Lavoie v. Canada

Lavoie v. Canada
Collection
Supreme Court Judgments
Date
2002-03-08
Neutral citation
2002 SCC 23
Report
[2002] 1 SCR 769
Case number
27427
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 27427
Decision Content
Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23
Elisabeth Lavoie and Jeanne To‑Thanh‑Hien Appellants
v.
Her Majesty The Queen in Right of Canada and
the Public Service Commission Respondents
and between
Janine Bailey Appellant
v.
Her Majesty The Queen in Right of Canada and
the Public Service Commission Respondents
and
Center for Research‑Action on Race Relations Intervener
Indexed as: Lavoie v. Canada
Neutral citation: 2002 SCC 23.
File No.: 27427.
2001: June 12; 2002: March 8.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Equality rights — Citizenship — Preference given to Canadian citizens for employment in federal Public Service under Public Service Employment Act — Whether preference on basis of citizenship infringing equality guarantee — If so, whether preference justified — Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) — Public Service Employment Act, R.S.C. 1985, c. P‑33, s. 16(4) (c).
Canadian citizens receive preferential treatment in federal Public Service employment by virtue of s. 16(4)(c) of the Public Service Employment Act (“PSEA”). The appointment of qualified persons to the Public Service is the exclusive responsibility of the Public Service Commission, as is the exercise of discretion to prefer Canadian citizens under s. 16(4)(c). Staffing takes place by either open or closed competition, the difference being that closed competitions are restricted to existing employees of the Public Service. Open competitions generally involve three stages: the inventory stage, in which persons submit applications to the Commission for general consideration; the referral stage, in which the Commission responds to departmental staffing requests by referring qualified applicants to the requesting department; and the selection stage, in which the requesting department prepares an eligibility list from the list of qualified referrals and chooses from the eligibility list. The citizenship preference at issue in this appeal occurs at the referral stage of open competitions. The appellants, foreign nationals who sought employment in the Public Service without having obtained Canadian citizenship, were, in one way or another, disadvantaged by the application of s. 16(4)(c), and challenge this provision as a violation of their equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms . The Federal Court, Trial Division, allowed the s. 15(1) claim, but held that the legislation could be justified under s. 1 of the Charter . The Federal Court of Appeal, in a majority judgment, dismissed the appellants’ appeal.
Held (McLachlin C.J. and L’Heureux‑Dubé and Binnie JJ. dissenting): The appeal should be dismissed. Section 16(4)(c) of the PSEA is constitutional.
Per Gonthier, Iacobucci, Major, and Bastarache JJ.: Section 16(4)(c) of the PSEA infringes s. 15(1) of the Charter . The impugned provision conflicts with the purpose of s. 15(1) , which 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.
The integrated approach to s. 15(1) as set out in Law v. Canada (Minister of Employment and Immigration) involves three broad inquiries. As to the first and second inquiries, the impugned law draws a clear distinction between citizens and non‑citizens, and citizenship constitutes an analogous ground of discrimination under s. 15(1) . The third inquiry, which determines whether the distinction is discriminatory, assesses the subjective experience of the claimant against an objective standard, having regard to four contextual factors. Of these four, the second factor explores the extent to which differential treatment may in fact be acceptable under s. 15(1) : where there is a genuine relationship between the ground upon which the claim is based and the nature of the differential treatment, it may be acceptable to make certain legislative distinctions. In the context of laws whose very raison d’être is the definition of citizenship (as in this case), the assertion that citizens and non‑citizens are so differently situated that they do not merit equal treatment, and that citizenship is a relevant (and indeed necessary) category on which unequal treatment is based, goes beyond what is contemplated in Law. The law or government action must take into account the particular situation of those affected, including any relative advantage or disadvantage. In this case, to the extent non‑citizens are “differently situated” than citizens, it is only because the legislature has accorded them a unique legal status. The distinction is not made on the basis of any actual personal differences between individuals. If anything, the distinction places an additional burden on an already disadvantaged group. Such a distinction is impossible to square with this Court’s finding in Andrews v. Law Society of British Columbia. All three remaining contextual factors further militate in favour of a s. 15(1) violation. First, while the claimants in this case are all relatively well‑educated, it is settled law that non‑citizens suffer from political marginalization, stereotyping and historical disadvantage. Second, s. 16(4)(c) of the PSEA does not aim to ameliorate the predicament of a group more disadvantaged than non‑citizens; rather, the comparator class in this case enjoys greater status on the whole than the claimant class. Finally, the nature of the interest in this case — namely employment — is one that warrants constitutional protection.
The Law factors should not however be applied too mechanically. Whether the law perpetuates the view that non‑citizens are less capable or less worthy of recognition or value as human beings or as members of Canadian society is the overarching question. The Law methodology requires a contextualized look at how a non‑citizen legitimately feels when confronted by a particular enactment. That subjective inquiry into human dignity requires the claimant to provide a rational foundation for her experience of discrimination in the sense that a reasonable person similarly situated would share that experience. In this case, the claimants felt legitimately burdened by the idea that, having made their home in Canada, their professional development was stifled on the basis of their citizenship status. Freedom of choice in work and employment are fundamental aspects of this society and, perhaps unlike voting and other political activities, should be, in the eyes of immigrants, as equally accessible to them as to Canadian citizens.
The government has demonstrated that, on a balance of probabilities, s. 16(4)(c) is a reasonable limit on equality that can be demonstrably justified in a free and democratic society under s. 1 of the Charter . The objectives behind s. 16(4) (c) are sufficiently important to justify limiting the appellants’ equality rights. Canada’s citizenship policy embodies two distinct objectives: to enhance the meaning of citizenship as a unifying bond for Canadians, and to encourage and facilitate naturalization by permanent residents. The signal effect of the impugned provisions is not to discourage immigration but to underscore the value of citizenship. In an era of increased movement across borders, citizenship provides immigrants with a basic sense of identity and belonging. Parliament has attempted to achieve the goal of enhancing Canadian citizenship in a manner that respects cultural diversity.
With respect to rational connection, Parliament is entitled to some deference as to whether one privilege or another advances a compelling state interest. As to the first objective, Parliament’s view is supported by common sense and widespread international practice, both of which are relevant indicators of a rational connection in this case. With regard to the second objective, there is a very close relationship between immigration and naturalization rates in Canada, meaning that a high proportion of immigrants choose to naturalize upon meeting the three‑year residency requirement. The government’s efforts to enhance the value of citizenship can reasonably be assumed to play a role.
The minimum impairment test has been met. The test asks whether there are less intrusive ways of enhancing the value of citizenship among public servants. Certain features of s. 16(4)(c) render it less intrusive than it might be: it is a preference only and not an absolute bar; it does not apply to closed competition, the most common means of staffing Public Service positions; it only applies to the referral stage of open competition; and dual citizenship is permitted in Canada, such that Canadian law does not burden non‑citizens with a choice between renouncing their foreign citizenship and entering the Public Service. While certain individuals undoubtedly fall through the cracks of s. 16(4)(c) of the PSEA, it is uncertain whether a reasonable alternative is available that would fill these cracks in a fair, consistent and principled manner. Parliament has conscientiously considered alternatives to s. 16(4)(c) and has chosen not to pursue them. The role of this Court is not to order that Parliament should have decided otherwise.
Finally, the infringing effects of s. 16(4)(c) do not outweigh the importance of the objective sought. The disadvantage to non‑citizens relative to citizens does not appear significant: it is almost as difficult for citizens to enter the Public Service as non‑citizens; promotion via open competition is a distinct possibility for non‑citizens despite their disadvantage relative to their colleagues; and non‑citizens who are members of the Public Service have unfettered access to closed competitions, which are by far the more conventional avenue of Public Service promotion. Absent greater evidence of the impact on the claimants’ career prospects, the inconvenience suffered is not too high a price to pay for the government’s right to define the rights and privileges of its citizens.
Per Arbour J.: Section 16(4)(c) of the PSEA does not infringe s. 15(1) of the Charter . The appellants have failed to establish that their claim satisfies the third branch of the Law test for assessing equality claims. The reasonable person in circumstances similar to those of the claimants would, upon consideration of the various contextual factors set out in Law, conclude that s. 16(4)(c) of the PSEA does not offend the essential human dignity of the claimants and therefore does not discriminate.
At the heart of the third Law inquiry is the recognition that not all distinctions resulting in differential treatment at law can properly be said to violate equality rights under s. 15(1) of the Charter . An investigation into whether a legal distinction made on enumerated or analogous grounds is discriminatory is vital to that determination. The appropriate perspective from which to analyse a claim of discrimination has both a subjective and an objective component. To read out the requirement of an objective component would be to allow a claimant simply to assert without more that his or her dignity has been adversely affected by a law in order to ground a s. 15(1) claim and, in so doing, would irrevocably damage the Law methodology. While there may be certain legislative distinctions, such as those made on the basis of race, that can be labelled infringements of s. 15(1) without the need for a detailed investigation into whether or not they are discriminatory, this is the exception that proves the rule. In an understandable eagerness to extend equality rights as widely as possible, stripping those rights of any meaningful content must be avoided. Otherwise, the result will be the creation of an equality guarantee that is far‑reaching but wafer‑thin, leaving equality rights at the mercy of a diluted justificatory analysis under s. 1 in almost every case. When the subjective‑objective perspective is properly applied as a necessary condition for making a finding of discrimination, it becomes more difficult to establish that one’s equality rights have been infringed. It also becomes more difficult, having made a finding of discrimination, to establish that the resulting s. 15(1) violation can be justified. Freed of the need to guard the integrity of the legislative process against too easy findings of s. 15(1) infringements, the justificatory analysis under s. 1 will then be conducted with the uncompromising rigour that it was intended to have. While this approach to s. 15(1) may blur the distinction between the kinds of considerations that are appropriate under that section and the kinds of considerations that are appropriate under s. 1 , the overlap is to some extent merely a function of the fact that s. 15(1) contains its own internal limitation: specifically, its differentiation between legislative distinctions and discrimination.
Virtually all liberal democracies impose citizenship‑based restrictions on access to their public services. These restrictions indicate widespread international agreement that such restrictions do not implicate the essential human dignity of non‑citizens and that the partial and temporary difference of treatment imposed by these restrictions is not discriminatory. An analysis of the non‑exhaustive list of contextual factors suggested in Law further militates against a finding that s. 16(4)(c) of the PSEA violates the essential human dignity of reasonable non‑citizens. First, while in many aspects of their lives, non‑citizens in general suffer from the sort of pre‑existing disadvantage, stereotyping, prejudice, and vulnerability that s. 15(1) of the Charter is directed at remedying, there is doubt as to whether these specific claimants suffer from pre‑existing disadvantage. On the contrary, this is in some ways a case about the maintaining of pre‑existing advantage by the claimants, who want to retain all of the valuable benefits legally accruing to them as members of the European Union and citizens of other countries while claiming similar privileges and benefits afforded to Canadian citizens under an analogous legislative arrangement. Second, where the ground upon which the claim is made actually corresponds to personal differences that are relevant to the legislative purpose, the claimant will have difficulty in proving a violation of essential human dignity, even if differential treatment on the basis of that ground is unjustifiable in the vast majority of cases. Citizenship is relevant to the public distribution of benefits to the extent that it tracks the class of people who have taken on correlative or reciprocal duties in exchange for the receipt of the benefits in question, such that the withholding of those benefits from non‑citizens cannot constitute an affront to human dignity. Use in this case of the analogous ground of citizenship as a basis for legislating differential treatment between individuals is both: (a) unavoidable, inasmuch as legislating over matters of citizenship itself entails differential treatment between citizens and non‑citizens; and (b) appropriate, inasmuch as the ground of citizenship corresponds to real personal differences between the various individuals who would claim benefits from the state. Finally, the nature and scope of the interests affected by s. 16(4)(c) of the PSEA are not sufficiently vital and large, nor the effects of that provision sufficiently severe and localized, to allow the claimants to successfully make out a violation of their essential human dignity. The interest at stake here falls considerably short of being an interest in work per se. Unlike Andrews v. Law Society of British Columbia, this is not a case in which the claimants are simply refused entry into their chosen profession because of their status as non‑citizens. At most, what s. 16(4) (c) deprives these claimants of is a chance to enter into open competition with others for positions in the federal Public Service.
Per LeBel J.: Section 16(4)(c) of the PSEA does not violate s. 15 of the Charter . The appellants’ claim does not meet the third branch of the test designed in Law as the citizenship preference does not affect the essential dignity of non‑citizens. Whether s. 1 could justify a breach of s. 15 in this case need not be addressed. However, the approach to the Oakes test must reflect jurisprudential developments which acknowledge that the minimal impairment branch of the test may leave a significant margin of appreciation as to the selection of the appropriate remedies to Parliament and legislatures, provided they fall within a range of reasonable alternatives.
Per McLachlin C.J. and L’Heureux‑Dubé and Binnie JJ. (dissenting): Section 16(4)(c) of the PSEA infringes s. 15(1) of the Charter in a way that marginalizes immigrants from the fabric of Canadian life. A law which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of the qualifications or merits of individuals in the group, violates human dignity. It is Parliament’s task to draft laws in relation to citizenship that comply with s. 15(1) . Defining Canadian citizenship does not require that Parliament be allowed to discriminate against non‑citizens. That some of the appellants in this case could have become citizens, but chose not to, does not militate against a finding of discrimination. That a person could avoid discrimination by modifying his or her behaviour does not negate the discriminatory effect. The very act of forcing some people to make such a choice violates human dignity, and is therefore inherently discriminatory.
The infringement in this case is not justified under s. 1 of the Charter . Assuming that enhancing citizenship and encouraging a small class of civil servants to become Canadian citizens are pressing and substantial objectives, the discrimination complained of is not rationally connected to either of these objectives. First, the impugned provision confers an advantage upon citizens by discriminating against non‑citizens. Far from being rationally connected to the goal of enhancing citizenship, the impugned provision undermines this goal, by presenting Canadian citizenship as benefiting from discrimination against non‑citizens, a group which this Court has long recognized as a “discrete and insular minority” deserving of protection. Secondly, the assessment that the citizenship preference seems generally to have worked as an incentive to naturalize is not persuasive. There is no evidence to suggest that high rates of naturalization were in any way attributable to the citizenship preference. That the citizenship preference confers only a minimal advantage upon citizens, because it is almost as difficult for citizens to enter the Public Service as non‑citizens, militates against finding a rational connection. Finally, that citizenship requirements for civil service are a widespread international practice is neither relevant nor indicative of a rational connection. There is no evidence that other countries with citizenship‑based restrictions on access to Public Service employment share the same objectives as Parliament in this case.
Cases Cited
By Bastarache J.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; 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; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Egan v. Canada, [1995] 2 S.C.R. 513; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Oakes, [1986] 1 S.C.R. 103; Mathews v. Diaz, 426 U.S. 67 (1976); Sugarman v. Dougall, 413 U.S. 634 (1973); RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Mow Sun Wong v. Hampton, 435 F.Supp. 37 (1977); Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.
By Arbour J.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), [1987] 2 F.C. 359; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; Egan v. Canada, [1995] 2 S.C.R. 513.
By LeBel J.
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
By McLachlin C.J. and L’Heureux‑Dubé J. (dissenting)
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Adler v. Ontario, [1996] 3 S.C.R. 609; R. v. Oakes, [1986] 1 S.C.R. 103; Egan v. Canada, [1995] 2 S.C.R. 513; M. v. H., [1999] 2 S.C.R. 3; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; McKinley v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Vriend v. Alberta, [1998] 1 S.C.R. 493.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) 7, 8, 15(1).
Canadian Citizenship Act, S.C. 1946, c. 15.
Civil Service Act, R.S.C. 1906, c. 16.
Civil Service Act, S.C. 1960‑61, c. 57, s. 40(1)(a), (b), (c).
Civil Service Act, 1918, S.C. 1918, c. 12, ss. 38, 41(1).
Civil Service Amendment Act, 1908, S.C. 1908, c. 15, s. 14.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), Art. 25(c).
Public Service Employment Act, R.S.C. 1985, c. P‑33, s. 16(4) (c).
Public Service Employment Act, S.C. 1966‑67, c. 71.
Public Service Staff Relations Act, R.S.C. 1985, c. P‑35 , Sch. I, Part I.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 21(2).
Authors Cited
Berezowski, Nan M., and Benjamin J. Trister. Citizenship 1996. Scarborough, Ont.: Carswell, 1996.
Canada. Department of Justice. Equality Issues in Federal Law: A Discussion Paper. Ottawa: Department of Justice, 1985.
Canada. House of Commons. House of Commons Debates, vol. II, 1st Sess., 20th Parl., October 22, 1945, pp. 1335 et seq.
Canada. House of Commons. Report of the Standing Committee on Citizenship and Immigration. Canadian Citizenship: A Sense of Belonging, June 1994.
Canada. House of Commons. Sub‑Committee on Equality Rights. Equality for All: Report of the Parliamentary Committee on Equality Rights, 1985.
Canada. House of Commons. Sub-Committee on Equality Rights. Toward Equality: The Response to the Report of the Parliamentary Committee on Equality Rights, 1986.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose‑leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 2000, release 1).
Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press, 1995.
Schuck, Peter H. “The Re‑Evaluation of American Citizenship” (1997), 12 Geo. Immigr. L.J. 1.
Sharpe, Robert J. “Citizenship, the Constitution Act, 1867 , and the Charter ”. In William Kaplan, ed., Belonging: The Meaning and Future of Canadian Citizenship. Montreal & Kingston: McGill‑Queen’s University Press, 1993, 221.
APPEAL from a judgment of the Federal Court of Appeal, [2000] 1 F.C. 3, 174 D.L.R. (4th) 588, 242 N.R. 278, 64 C.R.R. (2d) 189, [1999] F.C.J. No. 754 (QL), affirming a judgment of the Trial Division, [1995] 2 F.C. 623, 95 F.T.R. 1, 125 D.L.R. (4th) 80, 31 C.R.R. (2d) 109, 95 C.L.L.C. ¶210‑023, [1995] F.C.J. No. 608 (QL). Appeal dismissed, McLachlin C.J. and L’Heureux‑Dubé and Binnie JJ. dissenting.
David J. Jewitt, for the appellants Elisabeth Lavoie and Jeanne To‑Thanh‑Hien.
Andrew Raven and David Yazbeck, for the appellant Janine Bailey.
Graham R. Garton, Q.C., and Yvonne Milosevic, for the respondents.
Joanne St. Lewis and Milton James Fernandes, for the intervener.
The reasons of McLachlin C.J. and L’Heureux-Dubé and Binnie JJ. were delivered by
1 The Chief Justice and L’Heureux-Dubé J. (dissenting) — We agree with Bastarache J. that s. 16(4) (c) of the Public Service Employment Act, R.S.C. 1985, c. P-33 (“PSEA ”), infringes s. 15(1) of the Canadian Charter of Rights and Freedoms in a way that marginalizes immigrants from the fabric of Canadian life, and endorse his reasons on this point. In our view, this conclusion is mandated by Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, which we find to be indistinguishable on the question of discrimination. We respectfully disagree, however, that s. 1 justifies the infringement as a “reasonable limit on equality” (para. 21).
I. Question 1: Does Section 16(4)(c) of the PSEA Infringe Section 15(1) of the Charter ?
2 Violation of s. 15(1) depends on finding a discriminatory distinction, based on an enumerated or analogous ground. On both counts, this case is similar to Andrews. First, the distinction at issue is made on the basis of citizenship, the very ground held to be analogous in Andrews. Once identified, an analogous ground stands as “a constant marker of potential legislative discrimination” and need not be established again in subsequent cases: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at paras. 7-10; see also Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, at para. 119, per Binnie J. The distinction here at issue, denial of employment opportunity, is the same distinction recognized in Andrews. A discriminatory distinction is one that violates human dignity: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. Law affirms Andrews, and must therefore be taken as finding that a law which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of the qualifications or merits of individuals in the group, violates human dignity. See Andrews, supra, per McIntyre J., at p. 183.
3 It is argued that Andrews is distinguishable as having turned on provincial legislation, whereas this case centers upon federal legislation under the citizenship power. Parliament, it is said, must be granted significant leeway in determining the rights and privileges attached to citizenship if this power is not to be trivialized. This argument, it seems to us, sets up a false dichotomy between Parliament’s right to make laws regarding citizenship and Parliament’s duty to ensure that its laws conform to s. 15(1). Parliament need not choose between legislating with respect to citizenship and discrimination. Rather, it is Parliament’s task to draft laws in relation to citizenship that comply with s. 15(1). This leaves ample scope for the exercise of the citizenship power, so long as Parliament does not make distinctions that unjustifiably violate human dignity: Law, supra. We cannot agree that defining Canadian citizenship requires that Parliament be allowed to discriminate against non-citizens.
4 It is also argued that Andrews involved an outright ban on a form of employment by non-citizens, whereas this case is closer to a lost chance of employment. Again, the distinction eludes us. In both cases, non-citizens were denied employment opportunities, solely because of their citizenship status and for no other reason.
5 Finally, much has been made of the fact that some of the appellants in this case could have become citizens, but chose not to. In our view, this consideration does not militate against a finding of discrimination. First, such a choice can be attributed to only two of the appellants. Second, in any event the benefit is denied during the period that is required before a permanent resident can obtain citizenship. Third, the fact that a person could avoid discrimination by modifying his or her behaviour does not negate the discriminatory effect. If it were otherwise, an employer who denied women employment in his factory on the ground that he did not wish to establish female changing facilities could contend that the real cause of the discriminatory effect is the woman’s “choice” not to use men’s changing facilities. The very act of forcing some people to make such a choice violates human dignity, and is therefore inherently discriminatory. The law of discrimination thus far has not required applicants to demonstrate that they could not have avoided the discriminatory effect in order to establish a denial of equality under s. 15(1). The Court in Andrews was not deterred by such considerations. On the contrary, La Forest J. specifically noted that acquiring Canadian citizenship could in some cases entail the “serious hardship” of losing an existing citizenship. He left no doubt that this hardship was a cost to be considered in favour of the individual affected by the discrimination: Andrews, supra, at p. 201.
II. Question 2: Is the Breach of Section 15(1) Justified Under Section 1 of the Charter ?
6 This brings us to s. 1 of the Charter and the question of whether the discrimination this law effects is justified in a free and democratic society. In conducting the s. 1 analysis, “it must be remembered that it is the right to substantive equality and the accompanying violation of human dignity that has been infringed when a violation of s. 15(1) has been found” (Corbiere, supra, per L’Heureux-Dubé J., at para. 98 (emphasis deleted)). Indeed, “cases will be rare where it is found reasonable in a free and democratic society to discriminate” (see Adler v. Ontario, [1996] 3 S.C.R. 609, per L’Heureux-Dubé J., at para. 95 (citing Andrews, supra, per Wilson J., at p. 154)). Discrimination on the basis of non-citizenship will attract close scrutiny. To quote La Forest J. in Andrews, supra, at p. 201:
If we allow people to come to live in Canada, [we] cannot see why they should be treated differently from anyone else. Section 15 speaks of every individual. There will be exceptions no doubt, but these require the rigorous justification provided by s. 1 .
The majority of this Court in Andrews held that the burden of justification in cases such as this is “onerous”.
7 This Court has held that in order to invoke the protection of s. 1 , the government must demonstrate that an infringement of the Charter “is ‘reasonable’ and ‘demonstrably justified in a free and democratic society’” (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 135). The test that this Court has fashioned to make such a determination requires that (1) the objective of the legislation be pressing and substantial; (2) the rights violation be rationally connected to the aim of the legislation; (3) the impugned provision minimally impair the Charter guarantee; and (4) the effect of the measure be proportional to its objective so that the attainment of the legislative goal is not outweighed by the abridgment of the right (see Egan v. Canada, [1995] 2 S.C.R. 513, at para. 182, per Iacobucci J. (citing Oakes, supra, at pp. 138-39)).
8 We agree with the majority that two objectives can be attributed to the impugned legislation: encouraging non-citizens to naturalize, and enhancing citizenship. We note in passing that the majority reasons appear to restate or modify the objectives as the s. 1 analysis progresses. However, since our disagreement turns on the rational connection component of the s. 1 analysis, this point need not detain us here. In our view, when two objectives are accepted as pressing and substantial, the s. 1 analysis must be applied to each of them separately, so that an individual is not left guessing as to the state objective purported to justify the infringement of his or her Charter rights. We will consider these objectives in turn.
9 Assuming that “enhancing citizenship” and encouraging a small class of civil servants to become Canadian citizens are pressing and substantial objectives, thereby satisfying the first requirement of the Oakes test, we are not satisfied that the discrimination complained of is rationally connected to either of these objectives. In order to satisfy this portion of the s. 1 test, the government must show that the impugned law is “carefully designed to achieve the objective in question”; it must not be “arbitrary, unfair or based on irrational considerations” (Oakes, supra, at p. 139).
10 It is argued that a law giving citizens an advantage in connection with Public Service employment is rationally connected to the legislative objective of enhancing citizenship. With respect, we think this characterization misses the crucial point, which is that the impugned provision confers an advantage upon citizens by discriminating against non-citizens. Far from being rationally connected to the goal of enhancing citizenship, the impugned provision undermines this goal, by presenting Canadian citizenship as benefiting from, as nourished by, discrimination against non-citizens, a group which this Court has long recognized as a “discrete and insular minority” deserving of protection (Andrews, supra, at p. 152). It seems to us that such reasoning is incompatible with the view of Canadian citizenship as defined by “tolerance”, “a belief in equality” and “respect for all individuals” (Citizenship and Immigration Canada, available at <http://www.cic.gc.ca/english/about/faq/ask-23e.html> and <http://www.cic.gc.ca/english/newcomer/welcome/wel-03e.html>). As the majority points out at para. 52, “[i]mmigrants come to Canada expecting to enjoy the same basic opportunities as citizens”. Accordingly, the majority argues that work and employment, which are “fundamental aspects” of Canadian society, “should be . . . as equally accessible to them as to Canadian citizens” and that “[d]iscrimination in these areas has the potential to marginalize immigrants from the fabric of Canadian life and exacerbate their existing disadvantage in the Canadian labour market”.
11 To put it another way, we fail to see how the value of Canadian citizenship can in any way be enhanced by a law that the majority concedes discriminates against non-citizens, particularly given La Forest J.’s recognition in Andrews, supra, at p. 197, that “[o]ur nation has [historically] drawn strength from the flow of people to our shores”. In this regard, we also find Linden J.A.’s evolutionary view of Canadian citizenship compelling: “The broader, inclusive, Canadian view of citizenship which has emerged brings with it important legal ramifications . . . . It is a tool of equality, not exclusion” (Lavoie v. Canada, [2000] 1 F.C. 3 (C.A.), at para. 121). A law that favours the relatively advantaged group of Canadian citizens over the relatively disadvantaged group of non-citizens serves to undermine, not further, the value of Canadian citizenship, based as it is on principles of inclusion and acceptance. The anomaly of this reasoning is accentuated by the majority’s contention that the citizenship preference only minimally advantages citizens. The notion that a trivial advantage, secured at the cost of violating s. 15(1)’s equality guarantee, could enhance citizenship, is difficult for us to fathom.
12 Moreover, the government presented no evidence that excluding non-citizens in fact furthers the objective of enhancing citizenship. The majority addresses this difficulty by arguing, at para. 59, that “Parliament is entitled to some deference as to whether one privilege or another advances a compelling state interest”. But judicial deference alone cannot establish a rational connection. In M. v. H., [1999] 2 S.C.R. 3, at paras. 78-79, Iacobucci J., writing for the majority, stated:
As Cory J. stated in Vriend, supra, at para. 54: “The notion of judicial deference to legislative choices should not . . . be used to completely immunize certain kinds of legislative decisions from Charter scrutiny.”
Under s. 1, the burden is on the legislature to prove that the infringement of a right is justified. In attempting to discharge this burden, the legislature will have to provide the court with evidence and arguments to support its general claim of justification.
In that case, this Court concluded the impugned legislation was not saved by s. 1 after finding “no evidence” of a rational connection (M. v. H., supra, at paras. 109-15).
13 In previous decisions, this Court has duly granted a greater degree of deference to legislation with a valid objective related to social justice, for example, legislation that promotes the protection of a socially vulnerable group (see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927). It follows from this principle that “[a] less deferential stance should be taken and a greater onus remain on the state to justify its encroachment on the Charter right”, where, as here, “the nature of the infringement lies at the core of the rights protected in the Charter and the social objective is meant to serve the interest of the majority” (see Adler, supra, per L’Heureux-Dubé J., at para. 95). As our colleague Bastarache J. concedes, at para. 53, “[s. 16(4) (c)] does not promote the interests of a vulnerable group, is not premised on particularly complex social science evidence, and interferes with an activity (namely employment) whose social value is relatively high”. Indeed, this Court has recognized that employment is a fundamental aspect of an individual’s life and an essential component of identity, personal dignity, self-worth and emotional well-being (see McKinley v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38, at para. 53 (citing Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, per Dickson C.J., at p. 368)). Given the onus on the state in this case, we are of the view that it is incumbent on the government to offer at least some evidence that the impugned law furthers the objective of promoting the value of Canadian citizenship before the s. 15(1) violation can be justified.
14 We conclude that in this case, as in M. v. H., supra, and Vriend v. Alberta, [1998] 1 S.C.R. 493, the infringing measure was antithetical to the objective sought to be achieved. There is no rational connection between the discrimination effected by s. 16(4) (c) of the PSEA and the objective of enhancing citizenship.
15 We now turn to the second objective. It is argued that a law giving citizens an advantage in connection with Public Service employment is rationally connected to the legislative objectiv