Date: 19971201
Docket: 96-4182-IT-I
BETWEEN:
GARY LANDON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bonner, J.T.C.C.
[1]
The Appellant appeals from assessments of income tax for the 1994
and 1995 taxation years. The appeals relate to the constitutional
validity of the Income Tax Act as a whole and to the
validity, having regard to section 15 of the Canadian
Charter of Rights and Freedoms, of the system of personal tax
credits under subsection 118(1) of the Income Tax
Act.
[2] I
will deal first with the submission that the Income Tax
Act is beyond the power of the Parliament of Canada because
it relates to a matter within the exclusive competence of the
legislatures of the provinces, namely, direct taxation within a
province in order to raise revenue for provincial purposes. This
submission must be rejected. It is contrary to settled law.[1]
[3] I
turn next to the argument based on section 15 of the
Charter. It is summarized in paragraphs 19 to 26 of the
Notice of Appeal as follows:
19.
The Appellant has a spouse (Katherine Landon) and five
children (Seth Landon) aged 3 years,
(Moshe Landon) 4 years, (Justin Landon)
8 years, (Jonathan Landon) 18 years and
(Shayne Landon) 22 years. Katherine, Seth, Moshe and Justin
are dependents that resided with the Appellant. The Appellant,
during the years of 1994 and 1995 contributed to the support of
Jonathan and Shayne Landon.
20.
The Appellant is required by Criminal Law, with penalty to
"provide the necessaries of life", to his spouse and
to the persons under his charge. By definition this includes the
three dependent children referred to in fact number 19 until each
reaches 16 years of age.
21.
The Appellant is required by Provincial Statutes to support those
dependent children until they reach the age of 18 years and the
Appellant is liable to "Payment Orders".
22.
The Appellant's income, is family income, included with
that of the Appellant's spouse and dependents.
23.
The Appellant's income is the income of the
Appellant's spouse and dependents.
24.
The Appellant's spouse and dependents are not allowed a
personal tax exemption that is allowed to the Appellant.
25.
The personal tax exemption allowed to the Appellant in the Tax
Act is reasonably the minimal cost "to provide the
necessaries" of a person.
26.
It is an unconstitutional inequality not to allow the
Appellant's spouse and dependent children a personal tax
exemption. Further, this inequality is neither trivial or
insubstantial.
[4]
The Appellant asserts that persons who support their spouses and
dependents do not receive sufficient tax relief under section 118
of the Income Tax Act. He argues that section 15 of
the Canadian Charter of Rights and Freedoms requires that
he be granted an equal amount of tax relief for each individual
dependent upon him for support. His position seems to be that,
for each person to whom he is required to provide the necessaries
of life[2] he ought
to receive tax relief in an amount sufficient to enable him to
furnish the support out of pre-tax income.
[5]
Subsection 15(1) of the Charter reads:
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.
I can find nothing in the Charter which requires the
legislature to exempt from taxation either directly or by way of
tax credit any particular amount of income. In my view, an
individual's entitlement under section 15 of the
Charter to equal protection and equal benefit of the law
does not encompass an exemption from taxation that varies
directly with the cost to the individual of compliance with his
or her legal obligations. It is true that section 118 of the
Income Tax Act makes distinctions among individual
taxpayers based on criteria such as matrimonial status and the
provision of support to dependent persons. Before the period now
in issue a credit was available for persons under the age of 18
who were dependent on the taxpayer for support. That credit was
replaced by a child tax benefit under section 122.61 of the
Act. However distinctions are inherent in the legislative
process. What may be fatal to the validity of legislation is a
distinction which gives rise to discrimination. In Egan v.
Canada, [1995] 2 S.C.R. 513, La Forest J. noted at page
530:
What then is discrimination? There are several comments in the
course of McIntyre J.'s remarks in Andrews that go a
long way towards clarifying the concept. Thus, at p. 174, he
stated:
I would say then that discrimination may be described as a
distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or
disadvantages on such individual or group not imposed upon
others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of
society.
This statement cannot, however, be looked at in isolation. It
must be read in conjunction with McIntyre J.'s earlier
comment, at p. 165, as follows:
In other words, the admittedly unattainable ideal [of equality]
should be that a law expressed to bind all should not because of
irrelevant personal differences have a more burdensome or less
beneficial impact on one than another.
Similarly in my separate reasons, at p. 193, I observed that
"the relevant question ... is ... whether the impugned
provision amounts to discrimination in the sense in which my
colleague has defined it, i.e. on the basis of ‘irrelevant
personal differences' such as those listed in s. 15
...".
In the same case Cory and Iacobucci J.J. stated at page
583:
Section 15(1) of the Charter is of fundamental importance
to Canadian society. The praiseworthy object of the section is
the prevention of discrimination and the promotion of a
"society in which all are secure in the knowledge that they
are recognized at law as human beings equally deserving of
concern, respect and consideration. It has a large remedial
component": Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143, at p. 171. It has been
recognized that the purpose of s. 15(1) is "to advance the
value that all persons be subject to the equal demands and
burdens of the law and not suffer any greater disability in the
substance and application of the law than others": R. v.
Turpin, [1989] 1 S.C.R. 1296, at p. 1329. It is this section
of the Charter, more than any other, which recognizes and
cherishes the innate human dignity of every individual. It is
this section which recognizes that no legislation should treat
individuals unfairly simply on the basis of personal
characteristics which bear no relationship to their merit,
capacity or need.
With this background in mind, it is appropriate to consider the
principles which should guide a court in an interpretation of s.
15(1) and then to apply those principles to the situation
presented in this case.
In Andrews, supra, and Turpin, supra, a two-step
analysis was formulated to determine whether a s. 15(1) right to
equality had been violated. The first step is to determine
whether, due to a distinction created by the questioned law, a
claimant's right to equality before the law, equality under
the law, equal protection of the law or equal benefit of law has
been denied. During this first step, the inquiry should focus
upon whether the challenged law has drawn a distinction between
the claimant and others, based on personal characteristics.
Not every distinction created by legislation gives rise to
discrimination. Therefore, the second step must be to determine
whether the distinction created by the law results in
discrimination. In order to make this determination, it is
necessary to consider first, whether the equality right was
denied on the basis of a personal characteristic which is either
enumerated in s. 15(1) or which is analogous to those enumerated,
and second, whether that distinction has the effect on the
claimant of imposing a burden, obligation or disadvantage not
imposed upon others or of withholding or limiting access to
benefits or advantages which are available to others.
[6]
The essence of the Appellant's complaint does not relate to
discrimination. Rather it is that the tax relief offered to him
is insufficient. There is simply no rational basis for a
conclusion that the legislature has, in enacting sections 118 and
122.6 withheld benefits or advantages on the basis of
"irrelevant personal differences".
[7]
The appeals will be dismissed.
Signed at Ottawa, Canada, this 1st day of December 1997.
M.J. Bonner
J.T.C.C.
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