Canada v. Bear, 2003 FCA 40

                                                                                                                                            Date: 20030127

                                                                                                                                        Docket: A-680-01

                                                                                                                  Neutral citation: 2003 FCA 40

CORAM:        STRAYER J.A.

NADON J.A.

EVANS J.A.

BETWEEN:

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                       Appellant

                                                                                 and

                                                                        ROSE BEAR

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

STRAYER J.A.

Introduction

[1]                 This is an appeal from a judgment of the Trial Division in an application for judicial review of a decision made on behalf of the Minister of National Revenue and sent to the respondent on December 9, 1992 rejecting her request to make contributions to the Canada Pension Plan ("CPP") retroactively for a period prior to January 1, 1989 going back to the commencement of the CPP in 1966. The essential issue is whether the exclusion from participation in the CPP during the period 1966-88 of persons with tax exempt incomes, such as Indians employed on reserves, amounted to discrimination against such persons contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms ("Charter") or paragraph 1(b) of the Canadian Bill of Rights ("Bill of Rights").

Facts

[2]                 The CPP, a federal law of Canada, came into force in 1965. It created a partially funded national pension plan (except for Québec which at the same time created its own plan) to which mandatory contributions would be made by employers and employees, or by the self-employed where there was no contract of employment.

[3]                 In the CPP statute as it stood until 1987, (RS 1985 c. C-8) "contributory salary and wages," was defined as "an amount calculated in accordance with section 12"; "pensionable employment" was defined as "employment specified in subsection 6(1)" (s.2). By subsection 6(1) "pensionable employment" was inter alia defined as "employment in Canada that is not excepted employment" and "employment included in pensionable employment by a regulation made under section 7". Subsection 12(1) provided as follows:

[4]                 Paragraph 81(1)(a) of the Income Tax Act (RS 1985, c. 1 (5^th supp.)) provided:

It is interesting to note that many other categories of revenue are exempted by the Income Tax Act from calculation as part of a taxpayer's income, such as pensions from foreign countries for war service, pension payments from the Halifax Relief Commission, awards for personal injuries, revenues of Canadian corporations from interests in certain foreign corporations, the salary of the Governor General of Canada, receipts by a beneficiary under an education savings plan, expense allowances of members of provincial legislative assemblies or of municipal councils, etc.

[5]                              By section 87 of the Indian Act (RS 1985 c. I-5) it is provided:

[6]                 Thus it will be seen that while there is no specific exclusion of Indians in the CPP, the effect is to base CPP contributions on income defined by and calculated under the Income Tax Act. By the effects of section 81 of the Income Tax Act and section 87 of the Indian Act, contributions to the CPP could not be based on, nor required from, Indian income exempt from taxation. For present purposes it is now clear that income earned by an Indian on a reserve is exempt from taxation by virtue of section 87 of the Indian Act.

[7]                 According to the evidence, the Government of Canada was aware when the CPP was enacted that if it adopted taxable income as the base for compulsory contributions, Indians employed on reserves would not be covered by the Plan. The evidence also indicates that the Government thought it administratively essential to have CPP contributions administered by the Department of National Revenue as part of the income tax system and using established definitions of income under the Income Tax Act. The evidence also suggests that there was concern about imposing the CPP on Indians employed on reserves, considering that this would involve a government levy on income that was otherwise exempt from taxation and would also impose a financial burden on Indian employers where the person in question worked for the band council or an Indian business on the reserve. Further, there is evidence that at that time there was no consensus among recognized representatives of the Indian community as to whether the CPP should be imposed on it. It is equally useful to note that the CPP was deliberately designed as a universal, mandatory, pension scheme to which, with few exceptions, anyone 18 years of age or over would have to contribute if they had taxable income. There was no provision for individuals to opt-in. Those with taxable income who were excluded were defined by categories, such as employees of foreign or provincial governments. In the latter case, while it was thought inappropriate and probably unconstitutional to impose pension contributions on provincial governments (their property being immune from taxation by section 125 of the Constitution Act, 1867) provision was made for provincial governments to agree to inclusion of their employees and this was in fact what happened. The underlying principle was that coverage would be universal or determined by such categories without regard to personal choice. This was no doubt important actuarially to the success of the scheme as it was, and remains, self-sustaining, wholly dependent on contributions and investment revenue. It cannot be supplemented by money from general revenues found in the Consolidated Revenue Fund. (CPP ss. 108(4)).

[8]                 After some twenty years of internal debate within the federal government, and after the coming into force of section 15 of the Charter in 1985, steps were taken to allow individual Indians with tax exempt income voluntarily to join the CPP. In 1987 subsection 6(2) of the CPP was amended to add paragraph (j.1) making tax exempt Indian employment "excepted employment", that is specifically removing it from "pensionable employment" under the CPP. This put into the hands of the Governor in Council the power to include this "excepted employment" as pensionable employment for purposes of the CPP, a general power which it had in subsection 7(1) to include in pensionable employment "any excepted employment . . .". Subsequently, by an amendment to the CPP regulations on December 7, 1988 (SOR/88-631), the Governor in Council included as pensionable employment such Indian employment as had been excepted from that category, either where his or her employer so elects in respect of such Indian employee or, where the employer does not elect, the Indian so elects. In the former case the employer would have to make satisfactory arrangements with the Minister of National Revenue to collect the required contributions. In the latter case the employee would be obliged to pay both the employee's and the employer's share of contributions.

[9]                 The respondent has been a full-time employee of the Brokenhead Ojibway nation in Scanterbury, Manitoba since July, 1966. In 1987 she applied to make contributions to the CPP based on her non-taxable reserve income and was refused. Beginning in 1989 as a result of an election made on her behalf by her employer, she and her employer have contributed to the CPP pursuant to the 1988 amendments to the Act and the Regulations. In 1992 she applied to make retroactive contributions covering the period from 1966 to the end of 1988 and was advised by the letter referred to above that there was no provision for making payments into the plan retroactively.

[10]            On January 13, 2000 she filed a notice of application for judicial review seeking a series of orders or declarations to the effect that the Canada Pension Plan be declared in breach of section 15 of the Charter, section 1 of the Bill of Rights, and section 6 of the Charter; that her employment be deemed to have been "pensionable employment" since 1966; that she be permitted to contribute retroactively to 1966; and that the respondent pay damages to her pursuant to subsection 24(1) of the Charter.

[11]            Although the named respondent in the notice of application is "Her Majesty" the applications judge treated this as judicial review of a decision consisting of the position taken by the representative of the Minister of National Revenue in the letter of December 9, 1992 referred to above. The notice of application is not framed in that way and it is not clear to me how an application for judicial review of that "decision" could be brought over seven years after its communication to the applicant. Further, no issue was raised before us as to the appropriateness of an application for judicial review for a declaration of the validity of laws when no decision, order, act or proceeding of a "federal board, commission or other tribunal" is put in issue by the notice of application. That is, however, the scope of the judicial review jurisdiction granted by subsection 18(1) of the Federal Court Act. As the appellant raised no objections on procedural grounds, and as the subject-matter is otherwise within our jurisdiction, I will proceed to deal with the substance of the case.

[12]            The learned applications judge concluded that there could be no Charter entitlement prior to April 17, 1985, the date when section 15 came into effect. He found, however, that the effective exclusion of Indians employed on reserves from CPP participation was discriminatory on the basis of race and could therefore have no validity after the coming into force of section 15. He found such distinction to be discriminatory as offensive to human dignity. With respect to section 1 of the Charter, he rejected the justification advanced that the exclusion of tax exempt Indian income from compulsory levies under the CPP was connected with the protection of Indian property, the rationale for the income tax exemption. He also appears to have rejected the respondent's argument that section 6, mobility rights, would be violated by these provisions of the CPP. (This issue was not pursued in the argument of the appeal). In any event, he held that the impugned provisions violate paragraph 1(b) of the Bill of Rights which declares the existence "without discrimination by reason of race ... (b) the right of the individual to equality before the law and the protection of the law ... ."

[13]            The learned applications judge granted all the relief requested by the applicant except an order for the respondent to pay damages. The relief as requested, and as granted by the applications judge was as follows

a)             An order that the Canada Pension Plan, R.S., Chap. C-5, section 1, be declared to be in breach of section 15 of the Canadian Charter of Rights and Freedoms by prohibiting Indians as defined by the Indian Act from contributing into the Canada Pension Plan;

b)             An order that the Canada Pension Plan, R.S., Chap. C-5, section 1, as amended, be declared to be in breach of section 15 of the Canadian Charter of Rights and Freedoms by prohibiting Indians as defined by the Indian Act from contributing into the Canadian Pension Plan retroactively to its inception in 1966;

                                                               * * * * * * * * * * * * * * * * * * * *

d)             An order that the Canada Pension Plan, R.S., Chap C-5, section 1, be declared to be in breach of section 1 of the Canadian Bill of Rights by prohibiting Indians as defined by the Indian Act from contributing into the Canada Pension Plan;

e)             An order that the Canada Pension Plan, R.S., Chap. C-5, section 1, as amended be declared to be in breach of section 1 of the Canadian Bill of Rights by prohibiting Indians as defined by the Indian Act from contributing into the Canada Pension Plan retroactively to its inception in 1966;

                                                               * * * * * * * * * * * * * * * * * * * *

h)             An order that the applicant's employment since 1966 be deemed to have been "pensionable employment" within the meaning of the Canada Pension Plan, R.S., Chap. C-5, section 1, as amended;

i)              An order that the applicant be permitted to contribute retroactively into the Canada Pension Plan in an amount equal to that which she would have been required to contribute had the plan not discriminated against her on the basis of race, and that she be entitled to participate fully in the benefits of the Canada Pension Plan on the basis [on which] she would have benefited had she and her employer made her maximum contributions annually since 1966;

                                                               * * * * * * * * * * * * * * * * * * * *

(Counsel for the applicant had abandoned paragraphs c), f) and g) of her prayer for relief at the Trial Division hearing).

[14]            The applications judge went on to order as follows:

[2]            THIS COURT FURTHER ORDERS and declares that insofar as they have or had the effect of excluding Rose Bear from participating as a "beneficiary", "contributor", with "pensionable employment", or "with total pensionable earnings of a contributor" under both rubrics thereof, or with "unadjusted pensionable earnings" of a contributor, or otherwise being a contributor under section 2, or being deemed to be in pensionable employment under section 6, of the Canada Pension Plan, and

Insofar as they had or have the effect of excluding Rose Bear from participating, as do all Canadians not in "excepted employment", in the said pension plan, the provisions of section 87 of the Indian Act, and

Insofar as they had or have the effect of excluding Rose Bear from participating, as do all Canadians not in "excepted employment", in the said pension plan, the provisions of section 81 of the Income Tax Act, they are hereby

DECLARED to be of no force and effect in order that the three above designated statutes of Canada can hereafter and throughout their currency from the date of the initial inception of the Canada Pension Plan in 1966, operate and be interpreted in accord with each other and in accord with Order-in-Council P.C. 1988-2640, Canada Pension Plan Regulations, Amendment of December 7, 1988, Registration SOR/88-631, and its regulatory impact analysis statement published on even date in Canada Gazette Part II, Vol. 122, N^o 26, now . . . .

[15]            The apparent intended effect of this rather discursive order is to declare invalid those provisions of the CPP which have the effect of excluding persons such as the respondent from making contributions from 1966 to 1988. (I assume that the references to "section 1" of the CPP as set out in paragraphs (a), (b), (d) and (e) of the prayer for relief, and adopted by the applications judge in his order, are to subsection 12(1) of the CPP). The applications judge, by adopting the language of paragraph (b) has also applied the Charter retroactively to 1966, a step which he seemingly eschewed elsewhere (see reasons, para. [22] I A.B. 21).

[16]            The appellant appeals from this decision arguing that: the CPP provisions prior to 1989 did not violate section 15 of the Charter, nor should the Charter be made to apply retroactively, at least not prior to the coming into force of section 15 in 1985; if section 15 is infringed this is justifiable under section 1; paragraph 1(b) of the Bill of Rights has a much narrower application than section 15 of the Charter and it would not be infringed by the CPP provisions; and in any event the remedies given by the learned applications judge are inappropriate.

Issues

[17]            The issues, then, are as follows:

(1)        Did the provisions of the law which excluded the respondent from participating in the CPP from 1966 to 1988 infringe on rights guaranteed under subsection 15(1) of the Charter?

(2)        If so can they be justified under section 1 of the Charter?

(3)        Did those provisions infringe on rights recognized and declared by paragraph 1(b) of the Bill of Rights?

(4)        If the Charter or the Bill of Rights were infringed, what is the appropriate remedy?

Analysis

                                   (1) An Infringement of Subsection 15(1) of the Charter?

[18]            This is the most difficult issue involving, as it does, a growing multitude of factors identified in the Supreme Court jurisprudence as requiring consideration.

[19]            Both parties accept, as did the applications judge, that the leading source of guidelines on interpretation and application of subsection 15(1) is now Law v. Canada ([1999] 1 S.C.R. 497). At 524 Iacobucci J. summarized the steps required in determining whether a law contravenes subsection 15(1) of the Charter.

First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

[20]            With respect to the first issue I conclude that the impugned law, subsection 12(1) of the Canada Pension Plan as read in association with paragraph 81(1)(a) of the Income Tax Act and section 87 of the Indian Act, does draw a distinction between the respondent and other Canadians who do not earn their income on an Indian reserve (what she calls "other working Canadians"). In her case until 1989 she was unable to contribute to the Canada Pension Plan or to have her employer contribute, whereas non-Indians or Indians not employed on Indian reserves would, together with their employers, be obliged to contribute. As the two tests enunciated by Iacobucci J. as part of the first inquiry are disjunctive it suffices, as I understand it, if I am able to answer the first question in the affirmative, namely whether a formal distinction is drawn between the claimant and others on the basis of a personal characteristic. What that characteristic is will be examined more thoroughly under the second inquiry.

[21]            The second inquiry, that is, "was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds?", may require more reflection. The trial judge concluded, as I understand it, that the respondent was subjected to "differential treatment premised on the grounds of race" (reasons, para. 26), thus answering both the first and second inquiry under the Law test. The appellant, however, argues that the respondent was denied the possibility of contributing to the CPP from 1966 to 1988, not on the basis of a personal characteristic such as race but because she had no taxable "income" as defined by the Income Tax Act. In this respect she was like any other Canadian without income or with an income so low as not to attract taxation. As noted above in paragraph 4, paragraph 81(1)(a) of the Income Tax Act exempts certain other forms of income which exemptions have nothing to do per se with Indian status. On the other hand it must be observed that Indians earning income other than on a reserve have always been subject to income taxation and therefore to the mandatory contribution requirements of the CPP. In other words the claimant was disqualified from joining the CPP because of a combination of the fact that she was an Indian and that she earned her income on a reserve.

[22]            In the Law case itself the Crown argued that the claimant was not disentitled to a survivor's allowance under the CPP simply because of her age (30). The CPP disqualified from survivors' benefits those spouses of a deceased contributor who were less than 35 years of age only if they were able-bodied and without dependent children. Iacobucci J. did not accept this position. He stated

In my opinion, it does not follow from the fact that any one of several criteria, including age, might determine entitlement to a survivor's pension, that the legislation does not draw a distinction on the basis of age. (Law, supra, para. 91).

I am therefore respectfully in agreement with the applications judge that the distinction complained of in the present case is based in part on the fact that the claimant is an Indian and therefore it is a distinction based on "race" as proscribed in subsection 15(1). If the respondent were not an Indian, even if she were working on a reserve she would have been not only entitled but obliged to belong to the CPP because her income would not have been tax exempt. Because of this finding I need not see whether there is also some analogous ground for the distinction such as "aboriginal-employment site".

[23]            The most difficult inquiry is the third as prescribed in Law: namely whether this differential treatment based on race amounts to discrimination in a substantive sense. Here the Court is enjoined to give effect to the purpose of subsection 15(1) by determining whether the distinction complained of is based on "the stereotypical application of presumed group or personal characteristics". (Law, supra para. 33). In this respect we are told that the purpose of subsection 15(1) "is the protection of human dignity" (Law, supra para. 48). We are further guided as follows:

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.

In determining whether a claimant's dignity has been undermined by a law in a manner contrary to subsection 15(1) of the Charter, the test is both subjective and objective. One must examine "from the perspective of the claimant" (that is, on a subjective test) whether in relation to a comparator identified by the claimant she has had her dignity demeaned. The test is also objective in that the Court must examine a larger context of the legislation, of society's past and present treatment of the claimant or of his or her group similarly situated, taking the point of view of the reasonable person and assessing the situation objectively to determine whether

. . . a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.

But we are warned that the appropriate perspective here is actually "subjective-objective" and is "concerned with the perspective of a person in circumstances similar to those of the claimant who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity . . .". (See generally Law, supra paras. 56-61). It is apparent from reading Supreme Court jurisprudence that this "objective" or "subjective -objective" analysis, in the absence of evidence (which is usually lacking) can be confidently carried out by a court largely on the strength of the judge's intuition.

[24]            As Law indicates, it is necessary in carrying out this analysis to have regard to the purpose of subsection 15(1). It is, I venture to say, not inappropriate to look at the actual language employed in that subsection as a guide to its meaning. It is striking to note that the word "dignity" does not appear anywhere in subsection 15(1), nor for that matter any place else in the Charter. One must take care not to be drawn into a false syllogism that because all discrimination prohibited by the language of section 15(1) attenuates the dignity of its victims, therefore all attenuation of personal dignity is a prohibited form of discrimination. To follow that logic is to trivialize the great purposes of the Charter. It is difficult to believe that this subsection was intended to stamp out all slights to human dignity in general, or in particular to eradicate all differential treatment of various categories of people under social programmes of distributive justice. The history of the Charter and the "mischief" it was to correct would suggest instead that it was designed to remedy more blatant and profound attacks on equality usually, though not always, enacted for a purpose that would clearly involve such consequences. I believe this to be consonant with the statement of Iacobucci J. in Law (para. 51) that the purpose of subsection 15(1) "is to prevent the violation of essential human dignity". (Emphasis added).

[25]            Looking first at the claimant's subjective view of substantive discrimination, she filed an affidavit in the Trial Division which identifies her complaint as that of a "status Indian". The comparator group she selects consists of "other working Canadians". Her complaints are, I think, essentially found in the following paragraphs of her affidavit:

18.           The effect of the CPP denying me the right to contribute has affected my mobility rights as because I continued to reside in my community I was prohibited from contributing into CPP until 1988 and receiving the same benefits as other working Canadians.

19.           As a result of the Respondent failing to allow me to contribute into CPP like all other working Canadians, I have accumulated fewer pension benefits than other working Canadians. Consequently, I will be forced to collect social assistance benefits such as Old Age Security instead of relying substantially on the pension benefits I have rightfully earned.

20.           The CPP violates my human dignity and freedom by imposing limitations and disadvantages by not allowing me to contribute to the CPP as human beings equally capable and equally deserving. Aboriginal peoples employed on reserves have been discriminated against and been made to feel by virtue of the CPP that they are less capable and less worthy or recognition or value as human beings and as members of Canadian society equally deserving of concern, respect, and consideration.

21.           The effect of receiving social assistance payments instead of pension plan benefits severely undermines my feelings of self-worth and dignity.

She concludes by stating that "This application is a matter of human dignity". (See generally 3 Appeal Book 600-03). On her behalf it was further argued that this conclusion from the CPP reinforced a stereotype of Indians that they are incapable of providing for their future security.

[26]            The learned trial judge readily accepted that the differential treatment amounted to discrimination in a substantive sense "in a manner contrary to human dignity, based on race . . .". (reasons, para. 27). In his view, the tax exemptions for "status Indians residing and working on reserves" is an integral part of their identity and the differential treatment here was premised on that identity. Further, he was unable to conclude that the disentitlement to CPP participation from 1966 to 1988 was connected with the purpose of the tax exemption upon which it was based, as tax exemption was simply intended to protect the property of Indians from dispossession.

[27]            In my view the dissimilarities between the two comparator groups, for purposes of a discrimination analysis, are greater than the respondent assumes. It appears to her that Indians earning income on reserves (her group) are for all practical purposes similar to "other working Canadians", the only difference being that the former were, prior to 1989, disadvantaged by being denied participation in the CPP. As was said recently by the Supreme Court in A.G.N.S. v. Walsh et al 2002 S.C.C. 83, such a choice of comparator group "does not adequately address the full range of traits, history, and circumstances of the comparator group of which the claimant is a member" (para. 39). In the present case, the group to which the respondent belongs which was deprived of CPP participation can be more accurately described as "status Indians earning tax exempt income on a reserve". This tax exemption, as Gonthier J. said for the Supreme Court of Canada in Williams v. Canada [1992] 1 S.C.R. 877 at 886,

bears the impress of an obligation to native peoples which the Crown has recognized at least since the signing of the Royal Proclamation of 1763.

It is intimately connected to the protection of Indians on lands reserved for them. It is not an "historical disadvantage" or a mark of shame. But the fact that the respondent is one of those entitled to, and an actual beneficiary of, this exemption makes her comparator group dissimilar to "other working Canadians", many of whom, it must be remembered, are also status Indians.

[28]            It is also important to note, as did the Supreme Court in the Walsh case at paras. 40-62, that the respondent would have a choice to take employment off the reserve and in effect join the comparator group who, she says, enjoys advantages denied to her. This choice was explained as follows by Gonthier J. in the Williams case at 887)::

Therefore, under the Indian Act, an Indian has a choice with regard to his personal property. The Indian may situate this property on the reserve, in which case it is within the protected area and free from seizure and taxation, or the Indian may situate this property off the reserve, in which case it is outside the protected area, and more fully available for ordinary commercial purposes in society. Whether the Indian wishes to remain within the protected reserve system or integrate more fully into the larger commercial world is a choice left to the Indian.

Income earned from an employer situated on a reserve is personal property situated on a reserve: Nowegijick v. H.M. [1983] 1 S.C.R. 29. While it was recognized in Walsh that in particular cases the ability to exercise a choice (in that case to choose, instead of simply living together, to marry or make a contract conferring the equivalent of property rights of married parties) may be illusory, nevertheless in principle there was a choice.

[29]            It appears to me that all these considerations militate against the respondent's true comparator group - that is, status Indians earning tax exempt income on reserves - being seen as a group historically disadvantaged, the victims of prejudice and stereotype, as compared to "other working Canadians".

[30]            There is no evidence to support the view that the purpose of this legislation when first adopted was to demean the dignity of Indians. Instead, the terms of the legislation itself, as well as ministerial statements about it, confirm that there were good faith reasons for basing the definition of eligible income, on which contributions would have to be paid to the CPP, on the definitions of income in the Income Tax Act. Not only were those definitions complex and the result of years of legislation and litigation, but there was already a system of administration for gathering information from Canadians on their income and for imposing a levy on that income. It of course may be argued, with the 20/20 vision of hindsight, that this ambitious income insurance scheme could have been launched in some other way, for example by a separate administration unconnected to the tax system; or only after an arrangement was negotiated with Indians which would be consistent with their special rights. But this is not to say that Parliament did not have the right to choose as it did in 1965. With respect, I find it difficult to conclude that the choice of income tax law and administration as the administrative means for launching a very ambitious mandatory pension plan could reasonably be seen as an assault on the dignity of some (but not all) status Indians. This conclusion is strongly reinforced by the fact that Indians were neither expressly nor implicitly barred from all participation in the CPP: those thousands of status Indians employed off reserves were not excluded. Further, many thousands of non-Indian Canadians were and remain excluded in whole or in part from the benefits of the CPP because they have had no, or only very limited, taxable income during their working lives. In this respect the comparator as chosen by the respondent, "other working Canadians", is to be understood as including inter alia Indians working off reserves as well as non-Indians; and the specification of "working" persons must be understood to be limited to those who work and earn enough to be mandatory contributors to CPP.

[31]            The claimant nevertheless avers in her affidavit that discrimination existed in effect because status Indians employed on reserves had been made to feel "that they are less capable and less worthy of recognition or value as human beings and as members of Canadian society equally deserving of concern, respect, and consideration". (See supra). With respect, it appears to me that this completely overlooks the circumstances in which Indians employed on reserves were exempted from the CPP. Not only was the exemption causally linked to tax exempt status of individual Indians, but the record shows that it was clearly also motivated by a concern not to impose compulsory levies on either Indians employed on a reserve or on their Indian employers. I am at a loss to know what "unfair social characterization" this respect for existing tax exemptions was thought to enhance or perpetuate. As the respondent herself states in her affidavit ". . . the exemption from taxation . . . is based on the recognition of the special status which the Indian people have in Canada." (Affidavit supra para. 5). Possibly in the context of 2002, some thirteen years after Parliament and the Government introduced the system allowing Indians with tax-free earnings and their employers to opt into the CPP, it can be seen that their exclusion was not a necessary part of the CPP in 1965. However, there were certainly plausible and generally understood reasons for commencing the CPP on that basis. Among other reasons was the fact that, according to the evidence, Indian representatives were divided at that time as to whether they wished to participate in the CPP. Also, it should not be overlooked, by those who have no recollection of the political events of the introduction of the CPP, that there were thousands of employers and employees who would happily have been excluded from mandatory contributions to the Plan. There was certainly no universal acceptance of the proposition that the Government should force employees and their employers, or self-employed persons, to insure their income by having to make payments to a government-operated pension plan over which the contributors would have no control or management. As noted above (para. 7), it was contrary to the perceived requirements of an actuarially sound pension plan that individual opting-in (which has now been permitted since 1989 on a limited basis for persons in the position of the respondent) might be allowed. Without more evidence, I believe it would be historic revisionism to assume that a person in circumstances similar to those of the claimant, rationally taking into account the various contextual factors of 1966, would have concluded that his or her human dignity was being attacked, just because neither that person nor his Indian employer was obliged to start making payments to the Government of Canada in respect of the Canada Pension Plan.

[32]            As noted above, the respondent argues also that, as a corollary of not being required to contribute to the Canada Pension Plan, she is treated stereotypically as a member of a group which is not inclined to make provision for its own security. For the reasons already given, I am unable to see how a fair-minded person would take that from a legislative arrangement that excluded status Indians with tax-exempt income from contributing involuntarily to a government imposed and administered pension plan. Indeed there might be some who would consider that persons enjoying an income tax exemption based on the recognition of their special status were being accorded a higher degree of self-management of their resources, a greater degree of personal autonomy, by not being required like most Canadians to make provision for their future through the CPP whether they wanted to or not.

[33]            A more cogent complaint by the respondent is that because she was only allowed to start making contributions in 1989 she will have fewer CPP benefits than other working Canadians who have been making contributions throughout their working career. She recognizes that she will receive retirement income under other programmes such as Old Age Security ("OAS") and the Guaranteed Income Supplement ("GIS"). These she characterizes as "social assistance payments" and she says to receive them instead of pension plan benefits "severely undermines my feelings of self-worth and dignity". According to the evidence, when the respondent is eligible for retirement benefits in the year 2004, her benefits compared to those receivable by a person who had made the maximum allowable contributions to CPP during that person's career (assuming no other taxable retirement income in either case) would be as follows:

                                                                (See Appeal Book 652)

[34]            It will be seen from the above table that although the respondent will receive less in CPP benefits because she has not contributed for the whole of her working career, she will have more revenue from GIS and from a provincial supplement to the GIS because GIS and Provincial Supplement eligibility is tested by taxable income. As her CPP will be tax free she would receive more in GIS and the Provincial Supplement. As a result she would receive some $22 a month more than would the person who had made maximum contributions to CPP. Nevertheless it is the character of the OAS and GIS source which she says diminishes her. She characterizes these as "social assistance payments" and says their receipt instead of pension plan benefits "severely undermines my feelings of self-worth and dignity". It is difficult to accept that the receipt of OAS and GIS benefits must be regarded per se as demeaning. OAS benefits are payable to anyone 65 years of age or older who has lived in Canada for at least ten years. Among those eligible for OAS are the Prime Minister and other seniors who continue working, including some of Her Majesty's judges. Although it is "clawed-back" in income tax from higher income earners, eligibility for OAS shared by several million Canadians can hardly be seen as a humiliation. Further, some 37% of those in receipt of OAS also receive the GIS. It will be seen, for example, in the table above that even a person who has made maximum contributions to the CPP, if he or she has no other retirement income, would still be in receipt of OAS and GIS although the "mix" would be somewhat different. Respondent's counsel argued, however, that if she should decide to retire before age 65 she would not be entitled to OAS or GIS and would have only a small CPP pension, limited in amount because she had not been able to contribute before 1989. It appears from the file that she was born on January 16, 1939, so that she is now 64 years old. It is true that, if she were to retire now she would have to wait part of a year for OAS and GIS. It is also true that she would be saved the very considerable expenditure that would be required to pay the contributions in respect of the years 1966 to 1988 as authorized by the applications judge. Once it is determined, as I have, that the original exclusion in 1965 from the CPP was valid, this incidental consequence (which is in no way an unqualified disadvantage to her) cannot invalidate the whole scheme.

[35]            The other practical disadvantage which counsel for the respondent pointed to in argument would arise if she wanted to spend more than six months a year "down south", that is to live outside the country for long periods. While anyone who has lived in Canada for twenty years or more, as has the respondent, can live permanently outside Canada and continue to receive the OAS, the GIS is payable outside the country for only up to six months after departure from Canada. This would mean that those going "down south" would have to return within six months to continue to receive GIS. Again as the above table indicates, this would be equally true of a person who had made maximum contributions to CPP but who would still be in receipt of a small amount of GIS. I find it difficult to conclude objectively that this was the kind of inequality which subsection 15(1) of the Charter was designed to eradicate.

[36]            Having regard to all the circumstances, and keeping in mind both the perspective of the claimant and the "subjective-objective" perspective of a person in circumstances similar to those of the claimant rationally taking into account the various contextual factors "which determine whether an impugned law infringes human dignity", I am unable to conclude that subsection 12(1) of the CPP offended the human dignity of the claimant during the period in question. I am therefore of the view that the CPP scheme in effect from 1966 to 1988, which excluded contributions and participation of those with no taxable income including Indians employed on a reserve, did not contravene subsection 15(1) of the Charter either before or after it came into effect. If I have erred in this respect I would further hold that any effect the Charter might have on the situation could not go back beyond April 17, 1985, the day that subsection 15(1) came into effect. In this I respectfully concur with the findings of the applications judge at paragraph 22 of his reasons.

                        (2) If Subsection 15(1) is Infringed, is This Justified Under Section 1?

[37]            Given my conclusion that subsection 15(1) is not infringed it is not necessary to answer this question.

                                (3) An Infringement of Paragraph 1(b) of the Bill of Rights?

[38]            Section 1 of the Bill of Rights provides as follows:

The respondent relied on this before the applications judge, presumably to strengthen her case for a remedy which would cover the whole of the period in question, the Bill of Rights having been adopted in 1960. The applications judge accepted this argument and granted a remedy accordingly. In doing so he particularly relied on the case of [1970] S.C.R. 282">R v. Drybones, [1970] S.C.R. 282 in which it was held that paragraph 94(b) of the Indian Act, by making it an offence for an Indian (but no one else) to be intoxicated anywhere off an Indian reserve, infringed "equality before the law" as guaranteed by paragraph 1(b).

[39]            With respect, I believe that the Supreme Court jurisprudence following Drybones adequately demonstrated that paragraph 1(b) did not either explicitly or implicitly guarantee equal benefit of the law. In [1974] S.C.R. 1349">A.G. of Canada v. Lavell, [1974] S.C.R. 1349 it was stated, in a judgment supported by the majority of the Court, that paragraph 1(b) did not "invoke the egalitarian concept exemplified by the 14^th Amendment of the U.S. Constitution . . ." but guaranteed only "equality in the administration or application of the law by the law enforcement authorities and the ordinary courts of the land". ([1974] S.C.R. 1349">Lavell at 1365-66). Thus Drybones was explained as prohibiting the creation of offences for a category of persons defined by race for which other persons could not be brought before the courts. The Court likened this guarantee to the traditional concept of the "rule of law" which in its traditional sense has been taken to mean that everyone, whether citizen or ruler, is subject to the law and the courts. In [1979] 1 S.C.R. 183">Bliss v. A.G. of Canada, [1979] 1 S.C.R. 183 the Supreme Court declined to apply paragraph 1(b) so as to invalidate certain provisions of the Unemployment Insurance Act which gave some benefits to one class of women but not to others. The Court distinguished the situation in Drybones, involving the imposition of a penalty on one racial group which was not imposed on anyone else, from the situation in [1979] 1 S.C.R. 183">Bliss involving entitlement to benefits. It was not prepared to find a guarantee in paragraph 1(b) of equal benefit of the law. It was indeed against this jurisprudential background that subsection 15(1) of the Charter was drafted with the addition of "equality under the law" and "equal protection" and "equal benefit of the law". (See the discussion of this in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 170). In the post-Charter era when an attempt was made to invoke paragraph 1(b) of the Bill of Rights in respect of legislation differentiating among federally-appointed judges with respect to pension contributions, the Supreme Court declined to revisit this issue. In The Queen v. Beauregard, [1986] 2 S.C.R. 56 at 90 Dickson C.J. after reviewing the jurisprudence on "equality before the law" under paragraph 1(b) of the Bill of Rights and noting the narrow interpretation which had been given to it, concluded as follows:

I believe the day has passed when it might have been appropriate to re-evaluate those concerns and to reassess the direction this Court has taken in interpreting that document.

[40]            I must therefore with respect disagree with the applications judge in his conclusion that the failure to extend CPP entitlement to the respondent was a denial of equality before the law within the meaning of paragraph 1(b) of the Bill of Rights. There was nothing here involving a difference in administration or enforcement of the law in respect of the respondent as compared to other Canadian workers in a manner analogous to the situation in Drybones. I believe it is fair to conclude from the jurisprudential history that it was not until the adoption of the Charter, and the coming into force of subsection 15(1) thereof in 1985, that a political will to guarantee equality under the law and equal benefit of the law was given constitutional effect.

[41]            The applications judge was also asked to consider whether the legislative scheme here violated the rule of law. He appears to treat this as ancillary to the issue of the applicability of paragraph 1(b) of the Bill of Rights and presumably found the provisions in question did violate the rule of law. For the reasons which I have stated above concerning the rather narrow meaning given to equality before the law, and to the Supreme Court's likening of that to the rule of law (see [1974] S.C.R. 1349">Lavell, supra at 1365) I need not comment on this further. I would only emphasize that, in my view, the rule of law does not require that the law produce the same outcomes for every person in the country. What it does mean is that the relationship between the state and the individual must be regulated by law (see Singh v. Canada, [2000] 3 F.C. 185 at paras. 33, 34 (F.C.A.); approved in Babcock v. Canada, [2002] S.C.C. 57 paras. 56, 57).

                                                 (4) What are the Appropriate Remedies?

[42]            Having regard to my conclusions that neither the Charter nor the Bill of Rights applies so as to invalidate this legislative scheme, I need not consider remedies. I would only note that the remedy requested by the respondent, and which the applications judge seems to have ordered, goes well beyond equal treatment for the respondent: for example, it is silent as to what the present day value of contributions missed in the past would be; and it says nothing of retroactive employer contributions for all those years. Further, it would judicially permit an opting-in scheme for those in the respondent's circumstances compared to the compulsory scheme imposed on "other working Canadians".

Section 6 of the Charter

[43]            In her original application for judicial review the respondent had also relied on section 6 of the Charter (mobility rights). It appears that the applications judge rejected this argument because the distinction complained of was not related to provincial borders. He made no order based on section 6. The matter was not pursued before us.

Disposition

[44]            I would therefore allow the appeal, set aside the decision of the trial judge, and award costs of the appeal to the appellant here and in the Trial Division.

                                                                                                                                          (s) "B.L. Strayer"          

J.A.

I agree

"M. Nadon"

J.A.

I agree

"John M. Evans"

J.A.