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In Newfoundland (Treasury Board) v. N.A.P.E. the Women’s Court of Canada reverses the Supreme Court of Canada’s 2004 decision that the erasure of pay equity obligations under Newfoundland and Labrador’s Public Sector Restraint Act was a justifiable violation of women’s equality rights. The Women’s Court finds that a full and substantive account of the equality rights violation under the Canadian Charter of Rights and Freedoms is required in order to provide for a more comprehensive and contextual analysis of the arguments used to justify the infringement of these rights. Examination of the equality issues in N.A.P.E. includes consideration of the history of sex-based wage discrimination and of pay equity as a legal remedy for such discrimination. Against this backdrop, the Women’s Court finds that the erasure of pay equity results in material and symbolic harms and is a clear violation of women’s right to substantive equality. A survey of international law principles on pay equity supports this finding. In considering section 1, the Women’s Court examines the notion of substantive democracy as a counterpart to substantive equality, holding that section 1 of the Charter should be interpreted so as to avoid a conflicting relationship between rights and democracy. The Women’s Court finds that fiscal considerations should never suffice as a pressing and substantial basis for overriding equality rights and, in any event, that the government did not meet its evidentiary burden in proving that a fiscal crisis existed in this case. The government also failed to meet its justificatory burden at the minimal impairment and proportionality stages of the section 1 analysis, a conclusion supported by international law. The Women’s Court decides that the government must comply with its pay equity obligations to the workers represented by NAPE.

Reconsideration of Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381 (judgment of the Supreme Court of Canada reversed).

The decision of the Women’s Court of Canada was delivered by:

JENNIFER KOSHAN

I. Introduction

1. In April 1991, the Newfoundland and Labrador government (referred to throughout as the government) passed wage restraint legislation, the Public Sector Restraint Act (PSRA), S.N. 1991, c. 3 rep. and subs. S.N.L. 1992, c. P-41.1, which imposed cost-cutting measures on the wages of its own employees. One effect of this legislation was to extinguish the government’s obligation to pay $24 million in pay equity adjustments owed to workers in predominantly female bargaining units, who were predominantly women workers. In the government’s own words, ‘‘[e]ssentially what that does is it erases an obligation we had there of approximately $24 million’’ [emphasis added] (Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381 (NAPE SCC), Exhibit DC-8, House of Assembly Proceedings, 19 March 1991, Appellant’s Record, Volume IV, at 644-5).

2. The Newfoundland and Labrador Association of Public and Private Employees (NAPE) challenged the government’s legislative action as a violation of the employees’ equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. The courts and Arbitration Board held that the impugned legislative measure did infringe the employees’ section 15(1) equality rights. The Arbitration Board also held that the government failed to meet its obligation under section 1 of the Charter to justify this infringement. However, the courts disagreed. From the Newfoundland Supreme Court to the Supreme Court of Canada, the courts held that the infringement was demonstrably justifiable as a reasonable limit on equality rights in a free and democratic society.

3. The Women’s Court of Canada disagrees with the conclusion reached by the courts below. In our opinion, the courts failed to hold the government to account for its decision to erase a substantial portion of its pay equity obligation. The government argued that it was required to make hard choices to address a fiscal deficit and that significantly reducing its pay equity obligations was one of these hard choices. We respectfully disagree. In our opinion, reducing pay equity obligations was a politically more expedient choice for the government than finding a way to fulfil these obligations. It was also a choice that did not comply with the government’s obligations to respect and uphold women’s equality rights under the Charter, even in times of fiscal deficit. Our reasons are set out in the following decision.

II. Factual Context

4. NAPE is a union that represents workers employed by the government. In this case, Newfoundland and Labrador was acting both as government and as employer.

A. Pay Equity Negotiations and Agreement

5. In June 1988, after lengthy negotiations, NAPE and the government reached a pay equity agreement. The agreement opened with an acknowledgment that there was sex-based wage discrimination in the public sector. The stated purpose of the agreement was ‘‘[t]o achieve pay equity by redressing systemic gender discrimination in compensation for work performed by employees in female dominated classes’’ (NAPE SCC, Exhibit C-1: Collective Agreement between the NAPE Hospital Support Staff and Her Majesty the Queen in Right of Newfoundland and the Newfoundland and Labrador Health Care Association, Appellant’s Record, vol. IV, at 586).

6. When the pay equity agreement was reached, NAPE and the government did not know the extent of the discrimination and thus did not know the amounts owing in pay equity adjustments. The agreement established a process for identifying the discrimination and then remedying the discrimination once its scope was determined. The agreement also included a five-year, phased-in implementation process for the pay equity adjustments. During the first four years of the implementation period, the government was required to spend up to 1 per cent for each relevant payroll. If a job class did not receive its full pay equity adjustment by the end of the fourth year, the government was obliged to pay the full amount of the remaining adjustment in the fifth and final year of the implementation period.

7. Most of the workers affected by the impugned legislation were in the health care sector, and many were employed as hospital and nursing home support workers. The pay equity implementation date agreed to for these workers was 1 April 1988. By 1 April 1991, the parties had determined that approximately 4,700 workers were owed pay equity adjustments. The government said that these payments represented a cost of approximately $24 million. Under the pay equity agreement, the government was obliged to make the first four pay equity adjustments to the affected employees on 1 April 1991. These four pay equity adjustments were those owing effective 1 April 1988, 1 April 1989, 1 April 1990, and 1 April 1991.

B. The Public Sector Restraint Act and Its Impact

8. The PSRA was passed in April 1991 at the same time as the pay equity job evaluation process for the health care support and hydro workers was being completed.

9. The PSRA imposed restraints on public sector wages in two ways. First, section 5 of the PSRA voided any scheduled increases in pay scales under collective agreements. This form of restraint applied to all of the public sector, including employees in female-dominated jobs who were still being paid discriminatory wages.

10. Second, section 9(1) of the PSRA specifically targeted the pay equity adjustments owed to employees in female-dominated jobs under the pay equity agreement. Section 9(1) was interpreted to void the government’s obligation to make pay equity adjustment payments for any period prior to 1 April 1991. As a result, on 1 April 1991, the affected employees received only the first pay equity adjustment, instead of the first four pay equity adjustments that were due on this date. Thus, these workers never received the pay equity adjustments they were owed on the work they did between 1 April 1988 and 1 April 1991. In addition, the deadline for the government’s obligation to implement pay equity was postponed for three years.

11. The PSRA imposed restraints for a two-year period from 1 April 1991 to 31 March 1993. When the government wanted to continue cost-cutting measures after the end of the legislated restraint period, it reached an agreement with NAPE to take back 1.5 sick days per employee, to reduce the employer’s contribution to the pension plan, and to further extend the pay equity implementation period. Under the renegotiated pay equity implementation agreement, the government was no longer required to pay the full amount of pay equity adjustments owed in the fifth year of the implementation period. Instead, the government was obliged to pay 2 per cent of the payroll per year until the pay equity adjusted rate was fully implemented. Under the extended pay equity implementation period, it took up to ten years for some employees to receive their full pay equity adjustment. Moreover, this renegotiated agreement did not restore the three years of pay equity adjustments for the 1988–91 period that were taken away by the PSRA.

12. Thus, the net effects of the PSRA on workers in the affected female dominated job classes were:

. to freeze their discriminatory wages for the period from 1991 to 1993;

. to erase the government’s obligations to make pay equity adjustment payments on work performed between 1 April 1988 and 1 April 1991; and

. to extend the pay equity implementation period by three years by effectively moving forward the implementation date from 1 April 1988 to 1 April 1991.

III. Judicial History

A. Arbitration Decision (NAPE SCC, Appellant’s Record, Volume I, at 2-137)

13. NAPE challenged the validity of section 9 of the PSRA by way of a grievance under its collective agreement with the government. The Arbitration Board unanimously held that section 9 infringed section 15 of the Charter because it had an adverse impact on women who were already negatively affected by sex-based wage discrimination.

14. A majority of the Arbitration Board also held that the government failed to justify this infringement under section 1 of the Charter. All members of the board agreed that the government had a pressing and substantial need to save money and that there was a rational connection between this objective and section 9 of the PSRA. They disagreed about whether the government had met the proportionality requirement or not.

15. In the view of the majority, the government’s evidence established that further lay-offs were the only alternative to erasing the pay equity obligation that it considered. The majority concluded that there were other alternatives that the government should reasonably have considered. These alternatives included suspending the regular step increases and the reclassification increases that continued during the restraint period. They also included the type of across-the-board cost reduction measures—that is, cutting employees’ sick days and reducing the employer’s pension contributions—that were taken after March 1993. Thus, it appeared to the majority that the government’s decision to Vol. 18 2006 331 unilaterally void its pay equity obligations for a three-year period was probably the most rights-infringing measure:

[T]here is more than sufficient evidence in this case to establish that several other less restrictive means were available to government which would have minimized the infringement. In my view, government should not be accorded a measure of deference or flexibility here because it limited its consideration of alternatives to only one option, i.e. 900 layoffs, a choice which was probably the most severe of any that could have been contemplated at the time. Moreover, it is not really clear that government seriously considered layoffs as an option. Indeed, the reference in Hansard to 900 layoffs could be interpreted as an attempt to describe by way of example what would have been the equivalent cost of the pay equity adjustments involved in terms of jobs. Under the circumstances, it is my view that government did not reasonably attempt to minimize the infringement. Rather, it probably chose the most restrictive means available to achieve its objective (NAPE SCC, Appellant’s Record, vol. I, at 102).

16. As a remedy, the Arbitration Board declared that section 9 of the PSRA was void and ordered the government to comply with the provisions of the pay equity agreement as incorporated in the collective agreement.

B. Judicial Review by the Supreme Court of Newfoundland (Trial Division (1998), 162 Nfld. & P.E.I.R. 1)

17. The Supreme Court of Newfoundland, Trial Division, granted the government’s application for judicial review of the Arbitration Board’s decision. The court held that section 9 of the PSRA infringed section 15(1) of the Charter because its effect was to continue the government’s wage discrimination beyond the date when the government was obliged to eliminate this discrimination. However, the court held that the infringement was justified.

18. Justice Keith Mercer was of the view that the Arbitration Board failed to show the appropriate deference to government decision making on fiscal matters when it invoked alternative options that the government did not consider. In his view, government decisions about the expenditure of public funds belong within the government’s control because they ‘‘necessarily involve choices between the claims of various sectors of society’’ (NAPE, 332 N.A.P.E. CJWL/RFD Supreme Court of Newfoundland, Trial Division, at para. 88). Mercer J. held that the government fulfilled its justificatory obligation to demonstrate that it had considered reasonable alternatives when it stated that lay-offs were the only alternative.

C. Appeal to the Newfoundland Court of Appeal ((2002), 221 D.L.R. (4th) 513)

19. The Newfoundland Court of Appeal agreed with Mercer J. that section 9 of the PSRA infringed section 15 of the Charter and that this infringement was justified under section 1.

20. On the section 15 question, the Court of Appeal held that the infringement was linked to the government resiling from its commitment to make the pay equity adjustments, stating:

Once Government committed itself to pay equity it could not repeal that undertaking for the duration of the restraint period as it did in s. 9 of the restraint legislation without infringing section 15(1) of the Charter (at para. 339).

The Court of Appeal also agreed with the lower court that the Arbitration Board failed to accord the appropriate deference to the government’s fiscal decision making.

21. Justice William Marshall went even further to pose a more general challenge to the role of the Charter in Canadian constitutional law. In his view, the justificatory burdens that have been imposed on governments by the courts’ interpretation of section 1 were contrary to the separation of powers between the courts and the legislatures and should be re-examined. Marshall J.A. proposed that a new test be added for section 1, which would require courts to ask at every stage of the analysis whether the burden imposed on the government was displacing the proper balance between the role of the courts and the role of the legislature.

D. Appeal to the Supreme Court of Canada ([2004] 3 S.C.R. 381)

22. On appeal, the Supreme Court of Canada upheld the conclusion reached by the Newfoundland courts. On the section 15(1) question, Justice Ian Binnie, writing for a unanimous court, applied the framework from Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. The Court held that section 9 of the PSRA drew a distinction on the basis of sex because it targeted female-dominated classifications and that this distinction imposed substantive discrimination on the basis of the four contextual factors articulated in Law (at paras. 38-51). Vol. 18 2006 333

23. On the section 1 issue, the Supreme Court of Canada affirmed the general principle that governments are required to ‘‘demonstrate’’ their justification for limiting a Charter right. Likewise, the Court affirmed in principle the R. v. Oakes, [1986] 1 S.C.R. 103, framework for section 1 justification, thus rejecting Marshall J.A.’s opinion that this framework disturbs the separation of powers between the legislature and the courts (at paras. 104-16). In applying the Oakes framework, however, the Supreme Court of Canada agreed with the conclusion of the lower courts that the government met its section 1 justificatory burden.

24. We elaborate further on the Supreme Court of Canada’s reasons for decision where they pertain directly to our discussion of particular issues.

IV. Issues

25. Does section 9 of the PRSA infringe section 15(1) of the Charter? If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Charter?

V. Analysis

A. Section 15 of the Charter

26. The equality rights issue in this case is the constitutional validity of section 9 of the PSRA, which provides as follows:

9. (1) Notwithstanding the terms and conditions of a pay equity agreement contained in a collective agreement or added by agreement to an existing collective agreement, no pay equity agreement shall contain a provision which implements that pay equity agreement retroactively.

(2) Where there is a provision in a pay equity agreement which provides that the pay equity agreement shall be implemented retroactively, that provision is void.

(3) Notwithstanding the other provisions of this Act, a pay equity agreement may be negotiated or implemented, but the 1st pay equity wage adjustment date shall be the date on which the pay equity wage adjustment is agreed upon.

(4) This section applies whether the pay equity agreement is reached or the pay equity wage adjustment date is agreed upon before or after the date this Act comes into force.

(5) In this section ‘‘pay equity agreement’’ means an agreement between a public sector employer and a group of public sector employees to recognize the compensation practice which is based primarily on the relative value of the work performed, irrespective of the gender of employees, and includes a requirement that no employer shall establish or maintain a difference between compensation paid to male and female employees, employed by that employer, who are performing work of equal or comparable value.

27. Although the other courts hearing this case all held that the impugned legislative measure infringed section 15(1), they did so with a relative ease that is troubling in view of the similar ease with which they accepted as justifiable the government’s decision to erase its pay equity obligations. In contrast, we undertake a detailed section 15 analysis because we believe that this type of examination of the equality rights issue is critical to properly ground the section 1 analysis. 28. Our discussion of the equality rights issue is divided into three parts. In the first part, we set out our approach to a substantive and contextualized analysis of the application of section 15(1) of the Charter in this case. In the second part, we outline some of the difficulties with the Supreme Court’s approach in Law, supra, in terms of addressing section 15(1) claims generally and in its application to this case. In the third part, we draw on international law principles to support our analysis of section 15(1) of the Charter.

(1) Substantive Equality Framework

29. The text of section 15 of the Charter states:

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.

30. Beginning with the Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 164-71 (per Justice William McIntyre), Canadian courts have rejected an abstract and formalistic approach to equality rights in favour of a contextual and substantive approach.

31. In Andrews, the Supreme Court of Canada posed two questions for a substantive approach to equality rights under the Charter: (1) is there a distinction in treatment; and (2) is this distinction discriminatory? In the Andrews framework, the question of whether the distinction is based on a prohibited or analogous ground was part of the answer to the question of whether the distinction is discriminatory.

32. A fundamental principle of a substantive equality approach is that the focus should be on the effects of the differential treatment or action. Moreover, these effects must be looked at not simply by themselves but also in their historical, social, political, and legal context (Andrews, at 152, 164-9, 174-5, and 180-1; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras. 60-1, 64-9, and 77; Law, at paras. 39, 42-3, 51, 54-5, 64-5, 70, and 85-6).

33. The pay equity agreement between NAPE and the government was reached in a context where discrimination is legally recognized as a significant cause of the gap between women’s wages and men’s wages and pay equity is recognized as a legal remedy for sex-based wage discrimination. A contextual analysis of the pay equity agreement between NAPE and the government and of the effects of section 9 of the PSRA is therefore necessary to the section 15 analysis in this case.

(a) Social Context of the Pay Equity Agreement

34. The principle of ‘‘equal remuneration for work of equal value’’ was one of the founding principles of the International Labour Organization, which was established in 1919 (Constitution of the International Labour Organization, Part XIII, Versailles Treaty, 28 June 1919, Article 427). This principle recognizes that the economic value of work is not inherent to the job or to the person doing the job. Economic value is socially defined and ascribed. In unionized workplaces, the union and the employer negotiate this value. In non-unionized workplaces, employers may negotiate this value with employees, or they may determine it unilaterally.

35. In 2004, almost one century after the principle of pay equity was introduced, the Federal Task Force on Pay Equity reported that the wage gap between women and men in industrialized countries continued to hover around 25 per cent. For Canada, the task force reported that women’s average employment income in the year 2000 was 70.8 per cent of men’s average income (Pay Equity: A New Approach to a Fundamental Right (Ottawa: Pay Equity Task Force, 2004) at 10 and 12). This wage gap affects women as a group and tends to be even more pronounced for Aboriginal women, women with disabilities, poor women, and racialized women (Pay Equity, at 41; and Pat Armstrong and Hugh Armstrong, The Double Ghetto: Canadian Women and Their Segregated Work, 3rd edition (Toronto: McClelland and Stewart, 1994) at 45-9).

36. In the Canadian labour market, as in other labour markets, women tend to be clustered in jobs that are less well paid than the jobs in which men predominate. The term ‘‘occupational segregation’’ is often used to refer to the fact that women and men tend to perform different types of work in the labour force. Statistics for Canada for 2002 indicated that 70 per cent of all female workers in Canada worked in the areas of teaching, nursing, and related health occupations, clerical or other administrative positions, and sales and service occupations (Pay Equity, at 14-15, citing Statistics Canada, Women in Canada: Work Chapter Updates (Ottawa: Statistics Canada, 2003) at 8-9). Occupational segregation, like economic value, is the result of social practices. Many different social practices combine to produce workplaces in which women and men do different jobs.

37. Occupational segregation, and the compensation practices that are associated with it, are significant contributing factors to the sex-based wage gap. As Pat Armstrong and Hugh Armstrong have written, ‘‘[o]bviously there are not only men’s jobs and women’s jobs, but also men’s wages and women’s wages.’’ They go on to say:

In summary, wage differentials go hand in hand with occupational segregation. As Fox and Fox . . . conclude, ‘‘women systematically have been kept out of occupations in which men’s wages are high.’’ But the other half of the coin is that women’s jobs have been systematically underpaid relative to those of men (Armstrong and Armstrong, supra, at 45, citing Bonnie Fox and John Fox, ‘‘Women in the Labour Market, 1931-1981: Exclusion and Competition’’ (1986) 23 Canadian Review of Sociology and Anthropology 1 at 15).

38. Women as workers, and the jobs women do, tend to be ascribed second-class status in the labour force. As the Women’s Legal Education and Action Fund (LEAF) argued in its factum before the Supreme Court of Canada, women’s labour market subordination has been normalized through practices ‘‘that stereotype and marginalize women and their work’’ (NAPE SCC, factum of the intervenor LEAF, at para. 29, reprinted in Fay Faraday, Margaret Denike, and M. Kate Stephenson, Making Equality Rights Real: Seeking Substantive Equality under the Charter (Toronto: Irwin Law, 2006) 471 at 476-7)). Women have commonly been assumed not to be ‘‘breadwinners’’ but merely working for ‘‘pin money.’’ Their work has been assumed not to involve the exercise of skill and expertise but, rather, to involve ‘‘natural’’ sex-specific traits that have been deemed to be of little value. Occupational segregation has been ascribed to women’s choices rather than to workplace barriers. Women have been assumed to be selfless and unambitious (Nan Weiner and Morley Gunderson, Pay Equity: Issues, Options and Experiences (Markham, ON: Butterworths Canada, 1990) at 5-16; see also Pay Equity, supra, at 25-8; Judge Rosalie Silberman Abella, Report of the Royal Commission on Equality in Employment (Ottawa: Ministry of Supply and Services, 1984) at 245-9).

39. Wage discrimination has direct material consequences for women. Simply put, they do not earn as much money as men. This inequality has also compounded other employment inequalities that women experience. It has done so largely by reinforcing second-class status for women in the workplace. This second-class status, in turn, has been reflected in, and has reinforced, other systems and practices of sex inequality in employment, including insufficient provision for childcare and other family care responsibilities, parttime employment, precarious employment, and sexual harassment. Women experience these employment inequalities in different ways, depending upon their social class, race, and abilities (See Leah F. Vosko, Temporary Work: The Gendered Rise of a Precarious Employment Relationship (Toronto: University of Toronto Press, 2000) at 3-13 and 27-44; see also Judy Fudge and Rosemary Owens, eds., Precarious Work, Women and the New Economy: The Challenge to Legal Norms (Oxford: Hart Publishing, 2006); Ann Porter, Gendered States: Women, Unemployment Insurance and the Political Economy of the Welfare State in Canada 1945-1997 (Toronto: University of Toronto Press, 2003); and Cynthia Cranford, Leah Vosko, and Nancy Zukewich, ‘‘The Gender of Precarious Employment in Canada’’ (2003) 58 Relations industrielles/ Industrial Relations 454).

(b) Legal Responses to Sex-Based Wage Discrimination

40. The principle of ‘‘equal remuneration for work of equal value’’ calls for an examination of the compensation practices associated with the jobs women do and the second-class status ascribed to women’s jobs and women’s work. This principle was enshrined in 1951 in the International Labour Organization’s (ILO) Convention no. 100 Concerning Equal Remuneration for Men and Women for Work of Equal Value, General Conference, 34th Sess. (Equal Remuneration Convention) and has since been incorporated into the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, Article 7; the Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 1249 R.T.N.U. 13, adopted by the UN General Assembly Resolution 34/180, Article 11; and the Beijing Declaration and Platform for Action, UN Doc. A/CONF.177/20 (1995) and UN Doc. A/CONF.177/20/Add.1 (1995), Article 167. Canada has ratified all of these conventions and has signed the Beijing Declaration.

41. In Canada, legal remedies for sex-based wage discrimination have generally taken two forms. Equal pay laws are one form of remedy. These laws are designed to address the direct discrimination that occurs when women are paid less than men for doing the same work or substantially similar work. First passed by provincial legislatures in the 1950s and 1960s, these legal provisions were often later incorporated into human rights statutes or employment standards statutes (in Ontario, for example, see Female Employee’s Fair Remuneration Act, S.O. 1951, c. 26; Ontario Human Rights Code, S.O. 1961-2, c. 93, s. 5; and Employment Standards Act, S.O. 1968, c. 35, s. 19). The equal pay remedy can be used where there is a relatively obvious comparison between women’s work and men’s work, but it is not available where there is no such obvious comparison to make.

42. Pay equity laws are a second form of legal remedy. The expression ‘‘pay equity’’ is linked with the legal remedy for non-explicit and systemic sexbased wage discrimination. The pay equity legal remedy typically requires that a gender-neutral job evaluation process be conducted to find a way of comparing women’s work with men’s work and of determining whether women’s work is under-valued and underpaid relative to men’s work. This process typically evaluates the work in terms of skill, effort, responsibility, and working conditions. An important goal is to attach value to the aspects of the job that are often discounted when economic value is assigned to women’s paid work. If the job evaluation process shows that women are paid less for doing work that is relatively equal in skill, effort, responsibility, and working conditions to men’s work, then women are entitled to have their wages equalized with the wages of the male comparator (for discussion of the legislated approaches to pay equity, see Pay Equity, supra, at 63-76).

43. In Canadian law, pay equity is conceptually and legally a human rights remedy for sex-based wage discrimination. Pay equity is considered a ‘‘human right’’ because it requires an examination of the impact of existing systems and practices and a re-evaluation of the value of women’s work in relation to men’s work. Pay equity legal remedies are designed to challenge labour market inequities and to provide a measure of redress for sex-based wage discrimination by moving towards equalizing the wages paid for women’s work in relation to wages paid for men’s work. As the Federal Pay Equity Task Force stated in its 2004 final report:

At the heart of the principle of equal pay for equal value is a concern with systemic discrimination, and with pay practices which have routinely overlooked or devalued important aspects of the work done by women. We think that the elimination of discrimination should be the central focus of pay equity legislation, and consequently that it should be characterized as human rights legislation (Pay Equity, at 150).

However, while pay equity remedies can challenge some labour market inequities and can provide a measure of redress for sex-based wage discrimination, they are not a solution to all of the problems of unequal wages, let alone all of the problems of discrimination against women in employment (see Judy Fudge and Patricia McDermott, eds., Just Wages: A Feminist Assessment of Pay Equity (Toronto: University of Toronto Press, 1991); Judy Fudge, ‘‘The Paradoxes of Pay Equity: Reflections on the Law and the Market in Canada and the PSAC’’ (2000) 12 Canadian Journal of Women and the Law 313-45; Ceta Ramkhalawansingh, ‘‘Employment Standards Legislation: A Primary Source of Women’s Employment Inequality’’ (1993) 2 Canadian Labour and Employment Law Journal 80-9; see also Pay Equity, Recommendations 6.9 and 6.10). The latter recommendations of the Federal Pay Equity Task Force recommend that pay equity legal obligations be expanded to apply to wage discrimination in relation to disability, visible minority status, and Aboriginal status.

44. The Supreme Court of Canada introduced its discussion of the legal issues in this case by stating: ‘‘Pay equity has been one of the most difficult and controversial workplace issues of our times’’ (NAPE SCC, at para. 30 [emphasis added]). The Court did not explain what it meant when it said that pay equity is a ‘‘difficult’’ and ‘‘controversial’’ issue. We believe that this statement reflects the fact that pay equity questions the legitimacy of compensation practices that produce relatively higher wages for men. Pay equity challenges the idea that compensation practices that systemically produce lower wages for women’s work are normal or natural. This challenge may be ‘‘difficult’’ and ‘‘controversial.’’ However, the effectiveness of equality rights would be significantly diminished if they did not require engaging with difficult and controversial issues.

45. Human and equality rights principles require us to examine social practices and systems from different perspectives and, in particular, from the perspective of groups who do not benefit equally from them. As Justice John Evans of the Federal Court wrote in Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 at paras. 117 and 151,

[T]he policy motivating the enactment of the principle of equal pay for work of equal value is the elimination from the workplace of sex-based wage discrimination. The kind of discrimination at issue here is systemic in 340 N.A.P.E. CJWL/RFD nature: that is, it is the result of the application over time of wage policies and practices that have tended either to ignore, or to undervalue work typically performed by women . . .

[T]he nature of systemic discrimination often makes it difficult to prove that the disadvantaged position in the workplace of many members of particular groups is based on the attributes associated with the groups to which they belong. This is because, as Dickson C.J. observed in Canadian National Railway Co., supra, at page 1139, systemic discrimination ‘‘results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination.’’ Accordingly, an employer’s wage policies and practices may be based on such deep-rooted social norms and assumptions about the value of the work performed by women that it would be extremely difficult to establish in a forensic setting that, if women were paid less than men performing work of equal value, that difference was based on sex.

46. As the Supreme Court of Canada held in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at para. 41, a substantive approach to discrimination calls for the transformation of systems and practices that have discriminatory impact:

Under the conventional analysis, if a standard is classified as being ‘‘neutral’’ at the threshold stage of the inquiry, its legitimacy is never questioned. The focus shifts to whether the individual claimant can be accommodated, and the formal standard itself always remains intact. The conventional analysis thus shifts attention away from the substantive norms underlying the standard, to how ‘‘different’’ individuals can fit into the ‘‘mainstream,’’ represented by the standard . . . Referring to the distinction that the conventional analysis draws between the accepted neutral standard and the duty to accommodate those who are adversely affected by it. Shelagh Day and Gwen Brodsky [‘‘The Duty to Accommodate: Who Will Benefit?’’ (1996) 75 Canadian Bar Review 433], supra, write:

The difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of   dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others . . .

As a formula, different treatment for ‘‘different’’ people is merely the flip side of like treatment for likes. Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed [at 462].

I agree with the thrust of these observations. Interpreting human rights legislation primarily in terms of formal equality undermines its promise of substantive equality and prevents consideration of the effects of systemic discrimination, as this Court acknowledged in Action Travail [Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114], supra at paras. 40-1).

A substantive approach to equality rights under section 15 of the Charter similarly calls for the transformation of discriminatory systems and practices.

(c) Section 15 of the Charter and the Effects of Section 9 of the PSRA

47. In the government’s own words, section 9 of the PSRA erased three years of pay equity adjustments owed to women workers in the public service. From the perspective of the affected workers, and as articulated by LEAF, section 9 imposed a ‘‘disproportionate burden’’ of the government’s deficit reduction measures on women workers, who were subjected both to a general wage freeze affecting all public sector employees and to a claw-back of their pay equity payments (NAPE SCC, LEAF factum, at para. 39).

48. By erasing the government’s pay equity obligations from 1988 to 1991, section 9 revoked the compensatory redress owed to women workers for work done during the three years prior to the restraint period. Section 9 also forced women workers to wait three more years to begin to achieve wages equal to men’s wages. The courts below framed section 9 as a temporary measure that only delayed or postponed the implementation of the pay equity agreement. In our opinion, these efforts at minimizing the effect of section 9 are misguided and incorrect.

49. Section 9 was not a temporary measure. The affected employees lost forever the pay equity adjustments they were owed on work done between 1 April 1988 and 1 April 1991. They also lost forever the cumulative benefits that would have flowed from receiving the four pay equity adjustments they were entitled to receive on 1 April 1991, only one of which was actually received. This erasure additionally affected older workers and workers with disabilities who began to receive pensions or income replacement benefits between 1 April 1988 and 1 April 1991, since these benefits were permanently calculated upon their discriminatory wages.

50. Section 9 did not simply delay the implementation of the pay equity agreement. It permanently extinguished a significant portion of the government’s legal obligations.

51. As argued by LEAF, when the government’s fiscal health is subsidized by sex-based wage discrimination within its own workforce, economic and social inequalities continue to be imposed on women (NAPE SCC, LEAF factum, at para. 32). These burdens impose material inequalities that infringe section 15 of the Charter. The message that accompanies these burdens is that the government can avoid its responsibility for women’s social and economic inequalities. This message also infringes section 15 of the Charter.

52. A government witness in the grievance arbitration proceeding, Gerald Maloney, testified that the initiative taken by the government in 1993 to further extend the pay equity implementation period was driven in part by the perceived inequity of some employees receiving more than others during a period of ongoing fiscal restraint. In his words,

[t]he net . . . effect of that . . . was to, rather than make the final pay equity adjustment in that fifth year of 1995, it was to spread out the pay equity process over another four or five year period and gradually build up to the achievement of full pay equity. But it was driven by, by those two primary considerations, one being the difficulty we had with absorbing a $12 million expenditure at one time, and the second, the inequity, I guess, that we felt it was creating by giving one group a fairly substantial pay raise when there was another group, or most of the rest of the public sector, who were not going to get anything (NAPE SCC, Appellant’s Record, vol. III, at 548-49 [emphasis added]).

Maloney also suggested that section 9 of the PSRA was motivated by a similar concern that it would not be fair to provide pay equity adjustments when employee compensation packages were frozen:

The state of affairs we were faced with when we renegotiated this in 1994 was not unlike the state of affairs we were facing in 1991 whereby again to implement pay equity in 1991 as agreed to would have required us to make a very substantial retroactive payment in addition to increasing our salary bill in that year and would again have had the effect of giving one group of workers very substantial increases and very substantial retroactive cheques during a period when we were looking at most of the public sector saying, you can’t have anything (NAPE SCC, Appellant’s Record, vol. III, at 549 [emphasis added]).

53. The suggestion that it would have been unfair to make pay equity adjustment payments in a context where employees were not receiving wage increases reflects a fundamental misunderstanding of the purpose of pay equity adjustments. Pay equity adjustments are not a wage increase. They are a monetary adjustment that is required to remove discrimination in wages. As the majority of the Arbitration Board observed, this was far from being a situation in which the pay equity adjustments could be treated as an ‘‘increase’’ that might create morale problems among other workers. On the contrary, eliminating the pay equity adjustments had a ‘‘double demoralizing effect’’ on the women workers who were subject to the across-the-board wage freeze as well as to the confiscation of their pay equity adjustment (NAPE SCC, Appellant’s Record, vol. I, at 104). When the government and the courts characterize a pay equity obligation as a pay ‘‘increase,’’ as though it were a discretionary matter rather than a human rights entitlement, they reinforce the idea that women’s equality is a ‘‘frivolous luxury that must give way to other government objectives’’ (NAPE SCC, LEAF factum, at para. 36). The message communicated is that wage equality for women is not affordable for society.

54. In the public sector context, the under-valuation of women’s work results in the costs of government being subsidized in part by women workers. It appears to us that the government and the courts perpetuated the very discrimination that pay equity legal remedies are designed to remedy when they sought to minimize the effect of section 9 of the PSRA. Treating the negotiated pay equity adjustments not as an entitlement but rather as government largesse undermines the transformative goal of pay equity, which is to recognize the true value of women’s work and compensate it accordingly.

55. Even though the courts below consistently held that section 9 of the PSRA infringed section 15(1) of the Charter, their reasons for this decision say very little about sex-based wage discrimination and about pay equity as a legal remedy for this discrimination. In our view, their approaches to section 15(1) can only be described as minimalist. This minimalism glossed over the challenges posed by pay equity and is reflected in the Supreme Court of Canada’s statement that pay equity is ‘‘difficult’’ and ‘‘controversial.’’  In our view, these unexamined challenges contributed to a flawed analysis of what the government did when it erased three years of its pay equity obligation to women workers and what other measures the government could and should have considered. We believe that the ease with which the lower courts accepted the government’s section 1 argument stems from the want of a full and substantive account of why reneging on its pay equity obligation violated section 15.

(2) The Law Framework and its Application in This Case

56. Canadian courts have never formally rejected the substantive approach to equality first articulated by the Supreme Court of Canada in Andrews, supra. However, they have increasingly disagreed about what a substantive approach to equality means in the context of addressing the concrete claims brought under section 15 of the Charter.

57. In Law, supra, the Supreme Court of Canada re-articulated the legal framework for a substantive equality analysis. This re-articulation built on both the Andrews principles as well as the Court’s subsequent jurisprudence (see, for example, Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; Miron v. Trudel, [1995] 2 S.C.R. 418; and Eldridge, supra).

58. The Law approach divided the two Andrews questions into three questions, which are: (1) is there a distinction in purpose or effect of the law; (2) is the distinction based on a prohibited or analogous ground of discrimination; and (3) is the distinction discriminatory in a ‘‘substantive’’ sense (at para. 39)? It then further divided the third question into what the Court called four contextual factors, which are: (1) is there historical or preexisting disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual claimant or group; (2) does the ground on which the claim is based correspond to the actual need, capacity, or circumstances of the claimant or others; (3) does the legislation have an ameliorative purpose or effect for a historically disadvantaged group; and (4) what is the nature and scope of the interest affected by the impugned law (at paras. 62-75)?

59. The Supreme Court of Canada emphasized that these four contextual factors were not intended to be comprehensive nor were they intended to be applied formulaically. However, as noted by LEAF, a number of commentators have expressed concerns that this is precisely what has happened in the jurisprudence since Law (NAPE SCC, LEAF factum, at paras. 20-4). Critics have suggested that the Law approach has become a mechanically applied checklist instead of a meaningful contextual guide and that it disaggregates and disconnects the contextual factors instead of showing how they are related. They have expressed concerns that the Law framework has the effect of reintroducing an abstract and rationalizing formalism into the equality analysis, instead of providing a meaningful guide to a substantive approach to equality (NAPE SCC, LEAF factum, supra; Fay Faraday, Margaret Denike, and M. Kate Stephenson, ‘‘Introduction: In Pursuit of Substantive Equality,’’ in Making Equality Rights Real, supra, at 9-26; Beverley Baines, ‘‘Law v. Canada: Formatting Equality’’ (2000) 11(3) Constitutional Forum 65; Sheilah Martin, ‘‘Balancing Individual Rights to Equality and Social Goals’’ (2001) 80 Canadian Bar Review 299; June Ross, ‘‘A Flawed Synthesis of the Law’’ (2000) 11(3) Constitutional Forum 74; Bruce Ryder et al., ‘‘What’s Law Good For? An Empirical Overview of Charter Equality Rights Decisions’’ (2004) 24 Supreme Court Law Review 103; and Sheila McIntyre and Sanda Rogers, eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, ON: LexisNexis, 2006)).

60. Commentators have also expressed concerns that the Law framework distorts or under-analyzes the role of dignity in equality rights analysis by separating dignity from the concrete harms and underlying values that mark substantive discrimination (see Martin, supra; Sophia R. Moreau, ‘‘The Wrongs of Unequal Treatment’’ (2004) 54 University of Toronto Law Journal 291; and Denise Reaume, ‘‘Discrimination and Dignity,’’ in Making Equality Rights Real, supra, 123). These concrete harms have been identified by the Supreme Court as the harms that flow from devaluation, stigmatization, political, and social prejudice, stereotyping, lacking political power, exclusion, marginalization, historical disadvantage, social, political, and legal disadvantage, vulnerability, oppression, and powerlessness (Law, at paras. 29, 34, 39, 42, 43, 44, 46, 47, 53, 63, and 64, as cited in NAPE SCC, LEAF factum, at para. 17).

61. In our view, dignity can be relevant to a substantive equality analysis as a social value that is undermined by the concrete, material harms of discrimination. It is the latter, however, that should be the focus of section 15. These material harms are seen in the social, political, legal, and economic inequalities that are produced by practices of subordination, devaluation, disenfranchisement, and disempowerment. These inequalities include the denial of equal inclusion and participation in society, the denial of equal recognition as citizens, the denial of equal enjoyment of social and economic resources, and the denial of equal autonomy as human beings (NAPE SCC, LEAF factum, at para. 23; Martin, supra; and Colleen Sheppard, ‘‘Inclusive Equality and New Forms of Social Governance’’ (2004) 24 Supreme Court Law Review 45 at 71-3).

62. By following the Law approach to conclude that section 9 of the PSRA infringed section 15, the Supreme Court of Canada’s analysis is characterized by a detachment and a mechanistic application of the contextual factors that demonstrate how the disaggregation of the factors can de-emphasize the harms of discrimination. This approach risks effacing the equality violation. In this case, the cursory and disconnected nature of the Supreme Court’s section 15 analysis failed to provide the Court with a properly contextualized examination of the harm to the women workers to incorporate within its section 1 analysis.

63. In applying the four factors, the Court held that: (1) there was preexisting disadvantage because there was a long and chronic history of women’s jobs being underpaid and that section 9 reinforced this disadvantage by taking away remedial benefits negotiated to address the under-valuation of women’s work; (2) delaying payment of the pay equity adjustments not only failed to correspond to the actual needs of the claimants but in fact undermined their needs; (3) section 9 did not have an ameliorative purpose in relation to the workforce but, indeed, had the opposite purpose; and (4) the interest affected was of great importance because of the importance of work in peoples’ lives (NAPE SCC, at paras. 41-51).

64. In principle, the purpose of the four contextual factors is to determine whether or not the differential treatment imposes substantive discrimination. By dividing the analysis into four distinct questions, however, the Supreme Court seems to be distracted from providing an answer to the central question. The answers to the four contextual factors do not appear to add up to a single answer to the question of substantive discrimination; they remain four discrete and disconnected answers. This disaggregated approach masks the seriousness of the harms of discrimination.

65. To conclude, section 9 of the PSRA produced substantive discrimination by perpetuating the material and symbolic devaluation of women’s work. It did so by imposing on women a disproportionate share of the government’s fiscal reduction measures. The effect of this action is to perpetuate stereotypes of women’s work as marginal and second class, to continue women’s economic and social disadvantage, and to deny women workers equal recognition and equal treatment. It is these concrete harms for which the government must account.

(3) International Law Principles

66. As noted earlier, international law also supports the conclusion that section 9 of the PSRA infringes section 15 of the Charter. International pay equity norms are binding, as the relevant treaties have been ratified by Canada, and it is presumed that Canadian legislators intend to act consistently with their international obligations. As such, international pay equity norms must be applied when considering whether section 9 of the PSRA violates section 15 of the Charter, unless these norms are inconsistent with Canadian law (see Gibran van Ert, Using International Law in Canadian Courts (The Hague: Kluwer Law International, 2002) at 271-2). In the context of this case, the question is whether international pay equity norms are consistent with substantive equality as protected under Canadian law. Given our conclusion that pay equity is consistent with women’s substantive equality and, indeed, remedies systemic wage inequality for women workers, this is an appropriate case in which to apply international norms to the interpretation of section 15 of the Charter in the context of the PSRA.

67. Several sources of international law provide for a right to pay equity for women. The International Covenant on Economic, Social and Cultural Rights provides in Article 7(a)(i) for ‘‘the right of everyone to the enjoyment of just and favourable conditions of work,’’ including ‘‘[f]air wages and equal remuneration for work of equal value without distinction of any kind, in particular women [are] guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work.’’

68. Article 11(1)(d) of the Convention on the Elimination of All Forms of Discrimination against Women, supra, guarantees women ‘‘the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work.’’

69. Similarly, Article 167(a) of the Beijing Declaration and Platform for Action, supra, requires that governments ‘‘enact and enforce legislation to guarantee the rights of women and men to equal pay for equal work or work of equal value’’ (see also Articles 168(1), 180(a), 180(h), 180(1), and 180(o)). The International Labour Organization has also recognized the principle of pay equity in the Equal Remuneration Convention, supra, and in its Declaration of Fundamental Principles and Rights at Work, 86th Sess. (June 1998).

70. International law also provides a right of equal pay for workers of colour and workers with disabilities. Article 5(e)(i) of the International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, 4 January 1969, requires states parties ‘‘to prohibit and to eliminate racial discrimination in all its forms’’ and to guarantee the right of racial equality in the enjoyment of economic, social, and cultural rights, including ‘‘the rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, [and] to just and favourable remuneration.’’ Canada ratified the International Convention on the Elimination of All Forms of Racial Discrimination on 15 November 1970. Article 27 of the draft Convention on the Rights of Persons with Disabilities, UN Doc. A/AC.265/2006/L.6 (2006), provides for ‘‘the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value.’’

71. Section 9 of the PSRA, which extinguished the government’s pay equity obligations in relation to workers covered by the pay equity agreement, must be viewed as contrary to these international pay equity norms. The effect of section 9 is that women’s right to be paid equally for work of equal value was erased, with material and symbolic harms for women. International law thus confirms that section 9 of the PSRA is contrary to the guarantee of substantive sex equality in section 15 of the Charter. To put this another way, an interpretation of section 15 that found otherwise would be inconsistent with international law.

(4) The Government’s Actions Must Be Demonstrably Justified

72. For all of these reasons, we conclude that the government infringed the substantive equality rights of its women workers by enacting section 9 of the PSRA, and is required to demonstrate that this infringement is a reasonable limit in a free and democratic society.

B. Section 1 of the Charter

(1) General Principles

73. In addressing the section 1 inquiry, it is critical to begin with the language of the provision itself: ‘‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’’ Although criteria have been developed to assist courts in conducting this inquiry, as we will discuss later in this decision, the Supreme Court of Canada confirmed in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, that the applicable test for section 1 is dictated by the language of the section itself (at para. 62 (per Justice Gerard La Forest, dissenting on other grounds) and at para.126 (per Justice Beverley McLachlin (as she then was)).

74. While the courts have come to treat section 1 as a ‘‘defence’’ for government infringements of Charter rights and freedoms, we must remember that section 1 is designed to protect such rights and freedoms by permitting only those violations that can be demonstrably justified as reasonable limits in a free and democratic society. As noted by Chief Justice Brian Dickson in R. v. Oakes, [1986] 1 S.C.R. 103 at 135-6:

It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured. Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms—rights and freedoms which are part of the supreme law of Canada.  As Wilson J. stated in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at p. 218: ‘‘. . . it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.’’

75. This section of the judgment will outline the general principles that govern inquiries under section 1 of the Charter. These principles include substantive democracy, government burden, and context, each of which will be considered in turn. Following the discussion of general principles, we will outline the framework and factors to be used for the section 1 analysis and apply these criteria to the facts of this case.

(a) Substantive Democracy

76. ‘‘Substantive democracy’’ is a term coined by LEAF in its intervenor factum before the Supreme Court of Canada in NAPE (at para. 43), but it must be recognized that the term describes ideas that have long been supported in constitutional jurisprudence. As noted by the Supreme Court of Canada in Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, ‘‘[d]emocracy is commonly understood as being a political system of majority rule’’ (at para. 63). However, the Court cautioned that ‘‘[i]t is essential to be clear what this means’’ (ibid.) The Court observed that there has been an evolutionary process of moving towards universal suffrage and that this goal is not yet fully achieved. In this sense, ‘‘democracy is fundamentally connected to substantive goals’’ (at para. 64).

77. Just as section 15 of the Charter guarantees substantive equality, section 1 guarantees a substantive approach to the interpretation of ‘‘a free and democratic society.’’ Substantive democracy recognizes that the rights and freedoms guaranteed by the Charter both reflect and inform the values and goals of Canadian society and, thus, must inform the meaning of ‘‘free and democratic’’ in section 1. This was clearly stated by Dickson C.J. in Oakes, supra, at 136:

A second contextual element of interpretation of s. 1 is provided by the words ‘‘free and democratic society.’’ Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified [emphasis added].

78. Substantive democracy supports governance and decision making that fosters the collective good and, as argued by LEAF, ‘‘aspires to norms that value and promote diversity, inclusion, and belonging’’ (NAPE SCC, LEAF factum, at para. 44). This conceptualization of democracy finds support in Supreme Court of Canada case law. In Vriend v. Alberta, [1998] 1 S.C.R. 493 at paras. 140-2, Justice Frank Iacobucci stated as follows:

Although a court’s invalidation of legislation usually involves negating the will of the majority, we must remember that the concept of democracy is broader than the notion of majority rule, fundamental as that may be . . .

[W]hen a court interprets legislation alleged to be a reasonable limitation in a free and democratic society as stated in s. 1 of the Charter, the court must inevitably delineate some of the attributes of a democratic society. Although it is not necessary to articulate the complete list of democratic attributes in these remarks, Dickson C.J.’s comments [in Oakes] remain instructive . . .

Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate. As others have so forcefully stated, judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision was not reached in accordance with the democratic principles mandated by the Charter.

79. Similarly, in R. v. Mills, [1999] 3 S.C.R. 668 at para. 58, Justices McLachlin and Iacobucci noted that ‘‘constitutionalism can facilitate democracy rather than undermine it, and . . . one way in which it does this is by ensuring that fundamental human rights and individual freedoms are given due regard and protection.’’ In Sauve v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, McLachlin C.J. stated that ‘‘Charter rights are not a matter of privilege or merit, but a function of membership in the Canadian polity that cannot lightly be set aside’’ (at para. 14).

80. In our view, the relationship between rights and democracy should not be viewed as conflictual. In ‘‘Reconceiving Rights as Relationship’’ (1993) 1 Review of Constitutional Studies 1, Jennifer Nedelsky points out that the rights and freedoms we protect in a constitution represent fundamental values of our society: ‘‘When we choose to constitutionalize a value, to treat it as a constitutional right, we are in effect saying both that there is a deeply shared consensus about the importance of that value and that we think that value is at risk’’ (at 20). According to Nedelsky, we must abandon the ‘‘rights vs. democracy’’ debate and recognize that

[r]ights are as much collective choices as laws passed by the legislature. And if rights no longer look so distinct from democratic outcomes, democracy also blurs into rights, for of course, democracy is not merely a matter of collective choice, but the expression of ‘‘rights’’ to an equal voice in the determination of those collective choices (at 5).

Looked at from this perspective, rights are not only individual entitlements but are also in keeping with collective goals. Rights are one of the vehicles through which individuals, minorities, and majorities collectively shape democratic processes and goals (see also Martha Jackman, ‘‘Protecting Rights and Promoting Democracy: Judicial Review under Section 1 of the Charter’’ (1997) 34 Osgoode Hall Law Journal 661).

81. A substantive approach to democracy thus recognizes that there are complex relationships between majorities, minorities, and individuals. Further, as the Supreme Court of Canada observed in Reference re: Secession of Quebec, supra, at paras. 59 and 66, it is not always simple or straightforward to identify who the majority is. For example, the shared view of a minority group can be regarded as the majority view in relation to this particular group. A substantive approach to democracy seeks to integrate majoritarian wishes, minority interests, and individual aspirations. It balances collective and individual rights and freedoms and considers them in relation to one another.

82. On the one hand, then, democracy under the Canadian Constitution is broader than a ‘‘majority rules’’ approach. At the same time, this does not mean that individual goals will always trump collective ones.  The notion of a conflict between individual rights and democracy is particularly inappropriate in this case. The women represented by NAPE are seeking to be paid equally for the work they perform in delivering health care and social services, contributing to the public good. It is contrary to a substantive understanding of democracy to characterize their entitlement to equal pay for this work as contrary to social goals. As we discuss later in this decision, however, this is the effect of the Supreme Court of Canada’s decision in this case.

84. This case, like Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, provides the Women’s Court of Canada with an opportunity to consider the relationship between substantive democracy and the distribution of resources in society [Gosselin v. Quebec, [2007] 1 W.C.R. 193]. Access to resources affects how citizens participate in society and how citizens are included in society. In our view, substantive democracy requires that government-spending decisions that have discriminatory impact be subject to scrutiny under the Charter. Subjecting spending decisions to Charter scrutiny does not mean that the courts are usurping the government’s role and directing how resources will be allocated. Rather, it means that governments must be required to demonstrate that discriminatory spending decisions are necessary to accomplish their goals.

(b) Government Burden

85. The burden upon governments to justify limitations upon Charter rights has been discussed by the Supreme Court of Canada in a number of cases. Beginning with Oakes, supra, at 136, the Court noted that section 1 imposes ‘‘a stringent standard of justification, especially when understood in terms of the two contextual considerations named above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society.’’ While the standard of proof is the balance of probabilities, this standard is to be applied ‘‘rigorously’’ (Oakes, at 137; see also Sauve, supra, at para. 7 (per McLachlin C.J., for the majority)). As noted by McLachlin, J., writing for a majority of the Supreme Court of Canada in RJR-MacDonald, supra, at paras. 128-9:

[T]he state must show that the violative law is ‘‘demonstrably justified.’’ The choice of the word ‘‘demonstrably’’ is critical. The process is not one of mere intuition, nor is it one of deference to Parliament’s choice. It is a process of demonstration. This reinforces the notion inherent in the word ‘‘reasonable’’ of rational inference from evidence or established truths.

The bottom line is this. While remaining sensitive to the social and political context of the impugned law and Vol. 18 2006 353 allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning. The task is not easily discharged, and may require the courts to confront the tide of popular public opinion. But that has always been the price of maintaining constitutional rights. No matter how important Parliament’s goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail [emphasis in original].

86. Similar to section 7 of the Charter, the government’s burden of proof is especially onerous in the context of a section 15 infringement. This is because section 15, like section 7, includes an internal qualification on the scope of the right. As we discuss earlier, not all cases of differential treatment will be found to violate the equality guarantee—there must be discrimination in the sense that substantive equality principles have been infringed. We must take care not to let the internal qualification in section 15 reduce the right to ashes, as noted by Sheila McIntyre in ‘‘Deference and Dominance: Equality without Substance,’’ in Diminishing Returns, supra, at 95. However, the fact that the right is internally tailored must mean that once an infringement of section 15 is found, the government’s room to justify it under section 1 is more limited, as with section 7 violations (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at para. 85). Differences in detail in the operation and interpretation of the two sections will have to be dealt with as the case law develops, but the similarity in structure between the two rights is clear. We have taken the trouble earlier to lay out the importance of pay equity and to spell out the discriminatory assumptions underlying the PSRA in order to make plain that we have here no mere technical rights violation.

87. The Supreme Court of Canada has acknowledged that equality rights violations will rarely survive section 1 scrutiny. As stated by McLachlin C.J. and Justice Claire L’Heureux-Dube in Lavoie v. Canada, [2002] 1 S.C.R. 769 at para. 6 (in dissent but not on this point):

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 v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 98 (per L’Heureux- Dube´ J.) [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 at para. 95 (per L’Heureux-Dube´ J.) (citing Andrews, supra, at 154 (per Wilson J.)).

(See also Sheilah Martin, ‘‘Balancing Individual Rights to Equality and Social Goals,’’ supra, at 352-68; and NAPE SCC, LEAF factum, at para. 49.)

88. We agree with these principles. Returning to the values underlying a free and democratic society, it is difficult to see how ‘‘the inherent dignity of the human person’’ and a ‘‘commitment to social justice and equality’’ can be promoted by violations of the substantive equality guarantee.

89. A related issue is the question of deference to decisions of legislatures. The Supreme Court of Canada has held that courts should show deference to governments in situations where the government is acting to protect the interests of vulnerable groups or is ‘‘mediating’’ between claims of competing rights rather than acting as a ‘‘singular antagonist’’ towards an individual or group (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 993-4). A ‘‘competing rights’’ scenario has typically arisen in cases involving a limit on fundamental freedoms. In these cases, the limit is imposed because the exercise of the freedoms has a negative impact on the protected interests of other members of society. In the case of freedom of expression, for example, infringements have been justified where it is found that unlimited expression would have harmful effects that implicate other Charter rights and values, such as equality (see, for example, R. v. Butler, [1992] 1 S.C.R. 452; R. v. Keegstra, [1995] 2 S.C.R. 381; and R. v. Sharpe, [2001] 1 S.C.R. 45).

90. We prefer to approach the question of deference in a substantive, rather than a categorical, way by examining the substance of the justification advanced by a government for its decision to violate a Charter right. At some level, all government decisions involve mediating among competing claims. Where a government’s justification is linked to protecting the interests of vulnerable groups, this is a consideration that should receive careful attention by the court. However, as we discuss further later in this decision, governments must do more than simply assert that an infringing measure is justified in order to protect the interests of a vulnerable group—they must demonstrate that this is so.

91. It could be argued that, particularly in relation to spending decisions, governments must balance the claims of competing groups and should be shown deference on this basis. The courts have taken such an approach in this case to date. There are two responses to this argument. First, courts must be careful to distinguish between the constitutionally protected claims of equality-seeking groups to government resources and the claims of relatively privileged individuals and groups that are not based upon constitutional rights. In the scenario before us in this case, as we will elaborate upon later in this decision, there is no competition between ‘‘rights,’’ and thus there should be no deference to government choices that infringe equality. However, there may be cases where the government is truly seeking to balance the claims of different equality-seeking groups. Our second point is that too much emphasis on a ‘‘competing rights’’ paradigm in this context may create or perpetuate a hierarchy between disadvantaged groups. In our view, courts should be extremely hesitant to allow governments to seek to justify an infringement of section 15 by pitting equality claimants against each other.

92. In any event, we agree with McLachlin J. in RJR-MacDonald, supra, at para. 136, that

care must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable.

(c) Contextual Inquiry

93. The importance of context to the section 1 inquiry has also been discussed by the Supreme Court of Canada in a number of cases (see, for example, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; and Sharpe, supra). We agree that just as it is critical to the determination of rights violations, context matters under section 1. The seriousness of the violation, the nature of the activity infringed, and the social location of the group(s) the government may have been seeking to protect are relevant contextual factors in the circumstances of this case, and we will discuss the importance of these factors. At the same time, we are mindful of the caution expressed by McLachlin J. in RJR-MacDonald, at para. 134, where she said:

[N]othing in the jurisprudence suggests that the contextual approach reduces the obligation on the state to meet the burden of demonstrating that the limitation on rights imposed by the law is reasonable and justified. Context is essential in determining legislative objective and proportionality, but it cannot be carried to the extreme of treating the challenged law as a unique socio-economic phenomenon, of which Parliament is deemed the best judge. This would be to undercut the obligation on Parliament to justify limitations which it places on Charter rights and would be to substitute ad hoc judicial discretion for the reasoned demonstration contemplated by the Charter.

(d) Oakes Factors

94. The Oakes case, supra, established the factors that courts should review in determining whether the government has met its justificatory burden under section 1 of the Charter, supra. While subsequent cases have shown that there is some danger that these factors will be applied mechanically and without regard to the ‘‘bottom line’’ noted by McLachlin J. in RJR-MacDonald, at para. 129, we believe that the factors remain a useful basis for analyzing government claims of justification under section 1.

95. As first stated in Oakes, the government must establish two things to meet its burden under section 1: the objective of the law must be ‘‘pressing and substantial’’ and ‘‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’’ (R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295 at 352, cited in Oakes, supra, at 138) and the means chosen to implement the objective must be reasonable and demonstrably justified in the sense that (1) the means are rationally connected to the objective; (2) the means impair the right or freedom in question as little as reasonably possible; and (3) there is proportionality between the means and the objective and between the deleterious and salutary effects of the means (see also Dagenais v. C.B.C., [1994] 3 S.C.R. 835). The government is required to provide cogent and persuasive evidence at each stage of the inquiry. We will now turn to an application of these factors to the circumstances of this case, keeping in mind the overarching principles of substantive democracy, government burden, and context.

(2) Application of Principles to the PSRA

96. Applying the Oakes factors to the circumstances of this case, we find that the government has failed to meet its burden in numerous ways: there is no pressing and substantial objective; the means of achieving the government’s objective does not impair the equality rights of women workers as little as reasonably possible; and there is no proportionality between the means and the objective nor between the salutary and deleterious effects of the measures. We will elaborate on each point in turn and elucidate how the Supreme Court of Canada erred in reaching the conclusions that it did on these matters.

97. It bears repeating at the outset of this discussion that the measure the government is required to justify is a measure that took away all pay equity adjustments owed for a three-year period. We reject the argument put forward by the government and accepted by the Supreme Court of Canada that the government did not completely eliminate pay equity but only reduced or delayed the scope of its obligation. As noted, the fatal flaw in this logic is that the government did completely eradicate its obligation as it applied to the April 1988 to April 1991 period. Indeed, the government publicly acknowledges that this is what it did when it says that it ‘‘erased’’ its pay equity obligation for that period. This was a serious violation of women’s equality rights with detrimental effects that were both material and symbolic. This is the context that grounds our analysis of whether the government has met its section 1 burden.

(a) Pressing and Substantial Objective: Financial Considerations, Fiscal ‘‘Emergency,’’ and the Government’s Evidentiary Burden

98. In this case, the government relied on the fact that it was facing a fiscal crisis as the objective behind the PSRA, including the Act’s erasure of three years of pay equity obligations to the women workers represented by NAPE. The president of the Treasury Board, who is designated the government’s chief collective agreement negotiator by the Public Service Collective Bargaining Act, R.S.N.L. 1990, c. P-42, introduced the bill in the legislature. He told the legislature that the government was facing a deficit of $120 million for 1991 and projected a deficit of $200 million for 1992. He said that cost reduction measures were necessary because the government had reached the maximum limits on its borrowing and taxing capacities.

99. Through its spokesperson, the government told the legislature that the only cost-reduction alternative to erasing its pay equity obligation would have been to lay off another 900 employees in addition to the 1,300 full-time employees who had already been laid off. The decisions facing the government were described as ‘‘difficult’’ or ‘‘hard’’ choices:

So what we have done is we have made a decision and the choice was very clear to us: pay the $24 million retroactively or lay off another 900 people. And that is the way we look at it. 900 to 1,000 people would take up the $24 million. And the choice—it is that kind of a choice. Both are hard choices, obviously. And as Government we had to make a choice and we have made the choice (NAPE SCC, Exhibit DC-8, House of Assembly Proceedings, 19 March 1991, Appellant’s Record, vol. IV, at 645).

100. Does this amount to a pressing and substantial objective? In our view, this question must be answered in the negative for two reasons. First, fiscal considerations should never suffice as a pressing and substantial basis for overriding equality rights. Second, the government did not meet its evidentiary burden in proving that a fiscal crisis existed in any event.

(i) Financial considerations as a pressing and substantial objective

101. Previous case law of the Supreme Court of Canada has established the principle that financial considerations alone can never amount to an objective ‘‘of sufficient importance to warrant overriding a constitutionally protected right or freedom.’’ Stated another way, ‘‘a measure whose sole purpose is financial, and which infringes Charter rights, can never be justified under s. 1’’ (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at para. 284, citing Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; and Schacter v. Canada, [1992] 2 S.C.R. 679; see also Gosselin, supra, at para 391 (per Arbour J. in dissent) and para. 283 (per Justice Michel Bastarache in dissent); and Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at para. 109).

102. The Women’s Court of Canada agrees that government objectives based upon purely financial considerations cannot amount to a pressing and substantial reason for violating Charter rights. Saving money alone cannot be a pressing and substantial objective for Charter purposes, as governments do not save money for the sake of saving money. If a government seeks to avoid certain expenditures, this must be because there are other expenditures that the government considers it more important to make. In our view, it would be dangerous to allow governments to invoke vague notions of ‘‘cost savings’’ without requiring them to articulate the underlying reason for avoiding an expenditure and to prove the importance of this reason in light of Charter principles. To do otherwise would be to negate the burden upon the government and do an injustice to protected Charter rights.

103. We find that the Supreme Court of Canada erred in this case by failing to adhere to the principle that cost-savings cannot amount to a pressing and substantial objective. The government’s stated objective—reducing its deficit— is the kind of vague cost-saving rationale that begs the question of what other expenditures the government believed it was more important to make (or what other cuts it thought it was more important to avoid). While the Court attempted to distinguish its previous cases on the basis that this principle only applies where the government is facing ‘‘normal’’ financial circumstances, we do not find this reasoning persuasive. As we will demonstrate later in this decision, the government’s public accounts show that deficits, including very high deficits, are very much the norm in its economy.

104. We appreciate that governments are called upon to deal with financial pressures and that financial circumstances can change. We also acknowledge that the Supreme Court of Canada tried to create a narrow exception for circumstances in which budgetary considerations can be a substantial and pressing concern by drawing the line at financial ‘‘emergencies.’’ In our view, however, this line-drawing exercise must be subjected to closer scrutiny. ‘‘Emergency’’ is normally a label we reserve for unexpected and uncontrollable events such as natural disasters or outbreaks of contagious diseases. Such events may give rise to unexpected government expenditures and a resulting fiscal crisis, but it is inappropriate to label every fiscal shortfall as an ‘‘emergency.’’ Short of an actual disaster of the type noted earlier, financial shortfalls are, as described by LEAF, situations ‘‘produced by governments, through complex webs of decisions about how to raise money and how to spend money’’ (NAPE SCC, LEAF factum, at para. 62).

105. We also accept LEAF’s argument that ‘‘[a] substantive approach to democracy challenges the very norms and assumptions informing government decisions about how to raise and spend revenues,’’ and how to deal with deficits (NAPE SCC, LEAF factum, at para. 62). Further, substantive democracy mitigates against creating a new category of cases where the courts must show deference to government-spending decisions. To return to the RJR-MacDonald case, supra, at para. 136, ‘‘[t]o carry judicial deference to the point of accepting Parliament’s view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and nation is founded.’’ See also Sheila McIntyre, supra at note 48, who argues that the Supreme Court of Canada’s decision in NAPE may have ‘‘opened the door to deference whenever government cost-cutting reallocates social benefits among disadvantaged groups or ‘important stakeholders.’’’

106. We must also keep in mind the need to undertake section 1 analysis in context. The difficulties of accepting a cost-reduction objective in the context of an equality rights violation were noted by Justice Rosalie Abella, writing for the Ontario Court of Appeal in Rosenberg v. Canada (Attorney General) (1998), 38 O.R. (3d) 577 (C.A.) at para. 42:

Cost/benefit analyses are not readily applicable to equality violations because of the inherent incomparability of the monetary impacts involved. Remedying discrimination will always appear to be more fiscally burdensome than beneficial on a balance sheet. On one side of the budgetary ledger will be the calculable cost required to rectify the discriminatory measure; on the other side, it will likely be found that the cost to the public of discriminating is not as concretely measurable. The considerable but incalculable benefits of eliminating discrimination are therefore not visible in the equation, making the analysis an unreliable source of policy decision-making.

107. As the instant case illustrates, governments engaged in a deficit reduction calculus often ignore the fact that equality promoting measures such as pay equity result in benefits to the social good as well as costs. This highlights the danger in accepting cost reduction objectives as pressing and substantial bases for overriding equality rights. In addition to being discriminatory and inconsistent with substantive democracy, the overall cost-saving potential of such objectives, if any, is simply impossible to verify.

(ii) Government’s evidentiary burden

108. Second, even if fiscal considerations might in emergency situations provide pressing and substantial grounds for overriding equality rights, the government did not demonstrate that a fiscal crisis existed in this case. As noted by McLachlin J. in RJR-MacDonald, at para. 128, demonstration requires ‘‘rational inference from evidence or established truths’’ rather than intuition or deference. While common sense and inferential reasoning may be deployed, these techniques are to supplement rather than replace the evidence. Further, ‘‘one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s. 1’’ (Sauve, supra, at para. 18 (per McLachlin J.)).

109. The only evidence produced by the government of the objective behind section 9 of the PSRA was ‘‘an extract from Hansard and some budget documents’’ (NAPE SCC, at para. 55). The Supreme Court of Canada described this evidence as ‘‘casually introduced,’’ and agreed with the Arbitration Board that the government should have called witnesses better placed to explain these records. While the Court noted that this would ‘‘ordinarily . . . be a matter of serious concern’’ it went on to accept this evidence as sufficient because ‘‘the essential subject matter of the s. 1 justification in this case consists of the public accounts of the Province that are filed with the House of Assembly, and comments by the Minister of Finance and the President of the Treasury Board as to what they thought the accounts disclosed and what they proposed to do about it, which are reported in Hansard’’ (at para. 56). The Supreme Court of Canada found that it could take judicial notice of this material.

110. More significantly, the Supreme Court expressed the view that the government’s failure to call evidence in the context of the subject matter of this case was not ‘‘fatal’’ because ‘‘[t]here are serious limits to how far the courts can penetrate Cabinet privilege in order to require information about the deliberations of the Executive Council’’ (NAPE SCC, at para. 58).

111. In our view, the government’s section 1 record was fatal to its position. We believe the government is required to do more than introduce statements made in the legislature and public accounts to demonstrate that there was a fiscal crisis. As noted earlier, emergencies are typically unexpected and uncontrollable events, and the applicability of this label should be proven by evidence rather than asserted. Any other approach amounts to a disguised form of deference.

112. Even if we accept the Supreme Court of Canada’s conclusion that judicial notice can be taken of public accounts, the accounts themselves belie the government’s argument that there was a fiscal emergency and contradict the Court’s statement that this was an ‘‘exceedingly rare case’’ of a ‘‘severe fiscal crisis’’ (NAPE SCC, at para. 52; see also para. 85). The government’s own figures, to which our attention was drawn on this application for re-consideration, show that there was not a fiscal emergency facing Newfoundland and Labrador in 1991. Rather, this was a period in which the deficit was relatively ‘‘normal.’’ The federal government publishes budget information for all of the provinces. According to the public accounts of Newfoundland and Labrador (for the 2003-4 budget, Table 17, <http://www.fin.gc.ca/frt/2004/frt_e.pdf> accessed 2 July 2007), Newfoundland and Labrador’s deficit or surplus positions for the years 1982–3 to 2003–4 were as follows:

1982–3  -$191 million       1993–4  -$341 million

1983–4  -$326 million      1994–5  -$374 million

1984–5  -$252 million      1995–6  -$190 million

1985–6  -$253 million      1996–7  -$107 million

1986–7  -$231 million      1997–8  +$133 million

1987–8  -$197 million      1998–9  -$187 million

1988–9  -$226 million      1999–2000  -$269 million

1989–90  -$175 million   2000–1   -$350 million

1990–1  -$347 million      2001–2  -$468 million

1991–2  -$276 million      2002–3  -$691 million

1992–3  -$261 million      2003–4 -$959 million

These figures show that while the deficit for the restraint period at issue in this case was actually higher than predicted by the government, Newfoundland and Labrador has regularly faced substantial deficits over this twenty-year period.

113. One of the principles underlying the substantive commitment to a free and democratic society is ‘‘faith in social and political institutions which enhance the participation of individuals and groups in society’’ (Oakes, supra, at 136). The faith of citizens in the institutions of government is not a given and should not be taken for granted. Governments must be prepared to subject their conduct to scrutiny to ensure that the faith of its citizens is deserved. In our view, requiring governments to expose their factual claims to scrutiny, as required by section 1, can strengthen substantive democracy. Conversely, to defer too greatly to an unproven claim of fiscal emergency would undermine government accountability and weaken democracy in a substantive sense. To return to the Supreme Court of Canada’s words in Vriend, supra, at para. 142, the Charter requires that legislators and the executive incorporate the values in a free and democratic society into their decision making, ‘‘and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate.’’

114. Overall, we conclude that the government failed to meet its justificatory burden with respect to the objective behind the erasure of women’s pay equity entitlements in this case. The government did not prove the existence of a fiscal crisis, so the evidentiary basis of its argument was lacking. Further, even if the government’s deficit was out of the ordinary, it is inappropriate to term this an ‘‘emergency’’ that was somehow out of the government’s control. The purported objective—cost savings—is overly vague and did not promote the values essential to a free and democratic society, namely equality, dignity, and social inclusion. Indeed, such an objective cannot, without more, justify a violation of equality rights in a free and democratic society.

115. We have considered whether the government can be said to have put forward a more specific cost-related objective for violating its pay equity obligations and women’s equality rights. The only evidence that might support such an argument was that of avoiding the layoffs of 900 government workers. Before the Supreme Court of Canada, the government suggested that its ability to provide ‘‘appropriate education, health care, [and] social programmes’’ was challenged by its deficit (see NAPE SCC, respondent’s factum, at para. 56). However, there was no evidence to support this as the objective behind section 9 of the PSRA, and we decline to attribute this objective to the government. It is crucial, in our view, to avoid undertaking section 1 analysis that is inadequately grounded in evidence. The Supreme Court of Canada itself has cautioned against abstract Charter analysis in several cases (see, for example, Schacter,  (per Justice Gerard La Forest concurring); and Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342).

116. As for the avoidance of lay-offs, the government did not frame this as the objective of section 9 of the PSRA. Rather, lay-offs were seen as an alternative way of achieving the objective of reducing the government’s deficit (an alternative to be avoided). While this may seem like a matter of semantics, we decline to re-frame the government’s argument about alternatives as the objective behind its decision to erase women’s pay equity entitlements. Again, this is an issue of government accountability, and it is not for the courts to make the government’s submissions for it.

117. The lack of a pressing and substantial objective is sufficient to dispose of this case in favour of NAPE. Nevertheless, we believe it is important to respond to the submissions of the parties and to the findings of the Supreme Court of Canada on the proportionality stage of the Oakes analysis. We will do so in the next section of our judgment, assuming for the sake of argument that the government’s deficit reduction objective is a pressing and substantial basis for overriding women’s equality rights.

(b) Proportionality between Means and Objective

118. Even if the government’s deficit reduction objective was demonstrated to be pressing and substantial, it must still prove that its means of pursuing this objective—that is, its erasure of its pay equity obligations—was proportionate to the importance of the objective. There was no dispute that the erasure of women’s pay equity was rationally connected to the government’s cost reduction objective. However, we find that the government did not meet its burden of proving that the means used to achieve its objective impaired women’s equality rights as little as reasonably possible, nor did it prove that any salutary effects of the PSRA outweighed its deleterious impact. Further, international norms support the conclusion that the PSRA cannot be supported under section 1 of the Charter.

(i) Minimal impairment

119. The minimal impairment factor requires that the government provide evidence as to the alternatives it considered and the reasons why it rejected those alternatives. As stated by McLachlin J. in RJR-MacDonald, supra at para. 160, the law must fall within a range of reasonable alternatives, and the government must show that the law was ‘‘carefully tailored’’ to impair Charter rights no more than necessary. However, ‘‘if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.’’

120. We cannot support the Supreme Court of Canada’s conclusion (NAPE SCC, at para. 90) that the Hansard record provides persuasive evidence that the government was required to balance competing disadvantages and that it considered alternative measures, namely hiring freezes, tax increases, and program cuts. As we discussed earlier, it is not sufficient for the government to rely on bald assertions made in the legislature as evidence that reasonable alternatives were considered. There must be evidence that demonstrates the level of consideration given to different alternatives and why the alternatives were rejected in favour of measures erasing pay equity for women workers.

121. In particular, we must emphasize that there is no evidence to support the government’s argument that it weighed its pay equity obligations against its need to provide services such as health care, education, and social assistance. According to the testimony of the president of the Treasury Board, lay-offs were the only concrete option the government weighed against its pay equity obligations. Even with respect to this alternative, the Arbitration Board found that ‘‘it [was] not really clear that government seriously considered layoffs as an option,’’ rather lay-offs were mentioned as an ‘‘example [of] what would have been the equivalent cost of the pay equity adjustments involved in terms of jobs’’ (NAPE SCC, Appellant’s Record, vol. I at 102).

122. We find that the government did not meet its section 1 burden of demonstrably justifying its choice to erase women’s pay equity as a necessary means of reducing the deficit. The government asserted, rather than proved, the reasonableness of its decision to erase pay equity by invoking the spectre of layoffs. Further, the government’s consideration of, at best, only one alternative means of cutting costs falls far short of its obligation to demonstrate that the law falls within a range of reasonable alternatives. As noted by McLachlin J. in RJR-MacDonald, supra, at para. 129, ‘‘if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail.’’

123. There are other significantly less intrusive yet reasonable measures that were not addressed by the government. For example, the government could have implemented across-the-board wage cuts, using the pay equityadjusted wage levels for the affected workers as the benchmark against which cuts were made. This option would have affirmed that pay equity is not a wage increase but rather a remedy for wage discrimination that simply brings women up to the pay level that equality principles require (but which may have to be cut equally with men’s wages once brought to this level). Moreover, this alternative would have affected men’s wages as well as women’s and would have made more proportionate the burden of the government’s deficit reduction. Instead, the government chose means that were discriminatory and that required women workers to subsidize the deficit reduction in a disproportionate way.

124. Even if an immediate crisis precluded payment of the pay equity adjustments on time, which was not proven, there was no need to infringe equality rights so drastically by extinguishing part of the obligation. Patricia Hughes has pointed out that the government could have paid off the full pay equity debt over a longer period of time or postponed payment until its finances were in a stronger position (see ‘‘Newfoundland (Treasury Board) v. N.A.P.E.: Women as Sacrificial Lambs’’ (2005) 11 Canadian Labour and Employment Law Journal 383 at 395). These sorts of measures were in fact implemented in relation to the government’s remaining pay equity obligations, which were renegotiated with NAPE.

125. According to the Supreme Court of Canada decision in this case, governments must have a ‘‘margin of appreciation’’ to make decisions about the allocation of their resources (NAPE SCC, at para. 84). The Court found that several factors weighed in favour of giving a large measure of deference to the government, including the scope of the government’s financial challenge, the cost of remedying the discrimination, the government’s affirmation of its pay equity obligations, and the government’s mediation of competing claims for its resources. The validity of each of these factors will be considered in turn.

126. We have already noted that the financial challenge that led to the PSRA must be assessed in the context of the government’s deficits before and after 1991. In this light, the challenge was not ‘‘drastic,’’ as the Supreme Court of Canada found (NAPE SCC, at para. 86), but a relatively normal financial situation for Newfoundland and Labrador.

127. Further, and as acknowledged by the Supreme Court of Canada, the cost of implementing women’s pay equity is actually a measure of the scale of discrimination against the women workers in this case. It would be inconsistent with the values underlying a free and democratic society to rely on the size of the discrimination as a justification for the failure to remedy it and the failure to consider alternative ways of reducing the deficit. The fact that the PSRA affirmed the government’s commitment to pay equity and allocated $3.5 million to this obligation in 1991 is small comfort in these circumstances.

128. The Supreme Court of Canada’s focus on the government’s mediation between competing claims is also problematic, in our view. In the Court’s words, ‘‘[t]he women hospital workers were a disadvantaged group, but so in reality were the medical patients who lost access to 360 hospital beds, students of school boards whose transfers were frozen, and those who relied on other government programs that were reduced or eliminated (although it is true that in their case Charter rights were not implicated)’’ (NAPE SCC, at para. 93).

129. As noted earlier, there was no evidence that the government considered further cuts to health care, education, and other programs to reduce its deficit—there was simply an assertion that these programs were at risk. Even if the government had proved that it considered these alternatives, substantive democracy principles require caution when the government’s justification essentially pits one disadvantaged group against another. Government policy making may sometimes be faced with such an unhappy choice, and, when that is the true state of affairs, the dilemma must be faced. However, we must not be too quick to assume that all policy making is directed to addressing social disadvantages. Government norms, standards, and decisions function in a myriad of ways to create, reinforce, and support groups already advantaged in society as well as to address disadvantage. If upholding equality rights requires reallocation of resources, it should not be automatically assumed that resources will have to be taken away from other equally or more vulnerable groups.

130. The government’s argument presupposes that norms, practices, standards, and systems that operate to the benefit of advantaged groups in society can easily trump Charter rights. In our view, substantive democracy requires governments to consider different approaches to distribution and redistribution, to explain what different approaches they have considered, and to explain why they have rejected them. It is this demonstrative process that is subject to judicial and public scrutiny. And, it is this process that must be assessed in terms of its concordance with the values underlying a free and democratic society under section 1 of the Charter.

131. The government has taken the position throughout that this case involved hard choices. In our view, however, it is critical to review government choices through the lens of equality. Despite the rhetoric of ‘‘hard choices,’’ we suspect that the choice to erase its pay equity obligations was not a ‘‘hard’’ one for the government. Quite the contrary, it was a politically easy and expedient choice because it traded on women’s second-class status. It is always easier for a government to target the relatively disadvantaged since they are already marginalized in the political arena. Indeed, what could better illustrate this point than the government’s own words—its pay equity obligation, and the women to whom this obligation was owed, were simply erasable and thus ‘‘erased.’’

132. The Supreme Court of Canada’s judgment trades on gender stereotypes when it characterizes the women’s claim to pay equity as throwing ‘‘other claims and priorities to the winds’’ (NAPE SCC, at para. 95), implicitly chastising women for selfishness in taking hospital beds and school desks away from others. The women workers in this case had been disadvantaged by pay inequity for years, and the government was finally fulfilling its legal obligation to rectify this inequity. To deny women their pay equity entitlements in this case is akin to imposing an extra tax on the billings of male doctors for the sake of reducing the deficit. It is difficult to imagine that the courts would find legislated taxation of male doctors’ salaries to be a minimally impairing alternative under the Charter, even though doctors are relatively privileged as compared with the women workers in this case.

133. As noted, there was no evidence that the government considered alternatives to the erasure of pay equity other than lay-offs in this case. We are therefore reluctant to discuss the hypothetical situation where a government is choosing between measures, each of which adversely impacts upon disadvantaged groups in some way. We will say, however, that governments should never be in this position until they have considered all reasonable alternatives that do not have negative and discriminatory implications for equality-seeking groups. Unless governments operate with this principle in mind, equalityseeking groups will continue to bear a disproportionate burden of reducing government deficits and will fail to receive their proper entitlements of government spending. As noted by LEAF, while it is not the role of the courts to ‘‘micro-manage’’ governments’ budgets, it is the judiciary’s obligation to ensure that governments’ financial decisions are consistent with substantive equality and substantive democracy under the Charter (NAPE SCC, LEAF factum, at para. 72).

134. In short, even if the government’s argument that fulfilling its pay equity obligations jeopardized its health, education, and other social programs had been proved, there was still no evidence that erasing women’s pay equity entitlements was the means required to meet this objective rather than some non-discriminatory alternative such as those we discussed earlier.

(ii) Balance between salutary and deleterious effects

135. The third stage of the proportionality inquiry involves a balancing between the means and objective of the legislation and between its salutary and deleterious effects. We have already found that the government did not prove the existence of a pressing and substantial objective for erasing its pay equity obligations under the PSRA, so there is no objective to outweigh the discriminatory means employed. However, assuming again that deficit reduction in a time of fiscal crisis was the proven objective and that this objective was sufficiently important, is there proportionality between the salutary and deleterious effects of the legislation?

136. We disagree with the Supreme Court of Canada’s conclusion that the salutary effects of ‘‘preserving the fiscal health of a provincial government through a temporary but serious financial crisis’’ outweighed the deleterious effects of ‘‘delaying’’ the pay equity adjustments (NAPE SCC, at para. 98). As we have noted throughout this judgment, the deleterious effect of the delay imposed by section 9 of the PSRA was to erase three years of pay equity obligations. This had serious effects on all workers hit by this erasure, as we have discussed, and it bears repeating that this was in addition to a wage freeze imposed on all public sector workers. Furthermore, the erasure of pay equity had particularly negative effects on some of the women workers represented by NAPE—those who retired during this period and those who went on disability leave. The benefits of these workers will be ‘‘permanently tied’’ to the discriminatory wages they were receiving before the government implemented its pay equity obligations (NAPE SCC, LEAF factum, at para. 37). The Supreme Court of Canada misunderstood this point when it said that ‘‘to make a special provision for these people would have required drawing distinctions within the class of female hospital workers who were employed in the 1988-91 period, favouring some and not others’’ (at para. 96). The point is that the erasure of pay equity obligations for the three-year period in question had an additional adverse impact on some women workers beyond the negative and discriminatory effect that it had on all of the workers entitled to pay equity.

137. Seen in this light, it is impossible to conclude that any salutary effects of section 9 of the PSRA in reducing the deficit outweighed its deleterious effects. As the government did not demonstrate a worse harm to be avoided in reducing the deficit, there is no evidence of a concrete salutary benefit, much less one that advances protected Charter interests. In contrast, and as all courts hearing this matter have agreed, the erasure of women’s pay equity does violate rights under section 15 of the Charter in a serious way. Accordingly, the deleterious effects of the legislation clearly outweigh any abstract salutary effects it might have had.

(iii) International law principles

138. International law also supports the conclusion that the PSRA cannot be justified under section 1 of the Charter. Section 1 analysis permits a consideration of ‘‘reasonable limits’’ in other free and democratic societies and under international law (Oakes, supra, at 140-1). As noted by Dickson C.J., writing for a majority of the Supreme Court of Canada in Slaight Communications, supra, at 1056,

Canada’s international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter but also the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights . . . [T]he fact that a value has the status of an international human right, either in customary international law or under a treaty to which Canada is a state party, should generally be indicative of a high degree of importance attached to that objective.

International norms relating to pay equity and its reasonable limits are thus relevant in considering the government’s deficit reduction justification in this case.

139. Article 11(1)(d) of the Convention on the Elimination of All Forms of Discrimination against Women, supra, requires that state parties ‘‘take all appropriate measures to eliminate discrimination against women in the field of employment,’’ including in the area of pay equity. The Report of the United Nations Committee on the Elimination of All Forms of Discrimination against Women, Doc. CEDAW/C/2002/I/CRP.3/Add.5/Rev.1 (31 January 2003) at paras. 51-2, expressed concern over the failure to implement pay equity in Canada. The Beijing Declaration, supra, at Article 180(k), also requires that governments ‘‘increase efforts to close the gap between women’s and men’s pay, [and] take steps to implement the principle of equal remuneration for equal work of equal value by strengthening legislation, including compliance with international labour laws and standards.’’ More generally, Article 177(b) of the Beijing Declaration provides that governments must ‘‘integrate a gender perspective into all economic restructuring and structural adjustment policies.’’

140. These sources of international law reflect the norm that governments have a positive obligation to take all appropriate steps to implement pay equity for women. Further, they evidence the international norm that care must be taken that women not bear a disproportionate burden of government ‘‘restructuring’’—that is, cutbacks. Yet this is exactly what the PSRA required of women workers in Newfoundland and Labrador. As we have noted, women workers were subjected to a general wage freeze affecting all public sector employees in addition to the erasure of their pay equity entitlements.

141. In view of these international norms, the government’s stated objective in this case, to reduce its deficit, is not a sufficiently important basis for overriding women’s right to pay equity, nor were its means of doing so reasonable and demonstrably justified in a free and democratic society. An interpretation of section 1 of the Charter that came to any other conclusion would be inconsistent with Canada’s international obligations.

142. Overall, the government has not met its justificatory burden under section 1 of the Charter. The context of this case—the erasure of women’s pay equity entitlements to reduce the government’s deficit—must be assessed in light of the principles of substantive democracy. It is contrary to the values underlying a free and democratic society, particularly equality and social inclusion, that women should be forced to bear a disproportionate burden of deficit reduction. Thus, the violation of the equality rights of women workers cannot be justified by the government.

VI. Remedy

143. Section 52 of the Constitution Act, 1982, supra, provides that any law that is inconsistent with the Charter is of no force or effect to the extent of the inconsistency. The courts have interpreted section 52 to permit a range of remedies. While governments’ financial considerations cannot be a pressing and substantial objective under section 1 of the Charter, these may be relevant considerations when choosing the appropriate remedy in a given case. In the context of remedies, ‘‘the question is not whether courts can make decisions that impact on budgetary policy; it is to what degree they can appropriately do so’’ (Schachter, supra, at 709 [emphasis added]).

144. We suspect that it was the implications of the remedy in this case that drove the courts below to take an overly deferential approach to the government under section 1 of the Charter. However, we agree with the Supreme Court of Canada’s reasoning in Schachter that rather than dilute the section 1 inquiry, the appropriate place to consider the financial impact of a Charter claim is with respect to remedy—both what it should be and how it should be implemented.

145. The starting point is to determine the extent of the law’s inconsistency with the Charter. Here, the inconsistency flows from the discriminatory content of section 9 of the PSRA. The most appropriate remedy in these circumstances is a declaration that section 9 is of no force or effect. This is the remedy originally granted by the Arbitration Board in this case.

146. The effect of this remedy is that the government must comply with the Pay Equity Agreement incorporated in its collective agreement with NAPE so as to put the women workers in the position they would have been in if section 9 of the PSRA had not been enacted. In consideration of the budgetary impact of this decision, we will not dictate how the government should do so. However, we note that the courts retain jurisdiction to ensure that the implementation of Charter remedies complies with the government’s constitutional obligations (see Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3).

VII. Disposition

147. Accordingly, we declare section 9 of the PSRA to be of no force or effect.

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Authors’ Note

Some of the authors of this judgment have a history with Gosselin v. Québec (Attorney General) that pre-dates the creation of the Women’s Court of Canada. Rachel Cox and Gwen Brodsky were co-counsel to the National Association of Women and the Law (NAWL) in its 2001 intervention in Gosselin at the Supreme Court of Canada. Shelagh Day was an advisor to NAWL’s legal team in that litigation. Kate Stephenson was not directly involved in the Gosselin case, but her work as a leading anti-poverty litigator makes her intimately familiar with the reasoning and outcome. Each of the authors has been affected by the Supreme Court of Canada’s decision. Rachel Cox, who lived in Montréal in the 1980s when the Social Aid Regulation reduced young people’s welfare benefit by two-thirds, felt keenly the gulf between the reality of the time and the Supreme Court of Canada’s characterization of the scheme as ‘‘an affirmation of [young people’s] potential’’ and dignity.

For those living in Québec in the 1980s, the reason for the reduced rate was clear: to save the government money. Even if people disagreed about whether that was right or wrong, no one believed at the time that the government had designed the scheme in a sincere effort to help young people on welfare. There was a recession and somebody had to pay. Simply put, the court case was about whether or not it was legal for the government to make already very poor welfare recipients pay so much of the cost. As for the workfare programs, once the government decided that it could not afford to keep its electoral promise to do away with the reduced rate, the programs were just a guilty afterthought. Like the scarce life boats on the Titanic that were appropriated by the wealthier passengers, the workfare programs saved some of the fittest, most functional, and most employable young welfare recipients from total destitution, leaving the majority to fend for themselves.

In any hearing before the courts, a particular situation, such as Louise Gosselin’s, is described, usually years after the fact, through testimony and exhibits and other documentation. Choices are made. Some aspects of the situation are described in testimony or written and filed in evidence; others are not. The case takes on a life of its own. The judge chooses which of the multitude of facts that made it into evidence to report in his or her decision. This decision then becomes the official version of what happened. Inevitably, the decision distills the facts, crystallizing some while others fade away. The Supreme Court of Canada decision has become the
official version of Louise Gosselin’s story. However, this official version was constructed through a long and convoluted judicial process that started in the gritty streets of Montreal and finished in the polished marble halls of the Supreme Court of Canada in Ottawa. It seemed important to us to tell the story differently.

It also seemed important to construct a legal argument that is more caring, more feminist, and—we claim—more authentically Canadian than the one issued by the majority of the Supreme Court of Canada. The majority’s decision alienated us from an institution we care about, and the apparent indifference of some members of the Court to the unnecessary suffering of young women and men living in poverty struck us as being in conflict with central Canadian and Québec values.

At the 2005 inaugural meeting of the Women’s Court of Canada at Jackson’s Point in Ontario, in the company of women who think hard and care deeply about equality jurisprudence and about the rights of women and men who are disadvantaged, we concluded that if the fashionable concept of constitutional dialogue is to mean something lively and rich, its participants must be expanded beyond courts and governments to include the groups who are the intended beneficiaries of equality rights. We were reminded that the Supreme Court of Canada judges, while being very important because of the status and authority of the institution they serve, are not the only decision makers that matter. The world outside the Court is also made up of decision makers whose exercise of judgment, and ongoing participation in constructive and engaged criticism of the Court, is crucial to the integrity and vitality of constitutional jurisprudence.

We decided to participate in the Women’s Court’s reconsideration of Gosselin because we believe that sections 15 and 7 of the Canadian Charter of Rights and Freedoms and section 45 of the Québec Charter of Human Rights and Freedoms are fully capable of addressing poverty issues and that the reluctance of courts in Canada to interpret them in this way reflects what Louise Arbour has called ‘‘judicial timidity.’’

We wrote the Women’s Court judgment to show that, even on a narrow understanding of equality rights that is preoccupied with the evil of invidious stereotypes, the withholding of welfare benefits from young women and men by the government of Québec was discriminatory. The reduced rate rested on a stereotype of young people as freeloaders—unwilling to seek education or job training unless coerced. However, although we believe that Louise Gosselin’s claim should have succeeded based on a version of section 15 that is grounded in an anti-stereotyping principle, so blatant is the negative stereotyping in this case, and so shocking is the majority’s refusal to acknowledge the problem, we also felt compelled to go beyond an analysis based on stereotyping. In our view, a substantive reading of section 15 reveals that governments in Canada have a positive obligation to provide adequate social assistance to persons in need because social assistance is an equality constituting benefit.

The implications of our analysis are far-reaching and perhaps controversial. We believe that section 15 would be violated if the Québec legislature had chosen to reduce the social assistance of all recipients to less than a subsistence rate, if it had eliminated social assistance entirely, or if it had decided to subject some recipients to a reduced rate based on an entirely arbitrary, though perhaps not stereotypical, classification.

A robust exploration of the idea that section 15 has an irreducible core has been rendered necessary by the propensity of courts to fail to perceive the operation of stereotypical thinking when it is systemic and applied to society’s most disadvantaged groups and by the license that governments believe they have to erode social programs and to respond to successful equality rights challenges by equalizing downwards. Vulnerable Canadians need the guardians of their section 15 equality rights to tell governments that there are some benefits and protections that are so essential to the inherent equality of the person that there is a constitutional obligation on governments to provide them and to ensure their adequacy. A subsistence income adequate to ensure access to food, clothing, and housing is such a benefit.

Similarly, in our view, sections 7 of the Charter and 45 of the Québec Charter deserve serious attention from the Court that they did not receive. We do not believe that section 7 can be read merely as a negative right. It creates a positive obligation on governments to provide protection against deprivations of life and security of the person that are caused by extreme poverty. Section 45 of the Québec Charter goes farther in recognizing that the right to food, clothing, and housing underpins the effective exercise and enjoyment of all other fundamental rights and freedoms than any other human rights legislation in Canada. In Gosselin, the Supreme Court of Canada recognized that section 45 requires the Québec government to provide social assistance measures but concluded that the adequacy of the particular measures adopted is beyond the reach of the courts, confirming but, at the same time, seriously limiting the justiciability of the rights granted by section 45.

It was important to us to resist the tendency of other Canadian courts to give rights a ‘‘thin and impoverished’’ reading when social programs and economic benefits are at stake. The commitment to positive obligations is not a ‘‘stretch’’ under the Canadian and Québec Charters, as Canadian courts tend to suggest. On the contrary, the exclusion of such obligations is a stretch, requiring reasoning that is not consistent with the interests that appear to be clearly protected by the plain words of the documents and by the values underlying them.

Gosselin v. Québec (Attorney General)

Women’s Court of Canada
[2006] 1 W. C. R. 193

The Women’s Court of Canada reconsiders the 2002 decision in Gosselin v. Québec (Attorney General), in which the Supreme Court of Canada ruled that section 29(a) of Québec’s Regulation Respecting Social Aid, which reduced the welfare rate of recipients under the age of thirty to below subsistence level, did not violate sections 7 or 15 of the Canadian Charter of Rights and Freedoms or section 45 of the Québec Charter of Rights and Freedoms. According to the Women’s Court, the Regulation creates an impermissible distinction based on age; in addition, age combined with reliance on social assistance is an analogous ground for the purposes of section 15 of the Canadian Charter. Withholding from the under-thirty age group the amount of social assistance deemed necessary by the government itself to meet basic needs reveals that the scheme rests on stereotypical assumptions that these recipients are lax, unmotivated, and unwilling to seek work unless coerced into it. Section 15 is also violated by withholding essential dignity and equality – constituting benefits from a portion of the population. The reduced rate jeopardizes the right to adequate food, shelter, clothing, and security of the person, coerces some women into prostitution and survival sex, and makes them more vulnerable to violence and harassment. These are further assaults on human dignity, contrary to section 15.

The Women’s Court further finds that the Regulation violates section 7 of the Canadian Charter. Economic interests that seriously affect physical and psychological integrity should not be excluded from Charter protection; rather, section 7 should be interpreted so as to protect against the deprivations of life and security of the person that are caused by extreme poverty, and so as to create a positive obligation to create an adequate welfare scheme. The Regulation violates the rights to life and security of the person, and does not accord with the principles of fundamental justice. It is a basic tenet of Canadian justice that our laws must not permit or create circumstances that deprive persons of the basic necessities of life. Through arbitrariness and over-breadth, fundamental justice is also violated. When section 7 of the Charter is violated, there is arguably no need to consider section 1, but the Regulation cannot be justified in any event.

The Regulation also violates section 45 of the Québec Charter. Reflecting international norms, section 45 creates an obligation to ensure subsistence needs are provided for in legislation. The government had already set the level of financial assistance needed to ensure an acceptable standard of living within the meaning of section 45. After setting this level, choosing to cut the rate of under-thirty recipients to well below this line constitutes a clear violation of the provision.

The Women’s Court finds that, pursuant to section 52 of the Constitution Act, 1982, section 29(a) of the Regulation was invalid during the years 1985 to 1989. The Court awards damages under section 24(1) of the Charter.

Under section 49 of the Québec Charter, the Court orders both cessation of the law and compensation.

Reconsideration of Gosselin v. Québec (Attorney General), [2002] 4 S.C.R. 429 (judgment of the Supreme Court of Canada reversed).

The decision of the Women’s Court of Canada was delivered by:
GWEN BRODSKY, RACHEL COX, SHELAGH DAY, AND KATE STEPHENSON

I. Introduction

1. Louise Gosselin was born in 1959. Her life has often been a hard one. Sometimes she has been a low-paid worker in Canada’s service and care industries and sometimes she has been a recipient of social assistance. As a woman with a low income, she has struggled to survive socially, emotionally, and economically. The Women’s Court of Canada recognizes that she has faced and overcome many difficulties and shown courage in bringing her own case forward to test an important point of law and principle.

2. In 1984, the Québec government altered its social assistance scheme to reduce the benefit rate to which single recipients who were under thirty and able to work were entitled if they did not participate in workfare-type programs (‘‘employability programs’’).

3. Louise Gosselin was eligible for, and received, social assistance intermittently between 1985 and 1989. As a result of her age, she was subject to the reduced rate. Louise Gosselin asked the Supreme Court of Canada to find that the reduced rate payable to her and to others under thirty violated the right to equality and the right to life, liberty, and security of the person under sections 15 and 7 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, as well as the right under section 45 of the Québec Charter of Human Rights and Freedoms, R.S.Q. c. C-12, to measures of financial assistance and social measures susceptible of ensuring an acceptable standard of living. As a remedy, Ms. Gosselin asked the Supreme Court of Canada to order the Québec government to pay the difference between the reduced rate and the regular rate to all the individuals under thirty who received the lower base rate between 27 February 1987, when the claim was filed, and 31 July 1989, when the challenged provision was repealed. Ms. Gosselin claimed this remedy on behalf of over 75,000 under-thirty welfare recipients. The Supreme Court of Canada dismissed her claim.

4. The Women’s Court of Canada decided to reconsider Ms. Gosselin’s case because, in our view, the Supreme Court of Canada’s decision in Gosselin v. Québec (Attorney General), [2002] 4 S.C.R. 429 [Gosselin SCC] was not reflective of the broad and purposive approach to the Canadian Charter and the Québec Charter that the Court has espoused. We find that Ms. Gosselin succeeds in her claim on all of the asserted grounds, and we grant the remedy requested.

II. Factual Context

5. The scheme challenged in this case is contained in the 1984 amendments to the regulations under the Social Aid Act, R.S.Q., c. A-16 (SAA), as amended by An Act to Amend the Social Aid Act, S.Q. 1984, c.5 and the Regulation Respecting Social Aid, R.R.Q., c. A-16, r. 1 (RRSA). Under these new regulations, in 1987, single recipients thirty years of age and over were entitled to receive $466 dollars a month. Section 23 of the RRSA stipulated that these were the amounts necessary for an adult to meet basic needs. However, section 29(a) of the RRSA provided that recipients under age thirty and able to work were entitled to receive not more than $170.

6. The under-thirty year olds could increase their benefit rate by participating in any of three different ‘‘employability programs’’: the Remedial Education Program, the Community Work Program, and the On-the-Job Training Program (SAA; and RSAA, s. 35.0.1-35.0.2). Participation could result in increasing one’s welfare rate for the period of involvement. Under-thirty year old participants in the Remedial Education Program had their rate topped up to $100 dollars less than the regular rate. Under-thirty year olds in the other two programs could receive the regular rate while participating.

7. However, these programs did not provide all of the under thirty-year olds with access to the regular rate of social assistance or even to the lower Remedial Education Program rate. As noted by Justice Michel Bastarache, there were 85,000 under-thirty recipients, but only 30,000 spaces in the programs offered, and these spaces were also available to thirty-and-over welfare recipients (Gosselin SCC, at para. 241).

8. In addition, as catalogued by Bastarache J., the programs had eligibility criteria and restrictions that made them not open to all the under thirty welfare recipients. Originally, the Remedial Education Program was not available to illiterate people at all nor was it ever available to those who had only completed elementary school, left their studies for less than nine months, or been financially independent of their parents for less than six months(Gosselin SCC, at para. 160 and 277). Those who had been on social assistance for twelve months had priority over others for the Community Work Program (Gosselin SCC, at para. 279). The On-the-job Training Program was not open to people with a college diploma nor to recipients who had been away from regular studies for less than twelve months (Gosselin SCC, at para. 279). Each placement was for a fixed period of time, after which applicants were expected to find work or apply for another program.

9. Furthermore, the increased rate was not paid while awaiting placement in an available program or between placements. As noted by Bastarache J., there were waiting periods (Gosselin SCC, at para. 180). If an under-thirty recipient was eligible, he or she had to wait for the beginning of classes or for a training assignment and, in the meantime, received only the reduced rate. After participation in a given program, under-thirty year olds were again reduced to the lower base rate in between participation in programs. This was the experience of Louise Gosselin. She did her best to participate in the employability programs that were available to her, but her social assistance was repeatedly reduced to the lower rate when she was not working or involved in programs.

10. Of all of the participants in the three employability programs, only 48.8 per cent were recipients who were subject to the reduced rate (Gosselin v. Québec, [1999] R.J.Q. 1033, para. 286 [Gosselin Q.C.A.] (per Justice Michel Robert)). The rest were other recipients, either unable to work, thirty years of age and over, or single parents—all receiving the regular rate plus an additional amount while they participated in the employability programs (SAA at sections 6 and 11.2; and RRSA at sections 35.0.1–35.0.2). Approximately one-third of recipients on the reduced rate participated in the programs (Gosselin SCC, at para. 8). And approximately 11.2 per cent of participants in the under-thirty group were thereby returned to the regular rate (Gosselin SCC, at para. 180 and 239). The rest of the under-thirty individuals who received any top-up were in the Remedial Education Program and therefore confined to its lower rate during participation.

11. For all of these reasons, the government’s employability programs were structurally incapable of allowing all of the under-thirty recipients to reach the regular rate of welfare, which is defined as being necessary to meet basic needs by section 23 of the RRSA: (1) not all of the programs provided participants with a full top-up to the basic level; (2) there were temporal gaps in the availability of the various programs to willing participants; (3) welfare recipients who were illiterate or severely under-educated, or ‘‘over-educated’’ could not participate in certain programs; and (4) only 30,000 program places were available although there were over 75,000 under-thirty welfare recipients.

12. The reduced rate did not provide enough income to allow the men and women in the under-thirty group to meet basic needs for food, clothing, and shelter. The evidence shows that members of the under-thirty group resorted to degrading and criminalized survival strategies, such as begging and petty theft. Living on the reduced rate had severe physical and psychological effects. These young women and men were often homeless and malnourished. They experienced psychological stress, anxiety, and despair. Louise Gosselin herself attempted suicide (Gosselin SCC, at paras. 163–70 and 270 (testimony of psychologist D. Gratton, vol. 2, at 320–1; P-7, vol. 6, at 1039; P-9, vol. 8, at 1409; P-9.2, vol. 8, at 1440 and 1443; P-10, vol. 9, at 1559; and testimony of L. Gosselin, vol. 1, at 103; P-6, vol. 5, at 879).

13. Louise Gosselin testified that when she reached her thirtieth birthday and became eligible for the regular rate of social assistance, she felt as though she had won a victory, simply by managing to stay alive (Gosselin SCC, testimony of L. Gosselin, vol. 1, at 143).

III. Judicial History

14. In the Québec Superior Court, the trial judge, Justice Paul Reeves held that the claim was not supported by the evidence and that the distinction made by Québec’s social assistance regime was not discriminatory under section 15 of the Canadian Charter because it was based on genuine considerations that corresponded to relevant characteristics of the under thirty age group, including the importance of providing under-thirty year olds with incentives to get training and work experience in the face of widespread youth unemployment (Gosselin v. Québec, [1992] R.J.Q. 1647 [Gosselin Sup. Ct]). He dismissed Ms. Gosselin’s section 7 claim, holding that section 7’s protection of security of the person does not extend to economic security and does not create a constitutional right to be free from poverty. He also rejected the claim under section 45 of the Québec Charter on the ground that it does not create an entitlement to a particular level of state assistance.

15. In the Québec Court of Appeal, Justice Louise Mailhot found this case indistinguishable from Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and dismissed the section 15 claim accordingly (Gosselin Q.C.A.). Justice Jean-Louis Baudouin found that Québec’s social assistance scheme breached section 15, but he found the breach was justified under section 1 of the Canadian Charter. Justice Michel Robert found the social assistance scheme breached section 15 of the Canadian Charter and was not saved by section 1, but he dismissed the claim for damages as inappropriate. All three judges agreed that section 7 of the Canadian Charter was not engaged in this case. Regarding section 45 of the Québec Charter, only Robert J.A. found a breach, for which he held damages were unavailable.

16. The Supreme Court of Canada was starkly divided. Five of the judges found no violation of section 15. The majority decision was written by Chief Justice Beverley McLachlin, with Justices Charles Gonthier, Frank Iacobucci, John Major, and Ian Binnie concurring. In dissent, were four judges: Justices Michel Bastarache, Louise Arbour, Louis LeBel and Claire L’Heureux-Dube. The main dissenting opinion on section 15 was authored by Bastarache. J. LeBel and L’Heureux-Dube JJ. wrote separate section 15 opinions.

17. The majority, applying the framework enunciated in Law, found that the appellant Louise Gosselin had ‘‘not demonstrated that the government treated her as less worthy than older welfare recipients simply because it conditioned increased welfare payments on her participation in programs designed specifically to integrate her into the workforce and to promote her long-term self-sufficiency’’ (Gosselin SCC, at para. 19).

18. In the majority’s view, the evidence established that the government’s purpose was to help young adults achieve long-term autonomy (Gosselin SCC, at paras. 27, 43–4, and 65), by creating an incentive to compel young adults to participate in training programs that would increase their employability (at paras. 41–2). According to the majority, this purpose was not based on stereotype because it ‘‘corresponded to the actual needs and circumstances of individuals under 30’’ (at para. 38) and was ‘‘an affirmation of their potential’’ (at para. 19). In the view of the majority, young adults do not suffer from preexisting social disadvantage or susceptibility to negative preconceptions such that legislative distinctions affecting them should be carefully scrutinized (at paras. 30–2, 35, and 68). In addition, the majority found no evidence of harmful effects, other than the fact that some under-thirty individuals may have fallen ‘‘through the cracks of the system and suffered poverty’’ (at para. 54). This fact was not, in the majority’s view, sufficient to establish adverse effects (at paras. 55–6).

19. The majority also found no evidence that any welfare recipient under the age of thirty who wanted to participate in the employability programs was refused enrolment (Gosselin SCC, at paras. 46–7).

20. In summary, the majority ruled that there was no section 15 violation because (1) there was no pre-existing disadvantage because young people are not a disadvantaged group; (2) there was no lack of correspondence between the program and the actual circumstances of the under-thirty year olds, in purpose or effect; (3) the evidence was insufficient to establish adverse effects on the under-thirty group from being on the reduced rate; and (4) there was no overall impact that undermined dignity (Gosselin SCC, at para. 68). The majority relied heavily when justifying its decision on the espoused intent of the government of Québec to help young unemployed men and women.

21. Regarding section 7, seven judges of the Supreme Court of Canada found no violation. The main section 7 opinion, with which Iacobucci, Gonthier, Major, and Binnie JJ. agreed, was written by McLachlin C.J. Bastarache and LeBel JJ. each wrote separate concurring opinions with respect to the scope of section 7. Arbour and L’Heureux-Dube JJ. found the regulation to be in violation of section 7. Arbour J. wrote the main dissenting opinion on section 7, and L’Heureux-Dube J. wrote supplementary reasons.

22. With respect to section 45 of the Québec Charter, there were three different opinions. Six judges found no violation. McLachlin C.J. wrote for herself, Gonthier, Major, Iacobucci, and Binnie JJ. LeBel J. wrote a concurring opinion. Bastarache and Arbour JJ. were of the view that section 45 is not judicially enforceable. In dissent, L’Heureux-Dube J. found that the challenged regulation violated section 45. She expressly endorsed the opinion of Robert J.A. in the Court of Appeal, who relied extensively on international human rights law as an aid to the interpretation of the Québec Charter.

IV. Analysis

A. Section 15

23. Section 15 of the Canadian Charter reads,

15(1) Every person has the right to equality before and under the law and the right to 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.

(1) Overview

24. The section 15 issue in this case is whether reducing welfare to a below-subsistence level for a sub-group of welfare recipients, legislatively defined by their age, constitutes discrimination. Given the explicit distinction based on age, there is obviously differential treatment based on an enumerated ground.

25. The differential treatment can also be understood to be based on the compound ground of age and reliance on social assistance or, more simply, being a destitute young adult. This combination, we hold, is an analogous ground.

26. The scheme discriminates by withholding social assistance from a group of destitute people, legislatively identified by their age, based on prejudice and stereotypical assumptions about their needs, capacities, and circumstances. The prejudice and stereotyping embedded in the scheme reflect and promote the view that members of this group are less worthy of recognition as human beings and as members of Canadian society. The scheme thereby violates essential human dignity, and, on the basis of this stereotyping alone, it is discriminatory.

27. Our conclusion is reinforced by the significance of the interests engaged by the resulting material deprivations. The withdrawal of the regular rate of social assistance jeopardized the capacity of the under-thirty individuals to eat, have shelter, and be safe. These are among the most serious harms to be visited on a group. Young women subjected to the reduced rate suffered particular and disproportionate harms.

28. Section 15 is not confined to the evil of combating stereotypes. We find that beyond the imposition of a stereotype, the withholding of essential benefits from destitute men and women by itself amounts to discrimination. There are threshold conditions that are essential to equal recognition and membership in Canadian society. Income support in circumstances of need is a necessary prerequisite to participation in Canadian society as an equal and withholding it is a blatant signal of societal disregard and lack of respect for the person who is denied. Further, withholding income assistance has particularly egregious effects on groups that are already disadvantaged by discrimination, contrary to the section 15 goal of promoting substantive equality.

(2) Differential Treatment

29. It is undisputed that section 29(a) draws a facially explicit distinction, based on age. The Québec legislature acted to create the welfare scheme and provide subsistence incomes for those in need. It then withdrew the subsistence level of income from a sub-group, the under-thirty year olds. The denial of social assistance benefits to the under-thirty group constitutes a denial of equal benefit of the law.

(3) Enumerated or Analogous Grounds

30. Although showing that there is differential treatment based on the protected ground of age is easily done in this case, a richer, more contextualized analysis of grounds better reveals the disadvantaged character of the affected group and the gravity of the harm inflicted. Contextualizing the grounds makes for a more meaningful assessment of discrimination in a substantive sense.

31. The majority of the Supreme Court of Canada erred by taking an overly abstract and decontextualized approach to the category of young adults, disregarding the fact that the young people in question were also eligible welfare recipients under the Québec scheme or, to make it simpler, young women and men who were destitute.

32. Age was the only ground of discrimination identified by the plaintiff in this proceeding. Age is an enumerated ground of discrimination under section 15. Taking a properly contextualized view of the ground of age, as it functioned inside the Québec welfare scheme, this ground alone is sufficient to ground this claim. That is, if one considers that the group of young people who stand at the centre of the Gosselin case are young people seeking social assistance to meet basic needs, it is not strictly necessary to invoke additional grounds of discrimination.

33. However, this claim can also be based on the intersecting grounds of age and reliance on social assistance or destitution. Considering the factors at play in this way is similar to the approach taken by the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, when it held that the Indian Act R.S., 1985, c.I-5, discriminated based on the analogous ground of ‘‘Aboriginality-residence’’ and by the Ontario Court of Appeal in Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch), (2002), 59 O.R. (3d.) 481, when it held Ontario’s social assistance regime discriminated based on the combined grounds of sex, marital status, and receipt of social assistance.

34. Similarly, in Dartmouth Halifax (County) Regional Housing Authority v. Sparks, (1993), 119 N.S.R. (2d.) 91; [1993] N.S.J. No. 97, the Nova Scotia Court of Appeal struck down provisions excluding tenants of public housing from security of tenure protections. The court reasoned that the provisions denied benefits to a group—in this case, black single mothers with low incomes—and discriminated on the basis of race, sex, and income. The court reached its conclusion that the legislation was discriminatory based on an analysis of the ‘‘combined effect’’ of the characteristics of the disadvantaged group affected.

35. In Corbiere, at para. 60, the Supreme Court of Canada discussed the factors relevant to identifying an analogous ground:

Various contextual factors have been recognized in the case law that may demonstrate that the trait or combination of traits by which the claimants are defined has discriminatory potential. An analogous ground may be shown by the fundamental nature of the characteristic: whether from the perspective of a reasonable person in the position of the claimant, it is important to their identity, personhood, or belonging. The fact that a characteristic is immutable, difficult to change, or changeable only at unacceptable personal cost may also lead to its recognition as an analogous ground: Miron v. Trudel, [1995] 2 S.,C.R. 418, at para. 148; Vriend
v. Alberta, [1998] 1 S.C.R. 493, at para. 90. It is also central to the analysis if those defined by the characteristic are lacking in political power, disadvantaged, or vulnerable to becoming disadvantaged or having their interests overlooked: Andrews, supra, at p. 152; Law, supra, at para. 29. Another indicator is whether the ground is included in federal and provincial human rights codes: Miron, supra, at para. 148. Other criteria, of course, may also be considered in subsequent cases, and none of the above indicators are necessary for the recognition of an analogous ground or combination of grounds: Miron, supra, at para. 149.

36. Several factors lead to the conclusion that the combination of reliance on social assistance, or destitution, and being under thirty years of age should be recognized as an analogous ground.

37. At first blush, this combination of conditions might not be seen as going to identity, personhood, or belonging. However, as discussed later in this decision, social assistance is the established means of ensuring that even destitute people are not banished from society. Canada has promoted the ideals of social sharing and collective provision, recognizing that benefits such as social assistance and health care need to be provided to everyone, not as a matter of charity, but as incidents of social citizenship. Canadian philosopher Charles Taylor has said, ‘‘collective provision’’ helps to explain ‘‘why we are and want to remain a distinct political unit’’ (Charles Taylor, ‘‘Shared and Divergent Values,’’ in Ronald L. Watts, ed., Options for a New Canada (Toronto: University of Toronto Press, 1991) at 56). As a result of the place that social assistance occupies in the cultural understanding of ‘‘Canadianness,’’ the denial of the equal benefit of a social assistance scheme, without regard to need, does raise an issue of belonging and membership.

38. Despite these espoused Canadian values, people reliant on social assistance face widespread prejudice, stereotyping, social exclusion, and discrimination. Negative myths abound about social assistance recipients, including notions that they are morally inferior, lazy, dishonest, not willing to work, and likely to cheat the system (Conseil permanent de la jeunesse, Dites à tout le monde qu’on existe (Québec: Conseil permanent de la jeunesse, 1993) at 12 and 14; Jean Swanson, Poorbashing: The Politics of Exclusion (Toronto: Between the Lines, 2001) at 1–8 and 90–105; Martha Jackman, ‘‘Constitutional Contact with the Disparities in the World’’ (1994) 2(1) Review of Constitutional Studies 76 at 77–101; Janet. E. Mosher, ‘‘Managing the Disentitlement of Women: Glorified Markets, the Idealized Family, and the Undeserving Other,’’ in Sheila M. Neysmith, ed., Restructuring Caring Labour: Discourse, State Practice and Everyday Life (Toronto: Oxford University Press, 2000) 30 at 32 and 35; and Sheila Baxter, No Way to Live: Poor Women Speak Out (Vancouver: New Star Books, 1988) at 11–15).

39. Courts and tribunals in Canada and Québec applying law to the circumstances of poor people have repeatedly recognized their vulnerability to stereotyping, stigmatization, and exclusion. Courts have commented particularly upon the fact that social assistance recipients are a politically marginalized group ‘‘to whose needs and wishes elected officials have no apparent interest in attending,’’ making the group vulnerable to legislative or administrative acts that worsen their disadvantage (Federated Anti-Poverty Groups of B.C. v. British Columbia (A.G.) (1991), 70 B.C.L.R. (2d) 325 at 344; Québec (Comm. des droits de la personne) v. Gauthier (1993), 19 C.H.R.R. D/312 (QCTDP); Québec (Comm. des droits de la personne) v. Whittom (1993), 20 C.H.R.R. D/349 (QCTDP), affirmed in (1997), 29 C.H.R.R. D/1 (Q.C.A.); Lambert v. Québec (Ministere du tourisme) (No. 3) (1997), 29 C.H.R.R. D/246 (QCTDP); Falkiner v. Ontario (Ministry of Community and Social Services) (1996), 140 D.L.R. (4th) 115 (Ont. Ct. Gen. Div.) (per Marc Rosenberg J.) at 138–9 and 153; Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch) (2000), 188 D.L.R. (4th) 52 (Ont. Sup. Ct. Gen. Div.) at 86 and 98; and Sparks, supra, at 230–5).

40. The growing recognition of legislators and human rights experts that people reliant on social assistance need legal protection from discrimination is reflected in the human rights codes of many provinces, which prohibit discrimination based on ‘‘receipt of social assistance’’ or ‘‘source of income.’’ The New Brunswick, Northwest Territories, and Québec human rights acts include ‘‘social condition’’ as a prohibited ground of discrimination (Human Rights Act, R.S.N.B. 1973, c. H-11, ss. 3-7 and 12; Human Rights Act, S.N.W.T. 2002, c.18, s. 5; Québec Charter, s. 10). As well, government-commissioned reports have recommended that protections against discrimination based on social condition be included in human rights acts in other jurisdictions (Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000) at 106–13; BC Human Rights Commission, Human Rights for the New Millenium: Recommended B.C. Human Rights Code Amendments for British Columbians by British Columbians (Victoria: BC Human Rights Commission, 1998) at 12–13; B. Black, BC Human Rights Act Review: Report on Human Rights in British Columbia (Vancouver: Government of British Columbia, 1994) at 169–71).

41. It is also essential to notice who is most likely to be poor in Canada. The group of people who live in poverty, and are likely to require social assistance to meet their basic needs, is disproportionately composed of Aboriginal people, women, people with disabilities, recent immigrants, people of colour, and single mothers—groups whose disadvantage is a central concern of the section 15 guarantee.

42. The underlying condition giving rise to reliance on social assistance is poverty. People must be destitute to qualify for social assistance. They are only somewhat less poor when they are on social assistance. Poverty is not necessarily an immutable condition. Some individuals can and do move in and out of poverty during their lifetimes, perhaps more than once. Yet it can be extremely difficult to overcome, particularly if income support is lacking or, as in this case, is inadequate to meet basic needs.

43. There is also a growing recognition that young people are vulnerable to discrimination and social exclusion. Human rights protections against age discrimination were originally non-existent and then were made available to people ages forty-five to sixty-five. Significantly, in a number of jurisdictions, human rights protections against age discrimination have now been extended to younger people, including adults between the ages of eighteen and thirty, in acknowledgment of the fact that they also experience discrimination in the labour force, in tenancy, and in services (Walter S. Tarnopolsky and William F. Pentney, Discrimination and the Law: Including Equality Rights under the Charter, looseleaf edition (Toronto: Carswell, 1985) at 7-1–7-11; and McKinney v. University of Guelph, [1980] 3 S.C.R. 229 at 291–2).

44. Young people who are considered capable of working, but who are reliant on social assistance are particularly vulnerable to negative stereotyping as lazy and irresponsible (Nadine Rehnby and Stephen McBride, Help Wanted: Economic Security for Youth (Vancouver: Canadian Centre for Policy Alternatives, 1997) at 7 and 15; Martha Jackman, ‘‘Women and the Canada Health and Social Transfer: Ensuring Gender Equality in Federal Welfare Reform’’ (1995) 8 Canadian Journal of Women and the Law 371 at 378–9). In all jurisdictions, welfare rates for young people (‘‘single employables’’) are the lowest (National Council of Welfare, Women and Poverty Revisited (Ottawa: National Council of Welfare, 1990) at 93–4; Katherine Scott, Women and the CHST: The Profile of Women Receiving Social Assistance in 1994 (Ottawa: Status of Women Canada, 1998) at 47).

45. For all of these reasons, reliance on social assistance, or destitution, combined with age should be recognized as an analogous ground. Considering fully the grounds at play, and their interaction, helps to illuminate the character of the discrimination.

46. We reiterate, however, that it was not necessary for any ground other than age to be plead in order for Louise Gosselin’s claim to be successful. The ground of age can be given a fully contextualized reading.

(4) Discrimination

(a) Section 29(a) Is Grounded in Prejudice and Stereotype

47. Not every facial distinction that is based on one or more section 15 grounds is discriminatory. For example, pay equity schemes are designed to address the long-standing underpayment of women who work in traditionally female jobs. Section 15 is not meant to preclude schemes such as these that are intended to recognize and address group-based disadvantage merely because they make facial distinctions based on sex.

48. However, in this case, we have concluded that the differential treatment based on age in the government of Que´bec’s welfare scheme was discriminatory because it relied on and perpetuated a stereotype of the destitute young person as undeserving. It did so when it denied under-thirty year olds the regular rate unless they participated in employability programs.

49. The Supreme Court of Canada has held that when assessing whether differential treatment imposed by legislation is truly discriminatory, the most telling indicator is pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group (Law, supra, at para. 63). Recognizing the importance of what has happened before resonates with the section 15 purpose of promoting a more equal society and ensuring that legislative distinctions do not have an adverse impact on already disadvantaged groups (Rodriguez v. British Columbia, [1993] 3. S.C.R. 519 at 549; Vriend v. Alberta, [1998] 1 S.C.R. 493; and Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at 676–82).

50. In this case, the majority of the Supreme Court of Canada concluded that there was no disadvantaged group because, in general, young people are not disadvantaged because of their age. This led the Court to adopt a relaxed standard of scrutiny (Gosselin SCC, at para. 30–6). As we have noted in our discussion of grounds, however, the majority took an overly abstract decontextualized approach to the category of young adults. Even if young people were not, in general, a disadvantaged group this would not be determinative. A properly contextualized approach would take account of the interaction between the facial distinction based on age and the vulnerabilities of the affected group as women and men reliant on social assistance to meet their basic needs.

51. The majority touched on, but dismissed as unhelpful, the thought that the group might be redefined as welfare recipients aged eighteen to thirty to take into account the stereotyping and vulnerability suffered by all welfare recipients. In the view of the majority, this move would not assist Ms. Gosselin because the thirty-and-over group also consists of welfare recipients (Gosselin SCC, at para. 35). In our view, the Court was too quick to reject this redefinition of the group, and, in doing so, it departed from the approach adopted in Corbiere, supra. In Corbiere , the Court recognized that Aboriginal people living off reserve and Aboriginal people living on reserve have all suffered discrimination. Moreover, they were all band members. This fact did not lead the Court to conclude that denying voting rights to band members living off reserve was non-discriminatory. Nor did it lead the Court to apply a lower standard of scrutiny to the legislative distinction drawn between Aboriginal people based on their place of residence. Further, in reaching the conclusion that the denial of voting rights and the opportunity to participate in band governance to off-reserve band members is discriminatory, the Court expressly took into account the fact that ‘‘the impugned distinction perpetuates historic disadvantage experienced by off-reserve band members, a sub-group of Aboriginal people’’ (Corbiere, at paras. 17–19).

52. As we have noted, applying the Corbiere approach in this case illuminates both the prejudices experienced by people reliant on social assistance generally and the particular prejudices experienced by young people reliant on social assistance. There is no reason that unequal treatment of young adults in need should be subject to a relaxed standard of Charter scrutiny.

53. However, to understand fully the vulnerabilities of young adults in need, it is essential to consider the historical context of the Québec welfare scheme, the historical treatment of people reliant on public assistance, and common prejudices towards, and stereotypes about, poor people.

54. The majority of the Supreme Court of Canada believed that being on welfare is a harm in itself. The implication seems to be that it is better not to be on welfare even if that means having inadequate resources to meet one’s most basic needs. Being on welfare is damaging to self-esteem and wrong for a self-directing individual. Getting off welfare is good. Underlying this view is a layer of unacknowledged ideas, prejudices, and stereotypes. Reliance on social assistance and poverty more generally are commonly understood as signs that a person lacks moral fibre. There is an underlying conviction that poverty is self-inflicted. Those with moral gumption and determination will not be poor.

55. Implicit in the Québec welfare scheme and in the judgment of the majority of the Supreme Court of Canada is the belief that all individuals are sufficiently free to define their life circumstances, and that being poor must be a freely chosen condition. If people are free to choose their own circumstances, there is no reason for governments to assist those who are without resources. In fact, it is an insult to interfere with choice. To young people, it is disrespectful because it conveys the message that they do not have the capacity to be self-actualizing human beings.

56. Canadian legislators have recognized that there are structural causes of reliance on social assistance and that destitution is not always in the control of individuals but, instead, is connected to availability of employment and market vagaries. However, governments have created welfare programs in a patchwork fashion and with a divided mind. Canadian scholar Dennis Guest recounts that Canadian governments have created programs to assist those who are without income but have clung to the belief that individuals always have the capacity to be self-supporting (Dennis Guest, The Emergence of Social Security in Canada, 3rd edition (Vancouver: UBC Press, 1997) at 3–5). Young people—single, non-disabled—are the group who are most suspect in the eyes of legislators because of the belief in individual fault and responsibility.

57. Under the Québec scheme, people who were medically certified as disabled were eligible for the full benefit. There were some periods when Louise Gosselin had a medical certificate. In the main, she was considered ‘‘able bodied’’ (Gosselin SCC, at 168–9). However, the fact that someone is deemed to be able-bodied does not necessarily mean that she has the capacity to be self-supporting at a particular point in time. Judicial notice may be taken of a growing trend in social assistance schemes towards narrowing eligibility for people who are not considered disabled and simultaneously making it procedurally and substantively more onerous to qualify as disabled. The social welfare scheme in British Columbia is a case in point (Seth Klein and Andrea Long, Bad Time to Be Poor: An Analysis of British Columbia’s New Welfare Policies (Vancouver: Canadian Centre for Policy Alternatives, 2003) at 19–36). The phenomenon, in itself, raises questions about whether everyone who is deemed capable of working is actually able to compete in the job market and hold down a job.

58. Canada’s social security schemes have roots that extend back in time. Our attitudes towards poor people, and the programs designed to relieve their poverty, have antecedents that cannot be ignored (Guest, at 11). These antecedents include the church-based system of New France, where relief of poverty was considered a matter of Christian charity. They also include the English Poor Law of 1601, which placed every English parish under an obligation to relieve the aged and ill and to provide work for the able-bodied poor (An Act for the Relief of the Poor, 1601, 43 Eliz., ch. 2 (Eng.), reprinted in 7 Stat. at Large (Eng. 37-37) (Danby Pickering, ed., 1762)). Despite some difference in schemes, attitudes towards poverty in New France were similar to those embedded in the Elizabethan poor laws (Sylvie Morel, The Insertion Model or the Workfare Model? The Transformation of Social Assistance within Quebec and Canada (Ottawa: Status of Women Canada, 2002, Cat no. SW21-95/2002 E-IN) at 30; Serge Mongeau, Evolution de l’assistance au Québec. (Montreal: Editions du jour, 1967) at 13–19, 34), and these attitudes underlie modern state social security programs. As Dennis Guest writes of the Elizabethan poor laws,

[t]he parish authorities were required to provide for those
members of their parish who were too old, sick or disabled to
support themselves—the ‘‘impotent poor.’’ They were also
asked to provide work for the able-bodied unemployed and
to punish those deemed able to work but unwilling to do so
(Guest, at 12).

59. As scholars Dennis Guest and Sylvie Morel note, along with responsibility for the poor came an attitude of suspicion towards those who were the beneficiaries. (Guest, at 9–17; Morel, at 31–2). A 1697 amendment to the English poor laws aimed to distinguish the ‘‘genuinely deserving’’ recipients from ‘‘the idle, sturdy, and disorderly beggars’’ (An Act for Supplying Some Defects in the Law for the Relief of the Poor of This Kingdom, 1696–97, 8 & 9 Will. 3, ch.30, x 2 (Eng.), reprinted in 10 Stat. At Large (Eng.) 106 Danby Pickering ed., 1762), amending Poor Relief Act 1662, 14 Car. 2, ch. 12 (Eng.), reprinted in 8 Stat. At Large (Eng.) 94-95 (Danby Pickering ed., 1762)). A provision of the Act required all people who received poor relief to wear the letter ‘‘P’’ in red or blue cloth on the right shoulder of their clothing on pain of a reduction or elimination of relief or imprisonment with hard labour for up to twenty days. This amendment introduced the notion, which still has currency today, that it is legitimate to subject beneficiaries of public relief to stigmatizing and humiliating treatment, both as a means of deterring the poor from relying on public relief and in order to ensure that the non-deserving poor do not receive it.

60. These attitudes were imported into colonial Canada and are a part of our inheritance. Guest notes that the values of individualism and free enterprise flourished naturally in the frontier society of early Canada. It was widely held that the chance to build a better life was open to all. While poverty was common, to be dependent upon public or private charity was widely regarded as a disgrace, a sign of personal failure, or divine retribution for a sinful life (Guest, at 17–18).

61. Canada’s state social security schemes began with aid programs for specific groups of poor people—widows, the elderly, blind persons. These groups were considered to be the ‘‘deserving poor,’’ who were in need of help through no fault of their own, and to be distinguished from the ‘‘undeserving poor.’’ Although the Depression made it difficult to sustain the notion that poverty was caused by the moral failings of individuals (Guest, at 93), as Joel Handler writes, the image of ‘‘the sturdy beggar’’ has continued to haunt public discourse about poverty, and it is embedded in the structure of many North American welfare schemes (Joel Handler, ‘‘Social Citizenship and Workfare in the United States and Western Europe: From Status to Contract’’ (USBIG Discussion paper no. 37, July 2002, prepared for the Joint Meeting of the Canadian Law and Society Association and the Law and Society Association, 30 May–1 June, Vancouver, Canada, <www.usbig.net/papers/037-joelhandler.htm> accessed 20 June, 2007). In other words, the idea has stuck in the public mind, and in the minds of some legislators, that able-bodied poor people are lazy, unwilling to work, grasping, immoral, responsible for their own unfortunate condition, and undeserving of help.

62. Thus, a threshold question in this case must be: are stereotypes and prejudices about the able-bodied poor embedded in the design of the Québec welfare scheme? Is bias against the so-called ‘‘undeserving poor’’ implicit in it? Or, to put it another way: is ‘‘social assistance recipient under 30’’ a proxy for ‘‘sturdy beggar’’ or ‘‘undeserving’’?

63. The answer to this question is yes. Reading this legislation against the backdrop of the history of welfare policy reveals the prejudice and stereotype embedded in it. The Québec regulation made a distinction between under thirty welfare recipients and thirty-and-over welfare recipients that was not tailored to correspond to differing needs or circumstances of the two groups. All of the members of both groups had been individually assessed and determined to be in need of aid of last resort in order to meet their basic needs for food, clothing, and shelter. The cost of food, clothing, and shelter was no different for the under-thirty year olds than for those thirty and over. Those thirty and over were offered opportunities to participate in training and remedial education programs and so, presumably, were understood to need them, just as the under-thirty year olds did. However, those thirty and over were offered extra subsidies if they participated in these programs, while the under-thirty year olds had their rate cut to $170, with participation in the programs offered as the (unreliable) means of struggling back to the regular rate. The treatment of the two groups, with the same needs, shows that the under-thirty year olds were considered to be different—lax, unmotivated, dilatory. They were considered unlikely to seek training or education unless coerced by deprivation.

64. The position of the Supreme Court of Canada majority that, in light of the compensatory employability programs, there was insufficient evidence that section 29(a) actually caused harm is unsustainable. These programs were not structurally even capable of compensating for the facially negative treatment of poor young people. There was no evidence to support the notion that young people stayed on the reduced rate as a matter of choice. Further, there was clear evidence that Louise Gosselin herself was unable to maintain continuous enrolment in the employability programs because of circumstances that were beyond her control. In disregarding this evidence, the Court revealed an unrealistic attachment to the myth of the always freely choosing individual. This is inconsistent with the idea of substantive equality, which entails an acknowledgment that the life opportunities and choices of members of some groups are constrained by assumptions about their roles and by the social conditions that attach to subordination and lesser status.

65. Underlying the idea that being on social assistance is a choice is the notion that life-sustaining employment is available to anyone in Canada who wants it. This is incorrect. Canada does not have an economy that provides jobs with better than poverty level incomes for everyone. This is a fact documented regularly by Statistics Canada, among others. In fact, Canada has many jobs that are part-time, temporary, casual, seasonal, and low-waged. Levels of reliance on social assistance rise and fall with fluctuations in the job market, but there are never enough stable jobs for everyone, and, particularly, not enough jobs capable of sustaining an adequate standard of living (Statistics Canada, Low Income and Low Wages, (Ottawa: Ministry of Industry, 2006); Kevin K. Lee, Urban Poverty in Canada: A Statistical Profile (Ottawa: Canadian Council on Social Development, 2000), in particular, Chapter 3: Economic and Labour Force Characteristics; and Richard P. Chaykowski, Non-Standard Work and Economic Vulnerability (Ottawa: Canadian Policy Research Network, 2005), <http://www.cprn.org/documents/35584_en.pdf> accessed 20 June, 2007). The rhetoric of self-sufficiency cannot simply be accepted at face value when the legislative initiatives carried out in its name cause suffering and social marginalization. Increasing individual employability through job training can be laudable, although its success depends on the training being appropriate to the person, well delivered, and tailored to the availability of actual jobs. Increasing equality of opportunity to compete for available jobs is a worthy goal. However, improving the employment credentials of individuals is not a sufficient goal as long as there are not enough life-sustaining jobs to go around. There must also be a social safety net to protect those for whom the market does not provide a decent, stable job.

66. The game of musical chairs provides a good analogy. Through training, less skilled players could improve their likelihood of getting into a chair and thereby of being a winner in the game. However, at the end, some players will always be without chairs—that is, unless we stop treating this as a game. The implication of the majority decision in the Supreme Court of Canada is that those who end up without a chair have chosen to be without one and should be forced to learn to run faster or to more effectively push others out of the way. McLachlin C.J. notes that

North America experienced a deep recession in the early 1980s, which hit Québec hard and drove unemployment from a traditional rate hovering around 8 percent to a peak of 14.4 percent of the active population in 1982 and among the young from 6 percent (1966) to 23 percent. At the same time, the federal government tightened eligibility requirements for federal unemployment insurance benefits, and the number of young people entering the job market for the first time surged. These three events caused an unprecedented increase in the number of people capable of working who nevertheless ended up on the welfare rolls’’ (Gosselin SCC, at para. 38).

Despite acknowledging that young people were unemployed because of forces beyond their control, McLachlin C.J. finds it permissible for the government to design a scheme based on ‘‘informed general assumptions’’ that ‘‘people under 30 had a better chance of employment and lower needs’’ as long as the general assumption is not based on a stereotype. She concludes: ‘‘The idea that younger people may have an easier time finding employment than older people do is not such a stereotype’’ (at para. 56).

67. McLachlin C.J. implies, in decrying the lack of evidence about the actual income of those young people who did not participate in any of the employability programs (Gosselin SCC, at para. 51), that these young poor people had other sources of income or support—their families, perhaps—though there was no evidence to support this. Implicit in McLachlin C.J’s reasoning is the assumption that the under-thirty year olds could get by on the lower rate because they had other income, could get employment if they wanted to, or could enrol in the employability programs and get back to the regular rate. In other words, she assumed that they were not living on the lower rate or did not have to.

68. Despite McLachlin C.J.’s express denial that a stereotype animated the scheme, her reasoning implicitly embraces the notion that the under-thirty individuals on welfare were unwilling to work and had to be coerced into productive lives. Although she characterizes the scheme positively, as ‘‘reflect[ing] faith in the usefulness of education and the importance of encouraging young people to develop skills and employability, rather than being consigned to dependence and unemployment’’ (Gosselin SCC, at para. 65), this disavowal of stereotype is unpersuasive. Faith in education does not make up for the assumption that young people need to be coerced into pursuing it. To avoid giving life to the stereotype, the Quebec government would have had to show some faith in the willingness of young people to do whatever they could to gain skills and find employment—faith, for example, that even if they received the regular rate defined as necessary to meet basic needs, like those thirty and over, they would participate in employability programs and seek jobs. To establish a base rate for them that meant extreme poverty unless they participated in training and employability programs was, in effect, to endorse the stereotype of the ‘‘sturdy beggar.’’

69. In allowing extreme poverty to be used as an incentive, the majority sanctioned a particularly high-risk form of ‘‘tough love,’’ permitting the government of Québec to knowingly endanger the physical and psychological health of young people on the theory that this would help them in the longer term. The facts were that the under-thirty year olds suffered hunger, malnutrition, cold, and homelessness. They lived in inadequate shelter; they moved frequently; and their lives were uncertain. They experienced fear, stress, humiliation, and sometimes desperation. They were forced, because of their poverty, to beg and steal.

70. There is also evidence that the reduced rate put women at risk in specific ways. As a survival strategy, some young women on the reduced rate bore children in order to become eligible for benefits at the regular rate of social assistance (Gosselin SCC, testimony of community worker A. Sandborn, vol. 2, at 227; P-9, vol. 8, at 1412; P-9.2, vol. 8, at 1442). A number of young women on the reduced rate engaged in prostitution or accepted unwanted sexual advances to try and keep their apartments, to pay monthly expenses, such as heat and electricity, or to buy food (Gosselin SCC testimony of community worker A. Sandborn, vol. 2, at 202, 210, 221–3; P-6, vol. 5, at 875, 876, and 879; P-9, vol. 8, at 1406 and 1409; P-9.2, vol. 8, at 1440; P-9.2, vol. 8, at 1443).

71. The trial judge found that at a time when her rooming house was $170 per month and her monthly welfare benefit was also $170, Louise Gosselin had to resort to degrading means to survive, such as accepting the companionship of an individual for whom she had no affection with whom she could exchange her sexual availability for shelter and food (Gosselin Sup. Ct., at 1655).

72. The risks to women when they are homeless or live in communal shelters are well known. These precarious circumstances increase women’s vulnerability to sexual assault and sexual harassment (E´ dith Bouchard, Brenda White, and Susanne Fontaine, Les femmes itinérantes: une réalité méconnue (Québec: Conseil du statut de la femme, 1988) at 12; Suzanne Lenon, ‘‘Living on the Edge: Women, Poverty and Homelessness in Canada’’ (2000) 20(3) Canadian Woman Studies 123 at 125; Sylvia Novac, Joice Brown, and Carmen Bourbonnais, No Room of Her Own: A Literature Review on Women and Homelessness (Ottawa: Canada Mortgage and Housing Corporation, 1996) at 20–3). Louise Gosselin, who experienced homelessness and the male dominated milieu of boarding houses, was a victim of sexual harassment by male boarders. She also survived an attempted rape (Gosselin SCC, testimony of L. Gosselin, vol. 1, at 126–8; P-6, vol. 5, at 876; testimony of psychologist D.D. Gratton, vol. 2 at 332; P-7, vol. 6, at 1047).

73. None of these harms can be assumed to be temporary. As the National Association of Women and the Law pointed out in its factum in the Supreme Court of Canada, the harms that younger women experience when they have to live below a subsistence level affect their economic and other opportunities at later stages of their lives. Denying women access to adequate social assistance when they are between eighteen and thirty reinforces their pre-existing social and economic inequality and increases their likelihood of being poor at later stages of their lives. Being drawn into prostitution and other coerced sexual relationships and giving birth to children in order to escape the severe deprivation associated with the reduced rates of social assistance for young single people will have an effect on their lives after age thirty, affecting psychological well being, physical health, access to job opportunities, and, eventually, their financial security as older women.

74. Also unconvincing is the view of the Supreme Court of Canada that the government’s intention of integrating young people into the workforce militates against a finding of discrimination. McLachlin C.J. explained her conclusion by claiming that the intention of the legislator was a positive one. She wrote: ‘‘As a matter of common sense, if a law is designed to promote the claimant’s long-term autonomy and self-sufficiency, a reasonable person in the claimant’s position would be less likely to view it as an assault on her inherent human dignity’’ (Gosselin SCC, at para 27). Given the objective reality of the impoverished circumstances of people trying to survive on the reduced rate, this is deeply troubling.

75. The Supreme Court of Canada majority treated the government’s claimed positive intention for the scheme as though it were determinative. Yet it is well established in human rights and Charter equality rights law that good intentions do not justify discriminatory effects. As early as 1985, in the landmark case of Ontario (Human Rights Commission) v. Simpson-Sears Ltd. (O’Malley), [1985] 2 S.C.R. 536, the Supreme Court of Canada held that a well-intended policy could have discriminatory effects and that proof of adverse effects is sufficient to ground a claim of discrimination. In this case, however, the majority of the Supreme Court of Canada treated the government’s positive intention as though it were the equivalent of positive outcomes and used it to negate the very harm that was the grounding of Louise Gosselin’s section 15 claim. The majority decision provides a demonstration of how insidious stereotypes can be—a stereotype can be so accepted in society that it is invisible even to conscientious judges.

76. We find that the denial of social assistance benefits to young adults violated essential human dignity by reflecting and promoting the stereotypical view that young adults in need are less worthy of recognition or value as human beings and members of Canadian society. This conclusion is further confirmed by the fundamentality of the interests affected, which we discuss later in this decision.

(b) Deprivation of Dignity-Constituting and Equality-Constituting Benefits

77. The impugned legislative distinction was grounded in a stereotype. In our view, the stereotype was manifest. However, even absent a finding that the distinction was based on a stereotype, it must be concluded that there was discrimination, having regard to the importance of the interests affected by the material deprivation, and the severity of those effects on the under-thirty group.

78. This group was not denied a free monthly movie ticket. They were denied the amount of welfare that the government itself had defined as the minimum necessary to eat, have shelter, and clothe oneself. As a result, interests that have long been recognized as possessing a high degree of constitutional and societal importance were adversely affected, and severely so. On this basis alone, it must be concluded that the Québec legislature discriminated when it withheld social assistance from the under-thirty group.

79. Though stereotyping is a recurrent theme in human rights and Charter equality jurisprudence, it is clear that the understanding of discrimination is not confined to stereotyping. The Court has explicitly acknowledged that discrimination may arise not only through stereotyping but also as a result of treatment that ‘‘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’’ (Law, supra, at para. 51). Beyond combating stereotypes, the Court has held that section 15’s purpose includes ‘‘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’’ (Law, supra, at para. 88 [emphasis added]). It has also noted section 15’s concern with ‘‘physical and psychological integrity’’ (Law, supra,at para. 53).

80. Sexual harassment is an example of a practice that has been found to be discriminatory, not because it is premised on a stereotype of women workers but, rather, because it is an exercise of power and a form of abuse that reinforces women’s inequality in their workplaces. Similarly, in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, which is also known as ‘‘the women firefighters’ case,’’ the Court held that a fitness standard that excluded many women from firefighting work and which had not been shown by the employer to be necessary to job performance was discriminatory. If one digs deeply enough and examines the assumptions underlying the fitness standard that had been adopted, a sexist stereotype of who is a competent firefighter can be found, but this was not necessary to the Court’s analysis. In addition, in Eldridge, supra, the Court was not concerned about stereotyping as such but, rather, with the failure of the government to respond to the particular needs of deaf people in need of medical care.

81. There are various reasons why stereotyping cannot be the sine qua non of discrimination. One important reason is that insistence on proof of stereotyping can too easily slide into requiring proof of malicious intent, contrary to the well-established principle that proving discrimination does not necessitate proving bad motive. Further, stereotyping consists of an unfounded or mistaken generalization about a group that is applied to individual members of the group, denying their individual capacity or needs. However, there are some differences between groups, such as those relating to pregnancy, certain disabilities, and historic disadvantages experienced by some groups, which are real and not mistaken. Those differences, which are real rather than the product of mistaken generalizations, are also not a legitimate basis for practices that have the effect of infringing individual human dignity or perpetuating disadvantage.

82. Taking the effects of the material deprivations as a beginning point of the analysis leads to the conclusion that the Québec legislature discriminated when it ignored the needs of the under-thirty group for a subsistence income.

83. International human rights law provides insight into the importance of the interests at issue in this decision. In the Universal Declaration of Human Rights, General Assembly (GA) Resolution 217(III), UN GAOR, 3rd Sess., Supp. No. 13, UN Doc. A/810 (1948) at 71, Article 25, rights to social security and to an adequate standard of living were first articulated. The rights in the declaration were subsequently elaborated in numerous international human rights treaties that Canada has ratified.

84. From the outset, the interdependence and indivisibility of all human rights has been a foundational principle of international human rights. The International Covenant on Economic, Social and Cultural Rights, GA Resolution 2200A (XXI), UN Doc. A/6316 (1966) (ICESCR) and the International Covenant on Civil and Political Rights, GA Resolution 2200A (XXI), 21 UN GAOR (Supp. No. 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171 (ICCPR), both explicitly draw on the Universal Declaration of Human Rights and recognize that freedom from fear and freedom from want can only be enjoyed if conditions are created whereby everyone can enjoy economic and social rights as well as civil and political rights.

85. Particularly important to an understanding of Louise Gosselin’s claim is Article 11 of the ICESCR, which obligates Canada to progressively realize the right of everyone to an adequate standard of living including adequate food, clothing, and shelter. Canada ratified this treaty in 1976. Also important is Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (G.A. Resolution 34/180, 34 GAOR Supp. (No. 46) at 193, UN Doc. A/34/46 (1979)), which obligates Canada to take all appropriate measures in the political, social, and economic fields to ensure the full development and advancement of women.

86. Constitutional and quasi-constitutional norms such as section 36 of the Constitution, sections 7 and 15 of the Canadian Charter, and section 45 of the Québec Charter, are all expressions of Canada’s and Québec’s intention to give life to these international human rights obligations.

87. As the Supreme Court of Canada has recognized, the various sources of international human rights law—declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms—are relevant and persuasive sources for interpretation of the Charter’s provisions (United States v. Burns, [2001] 1 S.C.R. 283 at para. 80). In Baker v. Canada, [1999] 2 S.C.R. 81 at para. 70, the Court called international human rights law a ‘‘critical influence on the interpretation of the scope of the rights included in the Charter,’’ and in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at para. 23, it stated that ‘‘the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents that Canada has ratified.’’

88. Before the United Nations Committee on Economic, Social and Cultural Rights (CESCR) to which Canada reports periodically, Canada has stated that the Charter guarantees that Canadians will not be deprived of the basic necessities of life (CESCR, Summary Record of the Fifth Meeting: Canada, UN Doc. E/C.12/1993/SR.5 (25 May 1993) at para. 21).

89. The CESCR has made it clear that adherence to the ICESCR obliges Canada to ensure that Canadian courts and tribunals adopt purposive interpretations of the Charter that will remedy violations of the right to an adequate standard of living, and other ICESCR rights.

90. The CESCR has also made pointed criticisms of Canada’s human rights performance (Committee on Economic, Social and Cultural Rights Concluding Observations on Report of Canada Concerning the Rights covered by Articles 10-15 of the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/C 12/1993/5 (3 June 1993)). In 1993, the CESCR expressed concerns about Canada’s failure to make any measurable progress in alleviating poverty over the previous decade or in alleviating the severity of poverty among particularly vulnerable groups. The CESCR also expressed concern about evidence of families being forced to relinquish children because of an inability to secure housing and other necessities; hunger and extensive reliance on food banks; widespread discrimination in housing against people on social assistance and people with low incomes; inadequate attention to homelessness and low expenditures on social housing; and the failure of lower courts to adequately enforce the right to an adequate standard of living, including adequate housing, as a component of sections 7 and 15 of the Charter.

91. In 1998, Canada was criticized by the CESCR not just for a lack of
progress but also for dramatic cuts to social programs, including cuts to social
assistance rates and for increasing homelessness and lack of affordable housing
(Committee on Economic, Social and Cultural Rights, Consideration of Reports
Submitted by States Parties under Articles 16 and 17 of the Covenant:
Concluding Observations of the Committee on Economic, Social and Cultural
Rights (Canada), UN Doc. E/C.12/1/Add.31 (10 December 1998)).

92. In the most recent review of Canada’s compliance with its treaty
obligations, the CESCR again expressed concerns about the lack of adequate
social assistance for Canadians in need (Concluding Observations on Canada,
UN Doc. E/C. 12/CAN/CO/5 (22 May 2006)).

93. In 1999, the United Nations Human Rights Committee joined the
CESCR in condemning discrimination against people on social assistance. The
committee also linked homelessness to the guarantee of the right to life under
Article 6 of the ICCPR:

The Committee is concerned that homelessness has led to
serious health problems and even to death. The Committee
recommends that the State party take positive measures required
by article 6 to address this serious problem (Concluding
Observations of the Human Rights Committee: Canada,
UN Doc. CCPR/C/79/Add.105 (7 April 1999) para. 20).

94. In its 2003 Concluding Comments, the CEDAW Committee
expressed serious concerns about ‘‘the high percentage of women living in
poverty, in particular, elderly women living alone, female lone parents,
Aboriginal women . . . women of colour, immigrant women and women with
disabilities’’ and about the disproportionately negative impact on women of
recent cuts and changes to social assistance, including the cuts to social
assistance rates and the narrowing of eligibility rules for welfare (Committee
on the Elimination of Discrimination against Women, Consideration of
Reports Submitted by States Parties under Article 18 of the Convention,
Concluding Observations of the Committee: Canada, 28th Sess. UN Doc. A/58/
38 (13-31 January 2003) at para. 357; see also paras. 351, 358, and 359).
Although Canada’s treaty obligations are not binding on Canadian courts
unless they have been incorporated in legislation, they are a relevant and
persuasive source for the interpretation of the Charter. International human
rights law, and the comments of the treaty bodies that review Canada’s
compliance, underscore the importance of access to food, clothing, and
housing, and highlight the particular and disproportionate harms to women of
inadequate social assistance. They support the view that withholding equal
social assistance benefits represents an extremely serious denial of equal benefit
and protection of the law.

95. The Ontario Court of Appeal has said that ‘‘[s]ocial assistance may
well constitute a fundamental social institution’’ (Falkiner 2002, at para. 100).
We hold that social assistance is a fundamental institution. Without access to
social assistance a person who is destitute is vulnerable to exclusion from all
forms of community life—social, political, cultural, and economic. Lack of
access to the means of subsistence also impairs the enjoyment of other
constitutional rights, including liberty and security of the person.

96. In classical United States constitutionalism, equality guarantees may
have been understood to perform the limited function of restraining
governments from drawing distinctions that are based on prejudice and
stereotype. However, the section 15 purpose of promoting a society in which
all persons enjoy equal recognition as human beings and members of Canadian
society has a positive and, necessarily, material dimension. Fulfilling this
obligation means that governments must intervene to address material
conditions of disadvantage, especially those that impair the enjoyment of
constitutional rights, signify that an individual or group is not equally worthy
of membership in society, or exacerbate pre-existing disadvantage. In this case,
all of those factors are present.

97. In a country as wealthy as Canada, the denial of the means of
subsistence is an overt signal that the person is not regarded as equally worthy
of recognition as a human being, not accepted as a fully equal member of
society, and not perceived as equal in dignity.

98. Denise Réaume has written about the concept of dignity as follows:

To ascribe dignity to human beings . . . is to treat human beings as
creatures of intrinsic, incomparable and indelible worth, simply
as human beings. No further qualifications are necessary. Dignity
is thus ascribed to human beings independently of their particular
accomplishments or merits or praiseworthiness. The kind of
worth connoted is not contingent on being useful, or attractive,
or pleasant, or otherwise serving the ends of others . . .As
something inherently ‘‘possessed’’ by human beings, there is a
sense in which dignity cannot be taken away. It can, however, be
dishonoured through a failure to show respect, through treating
others as less than creatures of inherent worth (Denise Réaume,
‘‘Dignity, Equality, and Second Generation Rights,’’ in Margot
Young, Susan Boyd, Gwen Brodsky, and Shelagh Day, eds.,
Poverty: Rights, Social Citizenship, and Legal Activism
(Vancouver: UBC Press, 2007) at 292).

99. Dignity can be dishonoured in different ways. Yet, importantly, the
dignity of a person is dependent on material conditions that permit her to
participate in social, political, and economic life in her society as an equal
member and to make choices about her life, including sexual and reproductive
choices, as an autonomous creature. Otherwise, explains Réaume, she is
excluded, marginalized, and is an outsider (Réaume, at 288).

100. Some material conditions, therefore, have to be seen as essential to
dignity, as, in the words of Re´aume, minimum conditions for a dignified life.
Adequate food, shelter, and clothing are among these foundational conditions.
And the benefits that governments provide that address every person’s basic
requirement to have these foundational conditions Re´aume calls ‘‘dignity constituting benefits’’ (Réaume, at 287). Adequate social assistance is one of these.

101. About social assistance, Réaume writes:

Social assistance recognizes that those unable to find adequate
employment nevertheless need a roof over their heads and food
on the table. The alternative is life on the streets, having to beg
or pilfer, exclusion from most social activities, subjection to the
constant risk of violence and disease, the waste of one’s talents,
and the likelihood of premature death. Someone confined to a
hand-to-mouth existence can form no meaningful life plan; she
is driven by necessity. The impairment of autonomy is
comprehensive and extreme. The additional psychological toll
of living such a life, including constantly dealing with the
misunderstanding and prejudice of others, is staggering. The
need created by poverty is . . . urgent; its alleviation is . . . integral
to human dignity (Réaume, at 292).

102. To the extent that the deprivation of social assistance jeopardizes the
enjoyment of section 7 rights to life, liberty, and security of the person, it can
also be dealt with under section 7. The value of individual human dignity
underlies both section 7 and 15. However, the deprivation of social assistance
is not only a section 7 issue. Nor is it only an issue of individual dignity. The
deprivation of adequate social assistance has group-based consequences. Only
a section 15 lens renders visible the group dimensions of a state denial of
the means of subsistence and the layers of rights infringements it both causes
and reflects. A section 15 lens reveals not only the connection between social
assistance and individual dignity but also the particularly egregious effects of
the denial of the means of subsistence to women and other disadvantaged
groups for whom poverty is a manifestation of discrimination. For these
groups, social assistance, in addition to being a dignity-constituting benefit, is
an equality-constituting benefit, the denial of which magnifies the inferior
status of those groups whose disadvantage is entrenched.

103. A word about the distinction drawn here between dignity and
equality is in order. The terms ‘‘dignity’’ and ‘‘substantive equality’’ have at
times been used interchangeably (Nova Scotia (Workers’ Compensation Board)
v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003]
2 S.C.R. 504 at para. 85). However, the concepts do not seem to us to be
completely synonymous. The concept of substantive equality, more than the
concept of ‘‘human dignity,’’ is associated with group disadvantage, marginalization,
and subordination. Inherent in the idea of ‘‘substantive equality’’ is
the recognition that certain groups in the society suffer from entrenched
inequality and that members of those groups are systematically denied basic
rights, freedoms, and influence in the political process that others take for
granted. It is because of the relationship between poverty and group-based
disadvantage that social assistance must be recognized not only as a dignity-constituting benefit for the individual, but as an equality-constituting benefit
for the groups most affected by poverty.

104. As we have noted, ‘‘poor people’’ is a group disproportionately
composed of Aboriginal peoples, women, people with disabilities, recent
immigrants, people of colour, and single mothers. These groups have higher
rates of poverty than average, some shockingly high, and they are
disproportionately reliant on social assistance to meet their basic needs. The
economic inequality, as well as the social and political inequality, of members
of these groups is part of the ‘‘fall-out’’ from complex, old, and deeply rooted
forms of discrimination. For this reason, it is necessary to deal with poverty as
a manifestation of sex, race, and disability discrimination. Entrenched patterns
of systemic discrimination are a central cause of poverty.

105. Of course, the Québec regulation affected poor young women as well
as poor young men. We understand that single mothers were exempted from
section 29(a), at least temporarily, though mothers were not exempted during
pregnancy. It is reasonable to assume that it also affected Aboriginal people,
recent immigrants, people of colour, and at least some people with disabilities.

106. Poverty exaggerates and intensifies the inequality of members of
already disadvantaged groups. As this case shows, poor women experience a
magnified form of sex inequality. When women are poor, they accept sexual
commodification and subordination to men in order to survive. They engage in
prostitution or ‘‘survival sex’’ to get by. They are more vulnerable to rape,
assault, and sexual harassment because they live in unsafe places, and they are
not free to leave abusive relationships or walk away from workplaces that are
poisoned. When women are denied adequate social assistance, as they are
under these regulations, and they are coerced by want into prostitution and
unwanted sex in order to feed and shelter themselves, their constitutional
rights to sex equality, liberty, and security of the person are jeopardized.
Poverty is also a barrier to women’s participation in decision-making and
perpetuates their lack of political influence.

107. A similar analysis can be provided with respect to race equality or
equality for persons with disabilities. Attention to the specific ways in which
different groups are disadvantaged and marginalized reveals, in a way that
only a section 15 analysis can, the specific ways in which denial of social
assistance threatens to exacerbate these forces.

108. The decision of the South African Constitutional Court in
Government of the Republic of South Africa v. Grootboom, [2000] 11 B.
Const. L.R. 1169 (S. Afr. Const. Ct.) supports our view that social assistance is
an equality-constituting benefit. The Court held that it was a violation of the
Constitution for the government to approve a development plan that displaced
homeless people, without making reasonable provision for those who had no
access to land, no roof over their heads, and were living in crisis situations. The
Court explained that the realization of rights to housing is ‘‘a key to the
advancement of race and gender equality and the evolution of a society in
which men and women are able to achieve their full potential’’ (at para. 23).
The logic of this analysis of the interdependency of sex and race equality with
the satisfaction of basic material needs, such as access to decent shelter, is also
applicable in the Canadian context.

109. The right to equality obliges governments in Canada to ensure
that everyone can access the means of subsistence. The obligation to do so is
necessarily incidental to the right to equality of disadvantaged groups,
including women, Aboriginal people, African-Canadians, and people with
disabilities. A corollary is that an equality analysis is always relevant to
poverty, even though there may be other rights that also apply. Seeing the
group dimensions of poverty, and the layers of rights infringements it both
causes and reflects, underlines the societal obligation to address it. Looking at
poverty through a group-based equality lens reveals that poverty is more than
an individual problem. The patterns of who is poor are static and reflect longstanding
discrimination in the society.

110. The danger of ignoring the particular effects on disadvantaged
groups is that the nature and extent of the harm of poverty-producing
measures and their potential to reinforce pre-existing disadvantage and
compromise fundamental interests may not be fully appreciated. Purely
individualistic and gender-, race-, and disability-neutral explanations of
poverty are too simplistic. Taking into account group-based effects
tells more of the truth of what is happening. It can show that there are
qualitatively different impacts on certain groups; it may implicate a range of
different constitutional rights and treaty provisions; and it calls into question
the validity of the assumption that poverty is about individual irresponsibility.

111. Section 15 must enable a consideration of the equality-denying
effects of the deprivation of adequate social assistance on the very groups
whose need for social assistance is part of the impact of long-standing
discrimination against them.

112. We began our section 15 analysis with a consideration of the effect of
a stereotype of the undeserving poor that is embedded in the Québec social
assistance scheme. We have concluded with an approach that emphasizes the
dignity-compromising and equality-compromising effects of lack of access to
adequate food, clothing, and housing. An implication of focusing on the
effects of the material deprivation is that equalizing the entitlements of all
welfare recipients downwards would not remedy the equality rights violation
identified in this case. Although equalizing downward would achieve a
measure of formal equality, it would not address the substantive inequality
that poverty represents and causes. It would amount to an unconscionably
extreme form of ‘‘equality with a vengeance’’ (Kathleen Lahey, ‘‘Until Women
Themselves Have Told All They Have to Tell’’ (1985) 23(3) Osgoode Hall Law
Journal 519). There are some material conditions without which individuals
are neither viewed nor treated as equals, nor can they function as equal
members of the society. In Canada, access to the means to meet basic needs is
such a condition.

B. Section 1

113. Louise Gosselin’s equality rights were infringed by Section 29(a) of
the RRSA. The burden falls on the government of Québec to prove that such a
limit on her rights was justified. This is a burden that the government of
Québec has not discharged.

114. The ultimate standard against which a limit on a Charter right must
be shown to be reasonable and demonstrably justified are the values and
principles essential to a free and democratic society. Those values include
respect for the inherent dignity of the person, a commitment to social justice
and equality, and faith in social and political institutions that enhance the
participation of individuals and groups in society.

115. Using the Supreme Court of Canada’s section 1 test, R. v. Oakes,
[1986] 1 S.C.R. 103, in order to demonstrably justify such a limit,
the government of Québec must show that the provision pursues an objective
that is sufficiently important to justify limiting a Charter right and that it does
so in a manner that: (1) is rationally connected to that objective; (2) impairs the
right no more than is reasonably necessary to accomplish that objective; and
(3) does not have a disproportionately severe effect on the persons to whom
it applies.

(1) Pressing and Substantial Objective

116. The primary objective of section 29(a) was to provide a negative
financial incentive to persons eligible for social assistance who were under
thirty in order to induce them to join the work force and thereby reduce the
welfare rolls.

117. This objective is impermissible because a discriminatory stereotype is
built into it, namely that young able-bodied welfare recipients will not seek
employment unless forced to do so. As we have indicated earlier, the proof that
this stereotype was operative lies in the fact that people thirty and over were
not subjected to the same negative financial incentive, and yet there was no
evidence that the under-thirty group was any less likely to avail itself of
employment opportunities than those thirty and over. Nor was there evidence
that there were available employment opportunities which under-thirty welfare
recipients simply refused to pursue. On the contrary, the evidence was that the
1980s were years of high unemployment in Québec, particularly for youth. In
other words, there was no objective, non-discriminatory reason for the
negative financial incentive applied to the under-thirty group.

(2) Rational Connection

118. Even if we accepted that ensuring the entry or re-entry of young
persons into the labour force was a pressing and substantial objective, cutting
the social assistance of the under-thirty year olds was not rationally related to
this goal. To the contrary, there is evidence that living on the reduced rate
actually diminished the ability of members of this group to seek and keep
employment because they did not have money for transportation, a telephone,
a stable address, decent clothes, and other amenities necessary to function as
a work-seeker or a worker.

(3) Minimal Impairment

119. Nor did section 29(a) minimally impair the section 15 equality rights
of young poor women and men. If section 29(a) is viewed as part of an
endeavour to encourage them to participate in employability programs, the
government of Québec failed to show that cutting the social assistance rate for
this group was necessary to the achievement of the objective. The government
of Québec also failed to show that there was a reasonable basis for believing
that its employability programs would offset the harm of section 29(a),
considering the deficiencies of these programs.

120. There is no reason to be deferential to the legislature’s choice in this
particular case. The group affected was a vulnerable one and included
extremely vulnerable women, of whom Louise Gosselin was one. The group
suffers from old, negative stereotyping; the nature of the interest affected by
the exclusion is fundamental; and there is no evidence of competing interests
requiring arbitration.

121. Even according the government of Québec a high degree of
deference, it failed to demonstrate that the provision in question constituted
a means of achieving its legislative objective that was minimally impairing of
the equality rights of the claimants. For example, the government did not
demonstrate that it could not have created a positive incentive for the underthirty
year olds to participate in employability programs by providing a top-up
to the base rate as it did for those thirty and over.

122. The government of Québec argued that there was no evidence
to show that the under-thirty recipients did not participate in the programs
for anything other than personal reasons, but, at the section 1 stage of
analysis, it is the government’s responsibility to show that the legislation
limited the right as little as possible. Since the employability scheme was
structurally incapable of ensuring that all of the under-thirty year olds
could participate in the programs and could receive the regular rate, the
government did not meet its burden to show minimal impairment of equality
rights.

(4) Proportionality

123. Because the scheme at issue fails at the rational connection and
minimal impairment stages of the Oakes test, it is pointless to ask whether its
positive effects might outweigh its deleterious consequences. We are not
satisfied that the violation of equality rights was necessary, and it therefore
cannot be justified in a free and democratic society.

C. Section 7

124. Given our finding that the treatment of Louise Gosselin violates
section 15 of the Charter, and cannot be saved by section 1, it is not necessary
to consider section 7. We wish to provide our comments, however, because we
disagree with the analysis of the majority of the Supreme Court of Canada, as
well as with some aspects of the minority decision. This is the first case in
which the Supreme Court of Canada had the opportunity to comment directly
on the role of section 7 in ensuring that all Canadians have access to the basic
necessities of life, and we wish to state clearly that, in our view, section 7, in
addition to section 15, should have protected Louise Gosselin from the
degrading poverty that she suffered in this case.

(1) One Right or Two?

125. Section 7 of the Charter provides:

7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice [Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne
peut être porté atteinte àce droit qu’en conformité avec les
principes de justice fondamentale].

126. Arbour J. provides an analysis of the grammatical structure of
section 7, focusing on the fact that its two clauses are conjunctive in English,
and separated by a semi-colon in French. She concludes that section 7 contains
two separate rights: first, a right to life, liberty and security of the person and,
second, a right not to be deprived of life, liberty and security of the person
except in accordance with fundamental justice. She finds that the first right is
violated and that it is unnecessary, therefore, to consider the principles of
fundamental justice.

127. This approach diverges considerably from the earlier jurisprudence
concerning section 7. The possibility of a two-rights approach was raised as a
possible interpretation in the early days of the Charter, but was never adopted
(Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Operation Dismantle Inc. v.
The Queen, [1985] 1 S.C.R. 441). The one-right approach, which treats section
7 as a single right, and requires a breach of fundamental justice in order for it
to be violated came to be applied invariably.

128. The need to choose between the two approaches only arises if a
breach of fundamental justice cannot be found, since this makes it necessary to
determine whether a section 7 violation could be established through a
different theory. We believe that there is a breach of fundamental justice in this
case, so the choice need not be made. That being the case, we proceed using the
conventional approach.

129. Furthermore, we disagree with Arbour J.’s suggestion that the tworights
approach is necessary in order to interpret section 7 as providing a
positive right to state support of life, liberty, and security of the person. As
part of a ‘‘contextual analysis’’ in support of the two-rights approach, she
concludes that because some rights may be used to justify the violation of other
rights under section 1, every Charter right must contain a positive dimension.
She says (at paras. 353–4):

Charter rights and freedoms find protection in section 1, not
only because they are guaranteed in that section, but because
limitations on some rights are required by the positive protection
of others . . . In other words, the justificatory mechanism in
place in section 1 of the Charter reflects the existence of a
positive right to Charter protection asserted in support of
alleged interference by the state with the rights of others. If such
positive rights exist in that form in section 1, they must, a
fortiori, exist in the various Charter provisions articulating the
existence of the rights. For instance, if one’s right to life, liberty
and security of the person can be limited under section 1 by the
need to protect the life, liberty or security of others, it can only
be because the right is not merely a negative right but a positive
one, calling for the state not only to abstain from interfering
with life, liberty and security of the person but also to actively
secure that right in the face of competing demands.

130. In using this analysis to support her conclusion that section 7
contains two rights, Arbour J. appears to suggest that the one-right theory
does not leave any positive dimension to section 7. If this is her intended
meaning, we do not agree. The fact that fundamental justice must be breached
before section 7 can be violated does not mean that the state has no obligation
to protect life, liberty, and security of the person in the first place. A
deprivation of life, liberty, and security of the person may occur not just
through action but also through inaction, making any failure to protect these
interests, including by failure to take positive steps to ensure protection,
the potential subject of the fundamental justice analysis.

131. Having expressed this concern, and in proceeding by way of the
conventional analysis, we do not wish to be taken as expressly rejecting the
two-rights approach. There is much to be said for the argument that any
violation of life, liberty, or security of the person should require justification
under section 1. There may be a case, in the future, in which a claimant needs
to take up this cause in order to establish a section 7 violation. We simply leave
that analysis for another day.

(2) Interests Protected by Section 7

132. Having elected to proceed in accordance with the conventional
approach to section 7, we are compelled to conduct a two-stage analysis: (1) is
there a deprivation of one of the interests protected by section 7, and (2) if so,
is this deprivation in accordance with the principles of fundamental justice
(R. v. Heywood, [1994] 3 S.C.R. 761)?

133. The first question requires us to consider whether the interests at
stake are ones that fall within the meaning of the words ‘‘life,’’ ‘‘liberty,’’ or
‘‘security of the person.’’ We agree with the Supreme Court of Canada that
these are three separate interests, each of which must be given separate
meaning and none of which has primacy over the others (Heywood, supra).

134. The starting point for ascertaining the scope of the three interests is
the ‘‘plain meaning’’ of the words. They are ordinary words and they are not
ambiguous. The plain meaning approach is the ‘‘golden rule’’ of statutory
interpretation (R. v. Mcintosh, [1995] 1 S.C.R. 686). In our view, it applies to
constitutional as well as other statutory instruments. Added to this, in the
Charter context, is a heightened requirement that the plain words be given a
‘‘generous,’’ ‘‘broad,’’ and ‘‘purposive’’ interpretation (Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145).

135. The appellant in this case is particularly concerned with the plain
meaning of the words ‘‘life’’ and ‘‘security of the person’’ in section 7. ‘‘Life,’’
according to ordinary sensibilities, refers to the quality that separates living
organisms from inanimate ones and includes the physical, mental, and spiritual
experiences that constitute existence. ‘‘Security’’ refers to an assurance of
safety, including freedom from danger and anxiety. In our view, section 7 is
therefore clearly concerned, on its face, with physical and psychological
well-being.

136. These are precisely the interests that the Supreme Court of Canada
has acknowledged to be protected by section 7, though never in a case
concerning social assistance. Security of the person involves interference with
‘‘physical and psychological integrity,’’ including ‘‘serious state-imposed
stress’’ (Blencoe v. British Columbia (Human Rights Commission), [2000]
2 S.C.R. 307). Circumstances sufficient to invoke security of the person have
included threatened torture (Singh v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177); the inability to commit suicide (Rodriguez v. British
Columbia (Attorney General), [1993] 3 S.C.R. 519); the inability to access safe
abortion (R. v. Morgentaler, [1988] 1 S.C.R. 30); and the inability to get a
timely hearing of serious harassment allegations (Blencoe). The extension of
security of the person to circumstances involving the inability to access basic
necessities is both crucial and obvious. We do not need evidence to know that
food, housing, and clothing are sine qua non requirements of physical and
mental integrity.

137. In addition, we find that ‘‘life’’ is implicated when the threat to
mental and physical security is so severe that death is threatened. The chief
justice and two other justices of the Supreme Court of Canada expressly
accepted this proposition in Chaoulli v. Québec (Attorney General), [2005]
1 S.C.R. 791, where they found that the inability to access private health care
involved the ‘‘life’’ interest because ‘‘lack of timely health care can result in
death’’ (at para. 123). This conclusion flows from the accepted principle that
threats to life, liberty, or security of the person are sufficient to engage these
rights (Morgentaler, supra at 32–33). (It is worth noting that this analysis
contradicts Arbour J.’s argument that the right to life except in accordance
with fundamental justice had no meaning apart from prohibiting capital
punishment, which partly grounded her argument in favour of the two-rights
approach).

138. The respondent and intervenor attorneys general in this case argued
that the plain meaning of section 7 should be read down so as to exclude
‘‘economic interests.’’ They said that the history of section 7 supports this
interpretation, since the framers of the Charter expressly decided to exclude
‘‘property’’ rights from section 7.

139. Like Arbour J., we cannot accept this argument. As Chief Justice
Brian Dickson stated in Irwin Toy, ‘‘property interests’’ and ‘‘economic
interests’’ are not synonymous. There are many economic interests that are not
property rights although they may have an economic component (Irwin Toy
Ltd. v. A.G. Québec, [1989] 1 S.C.R. 927). Moreover, as pointed out by the
intervenor Charter Committee on Poverty Issues in its factum, the historical
exclusion of property rights did not stem from a desire to exclude ‘‘economic’’
interests from Charter protection but rather from a narrow concern of the
provinces that specific protection of property could erode the ability of
provinces to regulate property pursuant to their power to do so under section
91 of the Constitution Act, 1867 (A. Alvaro, ‘‘Why Property Rights Were
Excluded from the Canadian Charter of Rights and Freedoms’’ (1991) 24
Canadian Journal of Political Science 309). In short, there is no historical
foundation for an argument that all interests with an economic component
should be read out of section 7.

140. This is not to say that section 7 protects ‘‘economic interests’’ per se.
Rather, the interests involved must affect physical and psychological integrity
to a serious degree, measured by the impact on human dignity and
independence (Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6).
As discussed in relation to section 15 above, dignity is clearly at issue when
access to basic necessities, such as food and shelter, is seriously threatened.
Social assistance schemes are created to provide these requirements, with rates
generally set at a level purported to provide minimal subsistence. Receipt of
anything less than these rates must necessarily meet the required threshold of a
serious impact on physical and psychological integrity.

141. We agree with L’Heureux-Dubé J. that the government’s chosen
level of benefits is not the only benchmark for a section 7 violation
(Gosselin SCC, at para. 142). The appropriate level of social benefits could,
in another case, be established by way of evidence. It is possible that a
government scheme would fall short. Once again, the appropriate question
would be whether the basic entitlement impairs life and security of the person
to the point that physical and psychological integrity are impaired in a manner
serious enough to engage the values of individual dignity and independence.
Unlike Arbour J., we are confident that courts have the institutional
competence to assess this, given the proper evidentiary foundation. Basic
needs such as shelter costs and nutritious food requirements, and the impact of
deficiencies, are sufficiently measurable to permit a court to identify a floor
beneath which no individual should be allowed to fall.

142. In summary, when the words ‘‘life’’ and ‘‘security of the person’’ are
given their plain and ordinary meaning it is abundantly obvious that they
encompass the kind of interests that were at stake for Louise Gosselin in this
case. With respect, we cannot comprehend how McLachlin C.J. was able to
conclude that the evidence in this case did not rise to the level of affecting an
interest protected by section 7. As described earlier in relation to section 15,
the evidence clearly demonstrated that Louise Gosselin was unable to feed,
clothe, or house herself adequately during times when she was subject to the
reduced rate. As noted earlier, she was ‘‘relieved’’ when she made it to age
thirty—thankful that she had survived. There is no doubt that her life was at
stake, and her security of the person was in serious jeopardy. There is also no
doubt that the government could have done something about this, but that it
actively chose not to do so.

143. In addition to life and security of the person, in our view the facts of
this case also engage the ‘‘liberty’’ interest protected by section 7 of the
Charter. As the Supreme Court of Canada has recognized in the past, liberty
includes not only the notion of freedom from physical constraint, but also the
autonomy to make fundamental personal choices without state interference
(Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at para. 66). Where state
actions take away the ability to make fundamental personal choices, they have
engaged the liberty interest.

144. We note that the concept of dignity, discussed above in relation to
equality, is equally applicable to our notion of liberty. The personal choices,
of which a person cannot be deprived under section 7, except in accordance
with fundamental justice, are those personal choices that are necessary
to preserve dignity. Where dignity-constituting choices are not available,
because of government actions, there will be a deprivation of liberty under
section 7.

145. In this case, Louise Gosselin’s inability to live in a dignified manner,
because the choice to do so was not available to her, was a deprivation of her
liberty. Perhaps the most extreme example of this kind of deprivation is
represented by the resort to ‘survival sex’ we noted earlier. But there are
endless examples of choices that she could and would have made for her own
health and welfare, were it not for the state’s decision to drive her into an
existence below subsistence level.

146. It is notable that while we rely on the concepts of liberty and
autonomy to impugn the government action in this case, the government relied
on the same concepts—successfully in the courts below—to justify its actions.
Its argument was that the purpose of the law is ‘‘to promote the claimant’s
long-term autonomy and self-sufficiency’’ and thus there could be no harm to
Louise Gosselin’s dignity. Under the government’s theory, liberty is achieved
by escaping poverty. The mechanism for improving long-term autonomy is the
improvement of welfare recipients’ material conditions—the ‘‘escape from
unemployment’’ described by the Supreme Court at para. 43—that is
presumed to be brought about by the law in question.

147. The theory recognizes, therefore, that material conditions have a
direct impact on liberty. This connection is not expressly stated, however, with
the result that the immediate material impact of the law, and its relationship to
liberty in the short term, is ignored in the analysis. We cannot accept that
result, particularly where life and security of the person are also at stake.

148. The Supreme Court’s failure to acknowledge the connection between
autonomy and severe poverty has another impact as well–that is, to suggest
that a person cannot enjoy (or does not possess) freedom or autonomy unless
he or she is free from the state altogether and no longer in need of state
support. A person on welfare therefore cannot be capable of enjoying liberty
and autonomy, and thus cannot be seen as having all of the attributes of a full
citizen. Such a message reinforces the stereotypes and justifies the negative
attitudes toward welfare and welfare recipients discussed earlier in this
decision.

(3) Government Responsibility for the Section 7 Deprivation

149. The respondent and intervenor attorneys general also argued that
section 7 cannot be violated unless the state is directly responsible for the
threat to the claimant’s life or security of the person—that is, responsible for
the conditions that created their poverty. Otherwise, they say, section 7 would
be creating a positive obligation on the government that is inconsistent with
the scheme of the Charter, which involves ‘‘negative’’ rights (freedom from
state intrusion) rather than ‘‘positive rights’’ (obligations on the state to
intervene).

150. This argument does not stand up to scrutiny. As Arbour J. stated in
her reasons, many Charter rights require positive government action, including
expenditures of government funds. The right to vote (section 3), the right to
procedural safeguards in criminal proceedings (section 11), and the right to
minority language education (section 23) are clear examples. There is no sense
in which these can be considered ‘‘negative’’ rights and not ‘‘positive,’’ since
they can only be enjoyed through the implementation, by the government
itself, of specific mechanisms that give them effect. These are mechanisms that
require action. The government does not have a ‘‘policy choice’’ to make about
whether they design the institutions necessary to ensure that these rights are
upheld.

151. Other Charter rights also have both negative and positive
components. They may be negative in the sense that the government cannot
interfere with their enjoyment, but, at the same time, they may be positive in
the sense that in some cases the government must take steps to ensure that
everyone can enjoy them. In Dunmore v. Ontario (Attorney General), [2001]
3 S.C.R. 1016, the Supreme Court of Canada found that the right to
association requires not only freedom from interference but also the enactment
of a legal regime that ensures effective means of association for everyone.
In Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627, the Court
acknowledged that freedom of speech may also require positive steps. In
Schachter v. Canada, [1992] 2 S.C.R. 679, the right to equality was described as
a ‘‘hybrid,’’ which in some cases requires the government to refrain from
acting in certain ways and in other cases may require that the government take
steps to ensure that equality is obtained.

152. It is argued that even if other rights have a positive aspect, the
‘‘deprivation’’ aspect of section 7 confines this particular right to a negativerights
paradigm only. McLachlin C.J. seems to accept this (at para. 81), and
it is suggested by Arbour J.’s rejection of the one-right approach, discussed
earlier in this decision. As noted, we do not agree with this narrow
understanding of the word ‘‘deprivation.’’ The choice not to do something is
no less a cause of deprivation than the choice to take something away. In
Eldridge, supra, the Supreme Court of Canada concluded that deaf persons
were deprived of equal health care because the government did not provide
interpreter services. Similarly in Vriend, supra, the failure to protect against
discrimination was a deprivation of protection. A purposive, large, and liberal
interpretation of the word deprivation, which is required under the Charter,
includes not just the notion of actively taking away, but also the notion of
withholding or of unavailability or absence.

153. The positive aspect of section 15, described thoroughly earlier,
requires governments to take steps to alleviate disadvantage in order to
promote equality. This supports our view that section 7 should be interpreted
as providing protection against deprivations of life and security of the person
that are caused by poverty. The right to equal benefit and protection of the law
is illusory if poverty prevents one from participating and enjoying the rights of
equal citizenship.

(4) Is Under-Inclusion a Pre-Condition to Finding a Section 7 Violation?

154. Arbour J.’s reasoning relies heavily on Dunmore, supra, and its
focus on ‘‘under-inclusion’’ to ground the finding of a section 7 violation.
Although she begins by clearly describing the case as one involving ‘‘whether
there is a right to a minimum level of subsistence,’’ in dealing with the case at
bar she found that the right to life and security of the person requires inclusion
in the state’s welfare scheme. She did not expressly find that the state has an
obligation to create the scheme in the first place but, rather, chose to use the
under-inclusion paradigm because the scheme already exists (Gosselin SCC, at
paras. 356 and 359).

155. We wish to state clearly that section 7 creates an obligation to create a
welfare scheme that provides adequately for persons in need and that the failure
to do so would be a deprivation of life, liberty, and security of the person.
Section 7 protects life and security of the person per se. The failure to provide
anyone with the means to access basic needs is a threat to that person’s life and
security of the person, whether or not other people have access, through a
welfare scheme or otherwise. The need creates the threat, and the government
must protect against it.

(5) Is the Deprivation in Accordance with the Principles of Fundamental
Justice?

156. Since we have adopted the more traditional approach to section
7—one right that is subject to abrogation only when the principles
of fundamental justice are complied with—we must address the question of
whether the welfare scheme in this case accords with the principles
of fundamental justice. We find that it does not.

157. As the Supreme Court of Canada has repeatedly stated, the principles
of fundamental justice are to be found in the basic tenets of the Canadian justice
system. They encompass our basic notions of both procedural and substantive
fairness. They may be found in the underlying principles of domestic and
international law. They must be legal and not mere matters of ‘‘morality’’
(Rodriguez, supra).

158. In our view one of the basic tenets of Canadian justice is a principle
that our laws must not permit or create circumstances that deprive persons of
the basic necessities of life. This principle runs throughout our domestic and
international laws. This is one of the shared assumptions upon which our
system of justice is grounded, and it is a basic norm for how the state deals
with individuals (Canadian Foundation for Children, Youth and the Law v.
Canada (Attorney General), [2004] 1 S.C.R. 76).

159. Canadian penal laws, for example, expressly forbid the state from
depriving prisoners of basic necessities (Corrections and Conditional Release
Act, R.S.C. 1992, c. 20, s. 70; Corrections and Conditional Release Act
Regulations, SOR/92-620, s. 83). It would be unthinkable to punish criminals
by depriving them of food or shelter or forcing them into prostitution or other
obviously dangerous circumstances. Yet this is precisely the effect of the law
at issue in this case. The punishment for being a young person who needs
social assistance, but cannot access a job program, is to be more cold, hungry,
and endangered than the worst offender in the highest security prison in
Canada.

160. Other examples of this principle in our laws include the bankruptcy
laws, which permit a bankrupt to retain a specified amount as an allowance
(an amount that, notably, is more generous than any social assistance scheme)
(Re Pearson (1997), 46 C.B.R. (3d) (Alta. Q.B.) at para. 24; see generally the
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 67-68), and our family
law rules, which permit a parent or former spouse to take care of their own
personal basic needs before requiring payment of support (Family Law Act,
R.S.O. 1990, c. F.3, s. 33(9); Family Relations Act, R.S.B.C. 1996, c. 128, s.
89(1); Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(4); Federal Child
Support Guidelines, SOR/97-175). Debtor-creditor laws make various types of
assets (such as pensions or social assistance benefits) exempt from seizure by
creditors because it is understood that such benefits are intended to provide for
basic needs and that the seizure of them would result in poverty (C.R.B. Dick
Dunlop, Creditor-Debtor Law in Canada, 2nd edition., (Toronto: Carswell,
1995) at 449 ff). The Criminal Code (R.S.C. 1985, c. C-46, s. 215 c. (-46, s. 215))
creates an offence for people who are charged with supporting another human
being to fail to provide the necessities of life, which includes the provision of
food, shelter, and medical care.

161. These domestic regimes all evidence a general principle that no
one should be disabled, by law, from being able to attain the basic necessities
of life. International laws are to the same effect and also help in discerning the
principles of fundamental justice (Re B.C. Motor Vehicle Act, supra; United
States v. Burns, [2001] 1 S.C.R. 283). Canada is a signatory to many
international treaties that demonstrate a commitment to the same underlying
fundamental principle—that no one should be deprived of the basic necessities
of life. As noted earlier, various international instruments include obligations
to provide an adequate standard of living, including access to food, housing,
and health care, and UN monitoring bodies have held these rights to be
violated by inadequate provisions of welfare. Canada is a wealthy country in
which it is possible to fulfil these obligations. There is simply no excuse for not
doing so. The position so often taken by governments in Canada in litigation,
denying the role of section 7 in fulfilling these international commitments, is a
shameful stain on Canada’s reputation as a protector of human rights.

162. It is no answer to these fundamental norms to point to the historical
inadequacy and under-inclusion of welfare schemes in Canada, and elsewhere,
and to conclude, thereby, that the ‘‘consensus’’ about these fundamental
norms does not extend to social programs. To do so would be to justify a
violation of section 7 by reference to the violation itself. The proper question is
whether the underlying principle is generally present within our legal system,
and, if so, whether the failure to adhere to this principle in the context at issue
can be explained by reference to some other principle of fundamental justice.
There is no such principle in this case. On the contrary, the failure to abide by
fundamental justice in the case of welfare recipients stems from discriminatory
and punitive attitudes towards people who rely on government assistance
rather than employment. There is nothing fundamentally just about these
attitudes.

163. We also believe that the violation of equality in this case constitutes,
in addition to a violation of section 15, a violation of fundamental justice.
Equality is undoubtedly a cornerstone of our democracy and a tenet of our
legal system. As the Supreme Court of Canada has stated, it is the ‘‘broadest’’
of Charter guarantees, and it has been a feature of the justice system
throughout our legal history. The meaning of equality has developed over
time, but the fundamental legal principle—that all persons should be equal
under the law—has remained constant. The legal commitment to equality is
evidenced throughout our domestic laws and in countless international
instruments that Canada has ratified.

164. Other well-accepted principles of fundamental justice are also
violated in this case: the principle against arbitrariness and the related
principle against over-breadth. The Supreme Court of Canada has stated that
a provision will breach fundamental justice due to arbitrariness when its scope
is disproportionate to the problem that the law seeks to address (R. v. Malmo-
Levine; R. v. Caine, [2003] 3 S.C.R. 571). Over-breadth, similarly, involves a
law that includes persons for whom the effect is disproportionate to the
government’s stated objective (Ontario v. Canadian Pacific Ltd., [1995]
2 S.C.R. 1031). Both of these principles are violated in this case by the fact
that the law was applied even to persons who were ineligible for, or unable to
access, the required training and work programs.

(6) Relationship between Section 7 and Section 1 of the Charter

165. It is arguable that in finding that section 7 of the Charter is violated,
there is no need to consider section 1. The view was expressed by Justice Bertha
Wilson in Re B.C. Motor Vehicle Act, supra, at para. 119, that a violation of
fundamental justice cannot be either reasonable or justifiable, as the two
concepts are ‘‘mutually exclusive.’’ Where fundamental justice is violated, she
said, ‘‘the enquiry, in my view, ends there and the limit cannot be sustained
under section 1’’ (at para. 105).

166. Wilson J. was speaking for herself in this case and her definitive
view has not been adopted in subsequent cases. Rather, it has been said that it
will be extremely rare for a section 7 violation to be saved by section 1, and the
Oakes test has been applied in the normal course (Kindler v. Canada (Minister
of Justice), [1991] 2 S.C.R. 779).

167. We prefer Wilson J.’s view. Its wisdom is well illustrated by the
present case, which demonstrates the strong overlap between the considerations
relevant to section 1 and to fundamental justice.

168. The principles of arbitrariness and over-breadth, for example, both
of which applied in this case, correspond conceptually to the rationality and
minimal impairment aspects of the Oakes test—namely, the prohibition
against interference with Charter-protected interests by laws that over-reach
the scope of their proposed objectives. There is no reason that a consideration
of this requirement under section 7 should yield different results under section
1, so there should be no need to conduct the analysis twice. The Supreme
Court of Canada acknowledged this in Heywood, supra, at 802, when it stated
that ‘‘[o]verbroad legislation which infringes section 7 of the Charter would
appear to be incapable of passing the minimal impairment branch of the
section 1 analysis.’’

169. There is a balancing aspect to fundamental justice that is also clearly
similar to the considerations required under section 1. The Supreme Court of
Canada has stated this repeatedly, holding that in order for a law to be
fundamentally just it must strike an appropriate balance between the
individual rights at stake and the purported state objectives.

170. This balancing exercise has been the primary section 7 inquiry in
cases such as Rodriguez, supra, (where it was found that the state interest in
protecting life outweighed the individual interest in controlling one’s death);
Cunningham v. Canada, [1993] 2 S.C.R. 143 (where it was found that the
interest of protecting society from potential crime outweighed a prisoner’s
interest in early release); and Godbout, supra (where it was found that the
interest of a municipality in having its employees live within city limits were
not sufficient to outweigh the individual interests in choosing where to live).
In Godbout, notably, the Court acknowledged that having conducted this
balancing analysis under section 7 it was unnecessary to conduct a section 1
analysis (at para. 91).

171. With respect to the concept of equality as a principle of fundamental
justice, this is a violation, we believe, of the proportionality arm of the Oakes
test. The section 7 violation already involves harm to the interests of life,
liberty, or security of the person, and the addition of an equality violation, on
top of that, is a violation of a second fundamental Charter interest. We cannot
conceive of a government interest of such great importance that it would
enable harm to one set of Charter interests by way of a violation of another
Charter right.

172. This is particularly apparent when we consider that section 1 is not
just about measuring the purpose of a law against its effect but rather about
doing so by reference to what is acceptable in a free and democratic society.
The reference to democracy is not about deference to the decisions of a duly
elected majority government but to the values that underlie our democracy.
Majoritarian decision-making is only one such principle. Equally important
principles, particularly in the context of the Charter, are equality, participation,
social justice, and inclusion (R. v. Oakes, at 136). Adherence to
democratic values means, therefore, that the law in question must as much as
possible ensure the inclusion of those who are normally excluded. Where the
law actually fosters exclusion, it cannot be consistent with a substantive
understanding of Canadian democratic society, and cannot pass muster under
section 1.

D. Section 45 of the Québec Charter of Human Rights and Freedoms

173. This case raises the further issue of whether section 29(a) of the
RRSA violates section 45 of the Québec Charter and if so, whether a remedy is
available under the Québec Charter.

174. The Québec Charter is a fundamental, quasi-constitutional statute
of public order. It is more than an anti-discrimination code. The Québec
Charter articulates the social contract that is the foundation of modern Québec
society. It sets out fundamental rights and freedoms as well as the political,
judicial, social, and economic rights of all human beings. The Québec Charter
thus implicitly recognizes the indivisible and interdependent nature of these
rights as well as their shared role in laying down the foundation of justice and
peace that Québecers collectively aspire to.

175. It is well established that the Québec Charter calls for a broad
and generous interpretation that will allow it to achieve its purpose (Québec
(Commission des droits de la personne et des droits de la jeunesse v. Montre´l
(City); Québec (Commission des droits de la personne et des droits de la
jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665). These principles of
interpretation apply to the fundamental rights and freedoms set out in Chapter
1 as well as to the economic and social rights set out in Chapter IV and to the
remedial provisions. It is the Québec Charter as a whole that is binding on
the Crown (s. 54), not just the fundamental rights and freedoms set out in
Chapter 1.

176. Section 45 sets out one of the economic and social rights. It reads:

45. Every person in need has a right for himself and his family,
to measures of financial assistance and to social measures
provided for by law, susceptible of ensuring such person an
acceptable standard of living.

177. When it adopted the Québec Charter, the Québec National Assembly
clearly wished to establish a domestic law regime that reflects the principles
and standards set out in international human rights law. As Robert J. and then
L’Heureux-Dubé J. (Gosselin S.C.C.) underscored at length in their respective
dissenting opinions, section 45 of the Québec Charter bears a
close resemblance to Article 11 of the ICESCR. According to the United
Nations CESCR, Article 11 of the ICESCR contains ‘‘a minimum core
obligation to ensure the satisfaction of, at the very least, minimum essential
levels of subsistence needs and the provision of basic services’’ (CESCR,
Report on the Fifth Session, UN ESCOR, Supp. No. 3, UN Doc. E/1991/23
(1991) at para. 10).

178. Just as Article 11 of the ICESCR contains a core obligation to ensure
satisfaction of subsistence needs, section 45 of the Québec Charter creates an
obligation to ensure subsistence needs through legislation, as opposed to
delegating this vital role to organizations in the voluntary sector such as food
banks and shelters or religious organizations.

179. In the Supreme Court of Canada, the bench was divided on the issue
of the justiciable nature of section 45 of the Québec Charter. Yet to differing
extents, not only L’Heureux-Dubé J. but also Gonthier, Iacobucci, Major and
Binnie J.J., and McLachlin C.J. all recognized that section 45 must have a
certain degree of justiciability.

180. Except in the reasons of L’Heureux-Dubé J., the reasons for
judgment erroneously interpreted the expression ‘‘provided for by law’’ as
diminishing the scope of the right set out in section 45. Speaking for the
majority, McLachlin C.J. concluded that ‘‘[a]lthough s. 45 requires the
government to provide social assistance measures, it places the adequacy of the
particular measures adopted beyond the reach of judicial review.’’

181. However, this case does not raise the question of the level at which
a person reaches ‘‘an acceptable standard of living.’’ The government of Québec
itself had established, by regulation, the rate (approximately $466 per month)
necessary to cover the ‘‘basic needs’’ of a person in need of last-resort assistance
or, in other words, the financial assistance susceptible of ensuring a person an
acceptable standard of living within the meaning of section 45. In the case at bar,
there was no adequacy issue.

182. It was admitted that no person, over or under thirty, could survive
on $170 per month. Within the framework established by the government
itself, Louise Gosselin was denied the right to financial assistance ‘‘susceptible
of ensuring a person an acceptable standard of living’’ set out in section 45.
Thus, even within the artificially narrow framework in which the majority
placed section 45, Louise Gosselin’s claim should have succeeded.

183. It is true that for some of the period in question, Louise Gosselin
did receive the regular rate. Indeed, approximately 11.2 per cent of women and
men under the age of thirty requiring last-resort assistance were able to receive
the regular rate. However, even when she was able to participate in one of the
employment programs and received the regular rate, her right to financial
assistance under section 45 was not respected. As her testimony so eloquently
conveys, even when she was on the basic rate, her experience of lastresort
assistance was rife with fear—fear of hunger, fear of cold, fear of being
homeless—in a way that was intimately linked to the ever-present threat of
being relegated once again to the reduced rate. This situation cannot be said to
respect the ‘‘equal worth and dignity’’ of each member of Québec society that is
set out in the preamble of the Québec Charter and that should inform
interpretation of its provisions.

184. Having proclaimed a right to financial assistance and social measures
for persons in need, the Québec legislature was then precluded from making that
right conditional on the fulfilment of certain conditions such as participation in
a program. The government had determined that Louise Gosselin was in need of
last-resort assistance under the terms of the Social Aid Act. It had determined
the amount of social assistance required to meet the ‘‘basic needs’’ of
any individual. Under section 45, it was then obligated to provide that
minimum amount of assistance to Louise Gosselin as well as other persons
under the age of thirty.

V. Remedy

A. Remedy under the Canadian Charter: Overview

185. Pursuant to section 52 of the Canadian Charter, the Women’s Court
of Canada declares that section 29(a) of the Québec RRSA was invalid from 17
April 1987, the date on which the Canadian Charter came into force in Québec.

186. Louise Gosselin sought an award pursuant to section 24(1) of the
Charter compensating the members of the group for the difference between the
regular benefit and the reduced rate for the periods when they received the
reduced rate. Before we decide this question, it is useful to review the principles
that inform the Court’s approach with respect to remedy in the case of
violations of Charter rights and freedoms.

187. The Supreme Court of Canada has ruled that section 24 must be
interpreted in a way that achieves its purpose of upholding Charter rights by
providing effective remedies for their breach. McLachlin C.J. has stated in the
context of criminal law that ‘‘a right, no matter how expansive in theory, is
only as meaningful as the remedy provided for its breach’’ (R. v. 974649
Ontario Inc., [2001] 3 S.C.R. 575 at para. 20 [Dunedin]; see also Doucet-
Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at para. 55).

188. In the context of criminal law, section 24(1) is described as ‘‘a
cornerstone upon which the rights and freedoms guaranteed by the Charter are
founded, and a critical means by which they are realized and preserved’’
(Dunedin, at para. 20). In much the same way, in the context of social
programs that are found to be inconsistent with the Charter, sections 52(1) and
24(1) of the Charter form the cornerstone upon which the equality guarantee is
founded and a ‘‘critical means’’ by which section 15 equality rights must be
‘‘realized and preserved.’’

189. Even seen through the excessively narrow (and some would say
distorting) lens of public law principles, a remedy is available to the plaintiff.
Indeed, regardless of its precise interaction with constitutional and human
rights law, state immunity is never unlimited. In this case, the government
asked a group of already very poor welfare recipients defined by age to bear a
disproportionate burden of a fiscal crisis affecting the entire province. These
individuals, who were by definition in need of last-resort assistance, assumed
this burden at the price of their physical and psychological security. Lack of
political power kept this group from protecting itself in the political arena of
majority-rule government. State immunity cannot now prevent the courts from
preserving this vulnerable group’s constitutional right to a meaningful remedy
from the courts.

190. When general public law principles may come into conflict with
constitutional principles guaranteeing fundamental rights and freedoms to all
Canadians, the Supreme Court of Canada has said that the guiding principle is
one that allows ‘‘a balance between the protection of constitutional rights and
the need for effective government’’ (Mackin v. New Brunswick (Minister of
Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405) [Mackin]. In striking this
balance, the Court must be mindful of Canada’s obligations under international
law.

191. Specifically, Article 8 of the Universal Declaration of Human Rights
stipulates that:

[e]veryone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights
granted him by the constitution or by law.

192. Article 2(3) of the ICCPR specifies that government representatives
must not be granted immunity for human rights violations:

(3) Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as
herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by
persons acting in an official capacity.

193. CEDAW, supra, and the Convention on the Elimination of All Forms
of Racial Discrimination, (1969) 660 R.T.N.U. 195, contain similar provisions
on the right to effective remedy in case of discrimination on the basis of sex
and race.

B. The Scope of Louise Gosselin’s Right to a ‘‘Just and Appropriate’’ Remedy under Section 24(1)

194. Government conduct that is ‘‘clearly wrong, in bad faith or an abuse of power’’ will lead to an award of damages for the harm suffered as a result of the application of an unconstitutional legislative provision (Mackin, at para. 78). In addition, although state immunity may in certain circumstances be relevant when broad public policies are subsequently found to be unconstitutional, the government is nonetheless always required to ‘‘respect the ‘established and indisputable’ laws that define the constitutional rights of individuals’’ (at para. 79).

195. First and foremost, in a context of a deep economic recession, the purpose of the reduced rate was above all a financial one. We reiterate the central fact that it was admitted that no one could survive on $170 per month. The government of Québec had fixed the rate necessary to cover ‘‘basic needs’’
at approximately $466 per month. With shocking disregard for the desperate
hardship that this imposed on many individuals, it effectively required welfare
recipients age eighteen to twenty-nine years old to contribute the difference
between the basic rate and the reduced rate. It is this disregard for young
people on welfare that suggests a stereotypical and negative attitude towards
their actual and potential worth as members of Québec society.

196. Second, not surprisingly, in this case, the record shows that the
government knew that the deprivation of people in need under thirty caused by
section 29(a) was ‘‘clearly wrong.’’ For example, in 1984, after a Montreal
newspaper article reported the results of a study on the nutritional status of
recipients on the reduced rate, the material and psychological deprivation
caused by the reduced rate was pointed out in the Québec National Assembly.
The Journal de Montréal article quoted in the National Assembly stated:

As for young social assistance recipients between 18 and 30
years of age who live on $151 per month, they can choose
between a roof over their heads and not eating, or eating and
sleeping in parks [translation] (Gosselin SCC, PG-42, vol. XVII,
at 3214).

197. In 1987, the Québec government’s own social assistance policy
paper, ‘‘Pour une politique de sécurité du revenu,’’ admitted that among twelve
glaring problems with the current scheme, the first was that

[i]n the current benefit structure, benefits granted to people
under 30 years of age without children are lower than those
granted to people over 30 years of age. This problem has been
raised again and again in the media and has been the subject of
submissions by the public and concerned groups [translation]
(Gosselin SCC, PG-54, vol. XVII, at 3303).

198. In 1986, public policy expert Derek Hum published an article
referring to the ‘‘caprice and illogic’’ of categorization of youth in social
security programs such as social assistance. He described the ‘‘folly of
designing programs with categorical eligibility along with benefit differences
based upon age or some other criteria not directly relevant’’ (Derek Hum,
‘‘UISP and the MacDonald Commission: Reform and Restraint’’ (1986)
Canadian Public Policy/Analyse de politique 92, at 95, 97).

199. In 1985, briefs submitted to the minister responsible for social aid by
professional organizations representing dieticians, nurses, doctors, psychologists,
social workers, and criminologists consistently questioned the discriminatory
nature of the reduced rate. Given the negative impact of the reduced
rate on unemployed adults under thirty years of age, they argued forcefully for
its repeal (Gosselin SCC, P-9.2, vol. VIII).

200. Of course, the government is not obliged to comply with the wishes
of any particular citizens, or groups of citizens, when they ask for a repeal of a
given legislative provision in order to stop the harm it is causing. However,
when the government chooses to ignore a body of scientific literature
documenting the serious harm that a regulation with a primarily financial
purpose is causing to a vulnerable population, when that regulation is found to
be in breach of the Charter, the government is precluded from invoking the
doctrine of state immunity in order to avoid responsibility.

201. Section 29(a) was not in any way sanctioned by the ‘‘established and
indisputable’’ laws of the time. In fact, it is clear that public opinion condemned
section 29(a) as simply wrong. Demonstrating ‘‘willful blindness’’ (Mackin, at
para. 82) with respect to its constitutional and human rights obligations, the
Québec government chose, for financial reasons, to maintain destitute young
women and men on the reduced rate for many years before it proceeded with
global reform of its social assistance regime. In so doing, the government
showed itself to be indifferent and unresponsive to the constitutional and quasi-
constitutional rights of an extremely vulnerable population of Québecers.

202. If the guarantees of the Charter are to have meaning for all
Canadians, there are limits to judicial deference to government’s policymaking
role that must be recognized (Vriend, supra, at 559–60). In case of
doubt, section 24(1) must be interpreted in a manner that provides a full,
effective, and meaningful remedy for Charter violations.

203. The facts of this case, and the extreme vulnerability of the claimants,
make this case one in which a section 24(1) remedy should be added to a
section 52 declaration. The challenged regulation deprived extremely vulnerable
individuals of the amount of welfare that the legislature itself had deemed
necessary to meet the basic necessities of life. For the affected individuals, there
were immediate harms and for some there may be longer-term harms caused
by the deprivations they experienced because of the reduced rate. It is just and
appropriate that these victims of Charter violations be compensated for the
violation of their rights. A monetary award can never completely repair the
harm that has been done, but it can go some distance towards making these
victims whole, and it can signal in the strongest terms that governments have a
positive obligation to ensure that young men and women in need are not treated
as though they were beyond the reach, and the care, of the Constitution.

204. This finding is in accordance with international law that sets out the
right to effective remedy for violations of fundamental rights and clearly
stipulates that the government is not to be granted immunity for human rights
violations.

205. As this Court also considers an award under section 45 of the Québec Charter appropriate, our final words on remedy follow.

C. Remedy under the Québec Charter

206. The case at bar was commenced on 17 April 1985, before the relevant provisions of the Canadian Charter came into effect in Québec on 17 April 1987. Do the provisions of the Québec Charter form the basis for a remedy to be granted to Louise Gosselin and the other members of the class action suit for the two-year period before the Canadian Charter came into effect in Québec?

207. Section 52 of the Québec Charter sets out its primacy over ordinary statutes. However, given that the social and economic rights are excluded from the ambit of section 52, this section of the Québec Charter clearly does not allow for a declaration that section 29(a) of the regulation is null and void.

208. Social assistance benefits are a service ordinarily offered to the public within the meaning of section 12 of the Québec Charter:

12. No one may, through discrimination, refuse to make a juridical act concerning goods or services ordinarily offered to the public.

209. Had the Court found discrimination forbidden by the Québec Charter, section 13 would have led to a declaration that section 29(a) was ‘‘without effect’’ (Pierre-Yves Bourdeau, ‘‘La responsabilité de l’État employeur ou fournisseur de biens et services à la lumiére des protections offertes par la Charte,’’ in La Charte des droits et libertés de la personne: pour qui et jusqu’où? (Textes des confe´rences du colloque tenu à Montréal les 28 et 29 avril 2005, TDPQ/Barreau du Québec, 2005). Section 13 states:

13. No one may in a juridical act stipulate a clause involving discrimination. Such a clause is without effect.

210. However, discrimination on the basis of age and sex under the Québec Charter were not argued in this case. The only provision of the Québec Charter that was argued was section 45.

211. If a remedy lies with the Québec Charter then, it must lie with section 49. Section 49 sets out a right not only to cessation of unlawful interference with a Charter right but also to compensation:

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

Specifically, section 49 of the Québec Charter provides for this dual remedy of cessation/compensation when there has been an ‘‘unlawful interference’’ with a Charter right. Interference is unlawful when it is the result of ‘‘wrongful conduct,’’ defined as a violation of:

a standard of conduct considered reasonable in the circumstances under the general law or, in the case of certain protected rights, a standard set out in the Charter itself (Québec  (Curateur public) c. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at para.116).

212. Interference with section 45 was unlawful for the same reasons that a remedy under section 24(1) of the Canadian Charter was granted in addition to the section 52(1) declaration of invalidity. Section 29(a) violated a standard of conduct considered reasonably diligent and prudent in the circumstances. The government chose to maintain the reduced rate in spite of compelling and consistent evidence of the grave harm it caused to young women and men in genuine need of last-resort assistance and, in so doing, violated its duty of care to these young people. For these reasons, a remedy is also available under the Québec Charter for the period before the Canadian Charter came into effect.

213. Finally, the judges of the Supreme Court of Canada found that the procedural vehicle used to bring this Charter challenge made it difficult to consider and to evaluate damages as an ‘‘appropriate and just’’ remedy in the circumstances. The amount of damages claimed clearly inhibited their willingness to find in favour of the plaintiff.

214. However, given that Louise Gosselin’s challenge clearly succeeds as an individual action, there is no reason to modify our conclusion simply because her case was brought as a class action. To do so would be to frustrate both the letter and the spirit of the provisions of Book IX of the Québec Code of Civil Procedure, R.S.Q., c. C-25, governing class actions. The trial judge authorized the class action suit, giving Louise Gosselin the right to sue on behalf of other members of the group because they, as individuals, suffered discrete harms similar or related to the harm suffered by Louise Gosselin. Her ability to adequately represent the group was one of the essential conditions for this authorization (Nicole Duval Hesler, ‘‘Le recours collectif: un parcours complexe’’ (Art. 1003 d; 2004) 64 Revue du Barreau 383 at 397). It is res judicata between the parties.

215. According to Hesler, a class action suit is decided in three distinct and separate stages: (1) authorization of an individual to institute a class action; (2) decision on the merits; and, as the case may be, (3) provisions for recovery. In other words, once a plaintiff is authorized to institute a class action against a certain respondent on behalf of herelf and other individuals forming a specific group, at trial, her burden of proof is no different than in an ordinary civil suit. Similarly, issues of recovery should not creep into the analysis of the merits of the case (Dikranian v. Québec (Attorney General), [2005] 3 S.C.R.530). This is essential to the realization of the objectives sought by the class action provisions of the Civil Code—increasing access to justice and reducing the cost of the justice system.

216. McLachlin C.J. asks ‘‘How much evidence is required to compel a government to retroactively reimburse tens of thousands of people for alleged shortfalls in their welfare payments, arising from a conditional benefits scheme?’’ (Gosselin SCC, at para. 12). She states:

It is, in my respectful opinion, utterly implausible to ask this Court to find the Québec government guilty of discrimination under the Canadian Charter and order it to pay hundreds of millions of taxpayer dollars to tens of thousands of unidentified people, based on the testimony of a single affected individual’’ (at para. 47).

However, it is in the very nature of a class action suit that there, on occasion, can be ‘‘tens of thousands of unidentified people’’ in the group on behalf of which the action is instituted, that when the respondent is the attorney general, ‘‘millions of taxpayer dollars’’ can be at stake and that the evidence with respect to one individual decides the matter for the group. For example, in Dikranian, another class action brought under Québec’s Code of Civil Procedure, rights flowing from a contract between a student and a financial institution were at issue. Although no evidence was led on the situation of the approximately 70,000 other students who were also members of the group, the Supreme Court of Canada did not hesitate to allow Mr. Dikranian’s appeal. And while the damages to be recovered from the Québec government were significant (approximately forty-two million dollars), this consideration was appropriately absent from the reasons for decision on the merits of the case. Whether the rights at issue flow from a private contract or from the Canadian or Québec Charter, these principles must be applied in the same way in every class action suit.

217. To consider the procedural vehicle that Louise Gosselin used to make her claim as a reason not to grant her compensation would mean that the sum of a group of individuals’ right to compensation would amount to less than one individual’s right to compensation for a Charter breach. This cannot be right.

VI. Disposition

218. The Women’s Court of Canada declares that section 29(a) of the RRSA was invalid from 17 April 1987 because it violated sections 15 and 7 of the Canadian Charter of Rights and Freedoms, and was not saved by section 1. In addition, the section violates section 45 of the Québec Charter of Rights and Freedoms. Damages are awarded under section 49 of the Québec Charter for the period between 27 February 1987, which is the date that was set for the commencement of remedies at the time the class action was certified, and 31 July 1989, which is the date when the section was repealed.

219. In this reconsideration, Louise Gosselin’s claim is allowed, and the judgments of the courts below are set aside, with costs.

220. In accordance with the procedure for class action suits, the case is remanded to the Superior Court to determine the method for making claims, the exact amounts owed by Québec and the payment procedures.

Over the coming months TheCourt.ca will have the honour of reproducing these judgments and providing them with a permanent online home. If you scroll down, you will find the logo of the Women’s Court of Canada on the right of your screen. It is hyperlinked. In future, by clicking on that link, readers will be able to view each of the Women’s Court judgments previously published at TheCourt.ca.

Author’s Note

Initially, I saw the exercise of writing a judgment in Law v. Canada (Minister of Employment and Immigration) merely as an opportunity to convert some previous academic work into a more ‘‘practical’’ form, partly to test how well my theoretical ideas about equality worked in dealing with the intricacies of a concrete case. Unlike many others involved in this enterprise, I have no prior involvement with the case, and I had no strong views about the correct outcome when I started. If anything, I thought that the Supreme Court of Canada had probably gotten the right answer. I was mainly concerned that the abstract test devised was not particularly illuminating and, for this reason, was open to abuse and obfuscation. I was also concerned that the widespread condemnation of the dignity element of the test laid out in Law has been too hasty and leaves us with no constructive avenue for engagement with the jurisprudence. I wanted to take a stab at giving more content to the idea of human dignity in a manner consistent with the art of judicial decision making. (I am not sure I was entirely successful at this latter objective—I fear that you may be able to take the girl out of the academy, but you cannot entirely take the academy out of the girl.)

In a word, I thought this was going to be a breeze. It was anything but, and I have both gained greater appreciation for the judicial enterprise and, I think, made my own views about equality more precise in the effort to grapple with Law. Writing the judgment has been a profound learning experience—both my understanding of the issues in the case and aspects of my general account of equality changed in the process. Bringing together theory and application deepened my understanding of each. Above all, writing this judgment has illustrated to me once again the truth of the feminist claim that taking gender into account makes a difference in the analysis of legal issues. I initially did not have much sympathy for Nancy Law’s claim. Yet, this being the Women’s Court of Canada, it seemed appropriate to consider the equality claim not only through the lens of age but also in light of the gender dynamics operating behind the scenes. For me, this transformed almost everything about the analysis of the concrete facts. I hope the demonstration of this transformation is evident to others.

The desire to deal with the gender implications of the age limitation on eligibility for the Canada Pension Plan survivor benefit introduces what some might think is an element of artificiality into the judgment. It means dealing with an argument that was never put to the lower courts and requires introducing new empirical material that was not before the courts. I have tried to mitigate the artificiality by drawing only on material that is publicly available through sources such as Statistics Canada. This raises a more profound issue, however. I do not know why counsel decided to argue the case exclusively on age grounds—perhaps way back in the early nineties they thought that the explicit use of an enumerated ground of discrimination was bound to be struck down. As it turned out, equality doctrine was a moving target all through the period during which the case moved through the system. Under these circumstances, it strikes me as unfair and unwise to stick closely to the original arguments when so much has changed in the interim. It also struck me as something of an abdication of responsibility not to go into the sex discrimination dimension of the case simply because the claim had not been seen in that light when the design of the survivor pension is so much bound up with the gendered conditions that govern women’s financial security. So I have taken some license to allow the Women’s Court of Canada to look more broadly at the issues raised by the case.

Given the symbolic status that Law has, both because the Supreme Court of Canada was intending to impose order on the doctrine and because of the influence of ‘‘the Law test’’ since 1999, many may read this Women’s Court of Canada decision looking for either a critique or endorsement of this test. I did not approach the case either as an opportunity to lay down the law or as a vehicle for addressing all of the concerns and criticisms that have been voiced about the Supreme Court of Canada’s decision. While I acknowledge the value of predictability in the law, I doubt that we are yet in a position to lay out a test for equality violations that is capable of dealing adequately with the range and complexity of the issues likely to arise. If this is true, the attempt to formulate a test risks unduly constraining the development of the law. So I have not framed my analysis as a direct response to the Supreme Court of Canada’s approach but, rather, “decided” the case as I would have done in the Supreme Court of Canada’s place.

Le jugement du Tribunal des Femmes du Canada dans l’arrê t Law c. Canada (Ministre de l’emploi et de l’immigration) retrace l’émergence de la notion de dignité humaine comme pierre angulaire de l’article 15 et passe en revue les facteurs pertinents pour conclure à une violation de cette dignité, énonceés dans la décision Law de 1999 de la Cour suprême du Canada. Ces facteurs sont réinterpreétés pour indiquer trois formes d’indignités que peuvent infliger une loi ou une politique: d’abord, fonder la loi ou la politique sur des préjugés; ensuite, utiliser des stéréotypes et enfin, exclure de l’accès à des bénéfices constitutifs de dignité. En analysant la disposition du Regime de pensions du Canada (RPC) limitant aux personnes a ˆgées de plus de 35 ans, l’admissibilité à la pension de la survivante ou du survivant à la suite du décè s d’un conjoint ayant contribué à ce régime, le Tribunal des Femmes est d’avis que les tribunaux inférieurs ont erré en traitant exclusivement des différences relatives à l’âge et que leurs jugements peignent, en conséquence, un tableau incomplet du programme et de sa raison d’être. En effet, la vaste majorité des récipiendaires de ces pensions sont des femmes. Cette partie du RPC ne peut se comprendre ni s’évaluer en occultant cette réalité de genre. Refuser toute aide aux personnes qui ont moins que l’âge prescrit a un impact disproportionné à l’égard des femmes de ce groupe d’âge.Law v. Canada (Minister of Employment and Immigration) traces the emergence of dignity as the touchstone of section 15 equality rights, and reviews the factors relevant to finding a violation of dignity from the Supreme Court of Canada’s 1999 decision in Law. These factors are reinterpreted as pointing to three forms of indignity that may be inflicted by law or policy: grounding law or policy in prejudice, the use of, or reliance on, stereotype, and exclusion from dignity-constituting benefits. In analyzing the Canada Pension Plan (CPP) limitation on eligibility for a spousal survivor’s pension to those over age thirty-five, the Women’s Court finds that the exclusive focus on the age-related differential treatment in the courts below provides an incomplete picture of the program and its rationale.CPP cannot be properly understood or evaluated absent this gendered context. Denying any assistance to those under a certain age differentially affects mainly women in that age group. Further, the assumption that losing a spouse causes no financial hardship to younger survivors, even in the short term, adopts a male norm by treating as typical of younger spouses those who are employed and fully self-sufficient. Given the roadblocks women typically encounter in their efforts to be self-sufficient, the financial dislocation due to a spouse’s death may easily be severe enough to impair women’s ability to live lives of dignity and be full participants in society. Accordingly, the Women’s Court reverses the Supreme Court decision, and holds that the CPP survivor pension scheme is discriminatory on the combined basis of age and sex. Based on the arguments put forward in the courts below, the legislation cannot be saved under section 1.

De plus, présumer que la perte d’un-e conjoint-e par des personnes plus jeunes ne crée aucune difficulté financie `re, me ˆme à court terme, c’est entériner une norme masculine, en vertu de laquelle la conjointe typique plus jeune est une personne employée et entièrement autonome. Étant donné les obstacles que rencontrent typiquement les femmes dans leurs efforts pour assurer leur autosuffisance, le bouleversement financier provoqué par le décès du conjoint peut facilement êtresérieux au point de porter atteinte à leur aptitude à vivre avec dignité et à participer pleinement à la société. C’est pourquoi le Tribunal des Femmes du Canada juge que les dispositions relatives aux pensions pour conjoint-e survivant-e sont discriminatoires quant au sexe et quant à l’âge. La loi ne peut être sauvegardée par l’article premier, eu égard aux arguments présentés devant les tribunaux inférieurs.

The judgment of the Women’s Court of Canada in

The vast majority of survivor pension recipients are women, and this part of the

Reconsideration of Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 (judgment of the Supreme Court of Canada reversed).

The decision of the Women’s Court of Canada was delivered by:
DENISE REAUME

I. Introduction

1. This case concerns the constitutionality of sections 44(1)(d) and 58 of the Canada Pension Plan, R.S.C., 1985, c. C-8 (CPP), which uses age as a criterion of entitlement to the survivor’s pension. The issue is whether the provisions infringe section 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, and, if so, whether the infringement is justified under section 1 of the Charter.

2. This case came before the Supreme Court of Canada at a time of great turmoil in the development of section 15 jurisprudence. In three important cases in 1995, the Court had failed to achieve consensus about the central ingredients of the section 15 analysis. (Miron v. Trudel, [1995] 2 S.C.R. 418, Egan v. A-G. Canada, [1995] 2 S.C.R. 513, and Thibaudeau v. Canada, [1995] 2 S.C.R. 627.) In dealing with Ms. Law’s challenge to the CPP, the Supreme Court of Canada sought to rectify this situation and apparently succeeded in uniting the Court around a general approach to section 15 cases. Central to this endeavour is the identification of human dignity as an underlying value of section 15. An inquiry into whether a distinction violates human dignity, whether explicit or de facto, forms the third step of the test outlined by the Supreme Court of Canada.

3. While it has become increasingly evident in the case law that some substantive foundation is necessary for section 15, the concept of human dignity as invoked by the Supreme Court of Canada in its decision in Law lacks precision. It is in danger of being used as a cover for judicial timidity or incomprehension of the social and legal mechanisms that impose and reinforce disadvantage. When this happens, the result is to reinforce and entrench the derogatory and demeaning attitudes or effects imposed by the challenged legislation or policy instead of eradicating them. For this reason, the concept itself has attracted much criticism (see, for example, Sheilah Martin, “Balancing Individual Rights to Equality and Social Goods” (2001) 80 Canadian Bar Review 299 at 328-30; June Ross, “A Flawed Synthesis of the Law” (2000) 11 Constitutional Forum 74 at 83; and R. Gibbins, “How in the World Can You Contest Equal Human Dignity” (2000) 12 National Journal of Constitutional Law 25).

4. This reconsideration provides the Women’s Court of Canada an opportunity to re-frame the role of human dignity in the section 15 analysis so that it may help, rather than hinder, the articulation of a meaningful conception of substantive equality. The Supreme Court of Canada has attempted to organize a range of factors that play a role in finding discrimination in past cases and has loosely tied them to the concept of dignity. It has failed, however, to really grapple with the underlying value of human dignity.

5. In particular, the Supreme Court of Canada has not fully grasped the range of ways in which legislation or policy is capable of violating human dignity. For this reason, its test comes across as a mechanical checklist of factors to be looked for in any given case without an adequate understanding of why and when they are significant. This makes it easy for courts to pick and choose among the factors and deny equality claims without providing a clear and satisfactory justification. In the process, the constitutional guarantee of equality is in danger of being watered down.

6. Despite the gendered social circumstances to which the survivor benefit responds, this case was not argued as a sex discrimination case but rather was argued exclusively on the basis of age. A very important dimension of the constitutionality of these provisions was therefore not examined. Given the claimant’s failure to raise sex discrimination, and the absence of intervenors before the Court, the Supreme Court of Canada would have been wise to have appointed amicus curiae to present arguments about the gender implications of the progressive denial of benefits to those below age forty-five.

7. This decision seeks to make up for that oversight, drawing on publicly available data about women’s position in the workforce and the family. Indeed, attention to gender transforms the understanding of the equality issue in this case — the focus should not be primarily on the effects on surviving spouses under forty-five but also on the effects on younger women who survive their spouses. The grounds of age and sex are intricately intertwined, but the significance of the negative effects of exclusion from the survivor benefit flow largely from women’s subordinate status in the labour market. The failure of the legislature to take account of the specific conditions that women face in the workforce amounts to imposing a male norm on women under the age of forty-five. Expecting younger women to “bounce back” after the death of a spouse just as a man could, despite the greater obstacles that women face in the workforce, can have serious, long-term consequences for women’s ultimate financial security. The interests threatened are sufficiently vital to implicate human dignity.

II. Factual Context

8. The CPP is a compulsory social insurance scheme enacted in 1965 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, 26th Parl., 2nd Sess., vol. 6, 10 August 1964, at p. 6636). One aspect of the scheme 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 section 44(1)(d), namely an age threshold, responsibility for dependent children, or disability.

9. A claimant who is over the age of forty-five 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 a full survivor’s pension. However, section 58 gradually reduces this pension for able-bodied surviving spouses without dependent children who are between the ages of thirty-five and forty-five. Able-bodied surviving spouses without dependent children who are under thirty-five at the time of the death of the contributor are precluded from receiving a survivor’s pension until they reach the age of sixty-five.

10. The appellant, Nancy Law, married Jason Law in 1980. Mr. Law died in 1990 at the age of fifty, having contributed to the CPP for twenty-two years. Ms. Law was only thirty years old. The couple had no children. They worked together in a family business. According to the Pension Appeals Board’s rendition of the facts, Ms. Law carried on the business after her husband’s death, but it was not as successful as it had been.

11. The appellant’s application to receive survivor’s benefits was denied because she was under thirty-five, not disabled, and had no dependent children. She unsuccessfully appealed to the Minister of National Health and Welfare, then took her case to the Pension Plan Review Tribunal, arguing that the age criterion violates section 15. The tribunal agreed, but a majority upheld the distinction under section 1. It is the appeal of this decision to the Pension Appeals Board, thence to the Federal Court, and ultimately to the Supreme Court of Canada that is before us for reconsideration.

III. Relevant Statutory and Constitutional Provisions

12. 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 hasmade 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) 37.5 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…

13. Canadian Charter of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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) Justice Douglas Rutherford (Justice Armand Dureault concurring)

14. Rutherford J. held that the denial of the survivor’s pension did not constitute discrimination on the basis of age under the Charter. Although many laws create legal distinctions, not all amount to discrimination within the meaning of section 15(1). He began by noting that age is not the sole criterion in determining eligibility for survivor’s benefits under the CPP, but, rather, is only one factor. It is a combination of age, healthful employability, and freedom from responsibility for dependent children that may lead to the exclusion of benefits. He held that, to the extent that age is a factor in the denial of benefits, sections 44(1)(d)(ii)(A) and 58 do not create the kind of distinction that has been characterized as “discrimination” in the constitutional sense.

15. Rutherford J. noted section 15(1)’s use as a means of protecting discrete and insular minorities and of shielding vulnerable groups against stigmatization, stereotyping, and prejudice. He found that none of the evidence suggested the appellant is a member of a group that suffers “discrimination” in these terms. Nor did he find that those excluded are treated differently from those who do receive survivor’s pension benefits on the basis of an irrelevant personal characteristic. Rather, Rutherford J. found that age is a relevant characteristic in determining relative need for survivor’s benefits. Accordingly, he concluded that, even though the impugned provisions draw a distinction based on age, this does not constitute discrimination within the meaning of section 15(1) of the Charter.

16. Although unnecessary in order to dispose of the appeal, Rutherford J. went on to find that if there was an infringement of section 15(1) of the Charter, it would be justified under  section 1. 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 sections 44(1)(d)(ii)(A) and 58 to pass the justificatory test under section 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) Justice of Appeal Francois Angers

17. Angers J.A. agreed with his colleagues’ reasons regarding discrimination on the basis of age but preferred not to comment on the effect of section 1 of the Charter.

B. Federal Court of Appeal (1996), 135 D.L.R. (4th) 293

18. Chief Justice Julius Isaac, delivering judgment on behalf of a unanimous court, was unconvinced that the Pension Appeals Board had committed a reviewable error. The court substantially agreed with the reasons of the board that neither section 44(1)(d) nor section 58 of the CPP infringes upon the appellant’s equality rights guaranteed by section 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 section 15(1) of the Charter, they constitute a reasonable limit under section 1. Accordingly, the appeal was dismissed.

C. Supreme Court of Canada, [1999] 1 S.C.R. 497

19. Justice Frank Iacobucci, delivering judgment for a unanimous court, dismissed the appeal and used the present case to provide a set of guidelines for courts in analyzing a discrimination claim under the Charter. He warned against confining analysis under section 15(1) to a fixed and rigid formula. A purposive and contextual approach to discrimination is preferable in order to realize the strong remedial purpose of the equality guarantee. He outlined three broad inquiries that a court should make in determining a discrimination claim under section 15(1), the first focusing on the search for differential treatment between the claimant and others in purpose or effect and the second looking for a connection to one or more enumerated or analogous grounds. The third inquiry asks whether the differential treatment discriminates by imposing a burden upon or withholding a benefit from the claimant in a manner that reflects the stereotypical application of presumed group or personal characteristics.

20. In discussing the purpose of section 15, Iacobucci J. held that the general purpose 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. He noted that the equality guarantee is a comparative concept, which ultimately requires a court to establish one or more relevant comparators. A variety of factors may be relevant in order to demonstrate that legislation demeans a claimant’s dignity. Iacobucci J. outlined four such contextual factors: (1) pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue; (2) 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; (3) the ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society; and (4) the nature and scope of the interest affected by the impugned law.

21. Applying these factors, Iacobucci J. found that although a clear distinction is drawn between the appellant and others on the basis of age, adults under the age of forty-five have not been consistently and routinely subjected to the sorts of discrimination faced by some of Canada’s discrete and insular minorities. Consequently, this distinction does not violate the human dignity of the appellant. The purpose of the impugned CPP provisions is not to remedy the immediate financial need experienced by widows and widowers but, rather, to enable older surviving spouses to meet their basic needs during the longer term. Although the law imposes a disadvantage on younger spouses, it is unlikely to be a substantive disadvantage, viewed in the longer term. Iacobucci J. also stated that 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.

22. Finally, Iacobucci J. held that legislation need not always correspond perfectly with social reality in order to comply with section 15(1) of the Charter. The fact that legislation is premised upon informed statistical generalizations that 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 section 15(1) of the Charter and being required to justify its position under section 1.

23. Finding no violation of section 15, Iacobucci J. held that it was unnecessary to consider whether the provisions could be justified under section 1.

V. Analysis

A. Constitutional Equality

24. Canadian equality jurisprudence in the Charter era has been marked from the beginning by its rejection of a formal equality approach such as that of Albert Venn Dicey (Introduction to the Study of the Law of the Constitution, 8th edition (Holmes Beach, FL: Gaunt, 1996)), in favour of the pursuit of substantive equality (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143).

25. Equality rights are the constitutional means of challenging the existing allocation of some benefit or burden, understood in the everyday sense of those terms. The challenge may be to the explicit basis for allocation or the de facto result of legislation or policy. Every allocation requires criteria that govern it. The criteria in a rule or policy provide a purely formal basis on which equality and inequality can be assessed—anyone who has not received the benefit but fulfils the criteria has not been treated equally. However, this conception of equality cannot exhaust the constitutional right to equal treatment and equal benefit of the law. To stop here would mean automatically accepting the criteria provided by the legislation or policy under challenge. This would treat equality as simply a matter of treating likes alike, while allowing the legislation’s own terms to determine what counts as alike. This narrow conception of equality would also provide no basis for going behind the formal criteria to evaluate the actual effects of a rule or policy. We agree with the Supreme Court of Canada that a formal conception of equality does not go far enough.

26. The jurisprudence under the Canadian Bill of Rights, S.C. 1960, c. 44, amply illustrates the shortcomings of a Dicean conception of constitutional equality. Treating like cases alike as defined by the legislature enabled the Supreme Court of Canada to find no inequality in depriving Indian women of their status upon marriage to a non-Indian provided that all Indian women who married out were equally deprived (A.G. Canada v. Lavell, [1974] S.C.R. 1349). Similarly, this approach justified restricting women whose paid employment was interrupted by childbirth to inferior unemployment benefits or none at all because all women in similar circumstances were treated the same (Bliss v. A.G. Canada, [1979] 1 S.C.R. 183).

27. At its most formal, the Dicean approach gave members of disadvantaged groups no protection against legislation that manufactured, reinforced, or exacerbated that very disadvantage. The desire to transcend this past was a major rallying point in the debates surrounding the introduction of
the Charter. We must not betray the hope with which Canadians in general, and disadvantaged groups in particular, embraced section 15.

28. A claim that substantive equality has been denied is a claim that some principle of entitlement wider in some respect than that used in the challenged law or policy is the appropriate criterion for allocation of the benefit in issue. In response, courts must determine, in a principled way, when state policy has adopted the wrong criteria of entitlement for some benefit and if and why the criteria should be widened and by how much. Although some caution may be wise in assessing existing criteria for distribution of benefits, as individual cases arise the courts must develop principles according to which legislative allocations can be assessed.

29. The pursuit of substantive equality requires attention to the actual conditions of life of the disadvantaged. Rules or policies creating or exacerbating inequalities, or perhaps simply not correcting background inequalities, should be changed. Allocative criteria should be altered when necessary to address these realities (see Kathy Lahey, “Feminist Theories of (In)Equality,” in Sheilah L. Martin and Kathleen Mahoney, eds., Equality and Judicial Neutrality (Toronto: Carswell, 1987), 83).

30. The equality jurisprudence of the Supreme Court of Canada to date has forced the realization that if legislative criteria cannot be accepted at face value—as they cannot—there must be some substantive value telling us which criteria are illegitimate and why. This will in turn guide the search for alternatives. This Court has settled on the interest in dignity as this underlying value. The process of naming dignity as the touchstone of equality has been laborious. The challenge of giving the concept meaningful content stands as perhaps the most significant one facing the courts in the coming years. Since some substantive interest or value must underpin section 15 if it is to do any work, the task of articulating that interest must be tackled.

31. The concept of dignity reminds us that all human beings have inherent worth deserving of respect. Yet our history has frequently included laws and practices denying the equal worth of some. Women, for example, have traditionally been treated as less valuable than men in virtually every domain of life—their needs neglected, their aspirations denied, their interests subordinated to those of men. These laws and practices have often been inflected with racism, ableism, and heterosexism to create exacerbated or new forms of hardship and disadvantage for some women. As a result, women as a group labour under inferior standards of living by most significant measures of quality of life (for the most recent survey of women’s position in Canadian society, see Women in Canada: A Gender-based Statistical Report, Catalogue no. 89-503-XPE, 5th edition (Ottawa: Statistics Canada, 2006)). Section 15 calls us to root out such practices and ensure that new forms of subordination do not arise. Respect for human dignity requires it.

32. The affirmation of human dignity grounds a universal entitlement to respect for dignity. The distribution of concrete benefits is therefore to be judged according to whether they are consistent with the respect each is owed equally. A concept of dignity must develop organically, as a product of grappling with the specific issues raised by the cases in accordance with our best critically reflective judgments about what is most important to people, as individuals, members of communities, and participants in the larger society. If protection of these fundamental interests is unequally distributed, human dignity is not equally respected. This process of developing the concept of dignity must attend to the lived experience of women and other disadvantaged groups to understand how their dignity has been, and continues to be, undermined and must be oriented to the policy initiatives necessary to uphold their equal worth.

B. The Emergence of Protecting Dignity as the Purpose of Section 15

33. The search for a substantive foundation for section 15 goes back to Andrews, supra, in which Justice William McIntyre pointed out (at 168) that not every legislative distinction is discriminatory. This insight gestures towards the need for criteria to distinguish discriminatory distinctions from non-discriminatory ones. He recognized the importance of the impact of legislation on those affected in identifying discrimination. However, since every piece of legislation has some impact that leaves some better off than others (just as all legislation distinguishes between classes of persons), we must still ask what kind of impact discriminates or inflicts a “real” disadvantage, and what kind does not?

34. Decisions in the section 15 analysis turn on two points — which personal characteristics are illegitimate bases for legislative distinctions and what kinds of disadvantaging effects constitute discrimination. The former requires an account of why the grounds enumerated in section 15 are potentially problematic bases for legislative distinctions or effects, which, in turn, will guide the addition of new analogous grounds. The latter requires an analysis of what harm we think discrimination does beyond mere differentiation itself. A dignity-based analysis has emerged from the case law to answer these questions.

Vol. 18 2006 15735. Justice Bertha Wilson first treated the protection of human dignity as part of the purpose of section 15 in McKinney v. The University of Guelph, [1990] 3 S.C.R. 229. However, the centrality of the concept of dignity began to emerge only in Miron v. Trudel [1995] 2 S.C.R. 418, and Egan v. A-G. Canada, [1995] 2 S.C.R. 513.

36. In Miron, the majority decision of Justice Beverley McLachlin illustrates how the type of distinction implicates dignity. The grounds listed in section 15 are often connected to stereotypes that falsely attribute negative attributes to groups. This violates dignity. To expand the list, we should look for other personal characteristics that are used to stereotype (at para. 147). McLachlin J. linked four factors identified in the case law as bases for recognizing a new ground to the “unifying principle” of preventing the violation of dignity: the historically disadvantaged status of a group, its minority status, the personal nature of the characteristic relied on by the legislature, and its immutable nature (at para. 149).

37. Justice Peter Cory, writing for the majority in Egan, invokes dignity differently, using it to identify a form of harm attracting section 15 attention. Denying recognition to same-sex relationships, he held, ‘‘may have a serious detrimental impact upon the sense of self-worth and dignity of members of a group because it stigmatizes them’’ (at paras 160-1). The corollary of this insight, drawn out in the Supreme Court of Canada decision before us, is that differentiation tied to an enumerated or analogous ground may not be discriminatory if it does not cause the kind of harm that implicates dignity.

38. Justice Claire L’Heureux-Dube has made most explicit the connection between dignity and equality (Egan, at para. 36). Her suggested two-part framework for section 15 examines both the nature of the group affected by the legislation and the particular interests affected. The various factors flagged throughout the case law—minority status, history of bias against a group, vulnerability, constructive immutability—are relevant to deciding whether a group was at risk of having its dignity violated. The nature of the concrete disadvantage imposed by the legislation determines whether it is significant enough to constitute a violation of dignity.

39. In Vriend v. Alberta, [1998] 1 S.C.R. 493, Cory J. identified section 15 as “essential to achieving the magnificent goal of equal dignity for all” (at para. 67). Cory J. treats dignity itself as the “good” or “benefit” that must be protected equally to satisfy section 15. This explains why formal equality, in the sense of faithfully following the rules as prescribed or applying uniform criteria to everyone, is insufficient. The criteria within the rule or policy may themselves fail to respect the dignity of all, and a uniform rule may exclude the needs or interests of some groups in a way that denies equal dignity. In either case, we must identify some deeper respect in which people must be treated equally in order to test the criteria for allocation. In the Supreme Court of Canada decision under reconsideration here, Iacobucci J. collected these previous efforts to connect equality and dignity, and attempted to elaborate.

[T]he 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,,,

(Law, at para. 51).

On the meaning of dignity, Iacobucci J. had this to say:

There can be different conceptions of what human dignity means … [T]he 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?

(at para. 53).

41. Iacobucci J. then reformulated the section 15 test into three steps: first, whether the law draws a formal distinction or fails to take into account the claimant’s already disadvantaged position; second, whether the differential treatment identified in the first step is tied to one or more enumerated or analogous grounds; third, whether that differential treatment constitutes discrimination “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” (at para. 88).

42. Iacobucci J. collected from the past cases four categories of “contextual factors” helpful in identifying discrimination. These are said to demonstrate whether a legislative distinction or impact has the effect of demeaning dignity. The first of these is “pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the group” (at para. 63). Pre-existing disadvantage is linked to stereotyping — the use of inaccurate assumptions about the merits, capabilities, and worth of an individual or group that stigmatize members of a group (at para. 64). The second contextual factor capable of indicating a violation of dignity asks whether the egislative distinction properly reflects the actual needs, merits, and circumstances of the members of the group affected by it (at para. 69). The third factor identified by Iacobucci J. is that of whether the legislation seeks to ameliorate the situation of a more disadvantaged group. In such circumstances, the distinction used is unlikely to be found to violate dignity (at para. 72). Finally, Iacobucci J. adopted L’Heureux-Dube J.’s suggestion in Egan, supra, that a crucial factor in finding harm to dignity is the nature of the interest affected by the legislation. It is not the actual, concrete effect of the legislation that matters—the dollars and cents or the specific opportunity, benefit, or service denied — but rather whether imposing such a cost on the individual or group implicates dignity (at para. 75). The social and constitutional significance of the effects on the individual must be taken into account. Does the law or policy affect membership in a basic way, deny participation, or constitute a complete failure to recognize members of a particular group?
(at para. 74).

43. These factors are all presented as indicators of whether a legislative distinction violates human dignity, yet just how each is related to dignity remains unclear. Similarly, Iacobucci J. denies that the four factors are either necessary or sufficient conditions for the violation of dignity, yet there is a danger of their being used exactly this way. Without the relationship between the factors and dignity being more fully explained, it is the factors themselves that courts may tend to rely upon to decide cases.

44. Without a vibrant conception of dignity at their core, these factors are in danger of being used to reinvent old mistakes. For example, although the second factor in the Law test reaffirms the need to take difference into account in the design of rules, and thereby counsels against “one size fits all” rules that unfairly exclude or disadvantage vulnerable groups, it can collapse into the discredited “relevance” argument offered by Justices Gerard La Forest and Charles Gonthier in Egan, supra, and Miron, supra, which is, in turn, traceable back to Bliss, supra, and, ultimately, to Dicey. Similarly, the fourth factor requires that we develop a conception of what sorts of interests are sufficiently important that their impairment implicates dignity.

45. It is time to take this analysis a step further by articulating more carefully what dignity is as a constitutional value and how it has informed past cases and should inform the future development of equality law.

C. Defining Dignity

(1) Human Dignity as a Value

46. The concept of dignity has been part of the foundation of modern political and moral theories since the Enlightenment (see Herbert Spielberg, “Human Dignity: A Challenge to Contemporary Philosophy” (1971) 9 Philosophy Forum 39). Martha Nussbaum, for example, claims for dignity “broad cultural resonance and intuitive power” and universal relevance (Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000) at 72).

47. Dignity refers to a somewhat ineffable quality that we ascribe equally to all human beings in virtue of which we accord them a special kind of worth. Nussbaum speaks of the “awe-inspiring something” that human beings have (at 73). As Nussbaum says, “[t]he core idea is that of the human being as a dignified free being who shapes his or her own life in cooperation and reciprocity with others, rather than being passively shaped or pushed around by the world in the manner of a ‘flock’ or ‘herd’ animal” (at 72). Human beings have intrinsic, incomparable, and indelible worth, simply as human beings (see Immanuel Kant, Groundwork of the Metaphysics of Moral, translated by H.L. Paton (New York: Harper and Row, 1964) at 96; Thomas E. Hill, Jr., Dignity and Practical Reason in Kant’s Moral Theory, Chapter 2, “Humanity as an End in Itself” (Ithaca: Cornell University Press, 1992) at 38-57; and Nussbaum, supra, at 73-4). This sense of moral worth is simply part of our conception of the person.

48. What grounds the attribution of inherent worth associated with the concept of dignity is, of course, an issue of enormous philosophical dispute. We can, however, identify some themes in the common currency of thought about dignity to develop a concept that finds significant resonance in the key elements of the section 15 jurisprudence and which can help push this jurisprudence forward.

49. Two aspects of human personality in virtue of which human beings are valued and worthy of respect should be highlighted because they illuminate the equality jurisprudence so far and form the starting point for further reflection. First, human beings are capable of a conception of the self. Thus, respect for identity is crucial to respect for dignity, and demeaning the identity of members of particular groups is a key form of indignity. Second, humans are engaged, in large and small ways, in a continuous enterprise of crafting a path or direction for their life. This can sometimes be an intensely personal undertaking, sometimes a matter of participation with others in collective endeavours. Either way, the importance to people of controlling the shape of their lives makes respect for the ability to participate in this shaping, and support for its flourishing, relevant to protecting dignity. These two aspects of personality are connected since one develops an identity partly through the life one participates in creating and a conception of the good partly in the context of one’s sense of the kind of person one is. Similarly, one’s sense of worth flows from others’ recognition of how significant aspects of identity and particular plans and ambitions combine to create a life.

50. The attribution of dignity calls for a particular moral response — respect for the intrinsic worth it signifies. The dignity inherent in human personality is dishonoured through a failure to show respect, through treating others as less than creatures of inherent worth. To enjoy the sense of worth connoted by the concept of dignity requires that a person be secure in her identity as an individual, including as a member of those communities with which she identifies. Dignity may be an inherent quality, but a subjective sense of self-worth is an empirical psychological and emotional state that has enormous implications for the quality of life. A person’s subjective sense of self as someone of worth is crucially tied to how she is treated by others (see John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1972) at 62; and Charles Taylor, “The Politics of Recognition,” in Amy Gutman, ed., Multiculturalism and “The Politics of Recognition” (Princeton, NJ: Princeton University Press: 1992) at 25-6).

51. The law cannot guarantee that people actually feel the sense of worth to which they are entitled, but we can aspire to a state in which empirical realities strive to match inherent moral entitlements, in which at least state policy is not an obstacle to enjoying the subjective sense of self that is characteristic of those whose dignity is respected. At the same time, harm to dignity does not depend on the causing of actual psychological harm. Internalizing others’ lack of respect
is a common, but contingent, consequence of the violation of dignity. The core violation lies in the want of respect for the intrinsic worth of others, even if it fails to bring its targets down in their own estimation.

52. Security in one’s identity includes a sense of belonging in one’s society and of entitlement to participate in its institutions, opportunities, and endeavours (see Donna Greschner, “The Purpose of Canadian Equality Rights” (2002) 6 Review of Constitutional Studies 291). Exclusion from the kinds of practices and activities that constitute a social concept of citizenship in a given society marks the excluded as outsiders, as unworthy to share the forms of life that make our lives meaningful. Such exclusion also impairs people’s ability to craft the life of their choosing.

53. Exclusion can happen directly through criteria for participation in certain activities or institutions, but it can also happen through the denial of forms of support that make participation possible. Participation in social life in a complex modern society often has material and social pre-conditions. Without a decent education, or stable housing, or adequate income, other forms of participation are beyond imagining let alone realizing. For this reason, as Nussbaum argues, internal capabilities for distinctively human forms of functioning must be combined with “suitable external conditions for the exercise of the function” (Nussbaum, supra, at 84-5).

54. For most of our history, it has been those men who enjoy privilege along a variety of dimensions (race, religion, sexual orientation, able-bodiedness, for example) who have been the most able to aspire to the ideal of a dignified life. Their self-worth has been affirmed; their dreams and mbitions fostered by legal structures and social practices; their interests made the focal point of social planning; and their participation in social institutions facilitated. They shape and have been supported by the society to which they belong. Yet the concept of human dignity claims equal worth for all, calling legislatures to examine old attitudes and practices for partiality and requiring vigilance by courts to ensure that legal policy is remade in the image of all members of society.

55. By contrast with the ways in which privileged men’s dignity has been cherished, women have been subjected to derogatory stereotypes (and the gendered barriers they create), constrained opportunity, gendered violence, control over their reproduction, and disrespect for their role as mothers — all violations of human dignity because they impinge upon women’s self-respect and self-realization. Respect for the human dignity of women means state policies must not only refuse to tolerate but also work to counteract the kinds of conditions that have resulted in women’s relegation to inferior status in the past.

56. The confining and demoralizing effects of policies controlling women’s opportunities, relationships, and bodies are now widely acknowledged. It does not follow that all vestiges of these attitudes, and, in particular, their long-term effects, have been swept away. Wherever they linger, they undermine women’s dignity.

57. Equality claims deal with an unending array of goods and benefits to which there may be no specific entitlement as a matter of human rights. The task ahead is that of showing how the concept of dignity can help bridge the gap between a concrete benefit claimed and the human right to equality.

(2) Three Forms of Indignity

58. As noted earlier, the Supreme Court of Canada has elaborated a list of apparently independent, though overlapping, contextual factors said to reveal violations of dignity. These factors suggest three forms of indignity or denial of worth, which, if inflicted by a statute or state policy, violate section 15. Further forms may be identified over time. We can have no confidence so early in our constitutional history of rights adjudication that we understand all facets of equality and all forms of inequality. Two of these forms of indignity explain most of the cases to date: the first consists in grounding legislation or policy in prejudice and the second in the use of, or reliance on, stereotype.

59. A third form of indignity has been less well articulated by the Supreme Court of Canada to date. It involves exclusion from benefits, institutions, or opportunities access to which is integral to our notion of personhood or constitutes part of the conditions for a life with dignity. In grasping this form of indignity, it is the nature and importance of the benefit itself that makes its denial a violation of dignity rather than the attitudes, mistaken beliefs, or motivations that prompt the denial. When either prejudice or stereotype operates as well, the indignity of such denial is exacerbated.

60. Any of the three forms of indignity can be inflicted through the explicit use of a characteristic important to personal and group identity or through facially neutral standards that fail to take account of the diverse circumstances of various groups. These are simply alternate formal means of achieving the same effect. For this reason, a formal conception of equality must be rejected. To discover whether the legislation or policy in issue conveys a message of lesser worth, the various factors commonly invoked operate as diagnostic tools in discerning whether indignity, in whatever form, is present.

61. Since the courts have dealt most often with the first two forms of denial of worth, the factors identified as markers of the violation of dignity have tended to be ones that alert us to the presence of prejudice or stereotype or help us to contextualize their effects. They are relevant not in their own right but rather because and insofar as they help us detect prejudice and stereotype. This explains why, as the Supreme Court of Canada has often said, the various relevant factors are neither necessary nor sufficient conditions of a finding of discrimination. The presence of these features of context does not constitute discrimination. They simply help us “read” the implicit meaning of legislative distinctions imposing burdens or denying benefits to see whether it connotes the inferiority of a group.

(a) Prejudice

62. The wrong of prejudice is easily understood as a violation of dignity. A distinction based on prejudice connotes a belief in the inferiority of those targeted. One that reinforces the prejudices of others, even if unintended by the policy maker, has the same effect. This not only deprives those targeted of the concrete benefit at issue but, through doing so, it also treats them as being unworthy of basic human respect. Distinctions that target an important aspect of human identity for stigmatization, humiliation, and the excuse for deprivation violate dignity in this way. Prejudice works through the categorical and false attribution of negative worth to personal characteristics that are important aspects of identity. Such an assault on the sense of self of its victims constitutes the violation of dignity.

63. Personal identity has both an individual and a social dimension. The kinds of characteristics that people regard as important to their sense of self tend to be, at the same time, characteristics by which they define themselves as individuals and through which they identify as members of a group (see Greschner, supra, at 298). It should be remembered, of course, that individuals can identify with more than one such group. We know from our social and political history that it has tended to be precisely this aspect of identity that has often been targeted for contempt — individuals have been denied respect through the use of a characteristic identifying them as part of a group that is categorically devalued.

64. The enumerated grounds mark aspects of personal identity that are socially understood as aspects of self that are important to self-understanding, but nevertheless are often used to classify groups as unworthy. Our knowledge of how this has been done in the past can guide our reading of current behaviour to see if past practices and attitudes are being reinforced. History can also enable us to detect other, unenumerated, ways of categorizing that subject members of a group to contempt in a similar way. The sorts of factors often relied upon to recognize a new ground as analogous to those listed in section 15 operate as more concrete signposts.

65. For example, the characteristics that are important to one’s sense of self are typically, actually, or constructively immutable (see Andrews, supra, at 195; Miron, supra, at paras. 158-59 and 163; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at para. 84; and Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 13). However, too much emphasis should not be placed on actual immutability. Prejudice is rationalized by the lie that it is some difference within others that justifies their derogatory treatment even though difference is often socially constructed. Actual human attributes are less important in understanding the dynamic of prejudice than what society makes of those attributes. If an attribute has been socially constructed as being inferior, there should be no onus on those so characterized to change themselves, even if they could.

66. Historical disadvantage has also often been referred to in the cases but without a very precise analysis of its relevance (see Andrews, supra, at 180; R. v. Turpin, [1989] 1 S.C.R. 1296 at 1333 (per Wilson J.); Miron, supra, at para. 158; and Egan, supra, at para. 176). One function that historical disadvantage serves is as an indicator, and result, of past prejudices previously translated into legal disabilities. The fact that a group is historically disadvantaged may indicate a long-standing failure by the legal system or social mores to extend equal concern and respect. The challenged law may perpetuate or further promote this failure. Likewise, status as a chronic minority is a warning signal because it renders a group vulnerable to such prejudice. It may also be the result of a history of prejudice.

67. However, these contextual factors are all merely guides meant to make us confront the typical features of social prejudice. They should not be mistaken for a formal test. They remind us to think about how prejudice operates as a social phenomenon and to use this knowledge in interpreting the rule or policy in issue.

68. Entrenched prejudice can unleash social forces that devalue members of particular groups even when those acting within the practices shaped by those social forces have no subjective desire to show contempt. The sorts of distinctions and denials that constitute an infringement of dignity are a matter of social meaning rather than subjective attitudes. To understand the violation of dignity in its entirety, we must look to the meaning of government action, and this must always be read in social context rather than merely treated as a matter of plumbing the content of an actor’s mind.

(b) Stereotype

69. Stereotypes are inaccurate generalizations, normally negative, about the characteristics or attributes of members of a group. They can usually be traced back to a time when social relations were based more overtly on contempt for the moral worth of the group. Positive stereotyping can exist too, although normally these form the binary opposite of a negative stereotype about another group. “Men are courageous” is the positive correlate of the negative attribution of timidity to women, for example. Positive stereotypes are usually problematic only when they help feed their negative counterpart.

70. Stereotypes partly stem from backhanded recognition that acting on prejudice is a violation of human dignity. Negative characteristics, such as low intelligence, laziness, suitability for menial pursuits, predisposition to criminality, avarice, vice, and so on, which are in fact distributed throughout the human race, are falsely attributed predominantly to members of a particular group. It is then the negative characteristic that becomes the focus of contempt so that the actor can rationalize his or her conduct by claiming that he or she is not prejudiced against members of a group per se but simply properly disapproving of certain negative traits.

71. Through such practices of rationalization, inaccurate stereotypes about the capacities, needs, or desires of members of a particular group can operate even if the legislators did not understand them as being grounded in animosity, and, when they do, they can carry forward ancient connotations of second-class status. The overt hostility may have come to be washed out of the picture with the passage of time or the ‘‘normalization’’ of such attitudes and the practices based on them, but the implication that those to whom the stereotype applies are less worthy than others remains.

72. Once this construction of a group has set in, others are likely to treat members disadvantageously out of an honest belief that this merely reflects their just desserts or even just because that is simply how everyone treats them, without ever reflecting on the insult involved. They may even understand their conduct, as with certain traditional sexist practices, as a generous effort to accommodate the “natural weaknesses” of the stereotyped group. However, neither the absence of contempt as a subjective matter nor well-meaning paternalism prevents the use of stereotype from violating dignity.

73. To be denied access to benefits or opportunities that are available to others on the basis of the false view that certain attributes render one’s group less worthy of those benefits or less capable of taking up those opportunities can scarcely fail to be experienced as demeaning. The message that such legislation sends is that members of this group are inferior or less capable, and such a message is likely, in turn, to reinforce social attitudes attributing inferiority to the group, especially if such exclusion has been a systemic feature of their experience. Their lives may reflect a lower level of accomplishment and worth than they are capable and desirous of, and this shortcoming is likely to be falsely attributed to them rather than to the conditions to which they are subjected. This creates a feedback loop leading to future treatment reinforcing a status of lesser worth.

74. Because of the connection between prejudice and stereotype, many warning signals of prejudice operate to flag possible stereotyping as well. In particular, historical disadvantage suffered by a group is a reason to look for lingering prejudice converted into stereotype. Since stereotypes can often construct a pervasively negative image of a particular group, they ground systemic patterns of disadvantage likely to leave an historical trail.

75. Inaccurate assumptions about the attributes or capacities of a group are the stuff of stereotype and may render use of a particular characteristic irrelevant to the legislative objective at hand. This explains why so many cases have turned on an assessment, within the section 15 analysis, of the relationship between the criterion used and the purported legislative objective (see Andrews, supra; Corbiere, supra; and Egan, supra). If the proffered objective is not itself discriminatory, but the criteria used to distribute the statute’s benefit do not serve it very well, it is a signal that the use of those criteria may indicate the implicit acceptance of derogatory stereotypes. There is a danger though. If the courts are not careful to scrutinize the proffered objectives of law or policy for traces of stereotype, looking merely to see whether the criteria used for allocation are relevant, the objectives will not only not catch the dignity violation but will also reinforce it.

c) Harm to Fundamental Interests/Denial of Dignity-Constituting Benefits

76. Prejudice and stereotype are core cases of impugning the moral worth of others. Their eradication is a necessary part of the landscape of equality. However, the absence of prejudice and stereotype does not exhaust the notion of respect for human dignity. A link has been made in the case law from the beginning between stereotyping and its tendency to undermine its victims’ “personal development” (Andrews, at 197). This insight connects dignity and autonomy.

77. Respect for dignity includes respect for agency as being fundamental to our notion of personhood. Prejudice and stereotyping can indeed compromise autonomy, but they are not the only means of doing so. It is the concern for autonomy that should be at the core of the analysis. If there are other means by which state policy can interfere with self-realization by denying benefits to some that are afforded to others, these too should be matters of concern for section 15.

78. Human beings are choosers and planners. We have projects and dreams, make commitments and attachments, and at least partly measure our sense of worth according to our ability to exercise our capacities and realize our dreams. Some goods, institutions, and opportunities are so important to
agency and its exercise that their denial fundamentally undermines autonomy. Likewise, in any given society, membership is partly defined by access to certain benefits. These can be seen as dignity-constituting benefits—benefits that have a social meaning and significance that partly define a dignified existence in our society.

79. The dignity-constituting nature of a benefit is the corollary of the fundamental nature of the interest at stake in its denial. Concern with whether legislation or policy “affects a basic aspect of full membership in Canadian society” or “restricts access to a fundamental social institution” suggests that these forms of participation are benefits crucial to a life with dignity (Law, supra, at para. 74 (quoting L’Heureux-Dube J. in Egan, supra, at paras. 63-4)). This can only be because of their importance to agency, namely to exercise control over the character of one’s life. Respect for autonomy is part of respect for the inherent worth of persons.

80. A reasonable level of physical security, education, housing, adequate health care, and opportunity to participate in the workforce are all obvious examples of such benefits. These are important to everyone since they are the preconditions for the pursuit of most other projects and plans. The significance of these benefits may be accentuated for those who are multiply disadvantaged. For example, access to social housing may be especially crucial to poor women because without the security of adequate housing women are especially vulnerable to sexual violence and exploitation, which further violate dignity. Just as importantly, the measures needed to secure these goods may vary depending on the social circumstances of different groups. For example, assuring women a reasonable level of physical security requires dealing with gender-specific threats such as domestic violence.

81. The violation of section 15 in Miron, supra, and Egan, supra, though partly arising out of the use of stereotypes, can also be understood in light of the importance to dignity of a symbolic benefit — the institution of marriage. The benefits that define marriage and its status itself are of fundamental importance in our society as it has developed. To exclude some couples arbitrarily from those benefits treats their relationships as less worthy. The harm to dignity is worse if the denial is tinged with prejudice or stereotype, but part of why these benefits affect human dignity, even when they are of small economic value, as in Egan, is the importance of the institution of marriage in our society.

82. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, provides another example of a dignity-constituting benefit. It also makes clear that the fact of exclusion from certain benefits enjoyed by others, even in the absence of prejudice or stereotype, can violate dignity. In declaring the failure of hospitals to provide sign language interpreters for the deaf as being a violation of section 15, La Forest J. proclaimed: “A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate section 15(1). It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law” (at para. 62). It is the failure to take account of the particular needs of persons with disabilities in the design of practices and its consequences for participation in key institutions or goods that constitute the discrimination because this very tendency to discount the needs of persons with disabilities conveys the implication that their interests do not count (see also Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 67).

83. La Forest J.’s argument recognizes that some benefits or opportunities, some institutions or enterprises, are so fundamental that denying participation in them itself implies the lesser worth of those excluded (Eldridge, at para. 69-71). Medical care is a vitally important pre-condition of a life with dignity. Treatable illness or disease, left untreated, can impair in innumerable ways the quality of life and the ability to pursue projects. To put some at risk of receiving inadequate care is to imply their inferior worth — interpreters are necessary to give deaf patients the same quality of care that hearing patients receive.

84. In addition, without an interpreter a deaf patient is denied one of the core rights of personhood—the right to decide for herself what will be done to her person. To deny deaf patients the means of understanding the treatment proposed for them denies the very possibility of meaningful consent. It turns decisions about care over to doctors or family, which is a situation that no one who routinely enjoys autonomy over such decisions would tolerate. The insult to dignity is profound. The exercise of the power to give or refuse consent is itself an important social institution to which access is denied by the failure to provide sign interpreters.

85. One word of warning, however, about making concrete the connection between dignity and autonomy: the protection of dignity requires attention to the conditions under which choice is exercised. When members of a particular group are operating under constraints that deny meaningful choice, these conditions themselves violate dignity. It is the role of the legal system to counteract such constraint and the role of section 15 to ensure that it does. The mere fact that some choice is possible and agency is exercised does not necessarily mean that autonomy has been respected.

86. Working out which benefits and social institutions have the importance required to be designated a dignity constituting benefit will have to take place on a case-by-case basis, developing the few small steps already taken by the Supreme Court of Canada. The point here is not to provide a comprehensive account but merely to recognize the denial of such benefits as a distinct form of indignity that section 15 must guard against.

D. Dignity and Feelings

87. Seeing violations of dignity as a matter of the social meaning of certain distinctions reveals the error of treating the harm as a matter of harm to the feelings of those affected. Prejudice and stereotype do stigmatize and often humiliate. This connection makes it easy to slip into treating the harm to be protected against as a kind of emotional harm. However, this “subjectivizes” the nature of the interest in issue. Instead, the harm should be understood to inhere in the denial of respect per se. Harm to dignity is an independent objective harm, not a matter of hurt feelings. Feelings of worthlessness may be a common symptom of disrespectful treatment and relevant diagnostically, but the evil to be prevented or remedied is the attribution of unworthiness.

88. The viewpoint of those affected must be taken into account. A court must try to put itself in the shoes of members of this group rather than simply adopting the perspective of the legislator. At the same time, more than the affected group’s say-so is required. The court must be satisfied that the claimant’s interpretation captures the legislation’s import, whether intended or a side-effect of the contested provisions.

89. In other words, it is the responsibility of the court to determine whether the import of legislation or other governmental action is to attribute lesser worth to some group. While it is crucial for judges to make every effort to understand the perspective and life experience of the claimant(s), the appropriate standard for liability is not whether the legislation might reasonably make members of a group “feel” demeaned or devalued. We must not reduce the question of the relevant impact of legislation to its psychological effects and, instead, keep the focus on the meaning of dignity and its impairment.

90. At the same time, it bears repeating that a court must always be sensitive to the meaning that legislation has for those negatively affected by it in order to have any hope of not simply ratifying dominant, potentially oppressive understandings of social relations. The project of constructing the concept of dignity is an active normative one, requiring critical reflection on existing social relations. It cannot be reduced either to a question of the legislature’s intentions or to a sampling of popular opinion.

E. The Importance of Context

91. To parse the social meaning of legislation for violations of dignity requires an interpretive exercise that takes account of the entire social context within which the challenged legislation operates. This is true whether the indignity complained of is grounded in prejudice or stereotype or in the denial of a dignity-constituting benefit.

92. Neither prejudice nor stereotype typically operates in discrete, isolated circumstances. Instead, the wholesale classification of a group as unworthy of full moral status operates to subordinate members of the group in ways that stand to affect every corner of their lives and infect every attitude and predisposition towards them. The resulting web of restrictions and exclusions subjects members of the group to the pervasive message that the social meaning of the most intimate aspects of their personality is one of inferiority. The social relations that ensue give birth to the stereotypes that feed the next round of putative justifications for continued exclusion.

93. The effects of such pervasive and long-term crimping of the lives of the members of such a group are not easily undone. Even once the most egregious exclusions have been remedied, the fact of having been associated with a wide array of negative meanings in the past makes the group more vulnerable to continued devaluation even as a result of fairly minor exclusions. Pockets of negative meaning may remain here and there in the law and in practices long after the central institutions of discrimination have been removed. This explains La Forest J.’s effort in Andrews to explore how immigrants have been systematically excluded from the best employment opportunities throughout much of our past (Andrews, supra, at paras. 68-9). The apparently isolated use of citizenship as a criterion for admission to the legal profession must be read against this backdrop, and, in this context, it inevitably attributes lesser worth to the non-citizen.

94. Context is just as important when interpreting the meaning of a denial of fundamental benefits and opportunities. Understanding the short- and long-term effect of the denial, how it is related to other forms of participation in society, and how it is likely to affect others’ attitudes towards those excluded requires keen attention to broader social realities, not merely the immediate consequences of the exclusion at issue.

F. Application to the Case at Bar

(1) Introduction

95. It follows from our analysis that determining whether legislation or state policy constitutes discrimination and violates equality rights requires a holistic analysis. The differential treatment complained of, whether explicit or the result of facially neutral rules, must be examined to see whether its effect on the claimant is connected to a personal characteristic so as to evoke dignity concerns or whether it disadvantages some in respect of a fundamental interest or opportunity so as to impair dignity. There is no rigid or formulaic test that fully captures this inquiry. Attention to context is essential in every case. Openness to critical re-examination of social meanings is just as important.

96. In this case, the differential treatment at issue is the use of age to condition receipt of a survivor pension under the CPP. The CPP grants benefits to surviving spouses over the age of thirty-five immediately following the death of the contributor. However, these benefits are not available to able-bodied spouses without dependent children when the claimant is less than thirty-five years of age at the time of the death of the contributor, until she reaches the age of sixty-five or becomes disabled in the interim. In addition, while those over age forty-five are entitled to receive benefits at the full rate, those between the ages of forty-five and thirty-five receive a progressively reduced sum.

97. Ms. Law was widowed after eleven years of marriage at the age of thirty. Her husband had contributed to the CPP for twenty-two years. Had she been disabled or in charge of dependent children, she would have received a full survivor’s pension. Had she been forty-five years old at the time of her husband’s death she would have received a full pension. Had she been between thirty-five and forty-five she would have received a partial pension. Because she was under thirty-five, able-bodied, and without dependents her entitlement to the survivor’s benefit was deferred until her own retirement age. The question at hand is whether this demeans those denied either through relying on prejudice or stereotype or through denying a benefit important to participation in social, political, or economic life.

98. The scheme involves explicit differential treatment tied to one of the enumerated characteristics in section 15, namely age. This is sufficient to satisfy the first two steps of the test laid out by the Supreme Court of Canada in this case. But does this distinction violate human dignity? The Supreme Court of Canada thought not. The Women’s Court of Canada finds this analysis incomplete because of the failure to take account of the gender implications of the scheme. Indeed, this legislation is better analyzed as an age-based distinction that has a differential effect on women. Although men under forty-five are also affected, women are more likely to find themselves in this situation and to suffer more from exclusion. The real constitutional question, therefore, is whether the effects of excluding young women from CPP income security protection are such as to violate dignity.

(2) Rationale

99. Existing case law holds that proof of discrimination requires more than mere differential negative effect connected to an enumerated or analogous ground. It follows that the section 15 inquiry must delve into the rationale for the law or policy at issue because this sets the stage for ascertaining whether it imposes the kind of harm that discrimination is. To begin with, the claim may be that the objective itself is discriminatory — that is, it violates human dignity by design or effect through being grounded ultimately in prejudice, invoking stereotype, or impairing a fundamental interest of persons identified by reference to an enumerated or analogous ground. In response, the defending party is likely to describe the objective of the provisions in a non-discriminatory fashion. The court can only resolve such a dispute by deciding for itself what the rationale of the rule or policy is and whether it is indeed discriminatory.

100. Further, given the importance that the case law has attached to the question of stereotype in identifying discrimination, questions of whether the generalizations built into policy are accurate and well matched to the ends envisioned are inevitable. This focuses on the means used by the legislature — the classifications employed. Yet only in light of the ultimate objectives can we assess the accuracy of the means, so as to detect the stereotypes at play. Indeed, the means used may themselves impugn dignity in any of the same three ways we have identified. It may not always be clear at the outset whether a challenge is best levelled at the objective as a whole or at the means used to achieve an independent end. It is important not to jump to an assessment of means without first having tested the objective.

101. The analysis of each case must then begin with a clear investigation into the objectives of the law or policy. Without getting this right, we can have no confidence that we have properly understood the implications for human dignity of the impugned law or policy. It can be argued that it was a mistake for the Supreme Court of Canada to have made dignity, or anything else, an additional ingredient in an equality claim because the consideration of rationale that comes in its wake moves section 1 considerations into the section 15 analysis. Equality jurisprudence would be very different now if the initial approach had been different. Analysis under section 15 would have been much simplified, but the section 1 analysis would bear much more of the substantive weight. Rather than unravel all of the strands that have already been woven into equality jurisprudence, this judgment accepts the need to consider legislative objective within the section 15 analysis, but it aims to demonstrate how this inquiry must be conducted to avoid unfairly prejudicing claimants and allowing government to evade careful scrutiny of its aims and techniques.

102. It is crucial that the investigation into the point of the legislation or policy be full and rigorous. A court cannot simply take the word of government actors. When it does, it slides back perilously close to the formalism of Dicey. It reduces discrimination to subjective intentions since it is rare that a government will explain its own legislation as designed to penalize or disadvantage members of a group identified by an enumerated or analogous ground. The court itself has the responsibility to determine what the legislation’s real import is. Of course, the government’s stated objective is relevant, but so are the underlying assumptions behind those objectives as well as the actual design and impact of the scheme.

103. The fact that the government may have had some worthwhile objective in putting into place a particular rule or policy does not end the inquiry. Complex schemes can have multiple objectives. The pursuit of even a worthwhile objective may differentiate in a way that inflicts an indignity on some. When it does, it violates section 15, and we must pass on to section 1 to determine whether the harm done is nevertheless justified. Likewise, the conclusion that legislation employs rational means to an acceptable end does not end the inquiry. The use of means that are not well suited to the government end may help diagnose a dignity violation, but the rationality of the means is not a guarantee of constitutionality. It is possible for even rational means to have discriminatory effects. Again, when this happens, there is a violation of section 15, which must be tested against section 1.

104. To begin with, then, we must identify the rationale for the provisions at issue — in this case, the survivor benefit under the CPP, including its restrictions—and the relationship of the means used—age restrictions — to the rationale behind the benefit.

(3) Canada Pension Plan Survivor Benefits

(a) Background

105. The CPP is one of several instruments aimed at providing an adequate standard of living for retired Canadians. For participants in the paid labour market, the CPP supplements the Old Age Security plan by providing pension benefits based on income earned. In effect, the CPP requires contributors to save for retirement. Both the employee and employer contribute based on the employee’s income up to certain maximums. The contribution rate is supposed to ensure a large enough fund to pay a specified pension in retirement. The pension is meant to be replacement for the income lost because of retirement. The CPP does not provide total income replacement. It covers only a percentage of the contributor’s earnings.

106. In addition to the contributor’s pension entitlement, the CPP provides survivor benefits for the spouses of contributors. Although sex was not claimed as a ground of discrimination by Ms. Law, the meaning and consequence of the benefit can scarcely be understood or evaluated without taking into account the differences between men and women with respect to their participation in the paid workforce, their earning capacity, and their likelihood of experiencing the death of a spouse. The survivor benefit is now available to both sexes, but it was originally designed with women in mind, and it is still paid mostly to women simply because women are more likely to survive a male spouse than vice versa. Ninety per cent of the recipients are women (Human Resources Development Canada (HRDC), Evaluation of Survivor Benefits and Other Features of Canada Pension Plan, Final Report, May 1997, at 18). Although the social realities of women’s exclusion from the
workforce were taken into account in the original design of the policy, Parliament has not been as attuned to the hurdles that women have faced and still face even as we have increasingly moved into paid work.

(b) Rationale for Survivor Benefits

107. In the litigation, the respondent presented the survivor benefit as being designed to help meet the long-term need of a surviving spouse and the eligibility age as a proxy for such need. The Supreme Court of Canada accepted this characterization. Iacobucci J. treated the human dignity issue as partly a function of “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” (Law, at para. 102 [emphasis in original]). Put simply, the argument is that the younger the surviving spouse is at the time of the contributor’s death, the less in need of a permanent monthly pension she or he is likely to be. Since the proffered rationale seems laudable on its face, the argument centred on whether the use of age as a proxy for need was acceptable.

108. This analysis is flawed in two respects, both connected to the failure to consider the gendered context and effects of the survivor benefit. First, the respondent’s argument seems to trade on an old-fashioned model of “wifely” dependency that is out of touch with contemporary understandings of spousal inter-dependency. Second, and more importantly, the respondent focuses exclusively on long-term need, making the use of age seem more defensible. Yet this choice must itself be tested against section 15. It is easy to treat as insignificant other forms of need in those under forty-five if one imagines that claimants are as likely to be male as female. The flaws in this image become clear when the fact that most recipients are female is put together with well-known data about gendered wage differences. This exercise reveals the male norm that is implicit in the scheme.

109. The respondent has also implicitly treated the relevant need as acute financial need. This both fits with the idea of wifely dependency and strengthens the empirical generalization that younger survivors are less likely to suffer need in the long term. However, this rationale fits uneasily with the actual eligibility requirements, which imply a relative conception of need — a concern about a survivor’s drop in standard of living from whatever level was previously enjoyed, whatever the size of the drop. When we correct the assumption that only acute need is targeted, it becomes harder to justify taking care of gender-related long-term relative need while ignoring short-term relative need that is equally gender-related.

110. The respondent’s argument misleadingly treats the survivor pension as a kind of social assistance program, which seems to hearken back to an outdated attitude towards “dependent wives.” It may once have been common to treat dependant widows as a central case of the deserving poor, worthy of society’s charity, but we now know better. In fact, in most cases a wife — whether in waged work or working in the home — makes an important contribution to her husband’s ability to earn income. Indeed, both spouses typically make an economic contribution towards their joint welfare. The survivor benefit is better understood as recognition of this contribution, as reflecting the economic partnership that spousal relationships embody. The idea of a pension as a family asset is explicitly recognized in the provisions allowing for the splitting of pension credits upon separation (CPP, s. 55.1). This reading is not only more accurate, it also dignifies women’s contribution
to their family’s economic well-being, including their unpaid labour in the home, rather than treating it as a source of women’s dependency.

111. However, the CPP is a pension plan, after all. As such, it is primarily designed to provide replacement income post-retirement. Adhering strictly to this objective would produce a survivor benefit that vested only once the recipient reached retirement age. And yet the benefit is provided for some at a younger age. Just as a contributor who becomes disabled is able to access his pension before he turns sixty-five, a surviving spouse who is herself disabled or caring for dependent children is eligible for the survivor pension early. This early vesting has been extended to all survivors between the ages of forty-five and sixty-five. Social patterns when the CPP was introduced explain this extension. The original assumption was that recipients would be traditional stay-at-home wives and homemakers. Having relied on her husband as her sole source of income, such a woman would likely find it extremely difficult to enter the labour force after a certain age. These pre-retirement age eligibility rules seem to recognize that some survivors below the age of sixty-five will need a pension because of likely barriers to their participation in the workforce.

112. The ineligibility or reduced eligibility of those under forty-five must then be fitted into this rationale — younger people, the respondent says, are able to support themselves, and are therefore not in need. This argument trades on the assumption that the benefit aims at remedying acute need and combines with the “alleviation of long-term need” rationale to lend credibility to the government’s claim that age is a sound proxy for need. Yet, the benefit is extended to some spouses who do not experience such dire need. Those over the age of forty-five are eligible whatever their alternative sources of income. The surviving wife with a career of her own is just as eligible as her non-wage-earning sister. Indeed, since 1975, men over the age of forty-five who survive their spouse are eligible, though few middle-aged men are financially dependent on their spouses. The age-related basis for eligibility may have initially had in mind the entirely dependent wife, but it has expanded considerably beyond this paradigm case. The construction of a rationale for the scheme must incorporate this expansion.

113. The extension of the scheme to all individuals over age forty-five seems to recognize that the loss of one income within a household is likely to occasion a drop in the survivor’s standard of living, creating hardship sufficient to justify an entitlement to offset it from the pension savings of the deceased spouse. A sudden drop in income is likely to cause trouble even in a dual-earner family and for people in most income brackets. A surviving spouse who is working may not be in acute need following the death of a spouse but is likely to have developed a lifestyle and range of financial commitments that are not easily adjusted to accommodate the loss of a spouse’s income and may therefore be in relative need of income support.

114. Indeed, HRDC acknowledges that the participation rate of women in all age groups in the paid workforce has changed significantly since the 1960s, and yet “the need for earnings replacement [following a spouse’s death] has not diminished” (Human Resources Development Canada, supra, at 10). The conception of need operating, then, must be relative to the survivor’s previous standard of living rather than being understood in absolute terms. The HRDC report also acknowledges that the CPP functions in part as an insurance policy for surviving spouses as reflected in the flat rate component of the benefit (at 11). This fact also counsels against construing the benefit as a species of welfare since payment of an insurance benefit is usually not tied to dire need.

115. Thus, a rationale for the survivor pension that treats it as being akin to a welfare benefit predicated upon acute need is inaccurate and untrue to the modern conception of the spousal relationship and some of the eligibility requirements of the scheme itself. These aspects of the rationale offered must be rejected. Instead, we find that the survivor pension is based on recognition of each spouse’s contribution to the couple’s joint wealth, such that the financial disruption flowing from a sudden drop in household income triggers entitlement to access the couple’s pension nest egg.

116. However, the government also presented the scheme as focused on long-term need for income support and relied heavily on this notion to support its use of age as a proxy for the relevant need. This aspect of the rationale fits with the fact that the benefit is structured as a monthly pension payable from the point of eligibility until the recipient’s independent pension benefits become available or her own death, as the case may be. In other words, since a long-term payment is envisioned, it must be meant to deal with long-term need, which is implicitly assumed to be acute need. The argument that follows assumes that confining the scheme to remedying long-term need is legitimate, so that the only question is whether the means used — age-based eligibility — is discriminatory. This initial assumption, however, itself requires examination.

117. The respondent’s claim that those under forty-five are less likely to suffer long-term (acute) need as a result of a spouse’s death seems plausible. The very fact that younger adults have more time to overcome or adjust to the financial effects of their loss before their working life ends must increase the accuracy of the generalization that they are better able to do so than an older person would be. If the generalization is accurate, a connection between youth and employability can be presented as not being demeaning — neither exhibiting prejudice or stereotype nor impairing fundamental interests for which others enjoy protection.

118. If this generalization’s accuracy were crucial to our decision, we would nevertheless say that the government should have been put to a fuller proof of the claim that those under the age of forty-five are better able to support themselves adequately, even in the long run. Since the respondent offers this rationale to deflect the claim of discrimination, and is in the best position to support it, it is the respondent who should prove it. A claimant cannot be expected to anticipate all of the possible rationales that the government might offer for legislation and to present evidence refuting the factual premises of each, especially when based on complex demographic data. If the government has done its homework in designing the policy in the first place, it should be a small matter to shoulder the evidentiary burden of supporting the factual claims that ground its work. The burden of persuading the court that the import of the law or policy is dignity violating may still reside with the claimant, but the job of proving that its factual assumptions are sound should lie on the government.

119. The fact that adequate empirical evidence of the link between age and long-term self-sufficiency was neither offered nor demanded indicates that the use of age is not merely based on an empirical generalization but rather on a normative expectation that younger adults who are able to work should do so rather than expecting a life-long annuity flowing from a spouse’s pension contributions. How else to explain the government’s failure to provide any opportunity for younger survivors to demonstrate that they share the same sort of need experienced by older survivors, despite their youth? This expectation may even be reasonable as long as we assume that the CPP may restrict itself to providing long-term income security for surviving spouses who need it. However, this assumption must be tested against the equality norm embodied in section 15.

(c) Is the Exclusive Provision for Long-Term Relative Need Discriminatory?

120. As reconstructed, the rationale for the survivor benefit has two dimensions. First, despite the assumption that acute need is targeted, it makes more sense of the actual eligibility criteria to treat the benefit as being designed to offset the drop in standard of living relative to that preceding the death of the survivor’s spouse. Second, the scheme is concerned with long-term need. The former is integrally connected to the survivor benefit’s role as an offshoot of the contributor’s CPP pension. There seems no basis for finding this aspect of the objective to be discriminatory. Quite the contrary, a concern to protect spouses from a decline in household income is a dignity-enhancing objective, not because money is important in itself but rather because life plans and quality of life are predicated on the level of income one has already achieved and can be severely, even permanently, disrupted by a sharp drop.

121. However, the exclusive focus on long-term need is another matter. Even if the government can make out the case that younger survivors do not suffer in the long term from the loss of a spouse’s income, this does not establish that they do not experience a short-term version of the need that the CPP aims to alleviate. Is the failure to consider the specific — that is, short-term—needs and interests of younger survivors discriminatory? Does it demonstrate prejudice, whether conscious or not, or reliance on stereotypes about the group affected, whether conscious or not, or does it deny a benefit available to others that is important to a life with dignity?

122. We could conduct this analysis, as the courts did, in a gender-neutral way, but such an attempt seems highly artificial and obscures a central question. We have noted that the vast majority of survivor pension recipients are women and there is every reason to think that younger survivors are also more likely to be women. Thus, the failure to provide for the short-term need of younger survivors is predominantly a failure to consider the specific needs of younger women who have lost a spouse. Indeed, it is perhaps because of a failure to take account of sex that the legislature could so easily conclude that survivors under the age of thirty-five have no income security needs at all and can be expected to fend for themselves. The discrimination question is whether the legislation has differential effects on young women that are discriminatory.

123. We may quickly eliminate any claim that the scheme violates dignity through the expression of prejudice. Although women, including young women, have been historically and systematically targeted for deprivation in some ways out of prejudice it would be hard to read the exclusion at issue in this case as an overt expression of the presumed inferiority of young women or as contributing to the persistence of such attitudes.

124. Is the legislation based on stereotype? Stereotypes are the general characteristics often falsely ascribed to subordinated groups that contribute to keeping them in a subordinate position. For this reason, stereotypes usually have a derogatory connotation even though they may not express conscious ill will. To say, for example, that non-citizens are unlikely to be knowledgeable about Canada and therefore would be less competent as lawyers or to say that those over the age of sixty-five are less competent and therefore should be forced to retire is to over-generalize and to assume that all members of a group have a quality that may actually be true only of some. The injustice is in depriving some of an opportunity based on the inaccurate generalization when they are, in fact, capable.

125. Much of the argument before the Supreme Court of Canada was bound up with whether the generalization that younger adults do not experience long-term need as a result of the death of a spouse is a stereotype. In many ways, it does not fit the stereotype paradigm, largely because it does not attribute a negative characteristic or incapacity to the target group. However, it is a mistake to try to shoehorn this case into the category of stereotype. The scheme may operate on the basis of inaccurate assumptions, but they are not the sort that characterizes stereotyping. Rather, the legislature has falsely assumed that younger survivors have no financial security needs at all—that is, it has failed to take account of the specific needs of younger spouses, even as it has provided for the comparable needs of older ones.

126. Whether this failure rises to the level of discrimination depends on the importance of the good or benefit at issue and on whether it is sufficiently important to fundamental interests that its denial to a particular class of persons when it is provided for others impairs human dignity. Here we are dealing with a benefit whose denial has a greater impact on women than on men, and the dignity inquiry must take account of this difference.

127. The exclusion of younger spouses does not convey a message that some intimate relationships are more valuable than others, as the exclusion of same-sex couples from similar benefits has done in the past. Rather, it is the economic support and its value that is at issue.

128. Providing such a pension for older survivors indicates a public recognition of the importance of income security in the face of the death of one’s spouse. This is obviously a time of great emotional vulnerability, and it should not be compounded by financial vulnerability. Young survivors may not need permanent assistance to get on their feet, but failure to create a bridge from (partial) reliance on a spouse’s income to full self-sufficiency can have serious, even permanent, repercussions, which are not very different from those facing many older survivors. Avoiding these kinds of consequences is the very point of the survivor benefit.

129. The loss of one spouse’s income is likely to occasion a significant drop in living standards for the young as well as the older, requiring at least some period of adjustment. The failure to take account of this short-term need has much more serious consequences for women than for men. The expectation that young widows can and should be instantly self-sufficient is clearly unsound. Women are certainly capable of employment and are participating in the workforce in ever increasing numbers. However, the lingering effects of systemic sex discrimination in the workforce continue to ensure that women’s earning power is considerably lower than that of men.

130. The most recent Statistics Canada data show little change from the data that would have been available when this case was being litigated. The employment rate among women is lower than men’s in all age categories except those under the age of twenty-four (Statistics Canada, CANSIMTable 282-0002: Labour Force Survey Estimates, by Sex and Detailed Age Group, Annual, 2005, version updated 1 July 2006, accessed 2 July 2007). Likewise, the percentage of women in paid work (the participation rate) is lower than that of men in all age groups except fifteen to nineteen year olds (ibid.). In the population as a whole, even in households without children, women’s workforce participation rate is lower than men’s (52.9 per cent versus 64.1 per cent) (Statistics Canada, 2001 Census of Population: Labour Force Activity, Class of Worker, Occupation, Industry, Place of Work, Mode of Transportation, Language of Work and Unpaid Work, database, version updated 31 August 2006, accessed 2 July 2007). Among those wanting full-time work, women’s unemployment rate is also higher than men’s in every age group except fifteen to twenty-four year olds (Statistics Canada, CANSIM Table 282-0086: Labour Force Survey Estimates, Supplementary Unemployment Rates by Sex and Age Group, Annual, 2005, version updated 1 July 2006, accessed 2 July 2007).

131. Women are still streamed into lower paying jobs and are still often paid less than those in comparable male jobs. Even unattached women, whose workforce attachment is likely to be most like men’s, do not earn as much as men. This is true even for younger women (women between the ages of thirty-five and forty-four and between the ages of twenty-four and thirty-four earn almost 88 per cent of what similarly situated men earn) (Women in Canada, supra, at 154). The statistics for the population as a whole (unattached women and women in families, with and without children) show that women aged fifteen to twenty-four earn 81 per cent of male earnings, while women aged twenty-five to thirty-four and thirty-five to forty-four earn close to 75 per cent (at 140).

132. Wives’ earnings represent only about 34 per cent of the income of dual-earner families (Women in Canada, at 140). Because these data are not broken down according to age or whether there are children in the household, they may understate the contribution of younger, childless women to household income. Nevertheless, they provide some reason to think that the loss of a spouse is likely to hit women harder than men. Most women continue to earn less than their male spouses, and many women, even those without children, continue to shoulder the lion’s share of household responsibilities to the detriment of their earning capacity (Statistics Canada, 2001 Census of Canada: Hours Spent Doing Unpaid Housework, 11 February 2003, Catalogue no. 97F0013XCB 2001001).

133. Most worryingly, if a widow has not previously been partially employed or fully employed, it will take time and resources to train or retrain for entry into, or repositioning in, the workforce — want of these resources may confine someone for many years, or even permanently, to low-skill, low-wage jobs. If it is unacceptable to inflict this on a forty-five-year-old woman when her spouse’s pension can help, it is hard to see why the needs of younger women should count for less.

134. Put bluntly, the popular adage that many women are just a divorce away from poverty could easily apply to the death of a spouse. To the extent that women earn less than men, women’s contribution to joint household income is likely to be less than their male spouse’s. Thus, loss of a male spouse will often precipitate a sharper drop in the surviving female spouse’s standard of living than a man’s loss of a female spouse and will be harder to make up. Thus, it is precisely the female survivor who is likely to face the most exigent circumstances following the death of her spouse — the loss of more than half, perhaps much more than half, of her previous household income and the need to make substantial investments in her own earning capacity in order to put herself on an even financial keel. Some young, well-paid professionals may be able to weather this adjustment period with ease, but many lower income survivors will undoubtedly be thrown into crisis. For those just making ends meet, a spouse’s death might well throw their life into complete financial chaos, leading to the loss of home or apartment and a downward spiral into poverty out of which it would be difficult to climb.

135. The degree of financial dislocation suffered will vary depending on the circumstances of the couple, but the same is true of older couples. The government has apparently decided that anyone over the age of forty-five legitimately needs some help. It has not made older survivors responsible for proving any particular level of need, with the attendant delay and additional stress. If this is the right judgment to make in respect of older survivors, it is difficult to see why the same consideration should not be extended to younger ones, adjusted to take account of the shorter-term nature of the need they are likely to experience. It may be legitimate for the government to revisit this decision and to focus more narrowly on those in the most serious need. We reserve judgment on this question. However, even in the event of such a policy change, it seems unlikely that age will be a good proxy for acute need. In other words, age may correlate with acute, long-term need, but it is not a good indicator of acute need more generally. Indeed, it might be more sensible to revisit the decision to extend the survivor benefit to men than to use age to determine eligibility.

136. It is legitimate to expect surviving spouses to adjust to a lower standard of living, if need be, or to take more responsibility for their own support, if need be, but it is harsh and dismissive of the needs of younger spouses, mostly women, to expect these adjustments to take place instantaneously. The forces that have combined and continue to combine to hamper women’s equal participation in the workforce and induce them to subordinate the development of their full economic potential to their family’s interests are well known to the government. These consequences and their further side-effects — economic vulnerability breeds other forms of disadvantage — are a major part of the story of women’s subordinate status in society. Under these circumstances, the creation of a pension scheme that seeks to counter these forces for some women, but not for others, abandons those excluded to the discriminatory forces operating in the workplace and the family. The concrete consequences for their lives may be profound, and the message is that their subjection to the consequences of these discriminatory forces does not matter.

137. The government seems not to have been attending to these gendered consequences. Extending eligibility for the survivor benefit to men has made it easy to lump men and women together when asking whether age is a good indicator of self-sufficiency. The result is to create a de-sexed younger surviving spouse. The danger is that the image created is really a male image to which women are expected to conform or bear the consequences. The complete failure to address whether the typical recipients of the survivor benefit — women — are as capable of achieving instant self-sufficiency following the death of a spouse as a comparable man would be suggests that a male norm guided both Parliament’s and the Supreme Court of Canada’s thinking. Perhaps it is true that relatively few younger men suffer financial dislocation to any significant degree from the loss of a female spouse. To impose the same expectations on women given their different experience of paid employment is to impose a male norm.

138. The tendency to adopt a male norm — in this case, the expectation that women under the age of forty-five support themselves like an able-bodied, childless man could — is powerful and pervasive. In feminist circles, it has a name: equality with a vengeance. Disadvantaged groups such as women tend either to be treated in accordance with derogatory or paternalistic stereotypes or assumed and required at their own peril to be like men whether they are or not, whether they have been given the chance to be or not, and whether it suits their own aspirations or not. This ignores the real work of achieving equality, namely a clear-sighted examination of the actual conditions of women’s lives to determine what they need in order to overcome socially imposed disadvantage, flourish on their own terms, and live lives of dignity and full participation in society.

139. Treating women the same as men when the circumstances of their lives are different tends to entrench existing disadvantage. This is especially so with an income support program that ignores the obstacles younger women face in achieving full and meaningful participation in the workforce. It may be asking too much that all legislation be perfectly calibrated to all of the differences in conditions affecting different groups in society, but refusing income support to younger women because younger men are unlikely to need it when this denial is likely to perpetuate background conditions of inequality fails to treat women with respect. The fact that only some women, younger ones, have been affected by the use of a male norm does not excuse the government. Put the other way around, the fact that substantive equality is achieved for older women, by providing a benefit that responds to needs more specific to women, does not excuse denying it to younger ones.

140. In some respects, society is like a game of snakes and ladders in which female players of all ages are pre-determined to land on more and longer snakes, although older players may be more likely to land on the very longest snakes. The government has done something to reduce the chances of a slide into poverty for older women but has treated younger women as though there were no more dangerous snakes in their path than in men’s. Doing this abandons them to life’s gendered traps.

141. The unwitting adoption of a dominant — in this case, male — norm in legal rules and policy to the detriment of women has been uncovered and rectified by courts in some contexts. The phenomenon and its remedy are not entirely foreign to the courts. For example, in R. v. Lavallee, [1990] 1 S.C.R. 852, the traditional interpretation of the self-defence provision of the Criminal Code, R.S.C. 1985, c. C-46, s. 264, requiring an imminent deadly threat, was modified to counteract the assumption that a woman can leave an abusive relationship as easily as a man can walk away from a violent confrontation. The Supreme Court of Canada has also recognized that policies designed with able-bodied persons in mind will rarely serve the interests of those with disabilities (Eaton, supra, and Eldridge, supra).

142. The second contextual factor the Supreme Court of Canada has identified as an indicator of discrimination — whether the law or policy takes account of the actual circumstances and needs of those affected by it — seems ideally formulated to prod courts to look for hidden male (or white or able-bodied) norms. Failure to use it in this way in this case serves to reinforce, rather than dismantle, the dominant male norm. Having accepted too quickly the government’s characterization of the survivor benefit as being designed to alleviate long-term need, the Supreme Court of Canada’s consideration of the “correspondence” factor focused on the connection between advancing age and long-term need. Yet deciding that the legislation does an admirable job of fulfilling the needs of those who are included does not tell us whether the needs of those who are excluded can be legitimately discounted. A factor that should have worked to focus on the specific age- and sex-related needs of younger, mostly female survivors ended up reinforcing their exclusion simply by pointing out that they do not share exactly the same needs that older, mostly female survivors have, even though the obstacles to full workforce participation they experience are very similar. This bespeaks an overly narrow conception of equality.

143. The failure to include some provision for short-term financial dislocation caused by a spouse’s death differentially affects young women because it is women who are more likely to suffer such a loss and the economic consequences are likely to be more severe for women than for men. Denying short-term income support to help women adjust to the drop in income and the need to maximize their economic potential stands to have potentially cascading, serious, and long-term effects. This must be held to violate younger women’s human dignity by exacerbating pre-existing economic vulnerability and creating obstacles to their ability to overcome it. It discriminates against younger persons who are predominantly women and excludes them from a survivor pension just because their income security need may be of shorter duration than that of older widows. The current provisions of the CPP therefore violate section 15 by discriminating on the combined grounds of age and sex.

G. Section 1 of the Charter

144. It remains to consider whether the scheme can be defended under section 1. The general outlines of the Oakes test are well known. First, “[t]he objective, which the measures responsible for a limit on a Charter right are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right” (R. v. Oakes, [1986] 1 S.C.R. 103 at 138). The proportionality part of the test then assesses the rationality of the connection between the offending provision and the objective offered for it, and the reasonable necessity of violating rights to achieve that objective as a prelude to determining whether an objective that survives to the final stage of the analysis is more important than the right violated to achieve it.

145. Especially in section 15 cases, the objective relevant to the section 1 inquiry is the objective of the right-limiting provision — in this case, the decision to exclude from assistance those in short-term financial need following the death of a spouse even though it differentially and detrimentally affects younger women. Equality cases always involve the distribution of some benefit or burden. The government can therefore always say that its general objective was to benefit those who are included in the scheme. Conferring such a benefit will always be constitutionally valid and even of significant importance, but it will usually be beside the point. The question is whether the exclusion of others is defensible, and the objective behind leaving out those left out must therefore be assessed. The only circumstance in which it might be open to argue that the objective of the exclusion of some is the general objective of the legislation or policy to benefit others is when the only way to provide for some is to exclude others. In all other cases, the objective of the rights-violating provision must be to avoid whatever other difficulties or costs there would be in extending the benefit. These costs must then be measured against the value of protecting equality rights.

146. The objective offered for section 1 purposes must be one that is capable of competing with the importance of protecting equality. In this case, the government seems to have focused its energy on arguing that the interests of those needing short-term assistance to achieve financial security do not rise to the level of attracting protection under section 15. Given our finding that excluding short-term need differentially affects younger women in dignity-impairing ways, an objective for such exclusion that is capable of competing with the value of equality is hard to discern from the record from the courts that have considered this case.

147. Only the Pension Appeal Board went into the section 1 argument (Law v. Canada (Minister of Employment and Immigration) (1995), C.E.B. & P.G.R. 8574 (PAB)). Rutherford J., for the majority, put a great deal of weight on the complexity of the CPP and the level of multilateral support needed to amend it. Contribution levels are set according to the type and level of benefits payable. Major changes to the plan require the approval of the federal government and two-thirds of the provinces with at least two-thirds of the population (Law (PAB), at 6084). Against this backdrop, Rutherford J. advocated deference to Parliament in respect of decisions “which impact on the public purse” (at 6085).

148. Three threads seem to be woven together to support this conclusion, but none amounts to section 1 justification. In part, Rutherford J. relies on the complexity of the CPP scheme as a whole and the difficulty of achieving consensus between levels of government. These factors are more in the nature of general reasons for judicial deference to government decisions than the statement of a government objective capable of justifying an equality violation. There may be circumstances in which deference is justified, but they do not seem to be in evidence in this case. First, though the CPP scheme as a whole is complex, this should not weaken the courts’ resolve to scrutinize the justifications offered for violations of the right to equality. As our account of equality becomes more sophisticated, we should expect that cases raising more complex issues involving detailed benefit schemes will come before the courts. To defer to government in all of these cases will leave section 15 with very little role to play in guiding government behaviour. A plea of complexity seems like a smokescreen to relieve the government of the responsibility to demonstrate what it takes to be the compromises or sacrifices that would be necessary in order to uphold the right to equality. This is to subvert the function of section 1.

150. Second, we are not persuaded that the difficulty of achieving federal-provincial consensus on changes to the CPP is a reason to stint on Charter scrutiny of the program. Quite the contrary, political deadlock may mean that a rights violation continues indefinitely, absent judicial intervention. This case is a case in point. The Pension Appeal Board was assured by the respondent’s expert witness, Terry De March, chief of legislative development in the Policy and Legislation Division, Income Security Programs Branch of the HRDC, that the government “acknowledged that the current criteria may no longer be appropriate and stated its intention to work with the provinces to arrive at a consensus on this issue” (Law (PAB), at 6081). De March testified that work on reaching consensus and on alternative models was underway. This was in 1995. Eleven years later, no changes have been made to the survivor benefit. Equality rights cannot be left to the mercy of such political stasis. We prefer to believe that if the Supreme Court of Canada had clearly named the section 15 violation in the current scheme and held the federal government and the provinces to their responsibility to rework the scheme to cover the needs of younger spouses, the governments would have risen to the challenge.

151. Rutherford J.’s third argument concerns the implications for the public purse of changes to the CPP. He offered this as a further reason for deference, but it might also be formulated as an objective competing with the right to equality — that is, the government might argue that short-term assistance was excluded in order to save money. Either way, the argument is flawed. This is not a matter of the public management of scarce resources. Even assuming that cost may be called in aid to make out section 1 justification — an argument that is contentious in itself — the CPP is not in competition for public funds with other social programs mounted by the federal government and provinces. Pensions under the plan are paid entirely out of the contributions of employees and employers. No general government revenues go into the fund. If the costs of the plan go up, contributions may have to rise, but it does not follow that health care funding, or national
defense, or any other government responsibility must suffer.

152. No clear argument emerged from the litigation either that raising CPP contribution rates would be the only, or only feasible, way to include short-term assistance or that the damage that would be caused by such an increase is sufficiently important to justify a restriction on the section 15 rights of younger women. It follows that the government has not met its burden of establishing that the use of age as a criterion of eligibility is demonstrably necessary in a free and democratic society.

VI. Disposition

153. This reconsideration of Law v. Canada leads me to conclude that sections 22(1)(d) and 59 of the CPP infringe section 15 of the Charter on the ground that they discriminate on the basis of age and sex. The government has failed to meet the burden imposed by section 1 in order to save the provisions.

154. Sections 22(1)(d) and 59 are of no force and effect because the use of age as a criterion for eligibility is the means by which younger women’s need for short-term financial support is ignored. However, it does not follow that all survivors under the age of forty-five should be entitled to a full pension until their own retirement age. The fact that the government has overstated the differences between older and younger survivors does not mean that there are no differences. I would therefore suspend the effect of the declaration of invalidity for a period to be determined after hearing argument about the appropriate amount of time within which to expect the governments to revise the scheme. I would also invite representations about the appropriate level of compensation to be awarded to Ms. Law should the parties be unable to come to an agreement on this matter.

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Author’s Note

My initial interest in Eaton v. Brant County Board of Education comes from a very personal relevance. I have been visually impaired, at or near the borderline of legally blind, since birth. Fortunately, in my assessment, my parents insisted that my older brother (who has the same condition) and I attend the neighbourhood school rather than a school for the blind. I have never had any cause to doubt the wisdom of my parents’ decision. I have no doubt that attending a school for the blind would have been a very marginalizing experience. With this backdrop, my first reaction to the Supreme Court of Canada’s rejection of a constitutional presumption of integration of disabled students was a very visceral one. It evoked memories of the infamous 1896 Plessy v. Ferguson doctrine of‘‘separate but equal,’’ the height of American legal endorsement of racism. Anything that followed Plessy’s doctrine was, by definition, bad. Further reflections have not changed my ultimate conclusion but have made my analysis more nuanced. ‘‘Separate but equal’’ is not always improper, but it is invidious when it used to relegate a person or group of people to the status of inferior other, as was done in Plessy. Given the history of marginalization of disabled persons, one should be suspicious of its use in the context of the education of disabled students. Whether by intention or effect, ‘‘separate but equal’’ as official doctrine will continue to marginalize disabled persons. While segregated placement of disabled students should not be categorically rejected, the burden of justification should be on those advocating segregation. Moreover, even a presumption of integration is inadequate, by itself, to achieve equality. An integrated setting can only achieve equality if it is genuinely inclusive—that is, responsive to different needs and circumstances. My ‘‘judgment’’ in Eaton reverses the Supreme Court of Canada’s rejection of a presumption of integration of disabled students and finds a section 15 breach in not abiding by such a presumption. There is, however, no section 1 analysis, based on the mootness of the case. Although mootness is a defensible legal basis for avoiding the section 1 issues, there are more pragmatic reasons for sidestepping a discussion of section 1. First, I do not think I know enough about primary education generally to do a proper job. Second, I do not have access to the factual record. Third, and more fundamentally, even if I did have access to the record, it would still not be a proper basis for an adequate section 1 analysis. It would not, in my assessment, be possible, after the fact, to reconstruct the record from a disabled perspective, but nothing less would serve the purpose.

Reconsideration of Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 (judgment of the Supreme Court of Canada reversed). The decision of the Women’s Court was delivered by: DIANNE POTHIER

1. Introduction

1. What do principles of equality and non-discrimination require in relation to disabled students? Where disability significantly impacts upon the manner of learning, formal equality analysis is woefully inadequate there are no likes to be treated alike. The non-discrimination issue in relation to the education of disabled students centres on the question of how equality analysis deals with differences that are attributable to disability. Does substantive equality, in taking account of difference, incorporate a presumption of integrated education? If so, what is required of integrated education to achieve equality for disabled students? These questions lie at the heart of the present case.

2. This is an appeal from a 1997 decision of the Supreme Court of Canada. Emily Eaton, who was twelve years old at the time of the Supreme Court of Canada decision, has cerebral palsy, resulting in multiple disabilities. Throughout the legal proceedings concerning her, Emily has had no developed method of communication. She has not been able to speak orally, use sign language, nor use assisted communication. Thus, it has not been possible to obtain input from Emily on the legal issues at stake. Submissions have been made throughout on behalf of Emily by her parents.

3. Emily began school, in kindergarten, at her local neighbourhood public school, with an educational assistant to tend to her special needs. The educational authorities in the public school system considered this arrangement to be on a trial basis. Emily’s parents wanted to extend this arrangement, with Emily continuing in an integrated setting in an age-appropriate class. However, the educational authorities in the public school system concluded that the trial in an integrated setting was not working for Emily, and they decided that Emily should be transferred to a special and segregated setting for disabled students. Emily’s parents challenged this decision but were unsuccessful in their challenge at all stages except for the Ontario Court of Appeal. The Ontario Court of Appeal’s decision in favour of a constitutional presumption of integrated education was reversed by the Supreme Court of Canada. This reversal by the Supreme Court of Canada is the subject of the present appeal.

4. The Supreme Court of Canada did not deal with this case as a challenge to a particular provision of Ontario legislation. Accordingly, the lack of official notice of a constitutional question to the Attorney General of Ontario during the administrative proceedings was not fatal to the challenge pursuant to the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. There was (and is) no statutory provision in Ontario, as there is in some Canadian jurisdictions, expressly establishing a presumption of integrated education (see A. Wayne MacKay, Connecting Care and Challenge: Tapping Our Human Potential—Inclusive Education: A Review of Programs and Services in New Brunswick, 2006 [on file with author]). However, nor was there any statutory provision expressly excluding a presumption of integrated education for disabled students in Ontario. The constitutional issue before the Supreme Court of Canada was whether the Charter demands a presumption of integration as a matter of constitutionally valid interpretation. This court approaches the case on the same basis.

5. The case is technically moot on two counts. Emily is now past the usual age of primary and secondary school attendance. More significantly, after the public school system had refused to continue Emily’s placement in an integrated setting, the separate (Catholic) school board agreed to accept her. Thus, in fact, Emily continued in an integrated setting in spite of the series of legal rulings challenged in this case. However, in light of the significance of the legal issues involved, this court has exercised its discretion to reconsider the case in spite of its mootness (Borowski v. A.G. Canada, [1989] 1 S.C.R. 342). Nevertheless, because the issues in relation to Emily herself are moot, her particular circumstances are less central to this reconsideration than would otherwise be the case. The focus of this reconsideration is the general equality principles at stake in a case such as Emily’s.

6. While the particulars of Emily’s case will not be emphasized in this judgment, it is important to remember that the case involves taking into account differences. When applying the general principles articulated in this judgment to ongoing education policy, practice, and placement decisions, the particular needs and circumstances of individual students must remain in focus. Equality demands a recognition of, and response to, diversity.

II. History of the Proceedings

7. Emily began kindergarten in an integrated setting at her neighbourhood school by mutual agreement between her parents and the Brant County Board of Education (BCBE). The Identification, Placement and Review Committee (IPRC) of the BCBE considered this to be a trial placement. Due to concerns raised when Emily was in Grade 1, by decision dated 24 February 1992, the IPRC determined that Emily should be placed in a special education class. Emily’s parents appealed to a special education appeal board, which confirmed the IPRC’s decision. Emily’s parents further appealed to the Ontario Special Education Appeal Tribunal. Emily remained in an integrated setting in the public school system pending the administrative appeals. After a twenty-one-day hearing, the Ontario Special Education Appeal Tribunal confirmed the decision for a segregated placement, following which Emily was home schooled for a term until she was accepted into an integrated setting in the separate (Catholic) school system. The record does not disclose the details of Emily’s Catholic school educational experience and, hence, does not enable an assessment of her ongoing integrated education. The legal significance of the decision of the Catholic school board to integrate Emily is that the decision of the Brant County Board of Education to place Emily in a special class for disabled students was never implemented.

8. Emily’s parents nonetheless sought judicial review of the decision of the Ontario Special Education Appeal Tribunal. The Ontario Divisional Court dismissed the application. Justice George Adams concluded that the decision of the tribunal was amply supported by the evidence. He further commented (Eaton v. Brant County Board of Education (1994), O.J. No. 203 at para. 12) that neither the Charter nor the Ontario Human Rights Code dictated a choice between pedagogical theories favouring either integrated or segregated schooling of disabled children.

9. The Ontario Court of Appeal disagreed with the Divisional Court’s assumption that the case is merely about a choice between pedagogical theories. According to Justice Louise Arbour, the case is about ‘‘the appropriate legal framework within which that choice twill be made’’ (Eaton v. Brant County Board of Education (1995), 22 O.R. (3d)1 at 10 (C.A.)). Arbour J., speaking also for Justices James Carthy and Jean-Marc Labrosse, concluded that section 15 of the Charter dictates a presumption in favour of integrated education. Justification meeting the test of section 1 of the Charter would be necessary to rebut this presumption.

10. The Supreme Court of Canada unanimously reversed the decision of the Ontario Court of Appeal. Justice John Sopinka ruled against any constitutional presumption in favour of integration, concluding that ‘‘a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality’’ (Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 69). The Supreme Court of Canada held against a violation of section 15 on the basis that the decision of the Special Education Appeal Tribunal was a determination, on the evidence, of Emily’s best interests. Sopinka J. concluded that such a determination could not be a burden within the meaning of section 15.

III. Analysis

A. Introduction

11. This case is founded on a claim based on section 15(1) of the Charter.

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.

12. The challenge to the rulings to place Emily Eaton in a segregated educational setting for disabled students alleges that such segregation is unequal treatment amounting to discrimination on the basis of disability. It is uncontested that the effects of Emily’s cerebral palsy constitute disabilities and that the challenged placement decisions were based on Emily’s disabilities. Since physical and mental disabilities are enumerated grounds of discrimination under section 15, the grounds element of a section 15 claim is obviously established. The contested issues relate to the application of equality and nondiscrimination in the context of the education of disabled students.

13. The Supreme Court of Canada has analytically split the elements of equality and non-discrimination in section 15 (see especially Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497), the former involving an analysis of differential treatment and the latter focusing on human dignity. In the context of this case, such an analytical split is unhelpful. In the context of students whose disabilities significantly impact on the manner of learning, there is no way of avoiding differential treatment. It is simply not possible to treat such students the same as non-disabled students—formal equality has no possible application. The choice is between different kinds of differential treatment, with the distinction between integrated or segregated placement being only the first choice required. Accordingly, the language of differential treatment does not assist in determining what equality principles dictate. The search is for substantive equality principles to guide the taking into account of difference attributable to disability. As such, discrimination analysis does not add new issues. Equality and non-discrimination analyses are properly collapsed. Deviation from substantive equality amounts to discrimination contrary to section 15.

14. The essence of this case is whether equality and non-discrimination principles have any bearing on the choice between integrated and segregated education for disabled students. The Supreme Court of Canada said there could be no section 15 breach where the decision of the educational authorities was made in Emily Eaton’s best interests. Yet it is necessary to look behind the meaning of ‘‘best interests.’’ While there is no reason to doubt that the educational authorities thought they were deciding in Emily’s best interests, such a conclusion cannot be determinative since intention to discriminate is not a requisite element of a section 15 breach (Law Society of British Columbia et al. v. Andrews et al., [1989] 1 S.C.R. 143; and Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624).

15. It is also clear that the educational authorities did not reach their decision guided by any presumption in favour of integration. Indeed, it may be said that they did the opposite. Although the question posed was whether Emily would do better in an integrated or segregated setting, the answer given was that the integrated setting was not working for Emily. There was no actual conclusion that a segregated setting would be better for her (Eaton 1995, at 9). Thus, a different starting point as to the appropriate presumption could well have led to a different conclusion on the facts. The difference between the Court of Appeal’s conclusion in favour of a constitutional presumption of integration and the Supreme Court of Canada’s rejection of such a presumption is therefore of crucial significance.

16. There is, nonetheless, more at issue than legal presumptions. In choosing between an integrated and a segregated setting, it is also important to pay close attention to the nature of the integrated setting. In order for an integrated setting to advance equality, the integrated setting must be genuinely inclusive. An integrated setting that does not address the needs of disabled students cannot satisfy constitutional dictates of equality.

17. In assessing the statutory presumption of integrated education for disabled students in the United States, Ruth Colker has commented as follows:

If anything, we might presume that the regular classroom poses problems for these children so that a school district should have to demonstrate that it has made significant and effective changes to the regular classroom before placing a child in that environment (Ruth Colker, ‘‘The Disability Integration Presumption: Thirty Years Later,’’ Ohio State University Moritz College of Law Working Paper Series no. 9, 2005, at 8).

18. Although Colker made this point as part of her critique of the breadth of the integration presumption in the United States, we think the point is more telling as a critique of the existing norms of the mainstream educational setting. Integration will be the antithesis of equality if no attention is paid to the terms upon which integration happens and with no, or insufficient, attention to meeting differing needs and circumstances of disabled students (see, in the context of racial integration, George J. Sefa Dei, ‘‘Rethinking ‘African-Centred’ Schools in Euro-Canadian Contexts,’’ in Keren S. Braithwaite and Carl E. James, eds., Educating African Canadians (Toronto: James Lorimer and Company, 1996), 295; and Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Promise of Racial Reform
(New York: Oxford University Press, 2004)). The choice is not just between integrated and segregated education. Segregated education cannot be relied upon as the answer to the inadequacies of integrated education.

19. In order to evaluate what equality demands in relation to education of disabled students, the historical context must be assessed.

C. Historical Context

20. Prior to 1980, there was no statutory right of universal access of children, specifically of disabled children, to public education in Ontario. In introducing amendments in 1980, the Minister of Education so acknowledged:

[T]he basis of universal access contained within the bill guarantees the right of all children, condition notwithstanding,
to be enrolled in a school. No longer will retarded children be enrolled after an assessment procedure established in law which has in fact denied universality of access. All children will now have a basic right to be enrolled (Legislature of Ontario, Debates, Official Report (Hansard), 31st Parl., 4th Sess., 23 May 1980, 2135-6 (per Hon. B. Stephenson, Minister of Education)).

21. This history is part of a larger context of exclusion of disabled persons from mainstream society:

Persons with disabilities clearly constitute an underclass in Canadian society and, although there is growing willingness to discuss their issues in the context of rights, the forces of discrimination and paternalism continue to operate effectively to preserve this second class status. It is discriminatory attitudes and paternalism which are largely responsible for the warehousing of people with disabilities into institutions, sheltered workshops and segregated ‘‘special’’ educational facilities (Sandra Goundry and Yvonne Peters, Litigating
for Disability Equality Rights: The Promises and the Pitfalls (Winnipeg: Canadian Disability Rights Council, 1994) at 5).

22. Such a perspective is also shared by Marcia Rioux and Michael Prince (‘‘The Canadian Political Landscape of Disability: Policy Perspectives, Social Status, Interests Groups and the Rights Movement,’’ in Alan Puttee, ed., Federalism, Democracy and Disability Policy in Canada (Montreal: McGill-Queens University Press, 2002), 11 at 14). This history has been judicially acknowledged. In Eldridge, the Supreme Court of Canada relied, in part, on Goundry and Peters in saying that ‘‘[i]t is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization’’ (supra, at para. 56).

23. The (still current) 1980 legislative change in Ontario, while incorporating a statutory right of universal access to public education, also contemplated achieving the goal of universal education through a combination of integrated and segregated education. This combination needs to be assessed against a backdrop of historical patterns of segregation, which have created and perpetuated second-class citizenship of disabled persons.

24. The long history of segregation of disabled persons, in Canada and elsewhere, has never had even the vaguest claim of being in the pursuit of equality. It has been about relegating disabled persons to the margins of society where most of the able-bodied population did not have to notice the existence of disabled persons. Segregation has been a tool used to stigmatize and marginalize virtually every oppressed group, for example, those identified by disability, race, sexual orientation, and religion.

C. “Separate But Equal”

25. Although the Supreme Court of Canada did not actually invoke the terminology of ‘‘separate but equal,’’ it is the essence of their conclusion in the present case. By ruling against a constitutional presumption of integrated education, and finding no breach (even at the prima facie stage) arising from segregated placement, the Supreme Court of Canada affirmed that separate is equal. The Court’s failure to expressly use the terminology of ‘‘separate but equal’’ is probably attributable to its historical connotations. The phrase acquired a deservedly bad reputation after it was utilized by the majority of the United States Supreme Court almost at the turn of the twentieth century in Plessy v. Ferguson, 163 U.S. 537 (1896). The Plessy case involved a challenge to racial segregation, the relevance of which to the present case is not to draw a direct analogy between race and disability segregation but rather to highlight underlying theories of equality—or, more to the point, theories of inequality—in the analysis.

26. The Supreme Court of Canada’s failure in the present case to mention Plessy is presumably based on the assumption that racial segregation is distinguishable from disability segregation because the latter is responding to actual differences attributable to disability. However, such an assumption fails to acknowledge how difference can be transformed into hierarchy and inequality.

27. Where segregation has been used to marginalize and stigmatize a group, a presumption of integration is necessary in order to counteract the continuing harm. The Supreme Court of Canada’s decision in the present case obscures this fundamental point. The Supreme Court of Canada’s rejection of a presumption of integration in education ignores the historical context that segregation of disabled persons has been used to confer and perpetuate inferior status. In this context, the rejection of a presumption of integration amounts to the adoption of a hierarchy of difference, which is unequal by definition. A hierarchy of difference is precisely what was constructed by the United States Supreme Court in 1896 in Plessy.

28. In upholding a Louisiana statute mandating racially segregated railway passenger cars, the United States Supreme Court in Plessy, explained:

Laws permitting, and even requiring . . . [racial] separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced (at 544 (majority)).

29. Despite the claim that racial segregation requirements ‘‘do not necessarily imply the inferiority of either race to the other,’’ both the majority and the dissent in Plessy (at 549 (per the majority) and at 559 (per Harlan J., dissenting)) unashamedly referred to whites as the ‘‘dominant’’ race. The majority’s capacity for rationalization, as well as its willingness to add insult to injury, seemed to know no bounds:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it (at 551).

30. Justice John Harlan’s dissent, in contrast, characterized the majority’s
decision as:

a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of ‘‘equal’’ accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done (at 562).

31. Harlan J.’s reference to the ‘‘thin disguise of ‘equal’ accommodations’’ was an acknowledgment that, even on a theory of ‘‘separate but equal,’’ the facilities for Blacks were palpably unequal (see Bell, Silent Covenants, supra, at 13).

32. The blatant racism of the majority decision in Plessy has disturbing parallels to the present case. Such parallels were indirectly acknowledged by the Ontario Court of Appeal in the case at bar (at 6) by its reference to the case that ultimately overruled Plessy—the 1954 United States Supreme Court decision of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954), as support for endorsing a constitutional presumption of integration. It is noteworthy that the Plessy majority explicitly and tellingly invoked the example of segregated schooling as a legitimate form of separation (at 544). Thus, the Supreme Court of Canada’s endorsement of segregated education in the present case can be seen as a reflection of the thinking underlying Plessy. Ironically, it was the issue of racially segregated schools that led to the ultimate overruling of Plessy in Brown. In Brown, the United States Supreme Court held that even assuming equality of ‘‘tangible’’ factors, ‘‘[s]eparate educational facilities are inherently unequal’’ (at 493 and 495). Although this claim is inadequate as a universal statement, it was compelling as a reaction to the racially segregated schooling at issue in Brown:

It was not until Brown I was decided that blacks were able to understand that the fundamental vice was not legally enforced racial segregation itself; that was a mere by-product, a symptom of the greater and more pernicious disease—white supremacy (Robert Carter, ‘‘A Reassessment of Brown v. Board,’’ in Derrick Bell, ed., Shades of Brown: New Perspectives on School Desegregation (New York: Teachers College Press, 1980), 21 at 23).

33. This ‘‘greater and more pernicious disease—white supremacy—has presented tremendous barriers over the last half century to the implementation of Brown, supra, in the United States. Derrick Bell, for many years one of the most committed litigators in efforts to implement Brown, has now reached the conclusion that Brown has ultimately been a failure. Furthermore, he has come to the conclusion that there might have been greater long-term progress
towards racial equality if the principle of ‘‘separate but equal’’ had been maintained, with efforts directed at making the ‘‘equal’’ part genuine, rather than rhetorical as in Plessy (Silent Covenants, supra). Bell’s is a tactical assessment more than a principled endorsement of ‘‘separate but equal’’ (at 189). The core theme of Bell’s book is captured in the following comments:

As I suggested earlier, the Brown decision substituted one mantra for another; where ‘‘separate’’ was once equal, ‘‘separate’’ would be now categorically unequal. Rewiring the rhetoric of equality (rather than laying bare Plessy’s white-supremacy underpinnings and consequences) constructs state-supported racial segregation as an eminently fixable alternative. And yet, by doing nothing more than rewiring the rhetoric of equality, the Brown Court foreclosed the possibility of recognizing racism as a broadly shared cultural condition. In short, the equality model offered reassurance and short-term gains, but contained within its structure the seeds of its destruction (at 196-7).

34. ‘‘Separate but equal’’ analysis is not necessarily problematic per se. The objectionable aspect of Plessy was its use of ‘‘separate but equal’’ in support of racist notions relegating Blacks to the status of inferior other, to the status of lesser persons. Once it is understood that the injury results from the existence of the label of inferiority, it becomes clear that the cure must be the removal of that label. (Charles Lawrence, ‘‘‘One More River to Cross’ # Recognizing the Real Injury in Brown: A Prerequisite to Shaping New Remedies,’’ in Bell, Shades of Brown, supra, 49 at 52)

35. ‘‘Separate but equal’’ does not inevitably amount to, or condone, a hierarchy of difference. There are some contexts where ‘‘separate but equal’’ is indeed necessary (as a matter of principle and not just tactics) to achieve equality. Minority language education rights, which are protected in section 23 of the Charter, are a case in point: ‘‘Section 23 is . . . especially important . . . because of the vital role of education in preserving and encouraging linguistic and cultural vitality (Mahe v. Alberta, [1990] 1 S.C.R. 342 at 350).

36. The jurisprudence under section 23 has focused on the means of assuring management and control by the linguistic minority. The historical backdrop to section 23 is that integrated linguistic education has meant education in the language of the majority and assimilation of the minority. Even bilingual education has proven to be a route to assimilation. Accordingly, a ‘‘separate but equal’’ scheme can be vital to resisting assimilation. In the disability context, schools for the Deaf can have a language claim similar to those advanced under section 23 of the Charter.

37. Parallel concern about cultural assimilation of Blacks has generated some critique of Brown, supra, in the United States (see Bell, Shades of Brown at vii and x; and Bell, Silent Covenants esp. at 121-5 and 160–79). In Canada, those advocating for ‘‘African-centred’’ schools do so in order to promote the
‘‘centering of cultures and experience in the learning process’’ in the wake of ‘‘the asymmetrical power relations that govern the lives of minority students in the conventional school system’’ (Dei, supra, at 298). Aboriginal selfgovernment in Canada can also be seen as a form of ‘‘separate but equal’’ in the name of cultural autonomy. Indeed, ‘‘separate but equal’’ can be seen as an apt description of federalism.

38. Nevertheless, ‘‘separate but equal’’ claims in the name of cultural autonomy still must be scrutinized carefully. A comparison with the South African context provides one illustration of why. In Reference re: School Education Bill of 1995 (Gauteng), 1996 (3) S.A. 165 (CC), the South African Constitutional Court was asked to rule on a claim that the Constitution mandated public funding of Afrikaans schools. The plaintiffs made arguments relying on section 23 of the Canadian Charter. The plaintiffs’ claims were rejected. The majority did so by a standard textual analysis of the South African Constitution and by distinguishing its language from that of the Canadian Charter. Justice Albie Sachs, concurring in the result, offered a thorough contextual analysis to enhance the textual analysis:

[T]he present case stems from the situation of a community defending relative affluence and privilege, rather than one combatting marginalisation and the imminence of group annihilation . . . Thus, it is the equality principle rather than the nondiscrimination one which becomes the foundation for special legal and other measures to assist groups suffering from de facto rather than de jure disadvantage . . . As far as members of the Afrikaans speaking community are concerned, they could complain if the State treated them less advantageously than other groups; their claim to retain a privileged situation, however, would not have the same, or any, force (at paras. 70 and 73).

39. ‘‘Separate but equal’’ claims from marginalized minority communities may have a very different connotation than those from privileged communities. Where it is the privileged majority seeking to impose segregation on an unwilling minority, as in both Plessy and the present case, ‘‘separate but equal’’ claims ring hollow. Where the claim for ‘‘separate but equal’’ comes from a vulnerable minority, the context may be very different than when segregation is imposed by the dominant society. Thus, in the Court of Appeal in the present case, Arbour J. drew an important distinction between imposed and chosen separateness (at 15). Similarly, those advocating for ‘‘African centred’’ schools in Canada are careful to put forth the concept as based on choice, as an alternative option, and not resting on coercion against students or parents (Dei, supra, at 300-1).

40. Yet even separateness chosen by marginalized communities warrants questioning. It is important to ask whether the choice is genuinely voluntary, or whether it is actually a very constrained choice. In the specific context of education, it is important to scrutinize the learning environment in the integrated setting. If segregated education better meets the needs of students simply because of the inadequacy of the integrated setting, it cannot be said that either setting is promoting equality. This point is pertinent in multiple contexts, but the precise implications vary considerably. For example, what is needed from an integrated setting to respond to racial diversity is quite different from what is needed to respond to disability. In both contexts, Canadian society has a long way to go in even acknowledging, much less meeting, these challenges to dominant norms. In the present case, as will be elaborated upon later in this judgment, there is no acknowledgment by the Supreme Court of Canada that non-disabled norms are controlling in the integrated setting.

41. The ultimate conclusion of the Supreme Court of Canada in the present case is that, compared to integrated education, segregated education better met Emily’s needs as a disabled student. Although the Court does not draw the analogy to minority language education, the conclusion of the Court aligns segregation on the basis of disability with segregation on the basis of language. The historical context of section 23 of the Charter is that linguistic integration in education has been the path to cultural assimilation. In this context, ‘‘separate but equal’’ is an important bedrock against assimilation and a means of promoting equality. In marked contrast, the historical context of the education of disabled students is that segregated education has been a means of marginalization, of relegation to the status of inferior other. In this context, easy resort to imposed ‘‘separate but equal’’ can only perpetuate such a badge of inferiority within an unequal hierarchy of difference. Thus, a presumption of integration of disabled students, and a rejection of ‘‘separate but equal’’ as complying with section 15, is what equality principles demand.

D. Taking Account of Difference

42. In his dissent in Plessy, Harlan J. had articulated the principle that the ‘‘Constitution is color-blind’’—that is, that the Constitution should ignore difference (at 559). Compared to what his colleagues were doing in 1896, this was a progressive stance. However, at this point in our equality jurisprudence, it is clear that substantive equality does require taking difference into account in order not to perpetuate discrimination. This understanding of equality is expressly acknowledged in the Canadian Charter in section 15(2), which was reinforced by the Supreme Court of Canada in its first section 15 decision in Andrews (supra, at 169) and reiterated by Sopinka J. in the present case (Eaton 1997, supra, at para. 66). Yet it is still necessary to consider exactly how difference is to be taken into account. Substantive equality demands taking difference into account without creating a hierarchy of difference.

43. In the context of disability it may sometimes be impossible to ignore difference, and no one in the present case is suggesting that it was possible to ignore Emily Eaton’s difference. The debate is whether her difference should be dealt with via special supports in an integrated educational setting or via a segregated educational setting.

44. In determining which is the appropriate approach to difference in the present case, Sopinka J. provides the following overview:

The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based solely on ‘‘mainstream’’ attributes to which disabled persons will never be able to gain access . . . [I]t is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against
them (at para. 67).

The ‘‘fine-tuning’’ language suggests that only minor modifications are needed to avoid ‘‘relegation and banishment.’’

45. Sopinka J.’s description of the tribunal’s decision makes it clear that it was the extent of the challenge posed by integrating Emily that led to the decision in favour of a segregated placement. The Tribunal observed at the outset that it is the extent of Emily’s special needs which provokes consideration of a special placement, and not the fact that her needs
are different from the mainstream. The Tribunal then reviewed Emily’s needs under a number of headings and made numerous findings of fact upon which it based its decision (at para. 16).

46. Sopinka J.’s limited conception of the adaptation that mainstream society should be required to make is also apparent in the following passage:

The interplay of these objectives relating to disability is illustrated by the evolution of special education in Ontario. The earlier policy of exclusion to which I referred was influenced in large part by a stereotypical attitude to disabled persons that they could not function in a system designed for the general population. No account was taken of the true characteristics of individual members of the disabled population, nor was any attempt made to accommodate these characteristics. With the change in attitude influenced by the Williston Report and other developments, the policy shifted to one which assessed the true characteristics of disabled persons with a view to accommodating them. Integration was the preferred accommodation but if the pupil could not benefit from integration a special program was designed to enable disabled pupils to receive the benefits of education which were available to others. It follows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to these grounds. However, with respect to disability, this ground means vastly different things depending
upon the individual and the context. This produces, among other things, the ‘‘difference dilemma’’ referred to by the interveners whereby segregation can be both protective of equality and violative of equality depending upon the person and the state of disability. In some cases, special education is a necessary adaptation of the mainstream world which enables some disabled pupils access to the learning environment they need in order to have an equal opportunity in education. While integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality. Schools focussed on the needs of the blind or deaf and special education for students with learning disabilities indicate the positive aspects of segregated education placement. Integration can be either a benefit or a
burden depending on whether the individual can profit from the advantages that integration provides (at paras. 68-9).

47. While Sopinka J. gives some acknowledgment of the significance of integration, it is clear he expects only modest adaptation of the mainstream classroom to allow for integration of disabled students. In his analysis, reliance on segregated schooling is uncritically endorsed as a means to meet the needs of those who are blind, deaf, or learning disabled.

48. Margot Young has commented:

Thus the question of integrated as opposed to segregated educational opportunities becomes a question of whether the individual herself will fit the existing educational environments rather than how those environments need be changed to fit her and others who currently occupy the margins of society (Margot Young, ‘‘Sameness/Difference: A Tale of Two Girls’’ (1997) 4 Review of Constitutional Studies 150 at 162).

49. Sopinka J. contemplates segregated education as frequently better for disabled students precisely because he does not contemplate a genuinely inclusive integrated education that can meet the needs of a diverse student population (for a review of the challenges of a genuinely inclusive integrated education, see MacKay, supra).

E. ‘‘Best Interests’’

50. The Ontario Special Education Tribunal, as affirmed by the Supreme Court of Canada, concluded that the decision in favour of segregated education met Emily Eaton’s ‘‘best interests’’ without seriously questioning the meaning of this term. More specifically, it did not question the perspective from which ‘‘best interests’’ was being assessed, uncritically evaluating ‘‘best interests’’ of disabled students from a non-disabled (able-bodied) frame of reference. The tribunal’s findings that a segregated placement met Emily’s best interests were made in a disaggregated way, and the assessment of Emily was based on able-bodied norms. It is the failure to assess Emily as a whole person that enabled the tribunal and the Supreme Court of Canada to downplay the significance of integration and to ignore the historic context that segregated education for disabled students connotes inferior status.

51. Ruth Colker calls for a re-assessment of the breadth of the statutory presumption of integrated education of disabled students in the United States (supra, passim). She concludes that there are contexts where segregated education better meets the needs of disabled students. To a large extent, however, she reaches this conclusion by comparing segregated placement with the status quo of the integrated classroom. If the mainstream educational environment is not fully adapted to the needs of disabled students, it will often be easy to conclude that a segregated placement will be in their best interests (see MacKay, at 32-3). However, such a choice has already compromised equality principles.

52. A decision based on ‘‘best interests’’ will not be consistent with equality unless basic norms of integrated education are open to challenge. The Supreme Court of Canada did not acknowledge the need for such fundamental transformation away from non-disabled norms and, hence, did not engage with the real equality issues at stake in the present case. ‘‘Equality by proclamation’’ does not produce transformative results (Bell, Silent Covenants, at 186). As George Dei has commented in the context of race, ‘‘[m]ixing students is not by itself a sufficient guarantee for integration and social acceptance’’ (at 298).

53. This is not meant to suggest that segregated educational placements cannot be appropriate for disabled students as being in their best interests.Even a genuinely inclusive integrated environment may not be capable of adequately responding to disability difference in some cases. Attention to individual circumstances makes it important to consider all possible options. Nonetheless, in order for integrated education to be held accountable, the burden of showing the need for segregated placement should rest on those advocating it, as a section 1 justification.

54. Sopinka J. further explains his rejection of a presumption of integration:

In my view, the application of a test designed to secure what is in the best interests of the child will best achieve that objective if the test is unencumbered by a presumption . . . I would also question the view that a presumption as to the best interests of a child is a constitutional imperative when the presumption can be automatically displaced by the decision of the child’s parents [as held by the Court of Appeal]. Such a result runs counter to decisions of this Court that the parents’ view of their child’s best interests is not dispositive of the question (para. 79; see also E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; and B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315).

55. The danger of automatically assuming that parents of disabled children always act in their best interests is glaringly exposed in R. v. Latimer, [2001] 1 S.C.R. 3. In the present case, it is also fair to say that it is a legal fiction to say that Emily’s parents are expressing Emily’s choice (Eve, at 435, para. 95). In reality, we do not know Emily’s wishes. Barriers to knowing the wishes of disabled students are a valid basis for challenging the Court of Appeal’s conclusion that there should be an automatic right of parents to displace the presumption of integration. They are not, however, a valid basis for challenging the presumption of integration in the first place. As a practical matter, if both the parents and the educational authorities agree that there should be segregated education, it will probably happen because there will be no one to challenge the decision. There is no need to find a legal right of the parents to override the presumption, and we make no such finding.

G. Conclusion Respecting Section 15

56. The Supreme Court of Canada’s rejection of a presumption of integration amounts to the adoption of a hierarchy of difference, which is inconsistent with the equality guarantee of section 15 of the Charter. A bare presumption in favour of integration is, however, insufficient to satisfy section 15. Integrated education only meets the dictates of section 15 if it is genuinely inclusive and addresses the actual needs of disabled students. The worst of all worlds for disabled students who have special needs is to be placed in an integrated school setting with no or inadequate supports. Compliance with section 15 requires fundamental transformation of the traditional mainstream classroom.

57. A constitutional presumption of integrated education for disabled students is necessary for two reasons. First, a constitutional presumption of integration is required to counteract the historic legacy by which segregation has connoted inferior status. Second, a constitutional presumption of integration is necessary to place an onus on the state to make the integrated educational environment genuinely inclusive in order to meet diverse needs. Such an onus puts the responsibility on the state to demonstrate the specific conditions and circumstances under which an integrated educational setting cannot meet the best interests of disabled students. Such an assignment of onus makes any argument for segregated education a matter of section 1 justification. In any context in which segregated education is sought to be imposed, section 15 itself demands integrated education.

H. Section 1 of the Charter

58. A constitutional presumption in favour of integration implies that such a presumption can be rebutted. It is a section 1 issue precisely because the burden is on the state to rebut. Any rebuttal should not be in abstract terms but must be grounded in the actual needs and circumstances of the disabled student. As A. Wayne MacKay has commented: ‘‘While regular classrooms may be the norm, other options may be preferable in some cases. Inclusion is an approach, not a place. Flexibility is vital’’ (supra, at 201).

59. The mootness of the present case makes this an inappropriate occasion to consider the circumstances under which the presumption could be rebutted.

IV. Disposition

60. Based on this reconsideration of Eaton v. Brant County Board of Education, we find that there is a constitutional presumption of integrated education for disabled students. Were it not for the mootness of the present case, the appropriate disposition would be to send the case back for redetermination in accordance with the present reasons. However, there is no point to a redetermination in the actual circumstances.

Over the coming months TheCourt.ca will have the honour of reproducing these judgments and providing them with a permanent online home. If you scroll down, on the right you will find the logo of the Women’s Court of Canada. It is hyperlinked. In future, by clicking on that link, readers will be able to view each of the Women’s Court judgments previously published at TheCourt.ca.

The Women’s Court of Canada reconsiders the 1994 case of Native Women’s Association of Canada v. Canada, in which the Supreme Court of Canada upheld the federal government’s decision to exclude the Native Women’s Association of Canada (NWAC) from constitutional negotiations concerning the Aboriginal right to self-governance. The Women’s Court reviews the backdrop to the constitutional negotiations, and highlights the generally egalitarian role of women in Aboriginal societies historically. This position has been eroded by Canadian legislation and policy, in which the patriarchal structure and discrimination imposed by the Indian Act continues to influence the activities of ‘‘Indian’’ bands. Considering the full meaning of sections 35.1, 37, and 37.1 of the Constitution Act, 1982, the Women’s Court finds that Aboriginal women are “aboriginal peoples” with the right to be consulted on constitutional change. Given that no group chosen by the government had a willingness to represent the interests of Aboriginal women, the failure to include women’s representative organizations in the constitutional talks is a breach of sections 35.1, 37, and 37.1. In light of the NWAC’s differing position on the application of the Charter to Aboriginal governments, the federal government’s actions amount to a restriction on Aboriginal women’s expression, contrary to sections 2(b) and 28 of the Charter.

The claimants’ rights under section 15 of the Charter were also violated by the federal government. Aboriginal women’s exclusion from the constitutional discussions cannot be explained by any lack of capacity or ameliorative purpose, and individual dignity and worth is closely linked to the ability to take an active and autonomous part in the governance of one’s community. By similar reasoning, the exclusion also amounts to a violation of Aboriginal women’s equality rights in section 35(4) of the Constitution Act, 1982. The Women’s Court holds that these violations cannot be justified, as the federal government did not offer a sufficiently significant objective for the exclusion of the NWAC from the constitutional talks, and the deleterious effects of excluding the NWAC outweigh any purported advantage. The Women’s Court orders Canada to reconvene the constitutional conferences held pursuant to sections 37, 37.1, and 35.1, inviting the NWAC as a full participant.

Le Tribunal des Femmes du Canada réexamine la décision de 1994 de la Cour suprême du Canada dans l’affaire Association des femmes autochtones du Canada («AFAC») c. Canada en vertu de laquelle la Cour a entériné la décision du gouvernement fédéral d’exclure l’AFAC des négociations constitutionnelles avec les autochtones concernant l’autodétermination autochtone. Le Tribunal des Femmes retrace l’historique des conférences constitutionnelles et met en relief le rôle égalitaire que les femmes ont traditionnellement joué dans les communautés autochtones. Cette position a été sapée par la loi et la politique du Canada, dont le caractére patriarcal et discriminatoire imposé par la Loi sur les Indiens continue d’exercer une influence malheureuse sur les activités des bandes « Indiennes ». En donnant pleinement effet aux articles 37, 37.1 et 35.1 de la Loi constitutionnelle de 1982, le Tribunal des Femmes juge que les femmes autochtones sont des « peuples autochtones du Canada » ayant le droit d’être consultés en cas de changement constitutionnel. Étant donné qu’aucun groupe de´signé par le gouvernement fédéral n’était prêt a` représenter les intérêts des femmes autochtones, le défaut d’inclure des groupes de femmes autochtones viole les articles 37, 37.1 et 35.1. Les gestes posés par le gouvernement fédéral constituent des contraventions à la liberté d’expression des femmes autochtones en vertu de l’alinéa 2 b) et de l’article 28 de la Charte, puisque l’AFAC proˆnait une interprétation différente de l’application de la Charte aux gouvernements autochtones.

Le gouvernement fédéral a également porté atteinte aux droits de la demanderesse prévus à l’article 15 de la Charte. L’exclusion des femmes autochtones ne peut s’expliquer par un manque d’espace ni par un but améliorateur; de plus, la dignité et le mérite d’une personne est étroitement liée à la possibilité de prendre une part active et autonome dans le gouvernement de sa propre communauté. Pour les meˆmes raisons, l’exclusion viole également les droits des femmes autochtones en vertu du paragraphe 35(4) de la Loi constitutionnelle de 1982. Le Tribunal des Femmes juge que ces violations ne peuvent se justifier étant donné que le gouvernement fédéral n’a pas fait la preuve d’un objet suffisamment important pour exclure les femmes des négociations constitutionnelles et les effets ne´fastes de l’exclusion des femmes l’emportent sur tout avantage pre´tendu. Le Tribunal des Femmes ordonne au gouvernement fédéral de convoquer a` nouveau une conférence constitutionnelle conformément aux articles 37, 37.1 et 35.1 de la Loi constitutionnelle de 1982, en y invitant l’AFAC en qualité de participante a` part entiére.

Reconsideration of Native Women’s Association of Canada v. Canada, [1994] 3 S.C.R. 627 (judgment of the Supreme Court of Canada reversed).

The decision of the Women’s Court of Canada was delivered by:
MARY EBERTS, SHARON MCIVOR, AND TERESSA NAHANEE

I. Introduction

1. This is a reconsideration of the decision of the Supreme Court of Canada in Native Women’s Association of Canada v. Canada, [1994] 3 S.C.R. 627 (NWAC SCC). There are four questions before the Women’s Court of Canada on this reconsideration, the first originating in this court and the other three arising directly from the decision of the Supreme Court of Canada. The questions are:

1) Does the phrase ‘‘representatives of the aboriginal peoples of Canada’’ in section 35.1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, include female representatives of the Aboriginal women of Canada in their own right?

2) Did the government of Canada violate the equal right to freedom of expression of the individual appellants or of Aboriginal women represented by the appellant Native Women’s Association of Canada (NWAC), as guaranteed by sections 2(b) and 28 of the Canadian Charter of Rights and Freedoms, by denying them the equal right to participation and funding in the constitutional amendment discussions?

3) Did the Government of Canada violate the equality rights of the individual appellants or of Aboriginal women represented by NWAC, as guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982 by denying them the equal right to participation and funding in the constitutional amendment discussions?

4) Did the government of Canada violate section 35(4) of the Constitution Act, 1982, by failing to recognize existing Aboriginal and treaty rights, which are guaranteed equally to male and female persons?

2. In our reconsideration, we formulated question 1 because of our view that no examination of the role of Aboriginal women’s organizations in constitution making that affects Aboriginal peoples would be complete without attention to the proper interpretation of section 35.1 of the Constitution Act, 1982. Section 35.1, which was added by the Constitutional Amendment Proclamation, 1983, SI/84-102, provides as follows:

s. 35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the Constitution Act, 1867, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

3. Although question 1 arose originally in the context of the constitutional discussions in 1991 and 1992, known as the Canada Round, it has an importance well beyond that phase in Canada’s constitutional history. The Charlottetown Accord, which was produced in the Canada Round and defeated in a national referendum held 26 October 1992, recognized in Article 29 that the Aboriginal peoples of Canada have the inherent right of selfgovernment within Canada and recognized the governments of the Aboriginal peoples of Canada as constituting one of three orders of government in Canada. It provided for continuing negotiations between Canada, the provincial and territorial governments, and the Aboriginal peoples of Canada for the implementation of the right to self-government (draft legal text, based on the Charlottetown Accord, 28 August 1992 and 9 October 1992, Article 29, at 37-43). Although these and related provisions were lost with the defeat of the accord, Canada and the provinces and territories continue to engage in discussions and negotiations with Aboriginal peoples about a range of matters of enormous significance.

4. In 1995, Canada issued a policy guide outlining its approach to implementation of the inherent right to self-government and the negotiation of self-government agreements (Canada, Federal Policy Guide: Aboriginal Self Government (Ottawa: Minister of Public Works and Government Services, 1995)). In British Columbia, a six-stage treaty process was incorporated into the British Columbia Treaty Commission Agreement of 1992. There are now fifty-seven First Nations participating in the BC treaty process (British Columbia Treaty Commission Agreement Six-Stage Treaty Process, found here, accessed 2 July, 2007; and Negotiation Update, accessed 2 July, 2007). Canada and the Assembly of First Nations have entered an accord on the recognition and implementation of First Nation governments (A First Nations-Federal Crown Political Accord on the Recognition and Implementation of First Nation Governments, 31 May 2005). In none of these processes do Aboriginal women negotiate through Aboriginal women’s organizations. Nor is there yet any authority in Canadian law that mandates consultation with women through women’s organizations when the duty to consult Aboriginal peoples is placed before governments making decisions that affect their rights (see, for example, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550; Mikisew Cree First Nation v. Canada (Minister of Canada Heritage), 2005 SCC 69; and Metis National Council of Women and Sheila D. Genaille v. Attorney General of Canada, 2005 FCA 77).

5. By the time the NWAC case was heard by the Supreme Court of Canada in 1994, the Canada Round and the Charlottetown Accord were well past, but the Supreme Court of Canada dismissed an application to declare the appeal moot. We agree with this determination, particularly in light of the continuing resort to negotiations and consultations as a way of recognizing the rights and addressing the needs and the future of Aboriginal peoples. The NWAC case deals with fundamental and far-reaching issues about which “representatives of Aboriginal peoples” are to be included in constitutionally mandated constitutional discussions that transcend the particular fact situation in this appeal. The principles governing constitutionally mandated discussions will, in turn, have an important impact on the issue of representation in other negotiations, discussions, and consultations.

6. Section 35(1) of the Constitution Act, 1982 provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Aboriginal women’s rights are also constitutionally entrenched in section 35(4), which states that “aboriginal and treaty rights… are guaranteed equally to male and female persons.” Finally, it was section 37.1 that constitutionally mandated first ministers to consult the Aboriginal peoples in four national meetings called for that purpose after the passage of the Constitution Act, 1982 (Constitutional Amendment Proclamation, 1983, supra, repealed 18 April 1987). The Supreme Court of Canada and the lower courts erred in law by not considering the full meaning of these sections, which, in our view, together signify that “Aboriginal peoples” includes Aboriginal women and gives them the right to be consulted on constitutional change. We find that the refusal by first ministers and the prime minister to accord the NWAC and its constituents the right to be consulted first-hand was such a fundamental error that the meetings mandated under section 37.1 should be deemed not to have taken place. In the absence of women representing their own interests at the section 37.1 constitutional talks, the prime minister and first ministers are deemed to have not consulted with Aboriginal peoples — a term that includes “women.”

II. Constitutional History

A. Aboriginal Rights in the Canadian Constitution 1981–7

7. Before describing the judicial history of this case, we set out the background to the constitutional amendment process that gave rise to it. Establishing the historical context for any litigation involving Aboriginal peoples is critical to a complete understanding of the perspective they have on their rights and the interpretation of those rights. Since the enactment of section 35(1), the Supreme Court of Canada has set out the need to contextualize Aboriginal rights as they were practised in the pre-contact period and how they ought to be interpreted today.

8. The version of section 35 of the Constitution Act, 1982, as originally entrenched in 1982 included only two subsections:

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.

9. These two subsections were hard won. The original model for Aboriginal rights in the proposed new Constitution Act, 1982 was the undeclared rights model, whereby a saving provision (eventually section 25 of the Charter) would specify that the guarantee in the Charter of certain rights and freedoms should not be construed as denying the existence of other rights and freedoms, including “any rights or freedoms pertaining to the native peoples of Canada.” The National Indian Brotherhood (NIB), which later became the Assembly of First Nations (AFN) opposed patriation wit