination is determined by
assessing the prejudicial effect of the distinction against s. 15(1)=s fundamental purpose of preventing the infringement
of essential human dignity@. Similarly, in Miron, supra, at
para. 131, McLachlin J. stated the overarching purpose of s. 15(1) as being Ato prevent the violation of human dignity and freedom
by imposing limitations, disadvantages or burdens through the stereotypical
application of presumed group characteristics rather than on the basis of
merit, capacity, or circumstance@.
36
In Egan, supra,
at para. 39, L=Heureux-Dubé J. stated in a similar vein:
. . . at the heart of s. 15 is the promotion of a
society in which all are secure in the knowledge that they are recognized at
law as equal human beings, equally capable, and equally deserving. A person or group of persons has been discriminated
against within the meaning of s. 15 of the Charter when members of that
group have been made to feel, by virtue of the impugned legislative
distinction, that they are less capable, or less worthy of recognition or value
as human beings or as members of Canadian society, equally deserving of
concern, respect, and consideration.
37
Most recently, in
Vriend, supra, at para. 67, Cory and Iacobucci JJ. stated the
purpose of s. 15(1) as being to take Aa
further step in the recognition of the fundamental importance and the innate
dignity of the individual@, and in the recognition of Athe intrinsic worthiness and importance of every
individual . . . regardless of the age, sex, colour, origins, or other
characteristics of the person@.
38
All of these
statements share several key elements. It may be said that the purpose of s.
15(1) is to prevent the violation of essential human dignity and freedom
through the imposition of disadvantage, stereotyping, or political or social
prejudice, and to promote a society in which all persons enjoy equal recognition
at law as human beings or as members of Canadian society, equally capable and
equally deserving of concern, respect and consideration. Legislation which effects differential
treatment between individuals or groups will violate this fundamental purpose
where those who are subject to differential treatment fall within one or more
enumerated or analogous grounds, and where the differential treatment reflects
the stereotypical application of presumed group or personal characteristics, or
otherwise has the effect of perpetuating or promoting the view that the
individual is less capable, or less worthy of recognition or value as a human
being or as a member of Canadian society. Alternatively, differential treatment
will not likely constitute discrimination within the purpose of s. 15(1) where
it does not violate the human dignity or freedom of a person or group in this
way, and in particular where the differential treatment also assists in
ameliorating the position of the disadvantaged within Canadian society.
39
As noted above,
one of the difficulties in defining the concepts of Aequality@
and Adiscrimination@ is
the abstract nature of the words and the similarly abstract nature of words
used to explain them. No single word or
phrase can fully describe the content and purpose of s. 15(1). However, in the articulation of the purpose
of s. 15(1) just provided on the basis of past cases, a focus is quite properly
placed upon the goal of assuring human dignity by the remedying of
discriminatory treatment.
40
What is human
dignity? There can be different
conceptions of what human dignity means.
For the purpose of analysis under s. 15(1) of the Charter,
however, the jurisprudence of this Court reflects a specific, albeit
non-exhaustive, definition. As noted by
Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3
S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the
realization of personal autonomy and self-determination. Human dignity means that an individual or group
feels self-respect and self-worth. It is
concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment
premised upon personal traits or circumstances which do not relate to
individual needs, capacities, or merits. It is enhanced by laws which are
sensitive to the needs, capacities, and merits of different individuals, taking
into account the context underlying their differences. Human dignity is harmed when individuals and
groups are marginalized, ignored, or devalued, and is enhanced when laws
recognize the full place of all individuals and groups within Canadian
society. Human dignity within the
meaning of the equality guarantee does not relate to the status or position of
an individual in society per se, but rather concerns the manner in which
a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly,
taking into account all of the circumstances regarding the individuals affected
and excluded by the law?
41
The equality
guarantee in s. 15(1) of the Charter must be understood and applied in
light of the above understanding of its purpose. The overriding concern with protecting and
promoting human dignity in the sense just described infuses all elements of the
discrimination analysis.
42
In order to
determine whether the fundamental purpose of s. 15(1) is brought into play in a
particular claim, it is essential to engage in a comparative analysis which
takes into consideration the surrounding context of the claim and the
claimant. I now propose to comment
briefly on the nature of the comparative approach, and then to examine some of
the contextual factors that a court should consider in determining whether s.
15(1) has been infringed. Each factor may be more or less relevant depending
upon the circumstances of the case.
C. The
Comparative Approach
43
As discussed
above, McIntyre J. emphasized in Andrews, supra, that the
equality guarantee is a comparative concept.
Ultimately, a court must identify differential treatment as compared
to one or more other persons or groups. Locating the appropriate comparator is
necessary in identifying differential treatment and the grounds of the
distinction. Identifying the appropriate
comparator will be relevant when considering many of the contextual factors in
the discrimination analysis.
44
To locate the
appropriate comparator, we must consider a variety of factors, including the
subject-matter of the legislation. The
object of a s. 15(1) analysis is not to determine equality in the abstract; it
is to determine whether the impugned legislation creates differential treatment
between the claimant and others on the basis of enumerated or analogous
grounds, which results in discrimination.
Both the purpose and the effect of the legislation must be considered in
determining the appropriate comparison group or groups. Other contextual factors may also be
relevant. The biological, historical,
and sociological similarities or dissimilarities may be relevant in
establishing the relevant comparator in particular, and whether the legislation
effects discrimination in a substantive sense more generally: see Weatherall,
supra, at pp. 877-78.
45
When identifying
the relevant comparator, the natural starting point is to consider the claimant=s view. It is
the claimant who generally chooses the person, group, or groups with whom he or
she wishes to be compared for the purpose of the discrimination inquiry, thus
setting the parameters of the alleged differential treatment that he or she wishes
to challenge. However, the claimant=s characterization of the comparison may not always be
sufficient. It may be that the
differential treatment is not between the groups identified by the claimant,
but rather between other groups. Clearly
a court cannot, ex proprio motu, evaluate a ground of discrimination not
pleaded by the parties and in relation to which no evidence has been adduced:
see Symes, supra, at p. 762.
However, within the scope of the ground or grounds pleaded, I would not
close the door on the power of a court to refine the comparison presented by
the claimant where warranted.
D. Establishing
Discrimination in a Purposive Sense: Contextual Factors
(1) The
Appropriate Perspective
46
The determination
of the appropriate comparator, and the evaluation of the contextual factors
which determine whether legislation has the effect of demeaning a claimant=s dignity must be conducted from the perspective of
the claimant. As applied in practice in
several of this Court=s equality decisions, and as neatly discussed by L=Heureux-Dubé J. in Egan, supra, at para.
56, the focus of the discrimination inquiry is both subjective and
objective: subjective in so far as the
right to equal treatment is an individual right, asserted by a specific claimant
with particular traits and circumstances; and objective in so far as it is
possible to determine whether the individual claimant=s equality rights have been infringed only by
considering the larger context of the legislation in question, and society=s past and present treatment of the claimant and of
other persons or groups with similar characteristics or circumstances. The objective component means that it is not
sufficient, in order to ground a s. 15(1) claim, for a claimant simply to
assert, without more, that his or her dignity has been adversely affected by a
law.
47
As stated by L=Heureux-Dubé J. in Egan, supra, at para.
56, the relevant point of view is that of the reasonable person, dispassionate
and fully apprised of the circumstances, possessed of similar attributes to,
and under similar circumstances as, the claimant. Although I stress that the inquiry into
whether legislation demeans the claimant=s
dignity must be undertaken from the perspective of the claimant and from no
other perspective, a court must be satisfied that the claimant=s assertion that differential treatment imposed by
legislation demeans his or her dignity is supported by an objective assessment
of the situation. All of that individual=s or that group=s
traits, history, and circumstances must be considered in evaluating whether a
reasonable person in circumstances similar to those of the claimant would find
that the legislation which imposes differential treatment has the effect of
demeaning his or her dignity.
48
I should like to
emphasize that I in no way endorse or contemplate an application of the above
perspective which would have the effect of subverting the purpose of s.
15(1). I am aware of the controversy
that exists regarding the biases implicit in some applications of the Areasonable person@
standard. It is essential to stress that
the appropriate perspective is not solely that of a Areasonable person@ --
a perspective which could, through misapplication, serve as a vehicle for the
imposition of community prejudices. The
appropriate perspective is subjective-objective. Equality analysis under the Charter is
concerned with the perspective of a person in circumstances similar to those of
the claimant, who is informed of and rationally takes into account the various
contextual factors which determine whether an impugned law infringes human
dignity, as that concept is understood for the purpose of s. 15(1).
(2) Contextual
Factors
49
There is a
variety of factors which may be referred to by a s. 15(1) claimant in order to
demonstrate that legislation has the effect of demeaning his or her dignity, as
dignity is understood for the purpose of the Charter equality
guarantee. In these reasons I discuss
four such factors in particular, although, as I discuss below, there are undoubtedly
others, and not all four factors will necessarily be relevant in every case.
(a) Pre-existing Disadvantage
50
As has been
consistently recognized throughout this Court=s jurisprudence, probably the most compelling factor favouring a
conclusion that differential treatment imposed by legislation is truly
discriminatory will be, where it exists, pre-existing disadvantage,
vulnerability, stereotyping, or prejudice experienced by the individual or
group: see, e.g., Andrews, supra,
at pp. 151-53, per Wilson J., p. 183, per McIntyre J., pp.
195-97, per La Forest J.; Turpin, supra, at pp. 1331-33; Swain,
supra, at p. 992, per Lamer C.J.; Miron, supra, at
paras. 147-48, per McLachlin J.; Eaton, supra, at para.
66. These factors are relevant because,
to the extent that the claimant is already subject to unfair circumstances or
treatment in society by virtue of personal characteristics or circumstances,
persons like him or her have often not been given equal concern, respect, and
consideration. It is logical to conclude
that, in most cases, further differential treatment will contribute to the
perpetuation or promotion of their unfair social characterization, and will
have a more severe impact upon them, since they are already vulnerable.
51
One consideration
which the Court has frequently referred to with respect to the issue of
pre-existing disadvantage is the role of stereotypes. A stereotype may be described as a
misconception whereby a person or, more often, a group is unfairly portrayed as
possessing undesirable traits, or traits which the group, or at least some of
its members, do not possess. In my view,
probably the most prevalent reason that a given legislative provision may be
found to infringe s. 15(1) is that it reflects and reinforces existing inaccurate
understandings of the merits, capabilities and worth of a particular person or
group within Canadian society, resulting in further stigmatization of that
person or the members of the group or otherwise in their unfair treatment. This view accords with the emphasis placed by
this Court ever since Andrews, supra, upon the role of s. 15(1)
in overcoming prejudicial stereotypes in society. However, proof of the existence of a
stereotype in society regarding a particular person or group is not an indispensable
element of a successful claim under s. 15(1).
Such a restriction would unduly constrain discrimination analysis, when
there is more than one way to demonstrate a violation of human dignity. I emphasize, then, that any demonstration by
a claimant that a legislative provision or other state action has the effect of
perpetuating or promoting the view that the individual is less capable, or less
worthy of recognition or value as a human being or as a member of Canadian
society (whether or not it involves a demonstration that the provision or other
state action corroborates or exacerbates an existing prejudicial stereotype),
will suffice to establish an infringement of s. 15(1).
52
It should be
stressed that, while it is helpful to demonstrate the existence of historic
disadvantage, it is of course not necessary
to show such disadvantage in order to establish a s. 15(1) violation, for at
least two distinct reasons. On the one
hand, this Court has stated several times that, although a distinction drawn on
such a basis is an important indicium of discrimination, it is not
determinative: see, e.g., Hess, supra,
at pp. 943-44, per McLachlin J.; Miron, supra, at para.
15, per Gonthier J. and at para. 149, per McLachlin J.; Egan,
supra, at paras. 59-61, per L=Heureux-Dubé
J.; and Eldridge, supra, at para. 54. A member of any of the more advantaged groups
in society is clearly entitled to bring a s. 15(1) claim which, in appropriate
cases, will be successful.
53
On the other
hand, it may be misleading or inappropriate in some cases to speak about Amembership@
within a group for the purpose of a s. 15(1) claim. The Charter guarantees equality rights
to individuals. In this respect, it must
be made clear that the s. 15(1) claimant is not required to establish membership
in a sociologically recognized group in order to be successful. It will always be helpful to the claimant to
be able to identify a pattern of discrimination against a class of persons with
traits similar to the claimant, i.e., a group, of which the claimant may
consider herself or himself a member.
Nonetheless, an infringement of s. 15(1) may be established by other
means, and may exist even if there is no one similar to the claimant who is
experiencing the same unfair treatment.
54
At the same time,
I also do not wish to suggest that the claimant=s association with a group which has historically been more
disadvantaged will be conclusive of a violation under s. 15(1), where
differential treatment has been established.
This may be the result, but whether or not it is the result will
depend upon the circumstances of the case and, in particular, upon whether or
not the distinction truly affects the dignity of the claimant. There is no
principle or evidentiary presumption that differential treatment for
historically disadvantaged persons is discriminatory.
55
Moreover, in line
with my earlier comment, in referring to groups which, historically, have been
more or less disadvantaged, I do not wish to imply the existence of a strict
dichotomy of advantaged and disadvantaged groups, within which each claimant
must be classified. I mean to identify
simply the social reality that a member of a group which historically has been
more disadvantaged in Canadian society is less likely to have difficulty in
demonstrating discrimination. Since Andrews,
it has been recognized in the jurisprudence of this Court that an important,
though not exclusive, purpose of s. 15(1) is the protection of individuals and
groups who are vulnerable, disadvantaged, or members of Adiscrete and insular minorities@. The effects
of a law as they relate to this purpose should always be a central
consideration in the contextual s. 15(1) analysis.
(b) Relationship Between Grounds and the Claimant=s Characteristics or Circumstances
56
What are some
factors other than an individual=s
or a group=s pre-existing disadvantage which may be referred to
by a s. 15(1) claimant in order to demonstrate a negative effect upon the
claimant=s dignity? One
factor in some circumstances may be the relationship between the ground upon
which the claim is based and the nature of the differential treatment. Some of the enumerated and analogous grounds
have the potential to correspond with need, capacity, or circumstances. As was recognized in Eaton, supra,
and in Eldridge, supra, one of these grounds is disability, where
the avoidance of discrimination will frequently require distinctions be made to
take into account the actual personal characteristics of disabled persons. Another ground is sex, as was recognized by
this Court in Weatherall, supra, and, in the context of a
statutory human rights code, in Brooks v. Canada Safeway Ltd.,
[1989] 1 S.C.R. 1219. A further such
ground is age, where need, capacity, or circumstances may again correspond with
the ground.
57
It is thus
necessary to analyze in a purposive manner the ground upon which the s. 15(1)
claim is based when determining whether discrimination has been
established. As a general matter, as
stated by McIntyre J. in Andrews, supra, and by Sopinka J. in Eaton,
supra, and referred to above, legislation which takes into account the
actual needs, capacity, or circumstances of the claimant and others with
similar traits in a manner that respects their value as human beings and
members of Canadian society will be less likely to have a negative effect on
human dignity. This is not to say that
the mere fact of impugned legislation=s
having to some degree taken into account the actual situation of persons like
the claimant will be sufficient to defeat a s. 15(1) claim. The focus must always remain upon the central
question of whether, viewed from the perspective of the claimant, the
differential treatment imposed by the legislation has the effect of violating
human dignity. The fact that the
impugned legislation may achieve a valid social purpose for one group of
individuals cannot function to deny an equality claim where the effects of the
legislation upon another person or group conflict with the purpose of the s.
15(1) guarantee. In line with the reasons
of McIntyre J. and Sopinka J., I mean simply to state that it will be easier to
establish discrimination to the extent that impugned legislation fails to take
into account a claimant=s actual situation, and more difficult to establish
discrimination to the extent that legislation properly accommodates the
claimant=s needs, capacities, and circumstances.
58
Examples are
prevalent in the jurisprudence of this Court of legislation or other state
action which either failed to take into account the actual situation of a
claimant, or alternatively quite properly treated a claimant differently on the
basis of actual personal differences between individuals. In Eldridge, supra, for
example, a provincial government=s
failure to provide limited funding for sign language interpreters for deaf
persons when receiving medical services was found to violate s. 15(1), in part
on the basis that the government=s
failure to take into account the actual needs of deaf persons infringed their
human dignity. Conversely, in Weatherall,
supra, it was stated that the decision to permit cross-gender prison
searches of male prisoners but not of female prisoners likely did not violate
s. 15(1), because such a difference in treatment was appropriate in light of
the historical, biological and sociological differences between men and women.
(c) Ameliorative Purpose or Effects
59
Another possibly
important factor will be the ameliorative purpose or effects of impugned
legislation or other state action upon a more disadvantaged person or group in
society. As stated by Sopinka J. in Eaton,
supra, at para. 66: Athe purpose of
s. 15(1) of the Charter is not only to prevent discrimination by the
attribution of stereotypical characteristics to individuals, but also to
ameliorate the position of groups within Canadian society who have suffered
disadvantage by exclusion from mainstream society@. An ameliorative purpose or
effect which accords with the purpose of s. 15(1) of the Charter will
likely not violate the human dignity of more advantaged individuals where the
exclusion of these more advantaged individuals largely corresponds to the
greater need or the different circumstances experienced by the disadvantaged
group being targeted by the legislation.
I emphasize that this factor will likely only be relevant where the
person or group that is excluded from the scope of ameliorative legislation or
other state action is more advantaged in a relative sense. Underinclusive ameliorative legislation that
excludes from its scope the members of a historically disadvantaged group will
rarely escape the charge of discrimination:
see Vriend, supra, at paras. 94-104, per Cory J.
60
At the same time,
I would not wish to be taken as foreclosing the possibility that a member of
society could be discriminated against by laws aimed at ameliorating the
situation of others, requiring the court to consider justification under s. 1,
or the operation of s. 15(2). The
possibility of new forms of discrimination denying essential human worth cannot
be foreclosed. This said, the
ameliorative aim and effect of the law is a factor to be considered in
determining whether discrimination is present.
Conversely, where the impugned legislation does not have a purpose or
effect which is ameliorative in s. 15(1) terms, this factor may be of some
assistance, depending upon the circumstances, in establishing a s. 15(1)
infringement.
(d) Nature of the Interest Affected
61
A further
contextual factor which may be relevant in appropriate cases in determining
whether the claimant=s dignity has been violated will be the nature and
scope of the interest affected by the legislation. This point was well explained by L=Heureux-Dubé J. in Egan, supra, at
paras. 63-64. As she noted, at para. 63,
A[i]f all other things are equal, the more severe and
localized the . . . consequences on the affected group, the more likely that
the distinction responsible for these consequences is discriminatory within the
meaning of s. 15 of the Charter@. L=Heureux-Dubé J.
explained, at para. 64, that the discriminatory
calibre of differential treatment cannot be fully appreciated without
evaluating not only the economic but also the constitutional and societal
significance attributed to the interest or interests adversely affected by the
legislation in question. Moreover, it is
relevant to consider whether the distinction restricts access to a fundamental
social institution, or affects Aa basic aspect
of full membership in Canadian society@,
or Aconstitute[s] a complete non-recognition of a
particular group@.
62
There are other
factors which may be referred to by a s. 15(1) claimant in order to establish
an infringement of equality rights in a purposive sense, but they are not
directly relevant to the inquiry in the present appeal. Guidance as to these other factors may be
found in previous decisions of this Court, and through analogy to the factors
listed above. The general theme, though, may be simply stated. An infringement
of s. 15(1) of the Charter exists if it can be demonstrated that, from
the perspective of a reasonable person in circumstances similar to those of the
claimant who takes into account the contextual factors relevant to the claim,
the legislative imposition of differential treatment has the effect of
demeaning his or her dignity: see Egan, supra, at para. 56, per L=Heureux-Dubé J.
Demonstrating the existence of
discrimination in this purposive sense will require a claimant to advert to
factors capable of supporting an inference that the purpose of s. 15(1) of the Charter
has been infringed by the legislation.
(3) The
Nature and Extent of the Claimant=s Burden under s. 15(1)
63
Having emphasized
the importance of a claimant demonstrating that impugned legislation infringes
s. 15(1) in a purposive sense, it will be useful at this point to review the
nature of the claimant=s burden as a practical matter. There are three points which should be
addressed.
64
First, I should
underline that none of the foregoing discussion implies that the claimant must
adduce data, or other social science evidence not generally available, in order
to show a violation of the claimant=s
dignity or freedom. Such materials may
be adduced by the parties, and may be of great assistance to a court in
determining whether a claimant has demonstrated that the legislation in question
is discriminatory. However, they are not
required. A court may often, where
appropriate, determine on the basis of judicial notice and logical reasoning
alone whether the impugned legislation infringes s. 15(1). It is well
established that a court may take judicial notice of notorious and undisputed
facts, or of facts which are capable of immediate and accurate demonstration,
by resorting to readily accessible sources of indisputable accuracy: see J. Sopinka, S. N. Lederman and A. W.
Bryant, The Law of Evidence in Canada (1992), at p. 976. There will frequently be instances in which a
court may appropriately take judicial notice of some or all of the facts
necessary to underpin a discrimination claim, and in which the court should engage
in a process of logical reasoning from those facts to arrive at a finding that
s. 15(1) has been infringed as a matter of law.
65
I neither need
nor wish to elaborate unduly in these reasons as to categories of facts of
which a court may properly take judicial notice for the purpose of a s. 15(1)
claim. I would note, though, that this Court has routinely and appropriately
undertaken analysis under s. 15(1) on the basis of judicial notice and logical
reasoning. To cite but one example, in Andrews,
supra, the issue was whether a citizenship requirement for entry into
the legal profession in British Columbia infringed the right of non-citizens
within Canada to equal treatment. Both
the determination of whether citizenship constituted an analogous ground to
those enumerated in s. 15(1), and the determination of whether the citizenship
requirement imposed a truly discriminatory disadvantage, were accomplished on
the basis of judicial notice and logical reasoning by all the judges of this
Court who wrote. In deciding on the analogous ground issue, the Court took
judicial notice of the fact that, A[r]elative
to citizens, non-citizens are a group lacking in political power and as such
vulnerable to having their interests overlooked and their rights to equal
concern and respect violated@: (p. 152, per Wilson J.). It was similarly found on the basis of
reasoning alone that barring this vulnerable group from certain forms of
employment solely on the basis of the personal characteristic of citizenship
was a real disadvantage to the claimant, resulting in an infringement of s.
15(1). See also, e.g., Turpin, supra, at pp. 1331-33, and Weatherall,
supra, at pp. 877-78.
66
In making these
observations regarding the use of judicial notice in equality analysis under
the Charter, I should not be understood as expanding the range of facts
of which it is appropriate to take judicial notice. The exercise of a certain amount of caution
is in order in taking judicial notice.
In particular, although it is clearly appropriate for the purpose of s.
15(1) to take judicial notice of certain forms of disadvantage and prejudice,
among other things, one should not unwittingly or otherwise use judicial notice
to invent stereotypes or other social phenomena which may not or do not truly
exist.
67
Second, it is
equally important to emphasize that the requirement that a claimant establish a
s. 15(1) infringement in this purposive sense does not entail a requirement
that the claimant prove any matters which cannot reasonably be expected to be
within his or her knowledge. As this
Court has previously stated, the s. 15(1) claimant is not required to establish
that the intent of the legislature in enacting the impugned legislation
was discriminatory, in the sense that, for example, the legislation was
consciously premised upon a prejudicial stereotype, or the legislature
purposely failed to take into account the social disadvantage of an individual
or group in enacting the legislation: see, e.g., Miron, supra, at
para. 129, per McLachlin J. While
it is well established that it is open to a s. 15(1) claimant to establish
discrimination by demonstrating a discriminatory legislative purpose, proof of
legislative intent is not required in order to found a s. 15(1) claim: Andrews,
supra, at p. 174. What is
required is that the claimant establish that either the purpose or
the effect of the legislation infringes s. 15(1), such that the onus may be
satisfied by showing only a discriminatory effect.
68
There is nothing
new in requiring a Charter claimant to establish that his or her right
has been infringed in a manner which brings into play the purpose of the right
in question. Both the principle that Charter
rights are to be interpreted purposively, and the principle that the Charter
claimant bears the onus of establishing an infringement of his or her right
before the onus shifts to the state to justify the infringement, are
fundamental and well established: see Hunter
v. Southam, supra; Big M, supra; R. v. Oakes,
[1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R.
713. In Andrews, supra,
McIntyre J. specifically rejected an approach to analysis under s. 15(1) which
would have seen the mere drawing of a legislative distinction as an
infringement of the provision, noting that such a formalistic approach to the
equality guarantee did not accord with its purpose. He also rejected an approach which would have
seen issues of reasonableness and justification dealt with under s. 15 rather
than under s. 1. In preferring the Aenumerated and analogous grounds@ approach to s. 15(1), McIntyre J. emphasized that
this approach struck the appropriate balance between the claimant and the
state, stating, at p. 178: AIt must be
admitted at once that the relationship between these two sections [s. 15 and s.
1] may well be difficult to determine on a wholly satisfactory basis. It is, however, important to keep them
analytically distinct if for no other reason than the different attribution of
the burden of proof. It is for the
citizen to establish that his or her Charter right has been infringed
and for the state to justify the infringement.@
69
Third, it should
be stressed that in some cases it may not be necessary as a practical matter
for a claimant to focus the purposive analysis upon more than one element of
the discrimination claim. For example,
in cases where it is clear that a law draws a formal distinction upon
enumerated or established analogous grounds, the issue in the case will largely
be limited to that of whether the law discriminates in a sense which interferes
with the claimant=s dignity.
Similarly, through the process of demonstrating that the adverse effect
of a law is to produce substantive inequality through formally identical
treatment, a claimant will often also make clear that the law infringes the human
dignity of those affected, thus satisfying two elements of the s. 15(1) inquiry
at once.
70
Taking these
three points into account, it should be clear that in some cases it will be
relatively easy for a claimant to establish a s. 15(1) infringement, while in
other cases it will be more difficult to locate a violation of the purpose of
the equality guarantee. In more
straightforward cases, it will be clear to the court on the basis of judicial
notice and logical reasoning that an impugned law interferes with human dignity
and thus constitutes discrimination within the meaning of the Charter. Often, but not always, this will be the case
where a law draws a formal distinction in treatment on the basis of enumerated
or analogous grounds, because the use of these grounds frequently does not
correlate with need, capacity, or merit.
It may be sufficient for the court simply to take judicial notice of
pre-existing disadvantage experienced by the claimant or by the group of which
the claimant is a member in order for such a s. 15(1) claim to be made
out. In other cases, it will be
necessary to refer to one or more other contextual factors. In every case, though, a court=s central concern will be with whether a violation of
human dignity has been established, in light of the historical, social,
political, and legal context of the claim.
In order to succeed under s. 15(1), it is up to the claimant to ensure
that the court is made aware of this context in the appropriate manner.
71
I should pause at
this juncture to comment briefly upon an alternative method of articulating the
approach to be taken under s. 15(1). I
have reviewed in these reasons the general approach taken to s. 15(1) by this
Court, which involves three broad elements, namely (1) the existence of
differential treatment, (2) the presence of enumerated or analogous grounds,
and (3) discrimination which brings into play the purpose of s. 15(1). However, it is possible to understand the
third element of the s. 15(1) inquiry as really being a restatement of the
requirement that there be substantive rather than merely formal inequality in
order for an infringement of s. 15(1) to have been made out. Under this alternative view, the definition
of Asubstantive inequality@ is Adiscrimination@
within the meaning of the Charter, bringing into play the claimant=s human dignity.
No substantive inequality would exist where the claimant=s human dignity was not brought into play by his or
her treatment by the state.
72
I agree with the
general idea that, in practice in some cases, it may well be duplicative to
determine first whether differential treatment exists, and then to determine
whether the purpose of s. 15(1) has been brought into play. As I mentioned above, this will particularly
be the case where adverse effects discrimination is at issue, since the
analysis of whether the claimant=s
difference has been effectively ignored by an impugned law will usually bring
into play issues of human dignity. In such cases, there may be no real
difference in analysis or result regardless of whether one or the other
approach is used.
73
I do have some
reservations, however, which lead me to prefer the approach which I have
reviewed in these reasons, involving three main elements rather than two. To
take the adverse effects discrimination example again, there may be cases where
a law which applies identically to all fails to take into account the claimant=s different traits or circumstances, yet does not
infringe the claimant=s human dignity in so doing. In such cases, there could be said to be
substantively differential treatment between the claimant and others, because
the law has a meaningfully different effect upon the claimant, without there
being discrimination for the purpose of s. 15(1). Thus, by changing the formal structure of
analysis under s. 15(1) from that expressed in the previous jurisprudence, the
alternative approach referred to above might detract in practice from the
importance placed by courts upon contextual factors and the purpose of s.
15(1). I believe it is easier and more
effective for a court to apply an approach which distinguishes conceptually
between differential treatment, on the one hand, and the discriminatory quality
of that differential treatment, on the other.
74
Accordingly, I
have continued this Court=s practice of articulating s. 15(1) analysis as having
the three distinct elements which have been reviewed in these reasons. At the same time, I do not disagree with the
idea that the concept of substantive inequality could be defined in terms
of its discriminatory purpose or effect, nor do I mean to suggest that a court
which articulated its analysis using a different structure would err in law
simply by doing that, provided it addressed itself properly and thoroughly to
the purpose of s. 15(1) and the relevant contextual factors.
E. Summary
of Guidelines
75
Before moving on
to apply the principles that I have just discussed to the facts of this case, I
believe it would be useful to summarize some of the main guidelines for
analysis under s. 15(1) to be derived from the jurisprudence of this Court, as
reviewed in these reasons. As I stated
above, these guidelines should not be seen as a strict test, but rather should
be understood as points of reference for a court that is called upon to decide
whether a claimant=s right to equality without discrimination under the Charter
has been infringed. Inevitably, the guidelines summarized here will need to be
supplemented in practice by the explanation of these guidelines in these
reasons and those of previous cases, and by a full appreciation of the context
surrounding the specific s. 15(1) claim at issue. It goes without saying that as our s. 15
jurisprudence evolves it may well be that further elaborations and
modifications will emerge.
General Approach
(1) It
is inappropriate to attempt to confine analysis under s. 15(1) of the Charter
to a fixed and limited formula. A
purposive and contextual approach to discrimination analysis is to be
preferred, in order to permit the realization of the strong remedial purpose of
the equality guarantee, and to avoid the pitfalls of a formalistic or
mechanical approach.
(2) The
approach adopted and regularly applied by this Court to the interpretation of
s. 15(1) focuses upon three central issues:
(A) whether a
law imposes differential treatment between the claimant and others, in purpose
or effect;
(B) whether one
or more enumerated or analogous grounds of discrimination are the basis for the
differential treatment; and
(C) whether the
law in question has a purpose or effect that is discriminatory within the
meaning of the equality guarantee.
The first issue is concerned with the question of
whether the law causes differential treatment.
The second and third issues are concerned with whether the differential
treatment constitutes discrimination in the substantive sense intended by s.
15(1).
(3) Accordingly,
a court that is called upon to determine a discrimination claim under s. 15(1)
should make the following three broad inquiries:
(A) Does the impugned
law (a) draw a formal distinction between the claimant and others on the basis
of one or more personal characteristics, or (b) fail to take into account the
claimant=s already disadvantaged position within Canadian
society resulting in substantively differential treatment between the claimant
and others on the basis of one or more personal characteristics?
(B) Is the
claimant subject to differential treatment based on one or more enumerated and
analogous grounds?
and
(C) Does the
differential treatment discriminate, by imposing a burden upon or withholding a
benefit from the claimant in a manner which reflects the stereotypical
application of presumed group or personal characteristics, or which otherwise
has the effect of perpetuating or promoting the view that the individual is
less capable or worthy of recognition or value as a human being or as a member
of Canadian society, equally deserving of concern, respect, and consideration?
Purpose
(4) In
general terms, the purpose of s. 15(1) is to prevent the violation of essential
human dignity and freedom through the imposition of disadvantage, stereotyping,
or political or social prejudice, and to promote a society in which all persons
enjoy equal recognition at law as human beings or as members of Canadian
society, equally capable and equally deserving of concern, respect and
consideration.
(5) The
existence of a conflict between the purpose or effect of an impugned law and
the purpose of s. 15(1) is essential in order to found a discrimination claim.
The determination of whether such a conflict exists is to be made through an
analysis of the full context surrounding the claim and the claimant.
Comparative Approach
(6) The
equality guarantee is a comparative concept, which ultimately requires a court
to establish one or more relevant comparators.
The claimant generally chooses the person, group, or groups with whom he
or she wishes to be compared for the purpose of the discrimination inquiry. However, where the claimant=s characterization of the comparison is insufficient,
a court may, within the scope of the ground or grounds pleaded, refine the
comparison presented by the claimant where warranted. Locating the relevant comparison group
requires an examination of the subject-matter of the legislation and its
effects, as well as a full appreciation of context.
Context
(7) The
contextual factors which determine whether legislation has the effect of
demeaning a claimant=s dignity must be construed and examined from the
perspective of the claimant. The focus
of the inquiry is both subjective and objective. The relevant point of view is that of the
reasonable person, in circumstances similar to those of the claimant, who takes
into account the contextual factors relevant to the claim.
(8) There
is a variety of factors which may be referred to by a s. 15(1) claimant in
order to demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Guidance as to these factors may be found in
the jurisprudence of this Court, and by analogy to recognized factors.
(9) Some
important contextual factors influencing the determination of whether s. 15(1)
has been infringed are, among others:
(A) Pre-existing
disadvantage, stereotyping, prejudice, or vulnerability experienced by the
individual or group at issue. The effects of a law as they relate to the
important purpose of s. 15(1) in protecting individuals or groups who are
vulnerable, disadvantaged, or members of Adiscrete
and insular minorities@ should always be a central consideration. Although
the claimant=s association with a
historically more advantaged or disadvantaged group or groups is not per
se determinative of an infringement, the existence of these pre-existing
factors will favour a finding that s. 15(1) has been infringed.
(B) The
correspondence, or lack thereof, between the ground or grounds on which the
claim is based and the actual need, capacity, or circumstances of the claimant
or others. Although the mere fact that
the impugned legislation takes into account the claimant=s traits or circumstances will not necessarily be
sufficient to defeat a s. 15(1) claim, it will generally be more difficult to
establish discrimination to the extent that the law takes into account the
claimant=s actual situation in a manner that respects his or
her value as a human being or member of Canadian society, and less difficult to
do so where the law fails to take into account the claimant=s actual situation.
(C) The
ameliorative purpose or effects of the impugned law upon a more disadvantaged
person or group in society. An
ameliorative purpose or effect which accords with the purpose of s. 15(1) of
the Charter will likely not violate the human dignity of more advantaged
individuals where the exclusion of these more advantaged individuals largely
corresponds to the greater need or the different circumstances experienced by
the disadvantaged group being targeted by the legislation. This factor is more
relevant where the s. 15(1) claim is brought by a more advantaged member of
society.
and
(D) The nature
and scope of the interest affected by the impugned law. The more severe and localized the
consequences of the legislation for the affected group, the more likely that
the differential treatment responsible for these consequences is discriminatory
within the meaning of s. 15(1).
(10) Although
the s. 15(1) claimant bears the onus of establishing an infringement of his or
her equality rights in a purposive sense through reference to one or more
contextual factors, it is not necessarily the case that the claimant must
adduce evidence in order to show a violation of human dignity or freedom.
Frequently, where differential treatment is based on one or more enumerated or
analogous grounds, this will be sufficient to found an infringement of s. 15(1)
in the sense that it will be evident on the basis of judicial notice and
logical reasoning that the distinction is discriminatory within the meaning of
the provision.
F. Application
to the Case at Bar
(1) Differential
Treatment
76
The preliminary
issue in this case is whether the questioned law draws a distinction, on the
basis of one or more personal characteristics, between the claimant and some
other person or group of persons, resulting in unequal treatment. As discussed
herein, this stage of the inquiry is not concerned with whether the distinction
in treatment constitutes discrimination.
Moreover, unlike in Eldridge, supra, and Eaton, supra,
there is no question in this case of the impugned legislation applying without
distinction to all persons, and, in so doing, failing to take into account an
individual=s or a group=s
already disadvantaged position within Canadian society.
77
The CPP grants
benefits to surviving spouses over the age of 35 immediately following the
death of the contributor. However, these
benefits are not available to able-bodied spouses without dependent children
who are less than 35 years of age at the time of the death of the contributor,
until they reach age 65 or unless they should become disabled in the interim. In addition, while those over age 45 are
entitled to receive benefits at the full rate, those between the ages of 35 and
45 receive a reduced sum. Thus, as a
result of the ages specified under the CPP, a clear distinction is drawn
between claimants over and under age 35, and also between claimants who are
over age 45 and those between the ages of 35 and 45. In my view, both the delay in the receipt of
benefits and the reduced entitlement to benefits constitute a denial of equal
benefit of the law under the first step of the equality analysis.
(2) Distinction
on the Basis of Enumerated or Analogous Grounds
78
Age is one of the
enumerated grounds of discrimination in s. 15(1) of the Charter. The appellant alleges that she was rendered
ineligible for survivor's benefits by virtue of her age and that its use as a
distinguishing criterion was discriminatory.
The appellant does not base her discrimination claim upon any ground
other than that of age. In answer, the
respondent contends that, although age is a factor in determining eligibility,
it cannot be said that the appellant was ineligible solely because of this
factor. Rather, the respondent argues
that entitlement under s. 44(1)(d) of the CPP depends on the interplay
of the three factors included therein, namely, age, disability and
responsibility for dependent children.
This was the position adopted by the Pension Appeals Board. With respect, I cannot accept this view. In my opinion, it does not follow from the
fact that any one of several criteria, including age, might determine
entitlement to a survivor's pension, that the legislation does not draw a
distinction on the basis of age.
79
As an able-bodied
woman without children, the appellant does not suggest that the CPP
discriminates by denying her equal benefits as compared to surviving spouses
who have disabilities or dependent children.
The appellant submits that the
issue in dispute is whether age is properly included among the factors
which determine eligibility for survivor's benefits and the amount that is
provided. Had the appellant been
able-bodied, without dependent children, and over age 45 at the time of her
spouse's death, she would have been immediately entitled to receive full
benefits. However, as an able-bodied,
childless woman who was 30 years of age at the time of her spouse's death, she
is denied any benefits until she reaches age 65, provided she does not
subsequently become disabled. Similarly,
for surviving spouses age 35 to 45, it is their age alone that serves to reduce
the amount of benefits they receive as compared to those over age 45. In my view, the survivor=s pension provisions of the CPP clearly draw
distinctions on the basis of the enumerated ground of age.
80
In any event,
even if, as the respondent argues, entitlement under s. 44(1)(d) of the
CPP were dependent upon the interplay of age, disability, and parental status,
this interplay would not preclude the appellant from establishing that a
distinction had been drawn on one or more of the grounds in s. 15(1) of the Charter. As stated above, it is open to a claimant to
articulate a discrimination claim under more than one of the enumerated and
analogous grounds. Such an approach to
the grounds of discrimination accords with the essential purposive and
contextual nature of equality analysis under s. 15(1) of the Charter. Where a party brings a discrimination claim
on the basis of a newly postulated analogous ground, or on the basis of a
combination of different grounds, this part of the discrimination inquiry must
focus upon the issue of whether and why a ground or confluence of grounds is
analogous to those listed in s. 15(1). This determination is made on the basis
of a complete analysis of the purpose of s. 15(1), the nature and situation of
the individual or group at issue, and the social, political and legal history
of Canadian society=s treatment of the group. A ground or grounds will not be considered
analogous under s. 15(1) unless it can be shown that differential treatment
premised on the ground or grounds has the potential to bring into play human
dignity: see Egan, supra,
at para. 52, per L=Heureux-Dubé J. If the court determines that
recognition of a ground or confluence of grounds as analogous would serve to
advance the fundamental purpose of s. 15(1), the ground or grounds will then be
so recognized: see, e.g., Turpin, supra, at pp. 1331-33.
81
There is no
reason in principle, therefore, why a discrimination claim positing an
intersection of grounds cannot be understood as analogous to, or as a synthesis
of, the grounds listed in s. 15(1). In
the present case, if the CPP had based entitlement on a combination of factors,
the appellant would still have been able to establish the requisite
distinction, whether on the basis of age alone, or based on a combination of
grounds.
(3) Discrimination
82
The central
question in the present case is whether the age distinctions drawn by ss.
44(1)(d) and 58 of the CPP impose a disadvantage upon the appellant as a
younger adult in a manner which constitutes discrimination under s. 15(1) of
the Charter. The appellant is
asserting her claim solely on the basis of age -- specifically, on the basis of
being an adult under the age of 45.
Relatively speaking, adults under the age of 45 have not been
consistently and routinely subjected to the sorts of discrimination faced by
some of Canada=s discrete and insular minorities. For this reason, it will be more difficult as
a practical matter for this Court to reason, from facts of which the Court may
appropriately take judicial notice, that the legislative distinction at issue
violates the human dignity of the appellant.
83
The appellant
argues that the impugned CPP provisions infringe s. 15(1) of the Charter
in both their purpose and their effect. She submits that the original intent
underlying the distinctions created by ss. 44(1)(d) and 58 was to
provide benefits to those surviving spouses most in need, based on an assumed
correlation between, among other things, increased age and one=s ability to enter or re-enter the workforce following
the death of one=s spouse. The
appellant argues that this assumed correlation is faulty because, in fact,
young people generally, and the appellant in particular, have difficulty in
obtaining employment, and the legislation=s
assumptions to the contrary are based on false stereotypes regarding the
advantages of youth. The appellant
submits that there is no evidence establishing a direct link between a survivor=s age at the time of the spouse=s death and the need for benefits. She suggests that the effect of the impugned
provisions is to demean the dignity of adults under the age of 45 and to treat
them as being less worthy than older adults, by stereotyping them as being less
in need.
84
In support of her
position, the appellant refers to the remarks of the Honourable Judy LaMarsh,
the Minister responsible for the enactment of the CPP. In Parliament on November 16, 1964, Ms.
LaMarsh noted that the philosophy on which the CPP survivor=s pension is premised is that benefits Ashould be available to those who cannot easily obtain
employment@. She went on
to outline the eligibility criteria and reduction in benefits for those under
age 45, and, as to the ineligibility of those under age 35, she stated: AYoung widows in their twenties and early thirties
usually have little difficulty in finding employment, and of course many of
them remarry@: see House of Commons Debates, vol. IX, 2nd
Sess., 26th Parl., November 16, 1964, at p. 10122.
85
In reply, the
respondent maintains that, although the age distinctions in the survivor's
pension provisions of the CPP might initially have been based upon assumptions,
the accuracy of those assumptions are also today reflected in statistical data,
other legislation, and several decisions of this Court. The respondent also emphasizes that the
assumptions underlying the impugned CPP provisions concern, not the relatively
immediate financial needs of surviving spouses, but their long-term
financial needs.
86
The questions, to
take up the dignity-related concerns discussed above, may be put in the
following terms. Do the impugned CPP
provisions, in purpose or effect, violate essential human dignity and freedom
through the imposition of disadvantage, stereotyping, or political or social
prejudice? Does the law, in purpose or
effect, conform to a society in which all persons enjoy equal recognition as
human beings or as members of Canadian society, equally capable and equally
deserving of concern, respect, and consideration? Does the law, in purpose or effect,
perpetuate the view that people under 45 are less capable or less worthy of
recognition or value as human beings or as members of Canadian society?
87
Before answering
these questions, it is useful to note that, although the appellant has referred
this Court to government reports and other sources which favour extending
survivor=s pensions to younger spouses on the basis that they
suffer immediate financial need, she has not demonstrated that either the
purpose or the effect of the impugned legislative provisions violates her human
dignity in the sense discussed above so as to constitute discrimination. I agree with the appellant that surviving
spouses of all ages are vulnerable, economically and otherwise, immediately
following the death of a spouse.
However, as both the appellant and respondent acknowledged in their
submissions before this Court, the purpose and function of the impugned CPP
provisions is not to remedy the immediate financial need experienced by
widows and widowers, but rather to enable older widows and widowers to meet
their basic needs during the longer term.
88
As the appellant
states, reflected in the age distinctions in the survivor's pension provisions
of the CPP appears to be the notion that young persons experience fewer
impediments to long-term labour force participation and are generally in a
better position than older persons to replace independently over the long run
as a working member of Canadian society the income of a deceased spouse. It seems to me that the increasing difficulty
with which one can find and maintain employment as one grows older is a matter
of which a court may appropriately take judicial notice. Indeed, this Court has often recognized age
as a factor in the context of labour force attachment and detachment. For example, writing for the majority in McKinney,
supra, La Forest J. stated as follows, at p. 299:
Barring specific skills, it is generally known that
persons over 45 have more difficulty finding work than others. They do not have the flexibility of the
young, a disadvantage often accentuated by the fact that the latter are
frequently more recently trained in the more modern skills.
Similar thoughts were expressed in Machtinger v.
HOJ Industries Ltd., [1992] 1 S.C.R. 986, at pp. 998-99, per
Iacobucci J., and at pp. 1008-09, per McLachlin J., regarding the
relevance of increased age to a determination of what constitutes reasonable
notice of employment termination. See
also Moge v. Moge, [1992] 3 S.C.R. 813, at pp. 881-83, per
McLachlin J., regarding the relevance of increased age to a determination of a
former spouse=s ability to support himself or herself.
89
The answers to
the questions which I posed above with respect to human dignity thus lie, in
part, in the aim and effects of the legislation in providing long-term
financial security for Canadians who lose a spouse, coupled with the greater
flexibility and opportunity of younger people without dependent children or
disabilities to achieve long-term security absent their spouse. Yes, the law imposes a disadvantage on
younger spouses in this class. But it is
unlikely to be a substantive disadvantage, viewed in the long term. The law on its face treats such younger
people differently, but the differential treatment does not reflect or promote
the notion that they are less capable or less deserving of concern, respect,
and consideration, when the dual perspectives of long-term security and the
greater opportunity of youth are considered. Nor does the differential
treatment perpetuate the view that people in this class are less capable or
less worthy of recognition or value as human beings or as members of Canadian
society. Given the contemporary and
historical context of the differential treatment and those affected by it, the
legislation does not stereotype, exclude, or devalue adults under 45. The law functions not by the device of
stereotype, but by distinctions corresponding to the actual situation of
individuals it affects. By being young,
the appellant, a fortiori, has greater prospect of long-term income
replacement.
90
Another factor
supporting the view that the impugned CPP provisions do not violate essential
human dignity is the clear ameliorative purpose of the pension scheme for older
surviving spouses. Older surviving
spouses, like surviving spouses who are disabled or who care for dependent
children, are more economically vulnerable to the long-term effects of the
death of a spouse. Parliament=s intent in enacting a survivor=s pension scheme with benefits allocated according to
age appears to have been to allocate funds to those persons whose ability to
overcome need was weakest. The concern was to enhance personal dignity and
freedom by ensuring a basic level of long-term financial security to persons
whose personal situation makes them unable to achieve this goal, so important
to life and dignity. This is a
legislative purpose which accords well with the fundamental purposes of s.
15(1) of the Charter. Given that
the appellant is more advantaged in a relative sense, and that the legislative
distinctions in the present case largely correspond to the greater long-term
need and different circumstances experienced by the more disadvantaged group
being targeted by the legislation, I find it difficult to perceive in the
purpose or effects of the impugned legislation a violation of the appellant=s dignity.
91
The challenged
legislation simply reflects the fact that people in the appellant=s position are more able to overcome long-term need
because of the nature of a human being=s
life cycle. Those who are younger when
they lose a spouse are more able to replace the income lost from the death of a
spouse. A reasonable person under the
age of 45 who takes into account the contextual factors relevant to the claim
would properly interpret the distinction created by the CPP as suggesting that
younger people are more likely to find a new spouse, are more able to retrain
or obtain new employment, and have more time to adapt to their changed
financial situation before retirement. Young people are inherently better able
to initiate and maintain long-term labour force participation, and as such the
impugned CPP provisions cannot be said to impose a discriminatory disadvantage
upon them. In such narrow circumstances,
where legislation does not demean the dignity of those it excludes in either
its purpose or its effects, it is open to the legislature to use age as a proxy
for long-term need.
92
In referring to
the existence of a correspondence between a legislative distinction in
treatment and the actual situation of different individuals or groups, I do not
wish to imply that legislation must always correspond perfectly with social
reality in order to comply with s. 15(1) of the Charter. The determination of whether a legislative
provision infringes a claimant=s dignity must
in every case be considered in the full context of the claim. In the present case, the appellant is more
advantaged by virtue of her young age.
She is challenging the validity of legislation with an egalitarian
purpose and function whose provisions correspond to a very large degree with
the needs and circumstances of the persons whom the legislation targets. There are no other factors suggesting that
her dignity as a younger adult is demeaned by the legislation, either in its
purpose or in its effects.
93
Under these
circumstances, the fact that the legislation is premised upon informed
statistical generalizations which may not correspond perfectly with the
long-term financial need of all surviving spouses does not affect the ultimate
conclusion that the legislation is consonant with the human dignity and freedom
of the appellant. Parliament is
entitled, under these limited circumstances at least, to premise remedial
legislation upon informed generalizations without running afoul of s. 15(1) of
the Charter and being required to justify its position under s. 1. I emphasize, though, that under other
circumstances a more precise correspondence will undoubtedly be required in
order to comply with s. 15(1). In
particular, a more precise correspondence will likely be important where the individual or group which is
excluded by the legislation is already disadvantaged or vulnerable within
Canadian society.
94
In conclusion
with respect to the particular circumstances of the appellant=s case, I would also note that people in the position
of the appellant are not completely excluded from obtaining a survivor=s pension, although it is delayed until the person
reaches age 65 unless they become disabled before then. The availability of the pension to the
appellant strengthens the conclusion that the law does not reflect a view of
the appellant that suggests she is undeserving or less worthy as a person, only
that the distribution of the benefit to her will be delayed until she is at a
different point in her life cycle, when she reaches retirement age.
95
In these
circumstances, recalling the purposes of s. 15(1), I am at a loss to locate any
violation of human dignity. The impugned
distinctions in the present case do not stigmatize young persons, nor can they
be said to perpetuate the view that surviving spouses under age 45 are less
deserving of concern, respect or consideration than any others. Nor do they withhold a government benefit on
the basis of stereotypical assumptions about the demographic group of which the
appellant happens to be a member. I must
conclude that, when considered in the social, political, and legal context of
the claim, the age distinctions in ss. 44(1)(d) and 58 of the CPP are
not discriminatory.
96
In finding that
the impugned legislative provisions do not infringe s. 15(1) of the Charter,
I do not wish in any way to minimize the emotional and economic upset which
affects surviving dependents when a spouse dies. My analysis herein is not meant to suggest
that young people do not suffer following the death of a loved one, but only
that the impugned CPP provisions are not discriminatory between younger and
older adults within the purpose and meaning of s. 15(1) of the Charter.
97
I conclude, then,
that this is one of the rare cases contemplated in Andrews, supra,
in which differential treatment based on one or more of the enumerated or
analogous grounds in s. 15(1) is not discriminatory. It is important to identify such cases
through a purposive analysis of s. 15(1), in order to ensure that analysis
under s. 15(1) does not become mechanistic, but rather addresses the true
social, political and legal context underlying each and every equality claim.
G. Section 1
of the Charter
98
As I have found
no violation of s. 15(1) of the Charter, it is not necessary to turn to
s. 1.
VII. Conclusions
and Disposition
99
In the result, I
would dismiss the appeal. I note that
the respondent has not asked for costs.
Under the circumstances, I make no order in that regard.
100
I would thus
answer the constitutional questions as follows:
Q. 1: Do
ss. 44(1)(d) and 58 of the Canada Pension Plan, R.S.C., 1985, c.
C-8, infringe on s. 15(1) of the Canadian Charter of Rights and Freedoms
on the ground that they discriminate against widows and widowers under the age of
45 on the basis of age?
A.: No.
Q. 2: If
so, can this infringement be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms?
A.: In
view of the answer to Question 1, it is not necessary to answer this question.
Appeal dismissed.
Solicitor for the appellant: Community
Legal Assistance Society, Vancouver.
Solicitor for the respondent: The Attorney
General of Canada, Toronto.