Bear v. Canada (Attorney General)

Bear v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2001-11-01
Neutral citation
2001 FCT 1192
File numbers
T-46-00
Notes
Reported Decision
Decision Content
Federal Court Reports Bear v. Canada (Attorney General) (T.D.) [2002] 2 F.C. 356
Date: 20011101
Docket: T-46-00
Neutral Citation: 2001 FCT 1192
Between:
ROSE BEAR,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
Muldoon, J.
1. Introduction
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, Chap.F-7 as amended, seeking judicial review of a decision made by a representative of the Minister of National Revenue, dated December 9, 1992, refusing the applicant's request to contribute certain amounts retroactively to the Canada Pension Plan. The letter in which that decision is expressed, applicant's record p. 24, states :
Dear Rose:
The letter dated November 18, 1992 from your lawyer, regarding contributions to the Canada Pension Plan (C.P.P.) Has been reviewed.
Section 6(2)(j.1) of the Canada Pension Plan Act and regulations says, in effect, that the employment of an Indian as defined in the Indian Act was exempt from Canada Pension contributions as they did not have qualifying income.
Effective December 7, 1988 Regulations 29.1(1) & (2) were added to the Act outlining the manner in which an Indian can make contributions into the plan.
There is no provision under the Canada Pension Plan Act for any individual to make payments into the plan retroactively.
Our records indicate that your employer made an election on behalf of their employees to be covered under the Canada Pension Plan effective January 1, 1989 and that you have made contributions into the plan since that time.
We trust this clarifies the situation for you.
Yours sincerely,
2. Order Sought
[2] The applicant seeks the following remedies:
a. an order that the Canada Pension Plan be declared in breach of section 15 of the Canadian Charter of Rights and Freedoms, section 1 of the Canadian Bill of Rights, and the rule of law under the Constitution Act, 1867 and the Constitution Act, 1982, because it discriminates against her, and denies her fundamental rights accorded to other Canadians in the following ways:
i. it prohibits the applicant from contributing into Canada Pension Plan;
ii. it prohibited the applicant from contributing into the Canada Pension Plan from its inception in 1966; and
iii. it does not require the applicant or her employer to contribute mandatorily into Canada Pension Plan as do all other Canadians and their employers.
b. an order that the applicant's employment since 1966 be declared to be "pensionable employment" within the meaning of the Canada Pension Plan;
c. an order that the applicant be permitted to contribute into the Canada Pension Plan since its inception in 1966; and
d. orders that the respondent pay damages and solicitor-and-client costs to the applicant.
At the hearing of this case, on June 26 and 27, 2001, in Winnipeg, the applicant abandoned the relief prayed for in paragraphs (1)c)f) and g) of her notice of application.
[3] The respondent requests that this application be dismissed with costs, and raises no "limitation of actions" concerns in her record or written submissions.
3. Statement of Facts
[4] The applicant, Rose Bear, is 61 year-old status Indian under the Indian Act. The applicant has been employed since July 4, 1966, by the Brokenhead Ojibway First Nation in Scanterbury, Manitoba. From 1966 to 1988, the applicant, and all status Indians who were employed on Indian reserves, have been prohibited from participating in the Canada Pension Plan (the CPP).
[5] The CPP is a universal pension plan which was enacted on April 3, 1965, S.C. 1964-65, Chap. 52, coming into force on May 5, 1965, and effective as of January 1966 to provide employed Canadians with a monthly pension upon turning sixty. Employers and employees contribute equally to the CPP, and the contributions are invested to provide a fund from which pensions are paid. The amount which a contributor receives varies with the amount which he or she contributed to the plan. The applicant submits that she is being denied retirement income because she was denied the right to contribute to the CPP for 22 years.
[6] At first, it seemed just too difficult for even the Tax Appeal Board to comprehend how serious Parliament was in enacting the Canada Pension Plan and the Bill of Rights. The decision in Toth v. M.N.R., 69 DTC 115 based on discrimination by reason of sex, is clearly wrongly decided, especially the passages reported on pages 120-121.
[7] The CPP mandates that one's contribution period starts on January 1, 1966, or when one turns 18, and ends at the age of 70, or when one dies, or when the one starts a retirement pension. Contributions are calculated using one's pensionable employment income, which is based on one's taxable income under Income Tax Act. Although the Income Tax Act does not specifically refer to Aboriginal Canadian Indians, paragraph 81(1)(a) of the Income Tax Act exempts from taxation, amounts which are declared to be exempt by any other enactment of Parliament. Section 87 of the Indian Act exempts from taxation the income earned by an Indian on an Indian reserve. The conjunctive effect of the CPP, of the Income Tax Act, and of the Indian Act is that income earned by an Indian employed on an Indian reserve is not taxable, and therefore is, or was, not pensionable under the CPP - until December, 1988.
[8] On December 7, 1988, the Canada Pension Plan Regulations were amended to allow those status Indians employed on Indian reserves to participate in the CPP, if the Indian were a Canadian resident, and the employer elected to participate in the plan. Participation in the CPP is not mandatory for these employers as it is for other Canadian employers. If the employer choose not to participate in the CPP, the employee must contribute as a self-employed individual, and thus loses the employer's matching contribution. In this case, the applicant's employer has opted into the plan, and she has been contributing since 1988. After the CPP was amended, the applicant requested that Revenue Canada allow her to contribute the maximum amount retroactively. An official at Revenue Canada refused her request by letter dated December 9, 1992, exhibit C to Rose Bear's affidavit, her record herein, p.24, (supra).
4. Issues
a. Can the Charter apply retrospectively?
b. Does the CPP violate section 15 of the Charter?
c. Does the CPP violate section 6 of the Charter?
d. Is the violation justifiable under section 1 of the Charter?
e. Does the CPP violate the Canadian Bill of Rights?
f. Does the CPP violate the rule of law?
g. What remedy is appropriate here?
5. Summary of Disposition
[9] The applicant's Canadian Bill of Rights argument is well founded and should be allowed. The Charter is probably not applicable to the present case due to the prohibition against retroactive application.
[10] All other issues are ancillary and are summarized in the parties submissions which follow her summary, at the end of these reasons.
6. Analysis of the Case
[11] The applicant's inability to participate in the CPP, (participation in which is based on a person's taxable income), derives from tax exemptions to which she was entitled and was unable to reject as a status Indian employed on an Indian reserve under section 87 of the Indian Act, R.S., Chap. I-6, thus :
87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely,
(a) the interest of an Indian or a band in reserve lands or surrendered lands; and
(b) the personal property of an Indian or a band situated on a reserve.
(2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property.
[12] It was held in the seminal decision, R. v. Nowegijick [1983] 1 S.C.R. 29, that the "personal property of an Indian situated on a reserve" includes personal income. Speaking for the court, Mr. Justice Dickson reasoned as follows, as reported at pp. 38-41:
A tax on income is in reality a tax on property itself. If income can be said to be property I cannot think that taxable income is any less so. Taxable income is by definition, s. 2(2) of the Income Tax Act, "his income for the year minus the deductions permitted by Division C". Although the Crown in paragraph 14 of its factum recognizes that "salaries" and "wages" can be classified as "personal property" it submits that the basis of taxation is a person's "taxable" income and that such taxable income is not "personal property" but rather a "concept", that results from a number of operations. This is too fine a distinction for my liking. If wages are personal property it seems to me difficult to say that a person taxed "in respect of" wages is not being taxed in respect of personal property. It is true that certain calculations are needed in order to determine the quantum of tax but I do not think this in any way invalidates the basic proposition.
The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters.
[...]
Section 87 provides that "the personal property of an Indian ... on a reserve" is exempt from taxation; but it also provides that "no Indian ... is ... subject to taxation in respect of any such property". The earlier words certainly exempt certain property from taxation; but the latter words also exempt certain persons from taxation in respect of such property. As I read it, s. 87 creates an exemption for both persons and property. It does not matter then that the taxation of employment income may be characterized as a tax on persons, as opposed to a tax on property.
We must, I think, in these cases, have regard to substance and the plain and ordinary meaning of the language used, rather than to forensic dialectics. I do not think we should give any refined construction to the section. A person exempt from taxation in respect of any of his personal property would have difficulty in understanding why he should pay tax in respect of his wages. And I do not think it is a sufficient answer to say that the conceptualization of the Income Tax Act renders it so.
I conclude by saying that nothing in these reasons should be taken as implying that no Indian shall ever pay tax of any kind. Counsel for the appellant and counsel for the intervenors do not take that position. Nor do I. We are concerned here with personal property situated on a reserve and only with property situated on a reserve.
[13] The applicant could not participate in the Canada Pension Plan for the period 1966 to 1988, when she was employed by Brokenhead Ojibway First Nation in Scanterbury, Manitoba due to her tax exempt status. The applicant challenges this distinction as being discriminatory and unjustifiable under section 15 of the Canadian Charter of Rights and Freedoms and section 2(b) of the Bill of Rights.
a. Can the Charter apply retrospectively?
[14] Retroactivity and retrospectivity are terms which are often confused. In Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, the Supreme Court of Canada, quoting E.A. Driedger, stated, at p. 381:
A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event. [Emphasis in original].
[15] The Supreme Court of Canada has often stated that the Charter does not apply retroactively. However, the Court has rejected a rigid test, preferring to evaluate each case on its own merits, and by evaluating the nature of the particular Charter right at issue. Not every situation involving events which occurred before the Charter came into force involves a retrospective application of the Charter. In R. v. Gamble, [1988] 2 S.C.R. 595 at 625, Madam Justice Wilson wrote thus:
In approaching this crucial question it seems to be preferable...to avoid an all or nothing approach which artificially divides the chronology of events into the mutually exclusive categories of pre and post Charter. Frequently an alleged current violation will have to be placed in the context of its pre-­Charter history in order to be fully appreciated...
...
And, at p. 628
Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even though such application will of necessity take cognizance of pre-Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition or state of affairs... Section 15 may... fall into this category.
[16] In considering how the Charter applies to facts which occurred before it came into force, a Court must determine if the facts demonstrate a discrete event, or if they establish an ongoing state of affairs or characteristic. As Driedger states in Construction of Statutes (2d) 1983, at p. 192:
These past facts may describe a status or characteristic, or they may describe an event. It is submitted that where the fact-situation is a status or characteristic (the being something), the enactment is not given retrospective effect when it is applied to persons or things that acquire that status or characteristic before the enactment, if they have it when the enactment comes into force; but where the fact situation is an event (the happening of or the becoming something), then the enactment would be given retrospective effect if it is applied so as to attach a new duty, penalty or disability to an event that took place before the enactment. (Benner v. Sec. of State [1977] 1 S.C.R. at p. 382)
[17] In Benner, supra, the appellant argued that the Citizenship Act offended section 15 of the Charter. The appellant was born in 1962 in the United States of a Canadian mother and an American father. He applied for Canadian citizenship, and his application was perfected on October 27, 1988. The Citizenship Act provided that persons born abroad before February 15, 1977, were entitled to be granted citizenship if they were born of a Canadian father, but were required to undergo a security check if they were born of a Canadian mother. During the security check, the Registrar of Citizenship discovered that the appellant had been charged with several criminal offences. The Registrar determined that Benner was prohibited from acquiring citizenship, and his application was rejected.
[18] The Supreme Court of Canada ordered the Registrar to reconsider the appellant's application for citizenship. The Court held that applicants who were born abroad after February 15, 1977, were entitled to citizenship if their mother or their father was a Canadian Citizen. The issue was whether the Charter was being used retroactively or retrospectively. Mr. Justice Iacobucci stated in Benner, supra, at paras. [44], [45] and [46]:
Section 15 cannot be used to attack a discrete act which took place before the Charter came into effect. It cannot, for example, be invoked to challenge a pre-Charter conviction : R.v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713; Gamble, supra. *** If it continues to impose its effects on new applicants today, then it is susceptible to Charter scrutiny today: Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143.
The question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of law which happened to be passed before the Charter came into effect?
***
Successfully determining whether a particular case involves applying the Charter to a past event or simply to a current condition or status will involve determining whether, in all the circumstances the most significant or relevant feature of the case is the past event or the current condition resulting from it. This is, as I already stated, a question or characterization, and will vary with the circumstances. Making this determination will depend on the facts of the case, on the law in question, and on the Charter right which the applicant seeks to apply. (Benner, supra, pp. 383-84)
[19] Section 15 of the Charter cannot be engaged to attack a discrete wrong which occurred before the Charter came into effect. The Court notes however that the Charter cannot be invoked to challenge a pre­-Charter conviction. Thus, where the effect of the law is simply to impose an ongoing discrimination or disability on an individual, then it is not insulated from Charter review simply because it was enacted before April 17, 1985. If the resulting prejudice continues to be imposed on new applicants today, the legislation is subject to Charter scrutiny.
[20] Iacobucci J. characterized Mr. Benner's situation in terms of status or an ongoing condition:
From the time of his birth, he has been a child, born outside Canada prior to February 15, 1977, of a Canadian mother and a non-Canadian father. This is no less a ‘status' than being of a particular skin colour or ethnic or religious background: it is an ongoing state of affairs. People in the appellant's condition continue to this day to be denied the automatic right to citizenship granted to children of Canadian fathers. (Benner, supra, [52] at p. 386).
[21] The applicant's situation here is also an ongoing condition which had endured from 1966 to 1988, and continues to this day in a different form. The applicant is still prevented from contributing to the CPP retroactively for the years 1966 to 1988. As of the coming-into-force date of section 15 of the Charter, the applicant was and is prevented from participating fully in the CPP, because she will not receive the benefits which she might have received had she been able to contribute to the CPP from its inception.
[22] Notwithstanding the retrospective aspects of the plaintiff's case, this Court maintains that the applicant has no Charter entitlement to any remedy before 1985, which is when section 15 came into force. To allow such a Charter remedy would amount to a retroactive application of the Charter. The law granting the remedy must have actually existed for the period contemplated by the proposed remedial measure. In this respect, the Benner decision can be distinguished from the present case because Mr. Benner's discrimination crystalized when the Charter was in effect. Further, his subsequent acquisition of citizenship was a prospective remedy which did not require the Courts to change his pre-Charter status. In the present case, however, the alleged discrimination against the applicant, Ms. Bear, crystalized in 1966, well before the coming into force of the Charter, and the proposed remedy is retroactive in that it seeks to put the applicant in a position she would have occupied had she been allowed to participate in the CPP from its inception, before the Charter's existence. As such, the plaintiff's Charter argument should fail for reasons of the retroactivity of the application being sought.
[23] In the event the Charter is deemed applicable, the following section 15 analysis is pertinent.
b. Does the CPP violate section 15 of the Charter?
[24] The Canadian Charter of Rights and Freedoms (enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, Chap. 11, came into force on April 17, 1982). Section 15, which came into force on April 17, 1985, provides:
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.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[25] The basic principles for a subsection 15(1) analysis were articulated in Law v. Canada, [1999] 1 S.C.R. 497, wherein Mr. Justice Iacobucci stated (p. 548):
(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?
[26] In the present case, the applicant has clearly established differential treatment premised on the grounds of race. The position of the applicant and her class, status Indians employed on a reserve, is unique. No other class of people in Canada have tax exemptions and a corresponding exclusions from the CPP.
[27] Regarding the issue of discrimination in a substantive sense, the applicant's exclusion from the CPP amounts to withholding a benefit in a manner contrary to human dignity, based on race, or ethnic origin, or colour. There are two reasons for this Court to reach this conclusion.
[28] First, the respondent's argument that the differential treatment of the applicant is based on situs instead of personal immutable characteristics is not persuasive. Tax exemptions for status Indians residing and working on reserves is an integral part of the applicant's identity, which cannot be separated from her. The very notion of "Status Indian" tells the story in deep distinction from all other Canadians. Moreover, the
applicant's distinct legal identity is primarily attributable to over 100 years of government policy for aboriginal peoples. The obvious importance of such policy in defining aboriginal peoples in Canada should preclude the government of Canada from arguing that its legal treatment of aboriginal peoples is distinct from personal identity. The differential treatment in this case is premised on the applicant's identity as a status Indian.
[29] Second, tax exemptions in the Indian Act are meant to protect the ability of Indians to benefit from their property. In Mitchell v. Peguis Indian Band, [1990] 2. S.C.R. 85, Mr. Justice La Forest noted at pages 130 and 131 that the Crown is honour bound to shield Indians from any efforts by non-natives to dispossess Indians of property they hold qua Indians:
__The exemptions from taxation and distraint have historically protected the ability of Indians to benefit from this property in two ways. First, they guard against the possibility that one branch of government, through the imposition of taxes, could erode the full measure of the benefits given by that branch of government entrusted with the supervision of Indian affairs. Secondly, the protection against attachment ensures that the enforcement of civil judgments by non-natives will not be allowed to hinder Indians in the untrammelled enjoyment of such advantages as they had retained or might acquire pursuant to the fulfilment by the Crown of its treaty obligations. In effect, these sections shield Indians from the imposition of the civil liabilities that could lead, albeit through an indirect route, to the alienation of the Indian land base through the medium of foreclosure sales and the like...
[30] Participation in the CPP does not risk dispossession of Indian property. Rather, it is an universal pension plan, funded by compulsory contributions, designed to provide employed Canadians with a monthly pension upon turning 65. Thus, it is a benefit, which the applicant has been denied, thereby satisfying the third element of the test for discrimination.
c. Does the CPP violate section 6 of the Charter?
Section 6 arguments are not determinative of this case and probably not relevant due to the likely inapplicability of the Charter to the applicant's claim. Submissions on this point by the parties are addressed later in these reasons, under party submissions.
d. Is the violation justifiable under section 1 of the Charter?
[31] As is known, once the applicant has established a violation of section 15 of the Charter, the burden shifts to the respondent to justify it. This Court accepts the applicant's submission that the discriminatory effects of the impugned legislation cannot be justified under section 1 of the Charter.
[32] The principles governing the section 1 analysis derived from R. v. Oakes, [1986] S.C.R. 103. They are reproduced succinctly in Egan v. Canada, [1995] 2 S.C.R. 513 at 605, by Cory and Iacobucci, JJ., dissenting:
A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied:
(1) the rights violation must be rationally connected to the aim of the legislation;
(2) the impugned provision must minimally impair the Charter guarantees;
(3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all Section 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.
[33] The respondent's justification of the impugned legislation is feeble, and far short of convincing. The exclusion from the CPP of status Indians employed on reserves cannot be construed as having the pressing and substantial objective of preserving the tax-exempt status of status Indians. This argument is not persuasive because the legislation was amended with the respondent's complicity, in 1988 to permit status Indians employed on reserves to participate in the CPP, without affecting their tax-exempt status! That the impugned legislation was so amended demonstrates that the original objective of the legislation was ill-conceived and was not pressing and substantial.
e. Does the CPP violate the Canadian Bill of Rights?
[34] If this Court holds, as it does, that the Charter cannot be applied retrospectively, which is true, it can surely hold that there was discrimination under the Canadian Bill of Rights, and structure a remedy accordingly. In this respect, the applicant argues that the CPP violates subsection 1(b) of the Canadian Bill of Rights:
It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, color, religion or sex, the following human rights and fundamental freedoms, namely...
(b) the right of the individual to equality before the law and the protection of the law.
[35] This argument is convincing. In R. v. Drybones, [1970] S.C.R. 282, the Supreme Court held that subsection 94(b) of the Indian Act was inconsistent with section 1(b) of the Canadian Bill of Rights. Under subsection 94(b) of the Indian Act, it was an offence for an Indian, but no one else, to be intoxicated anywhere off of an Indian reserve. The Supreme Court of Canada, after approving the thoughts of Cartwright J. in Robertson and Rosetanni v. The Queen [1963] S.C.R. 651 at p. 662, interpreted subsection 1(b) of the Canadian Bill of Rights to mean:
...that no individual or group of individuals is to be treated more harshly than another under the law, and I am therefore of the opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed an offence or having been made subject to any penalty. (Ritchie, J. among the majority in Drybones, at p. 297).
[36] In R. v. Harden, [1983] 23 Man. R. (2d) 315 (C.A.), an accused was charged with being intoxicated while on an Indian reserve, an offense which was contrary to the Indian Act. The Court, through Hall, J.A., held that the provision was contrary to subsection 1(b) of the Canadian Bill of Rights, stating:
[9] Parliament has enacted no other law making it an offence to be intoxicated in any other place in Canada. It is only on the reservation that it is made an offence for any person to be intoxicated. The mere fact that the impugned law applies to every person does not save it, for it is obvious that the predominant group on the reservation are Indian people whereas off the reservation the predominant people are of a non-native origin. In other words there is inequality before the law. It is not an offence to be intoxicated off the reservation but it is an offence to be in that condition on the reservation. It is surely a double standard that cannot be countenanced under the Bill of Rights. (pp. 317-18).
[37] In Singh v. M.E.I., [1985] 1 S.C.R. 177, the Supreme Court considered whether the appellant had a right to a hearing before the Immigration Appeal Board. The Court divided equally, and three of the six judges relied upon the Canadian Bill of Rights to hold that a hearing was necessary, illustrating that the Canadian Bill of Rights can still be invoked.
[38] Respecting the remedial power of the Canadian Bill of Rights, section 2 states that every law of Canada shall be construed so as not to abrogate, abridge or infringe of any of the rights or freedoms recognized in the Canadian Bill of Rights, unless it is expressly declared by an Act of Parliament to operate notwithstanding the Canadian Bill of Rights. In this respect, the applicant correctly submits that section 2 of the Canadian Bill of Rights provides the authority to provide a remedy for the infringement of her rights.
[39] In support of such authority, the Federal Court of Appeal recently cited the Drybones decision with approval in Northwest Territories v. Public Service Alliance of Canada, (2001) 201 D.L.R. (4th) 129, wherein Mr. Justice Létourneau stated the sanction or remedy under the Canadian Bill of Rights.
[60]__It is well established that, in case of incompatibility between a federal legislative provision and paragraph 2(e) of the Canadian Bill of Rights, a declaration of inoperability of that provision is the appropriate sanction or remedy:__ Singh et al. v. M.E.I., [1985] 1 S.C.R. 177, at pages 238-39; The Queen v. Drybones, [1970] S.C.R. 282; MacBain v. Lederman, [1985] 1 F.C. 856 (F.C.A.); In Re Human Rights Tribunal and Atomic Energy Can., [1986] 1 F.C. 103, at pages 116-19.__In addition, as stated by Heald J.A. in the McBain case, at page 882, quoting Ritchie J. in Drybones, supra:__"another characteristic of the relief to be granted under the Bill is that there must be a degree of particularity introduced into a finding that statutory provisions are inoperative".__ This means that a finding of inoperability is restricted to the case at bar and its particular fact circumstances.
f. Does the CPP violate the rule of law?
[40] The question of whether the CPP violates the rule of law is ancillary. The parties submissions are summarized below for reference.
g. What remedy is appropriate here?
[41] The appropriate remedy is a direction to allow the applicant to pay back her CPP premiums in order to qualify for full benefits upon attainment of age 65.
4. Applicant's Submissions
[42] The applicant submits that the CPP violates her right to be free from discrimination based on race as guaranteed by section 15 of the Charter. Subsection 15(1) of the Charter provides:
Every person 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.
[43] In Law v. Canada, [1999] 1 S.C.R. 497 at 524, the Supreme Court (Iacobucci, J.) summarized the approach to be taken when analyzing section 15 applications:
[39] In my view, the proper approach to analyzing a claim of discrimination under section 15(1) of the Charter involves a synthesis of these various articulations. ... [A] court that is called upon to determine a discrimination claim under section 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 section 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 section 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 section 15(1).
Comparator Group
[44] In this analysis, the applicant compares her treatment under the CPP with the treatment of all other Canadians who are employed.
Differential Treatment
[45] The CPP imposes differential treatment on the applicant by denying her the right to receive CPP benefits in the same manner as other working Canadians. Upon retirement, the applicant will receive a pension based solely on her contributions from 1988 onwards because she was prohibited from contributing into the CPP from 1966 to 1988. This differential treatment is based on her status as an Indian working on a reserve.
Is the Differential Treatment Based an Enumerated Grounds?
[46] The applicant submits that the unequal benefit of the law arises because of her race, which is an enumerated ground of discrimination. All Indians employed on reserves between 1966 to 1988 were denied the equal benefit of the law. No other identifiable group has been subject to this treatment under the CPP. The identity of such group is based on race, ever since the influx of Europeans and others.
[47] The document entitled Assembly of First Nations: Disparity and Despair, First Nations and the CPP, at 402, corroborates the applicant's assertions:
Evidence suggests that systemic barriers, such as unrecognized employment, weak economic conditions, illiteracy among First Nations, and racism, precluded the participation of First Nations in the CPP. First Nation people and organizational representatives are now raising the question whether Canada Pension Plan legislation denied First Nations a fundamental right of equal benefit of the law. They are further suggesting that an exclusionary principle based on race was established. First Nation elders face extreme hardship and may end up living in economic conditions well below the poverty line as a result of no pension income.
[48] The applicant is treated equally under the law for other government benefits. Under the Employment Insurance Act, status Indians do not have to pay tax on the benefits received because of their hereditary position, but are nonetheless required to contribute to the unemployment insurance fund. [Williams v. Canada, [1992] 1 S.C.R. 877 at pp. 884-87].
Does this Treatment Constitute Discrimination in a Substantive Sense?
[49] The Supreme Court established through Iacobucci, J., in Lovelace, [2000] 1 S.C.R. 950, the contextual approach which should used during the third step of the inquiry
[68] ...there are four contextual factors which provide the basis for organizing the third stage of the discrimination analysis, they are: (i) pre­existing disadvantage, stereotyping. prejudice, or vulnerability, (ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others, (iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and (iv) the nature and scope of the interest affected by the impugned government activity. *** I conclude that no discrimination exists through the operation of the casino program. (at pp. 990-91)
[50] The applicant submits that the differential treatment under the CPP has violated her human dignity and freedom by imposing disadvantage, stereotyping, and social prejudice, and by failing to treat her with equal recognition at law as a human being, and as a member of Canadian society, equally capable and equally deserving of concern, respect, and consideration. The Court affirms those submissions. The applicant's counsel articulated her sense of grievance as recorded in vol.1 of the hearing transcript, p. 41 (line 18) to p. 64 (line 4).
Pre-Existing Disadvantage
[51] In Law, supra at p. 534, the Supreme Court held that pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced b