Killeen,
D.C.l.:—The
applicant,
Mary
Constance
Wright,
seeks
a
declara-
tion
that
the
sum
of
$18,002.16
now
in
the
hands
of
the
sheriff
of
the
County
of
Middlesex
and
arising
from
a
seizure
made
pursuant
to
a
writ
of
execution
filed
by
the
Federal
Crown
should
be
paid
out
to
her
in
toto
because
of
an
alleged
prior
right
to
the
fund.
The
Background
Facts
On
December
5,
1980,
Mrs.
Wright
obtained
a
trial
judgment
against
her
husband,
John
Wright,
under
which
he
was
required
to
pay
her
$1,000
monthly
as
spousal
support.
Mr.
Wright
immediately
went
into
default
under
this
judgment
and,
in
fact,
has
paid
nothing
towards
this
judgment
up
to
the
present
time.
The
current
arrears
now
stand
at
an
amount
in
excess
of
$80,000.
In
early
1981
Mrs.
Wright
obtained
an
injunction
from
Trainor,
J.
restraining
her
husband
from
dealing
with
four
separate
R.R.S.P.
investments
owned
by
him.
Then,
on
October
9,
1981,
Mrs.
Wright
obtained
a
charging
order
from
Hollingworth,
J.
against
each
of
the
four
plans,
under
section
146
of
the
Judicature
Act,
R.S.O.
1980,
c.
223.
This
order
also
contained
the
earlier
injunction
order
granted
by
Trainor,
J.
The
exact
terms
of
the
relevant
portions
of
Hollingworth
J.’s
order
are
as
follows:
1.
IT
IS
ORDERED
that
the
Registered
Retirement
Savings
Plans
maintained
in
the
name
of
the
defendant
with:
a.
The
Industrial
Groups
of
Funds,
MacKenzie
Financial
Corporation;
b.
London
Life
Insurance
Company;
c.
Canada
Trust
Company;
and
d.
Canada
Permanent
Trust
Company
be
and
the
same
are
hereby
charged
with
payment
of
arrears
of
support
and
expenses
from
time
to
time.
2.
AND
IT
IS
ORDERED
that
the
injunction
granted
by
order
of
The
Honourable
Mr.
Justice
Trainor
dated
the
4th
day
of
March,
1981
restraining
the
defendant
from
transferring,
terminating
or
in
any
way
withdrawing
or
receiving
monies
from
Registered
Retirement
Savings
Plans
maintained
in
his
name
with:
a.
The
Industrial
Group
of
Funds,
MacKenzie
Financial
Corporation;
b.
London
Life
Insurance
Company;
c.
Canada
Trust
Company;
and
d.
Canada
Permanent
Trust
Company
be
and
it
is
hereby
continued
until
the
funds
on
deposit
to
the
credit
of
the
defendant
in
the
R.R.S.P.’s
as
aforesaid
are
exhausted,
or
until
a
further
order
of
this
Court.
Later,
on
December
15,
1982,
Mrs.
Wright
filed
a
writ
of
execution
with
the
Sheriff
of
the
County
of
Middlesex
claiming
the
then
arrears
under
the
support
judgment
of
$39,655.12.
In
the
meantime,
Mr.
Wright
had
also
incurred
tax
liabilities
with
Revenue
Canada
for
the
1981
calendar
year
which
led
to
Revenue
Canada
filing
a
writ
of
execution
with
the
Sheriff
for
$24,169.19
on
September
16,
1983.
This
writ
of
execution
was,
I
might
add,
issued
out
of
the
Federal
Court
of
Canada
on
the
Revenue
Canada
tax
claim.
The
last
acts
in
this
economic
drama
of
obduracy,
wits
and
almost
chesslike
moves
occurred
in
the
1984-86
period:
first,
in
October
1984,
Mr.
Wright
authorized
the
London
Life
Insurance
Company
to
collapse
one
of
the
R.R.S.P.’s
subject
to
the
order
of
Hollingworth,
J.
in
an
apparent
effort
to
satisfy
the
tax
claim
of
Revenue
Canada;
second,
the
Sheriff
of
Middlesex
issued
a
notice
of
seizure,
dated
November
23,
1984,
purporting
to
seize
the
$18,002.16
proceeds
of
the
R.R.S.P.
under
the
Revenue
Canada
writ
of
execution;
third,
on
July
9,
1986,
the
Sheriff
issued
a
“scheme
of
distribution”
under
the
Creditors
Relief
Act,
R.S.O.
1980,
c.
103,
proposing
that
the
seized
moneys
be
paid
to
Revenue
Canada;
fourth,
Mrs.
Wright
then
filed
a
“notice
of
objection"
to
the
proposed
distribution
scheme
and
launched
the
instant
application.
Mr.
Cudmore,
for
the
applicant,
challenges
the
proposed
distribution
scheme
propounded
by
the
Sheriff
on
three
bases:
(1)
that
the
charging
order
issued
by
Hollingworth,
J.
created
a
special
form
of
charge
on
any
proceeds
of
the
London
Life
and
other
R.R.S.P.
investments
prior
in
status
to
the
rights
of
Revenue
Canada
under
its
writ
of
execution
such
that
the
Sheriff
is
obliged
to
pay
out
the
$18,002.16
in
full
to
Mrs.
Wright;
(2)
alternatively,
that
Mrs.
Wright’s
claim
under
her
charging
order
and
consequential
writ
of
execution
puts
her
in
a
prior
or
preferred
position
to
the
amount
of
$12,000
under
new
section
4a
of
the
Creditor's
Relief
Act,
proclaimed
on
July
12,
1985,
because
her
judgment
is
for
arrears
under
a
support
judgment;
(3)
alternatively,
that
the
Crown
priority
asserted
under
the
doctrine
of
the
Crown
prerogative
powers
offends
Mrs.
Wright’s
equality
rights
under
section
15
of
the
Charter
of
Rights
and
Freedoms
thereby
putting
the
competing
claims
in
an
equal
position,
entitling
each
to
a
rateable
share
of
the
fund
under
the
Act.
Each
of
these
positions
is
challenged
by
Crown
counsel,
Mr.
Vita,
who
argues
that
the
Crown
prerogative
powers
preempt
the
field,
as
it
were,
and
entitle
the
Federal
Crown,
through
Revenue
Canada,
to
take
all
of
the
fund
in
the
hands
of
the
Sheriff.
I
will
deal
with
Mr.
Cudmore's
submissions
in
the
order
in
which
they
have
been
outlined
above.
(1)
The
“Prior
Charge"
Argument
Mr.
Cudmore's
first
submission
goes
this
way.
He
starts
this
argument
by
asking
a
question:
What
was
the
Sheriff
able
to
seize
under
the
notice
of
seizure
issued
by
him
under
the
Revenue
Canada
writ
of
execution?
His
answer
is
that
the
Sheriff
could
only
seize
any
“interest"
that
the
judgment
debtor
had
in
the
London
Life
R.R.S.P.
as
of
November
23,
1984.
But,
he
argues,
the
judgment
debtor
had
no
interest,
or,
at
best,
an
inferior
interest
in
the
$18,002.16
fund
on
that
date
because
the
charging
order
of
Holling-
worth,
J.,
made
on
October
9,
1981,
created
a
prior
form
of
floating
charge
or
security
interest
in
the
fund
in
favour
of
Mrs.
Wright
with
the
result
that,
at
the
time
of
the
Sheriff's
seizure
in
1984,
Revenue
Canada
must
necessarily
be
in
a
subordinate
position
to
that
of
Mrs.
Wright
quoad
the
fund;
that
is,
Revenue
Canada’s
position
can
be
no
higher
than
that
of
Mr.
Wright.
The
central
issue
under
this
submission
is,
of
course,
as
to
what
is
the
true
legal
effect
of
the
charging
order
itself:
does
it
create
a
real
security
interest
in
the
fund
analogous
to
a
true
mortgage
or,
alternatively,
does
it
delineate
the
judgment
debtor's
interest
in
the
fund
in
a
manner
which
prevents
Revenue
Canada’s
interest
under
its
writ
and
seizure
from
achieving
a
status
equal
to
that
of
Mrs.
Wright?
Mr.
Vita’s
answer
to
this
submission
is
found
in
the
ratio
decidendi
of
four
cases:
Re
Overseas
Aviation
Engineering
(G.B.)
Ltd.,
(1962)
3
All
E.R.
12
(Eng.
C.A.);
Re
a
Debtor
(No.
39
of
1974)
(1977),
3
AIT
E.R.
489
(Eng.
Ch.
D.);
Re
Bright
(1981),
33
O.R.
(2d)
219
(Ont.
H.C.);
and
Re
Chastco
(1985),
58
C.B.R.
(N.S.)
184
(Man.
Q.B.).
In
the
Overseas
case,
a
judgment
creditor
obtained
a
charging
order
against
the
leasehold
interest
of
the
debtor
under
a
new
procedure
laid
down
in
sections
34
to
36
of
the
Administration
of
Justice
Act,
1956.
Subsection
35(3)
of
that
statute
provided
that
the
charge
imposed
by
the
charging
order
had
“.
..
the
like
effect
...
as
an
equitable
charge
created
by
the
debtor
by
writing
under
his
hand".
After
the
charge
had
been
obtained
but
before
a
recovery
or
seizure
was
made
under
it
the
debtor
company
went
into
voluntary
liquidation
and
the
question
arose
as
to
whether
the
judgment
creditor
was
entitled
to
rank
as
a
secured
creditor
in
the
insolvency
proceedings.
Notwithstanding
that
subsection
35(3)
stated
that
the
order
created
an
"equitable
charge”
on
the
property
of
the
debtor
and
permitted
registration
by
way
of
caution
on
title,
Lord
Denning
concluded
that
until
recovery
or
actual
seizure
of
the
property
interest
of
the
debtor,
the
charging
order
was
a
mere
form
of
execution,
that
is,
a
means
of
enforcing
the
judgment.
Thus,
since
recovery
had
not
been
achieved,
the
charging
order
created
no
secured
interest
in
the
lands
and
was
no
better
than
an
unrealized-upon
writ
of
execution.
As
he
said
at
page
17
of
the
judgment:
Seeing
therefore,
that
the
judgment
charge
is
a
form
of
“execution”,
it
follows
that
the
judgment
creditor
is
not
entitled
to
retain
“the
benefit”
of
the
charge
unless
he
has
completed
the
execution
before
the
commencement
of
the
winding-up.
Most
clearly,
the
charging
order
provision
of
section
146
of
the
Ontario
Judicature
Act
is
less
expansive
than
that
set
out
in
subsection
35(3)
of
the
English
statute.
In
principle,
therefore,
that
reasoning
of
Lord
Denning
is
highly
persuasive
and,
in
my
view,
should
control
the
outcome
of
the
instant
case.
The
other
cases
relied
upon
by
Mr.
Vita,
as
cited
above,
all
follow
the
same
line
of
reasoning
as
adopted
by
Lord
Denning
and,
as
I
view
them,
form
an
insurmountable
hurdle
for
the
applicant's
first
submission.
It
is
therefore
rejected.
(2)
Support
order
Priority:
new
section
4a
Mr.
Cudmore
relies,
alternatively
on
new
section
4a
of
the
Creditor’s
Relief
Act,
proclaimed
on
July
12,
1985,
and
reading
as
follows:
4a.—(1)
Arrears
of
payment
under
a
support
or
maintenance
order
have
priority
over
other
judgment
debts
and
rank
equally
with
arrears
under
another
support
or
maintenance
order,
regardless
of
when
an
enforcement
process
is
issued
or
served,
(a)
if
the
order
is
for
periodic
payments,
in
an
amount
not
exceeding
one
year's
support
or
maintenance
at
the
rate
current
at
the
time
of
seizure
or
attachment;
and
(b)
if
the
order
is
for
a
lump
sum
payment,
in
the
amount
of
the
lump
sum.
(2)
Process
for
the
enforcement
of
a
support
or
maintenance
order
shall
be
identified
on
its
face
as
being
for
support
or
maintenance.
(3)
Subsection
(1)
binds
the
Crown
in
right
of
Ontario.
Under
this
section,
Mr.
Cudmore
argues
that
his
client
should
have
priority
for
one
year’s
support
in
accordance
with
the
section's
express
terms.
The
major
difficulty
with
Mr.
Cudmore's
argument
is
that
subsection
(3)
of
the
section
provides
that
the
priority
rule
only
“.
.
.
binds
the
Crown
in
right
of
Ontario".
Since
the
Crown
claim
in
this
case
is
asserted
by
the
federal
Crown,
and
not
the
provincial
Crown,
it
is
clear
that,
on
its
plain
terms,
the
section
cannot
apply.
One
need
look
no
further
than
the
federal
and
provincial
Interpretation
Acts
to
find
that
the
Crown
—
federal
or
provincial
—
cannot
be
bound
by
legislation
unless
such
legislation
expressly
names
the
Crown
as
a
bound
party:
see
section
11
of
the
Interpretation
Act,
R.S.O.
1980,
C.
219;
section
16
of
the
Interpretation
Act,
R.S.C.
1970,
c.
1-23;
and
Re
Marten;
Royal
Bank
v.
The
Queen
(1981),
34
O.R.
(2d)
399;
130
D.L.R.
(3d)
607
(Ont.
Div.
Ct.)
per
Catzman,
J.
at
404
(D.L.R.
612).
There
is,
as
well,
another
problem
with
this
submission.
On
any
objective
view
of
its
provisions,
section
4a
affects
—
and
affects
seriously
—
the
substantive
rights
of
potential
judgment
creditors
who
are
in
competition
with
a
spousal
judgment
creditor
of
otherwise
equal
degree.
To
me,
such
a
provision
can
only
speak
prospectively
and
retrospectively,
absent
very
specific
language
within
the
section
itself
making
it
clear
that
the
section
should
reach
into
the
past.
On
the
facts
of
the
instant
case,
the
matured
positions
of
the
parties
under
the
Creditor’s
Relief
Act,
and
generally,
existed
as
from
November
23,
1984,
when
the
Sheriff
seized
under
his
notice
of
seizure.
In
these
circumstances,
I
do
not
believe
that
section
4a
can
affect
the
outcome
of
this
case
at
all.
As
was
said
by
Duff,
J.
in
Upper
Canada
College
v.
F.
J.
Smith
(1920),
61
S.C.R.
413
at
416;
57
D.L.R.
648
at
649:
The
principle
which
in
my
judgment
governs
this
appeal
can
be
stated
in
the
language
of
Willes
J.
delivering
the
judgment
of
the
Exchequer
Chamber
and
speaking
on
behalf
of
a
court
of
six
in
Phillips
v.
Eyre
in
1870(1).
The
passage
is
as
follows:
Retrospective
laws
are,
no
doubt,
prima
facie
a
questionable
policy,
and
contrary
to
the
general
principle
that
legislation
by
which
the
conduct
of
mankind
is
to
be
regulated
ought,
when
introduced
for
the
first
time,
to
deal
with
future
acts,
and
ought
not
to
change
the
character
of
past
transactions
carried
on
upon
the
faith
of
the
then
existing
law.
“Leges
et
constitutiones
futuris
certum
est
dare
formam
negotiis
non
ad
facta
praeterita
revocari;
nisi
nomina-
tum
et
de
praeterito
et
de
praeterito
tempore
et
adhuc
pendentibus
negotiis
caulum
sit."
Accordingly,
the
court
will
not
ascribe
retrospective
force
to
new
laws
affecting
rights,
unless
by
express
words
or
necessary
implication
it
appears
that
such
was
the
intention
of
the
legislature.
To
the
same
effect
is
the
more
recent
judgment
of
the
Ontario
Court
of
Appeal
in
Merrill
v.
Fisher
(1976),
11
O.R.
(2d)
551;
66
D.L.R.
(3d)
615.
(3)
The
effect
of
section
15
of
the
Charter
Mr.
Cudmore
presents
a
most
provocative
and
challenging
argument
here.
His
submission
is
that
the
Crown
prerogative,
under
which
the
Crown
may
assert
priority
when
its
financial
claim
is
of
equal
degree
with
that
of
another
creditor
violates
his
client's
equality
rights
under
subsection
15(1)
of
the
Charter
of
Rights
and
Freedoms
and
cannot
be
saved
under
section
1
thereof.
Mr.
Vita,
on
the
other
hand,
grounds
his
answer
to
this
submission
on
two
key
points:
first,
he
argues
that
the
Crown
is
not
named
in
section
15
as
a
bound
party
and,
therefore,
cannot
be
affected
by
its
terms;
second,
he
argues
that,
in
any
event,
that
the
law
relating
to
Crown
privilege,
and
its
component,
Crown
priority,
is
not
contrary
to
subsection
15(1)
or,
if
it
is,
it
is
saved
by
section
1
of
the
Charter
as
a
“reasonable
limit”
which
can
be
demonstrably
justified
in
a
free
and
democratic
society.
I
reproduce
subsection
15(1)
and
section
1
as
a
starting
point
for
my
analysis
of
the
conflicting
submissions
of
counsel:
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.
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.
Mr.
Cudmore's
position
under
these
sections
is
simplicity
itself.
He
submits
that,
putting
his
client’s
rights
under
her
judgment
and
writ
of
execution
at
their
lowest
ebb,
they
are
of
“equal
degree”
with
those
of
the
federal
Crown;
that
to
allow
the
federal
Crown
to
assert
the
doctrine
of
Crown
prerogative
would
be
a
prima
facie
breach
of
her
subsection
15(1)
rights
because
she
would
then
be
denied
.
.
the
equal
protection
and
benefit
of
the
law
without
discrimination
..
.
.”;
and
that
the
Crown
priority
cannot
be
saved
by
section
1
because
the
Crown
cannot
meet
the
stringent
test
propounded
for
reasonable
limits’
laws
in
the
case
of
Regina
v.
Oakes,
[1986]
1
S.C.R.
103;
24
C.C.C.
(3d)
321.
The
first
question
for
consideration
here
must
be
the
absence
in
subsection
15(1),
or,
indeed,
anywhere
else
in
the
Charter,
of
any
specific
mention
of
the
Crown.
Does
this
omission
spell
immediate
doom
for
the
applicant's
submission?
In
my
view,
the
answer
to
this
question
must
be
“no"
because
the
statutory
rules
set
out
in
the
Interpretation
Acts,
already
referred
to,
and
their
common
law
forbears
cannot
control
the
interpretation
of
the
Charter.
As
was
said
by
Chief
Justice
Dickson
in
Regina
v.
Big
M
Drug
Mart
Ltd.,
[1985]
1
S.C.R.
295
at
344;
18
C.C.C.
(3d)
385
at
423-24:
This
Court
has
already,
in
some
measure,
set
out
the
basic
approach
to
be
taken
in
interpreting
the
Charter.
In
Hunter
et
al.
v.
Southam
Inc.,
[1984]
2
S.C.R.
145,
this
Court
expressed
the
view
that
the
proper
approach
to
the
definition
of
the
rights
and
freedoms
guaranteed
by
the
Charter
was
a
purposive
one.
The
meaning
of
a
right
or
freedom
guaranteed
by
the
Charter
was
to
be
ascertained
by
an
analysis
of
the
purpose
of
such
a
guarantee;
it
was
to
be
understood,
in
other
words,
in
the
light
of
the
interests
it
was
meant
to
protect.
In
my
view,
this
analysis
is
to
be
undertaken,
and
the
purpose
of
the
right
or
freedom
in
question
is
to
be
sought
by
reference
to
the
character
and
the
larger
objects
of
the
Charter
itself,
to
the
language
chosen
to
articulate
the
specific
right
or
freedom,
to
the
historical
origins
of
the
concepts
enshrined,
and
where
applicable,
to
the
meaning
and
purpose
of
the
other
specific
rights
and
freedoms
with
which
it
is
associated
within
the
text
of
the
Charter.
The
interpretation
should
be,
as
the
judgment
in
Southam
emphasizes,
a
generous
rather
than
a
legalistic
one,
aimed
at
fulfilling
the
purpose
of
the
guarantee
and
securing
for
individuals
the
full
benefit
of
the
Charter's
protection.
At
the
same
time
it
is
important
not
to
overshoot
the
actual
purpose
of
the
right
or
freedom
in
question,
but
to
recall
that
the
Charter
was
not
enacted
in
a
vacuum,
and
must
therefore,
as
this
Court’s
decision
in
Law
Society
of
Upper
Canada
v.
Skapinker,
[1984]
1
S.C.R.
357,
illustrates,
be
placed
in
its
proper
linguistic,
philosophic
and
historical
contexts.
Mr.
Vita
has
argued
that
another
indicator
of
the
non-applicability
of
section
15
to
the
Crown
arises
from
the
use
of
the
word
“individual”
in
the
first
line
of
the
section.
I
think
this
argument
falls
wide
of
the
mark.
While
the
use
of
the
word
“individual”
may
mean
that
limited
companies
cannot
take
the
benefit
of
the
bundle
of
rights
recognized
under
the
section,
surely
a
purposive
and
liberal
interpretation
of
the
section
does
not
lead
to
the
necessary
conclusion
that
the
Crown
—
whether
federal
or
provincial
—
is
not
bound
by
the
burdens
of
the
section
when
Crown
law
or
action
collides
with
an
individual's
rights
under
the
section.
The
answer,
I
would
have
thought
to
the
seeming
conundrum
is
provided
by
section
32
of
the
Charter:
32.
(1)
This
Charter
applies
(a)
to
the
Parliament
and
government
of
Canada
in
respect
of
all
matters
within
the
authority
of
Parliament
including
all
matters
relating
to
the
Yukon
Territory
and
Northwest
Territories;
and
(b)
to
the
legislature
and
government
of
each
province
in
respect
of
all
matters
within
the
authority
of
the
legislature
of
each
province.
(2)
Notwithstanding
subsection
(1),
section
15
shall
not
have
effect
until
three
years
after
this
section
comes
into
force.
This
section
provides
that
the
Charter
—
all
of
the
Charter
—
applies,
inter
alia,
to
both
federal
and
provincial
governments.
Essentially,
then,
the
Charter
applies
to
“state
action”
in
the
broadest
sense
and
along
lines
similar
to
the
state
action
doctrine
developed
by
the
U.S.
Supreme
Court
for
cases
under
the
U.S.
Bill
of
Rights.
Since
the
concept
of
the
Crown
itself
and
the
Crown
prerogative
are
both
simply
part
and
parcel
of
the
constitutional
arrangements
and
conventions
which
define
the
activities
and
legal
spheres
of
our
federal
and
provincial
governments
I
can
only
conclude
that
the
Crown
—
here
representing
and
symbolizing
the
federal
executive
arm
of
government
—
is
bound
by
subsection
15(1).
This
conclusion
is
anticipated
and
supported
by
some
of
the
comments
of
the
late
Chief
Justice
Laskin
in
Her
Majesty
In
Right
of
Alberta
v.
C.T.C.,
[1978]
1
S.C.R.
61;
75
D.L.R.
(3d)
257.
In
this
case,
the
Alberta
Government
successfully
asserted
the
Crown
prerogative
in
its
favour,
arguing
that
the
C.T.C.
regulations
did
not
specifically
mention
the
Crown
in
the
right
of
Alberta
and,
accordingly,
did
not
require
it
to
seek
C.T.C.
approval
for
its
purchase
of
Pacific
Western
Airlines.
The
Court
agreed,
and
Chief
Justice
Laskin
made
it
clear
that
the
Crown
prerogative
was
part
of
the
legal
powers
of
the
provincial
government.
As
he
said
at
76
(D.L.R.
268):
.
.
.
if
the
Crown
in
right
of
a
Province
was
unable
to
rely
on
its
immunity,
unless
bound
expressly
or
by
necessary
implication,
automatic
subordination
of
a
provincial
Government
to
federal
legislation
would
result,
and
this
would
offend
the
mutually
independent
positions
of
the
Crown
in
right
of
Canada
and
in
right
of
a
Province
which
obtain
under
our
constitutional
arrangements
in
the
absence
of
valid
legislation
to
the
contrary.
Second,
the
common
law
rule
as
part
of
what
I
may
call
Crown
law
is
an
historic
principle
that
was
part
of
the
law
of
this
country
from
its
beginning;
and
it
remained
part
of
our
law
under
the
federal
structure
brought
into
force
in
1867,
both
for
the
advantage
of
the
Crown
in
right
of
Canada
and
of
the
Crown
in
right
of
a
Province.
In
my
view,
the
Alberta
Government,
if
not
entitled
to
the
shelter
provided
by
s.
16
of
the
federal
Interpretation
Act,
is
entitled
to
rely
on
the
common
law
expressed
in
the
Bombay
case.
In
either
case,
I
hold
it
not
to
be
bound
by
ss.
19
and
20
of
the
Air
Carrier
Regulations.
In
the
light
of
this
decision,
it
seems
inescapable
but
to
conclude
that
an
assertion
of
Crown
prerogative
powers
—
such
as
the
Crown
priority
here
—
constitutes
federal
state
action
within
section
32
of
the
Charter
which
must
be
tested
where
there
is
an
allegation
that
such
state
action
collides
with
the
equality
rights
of
the
subject
under
subsection
15(1).
Mr.
Vita’s
next
response
to
the
subsection
15(1)
argument
arises
from
a
sophisticated
interpretation
of
the
subsection
generally.
Mr.
Vita’s
position
is
that
one
should
take
a
two-tier
approach
to
the
protected
equality
rights
under
subsection
15(1).
If
the
form
of
discrimination
which
is
challenged
falls
within
the
enumerated
classes
referred
to
in
the
subsection
—
i.e.,
race,
origin,
colour,
religion,
etc.,
—
then
a
prima
facie
showing
will
immediately
implicate
section
1
and
cast
a
burden
on
the
Crown
to
establish
that
the
state
action
can
be
saved
as
a
reasonable
limit
on
the
subject's
right.
If,
on
the
other
hand,
the
discrimination
falls
outside
the
enumerated
classes,
then
the
subject
must
show
not
only
a
discriminatory
effect
but,
also,
“unreasonable”
discrimination.
Here,
on
the
facts,
he
submits
that
the
form
of
discrimination
present
—
an
assertion
of
Crown
priority
where
there
are
otherwise
equal
financial
claims
on
a
debtor’s
property
—
does
not
fall
within
the
enumerated
classes;
therefore,
the
applicant
carries
a
burden
of
persuasion
to
show
that
the
discriminatory
effect
is
unreasonable,
something
she
has
not
done.
This
interpretative
approach
is
taken,
in
part
at
least,
from
the
judgment
of
McLaughlin,
J.A.
in
Andrews
v.
Law
Society
(B.C.)
(1986),
4.
W.W.R.
242
(B.C.C.A.).
There,
McLaughlin,
J.A.
justified
the
importation
of
a
“reasonableness
or
fairness”
standard
into
subsection
15(1)
in
the
following
language
at
251:
I
turn
next
to
the
alternative
approach
of
viewing
discrimination
as
involving
a
pejorative
connotation.
On
this
approach
the
reasonableness
or
fairness
of
the
impugned
legislative
distinction
having
regard
to
the
purposes
and
the
effect
on
the
complainant
is
determined
initially
under
s.
15.
This
approach
is
consistent
with
the
emphasis
in
R.
v.
Oakes
of
determining
basic
rights
under
the
specific
sections
of
the
Charter
rather
than
using
s.
1
as
a
tool
of
interpretation.
It
also
accords
full
meaning
to
the
word
“discrimination”
—
a
meaning
which
is
generally
in
accordance
with
the
way
that
word
has
been
used
in
many
enactments,
conventions
and
treaties
.
.
.
Finally,
it
avoids
the
problem
of
s.
15
overwhelming
the
other
rights
specifically
guaranteed
by
the
Charter.
With
respect,
I
have
some
grave
reservations
about
importing
a
judge-
made
“rule
of
unreasonableness”
into
the
language
of
subsection
15(1).
The
specific
inclusion
of
such
a
standard
of
construction
into
subsection
15(1)
would
lead,
I
fear,
to
a
watering
down
of
the
rights
guaranteed
by
the
section.
If
it
should
be
imported
into
subsecion
15(1),
I
would
ask,
why
should
it
not
be
equally
imported
into
all
of
the
other
sections
of
the
Charter
purporting
to
protect
and
guarantee
fundamental
rights
and
freedoms
of
Canadians?
And
if
it
so
imported,
whether
selectively
or
across-the-
board,
where
does
that
leave
section
1
under
which
the
persuasive
burden
is
clearly
placed
on
the
government
to
justify
incursions
on
the
rights
and
freedoms
of
the
subject
under
the
“reasonable
limits”
standard?
Numerous
American
commentators
have
noted
that
the
U.S.
Supreme
Court
has
allowed
itself
to
fall
into
a
quagmire
of
dubious
verbal
doctrines
in
an
effort
to
deal
with
equal
protection
issues.
One
central
reason
for
this
is
that
the
U.S.
Bill
of
Rights
lacks
an
equivalent
of
our
section
1
under
which
a
reasonable
limits’
burden
is
cast
upon
governments.
I
think
we
should
be
wary
building
a
rule
of
unreasonableness
into
the
subsection
15(1)
inquiry
—
especially
where
it
casts
an
evidentiary
burden
on
the
sub-
ject
—
when
the
Charter
itself
expressly
commands
in
section
1
that
the
government
must
bear
the
burden
of
justification
under
the
reasonable
limits'
criterion.
In
conclusion,
here,
I
hold
that
the
applicant
has
shown
a
clear
prima
facie
breach
of
her
equality
rights
under
subsection
15(1).
The
Crown
priority
claim
has
an
inevitable
and
drastic
discriminatory
effect
on
the
applicant's
rights
and,
if
it
is
to
be
saved,
the
Crown
must
justify
it
under
section
1.
Mr.
Vita
has
argued,
as
his
final
option,
that
the
Crown
priority
can
be
justified
because
its
purpose
is
a
strong
and
compelling
public-interest
one.
His
position
is
that
the
priority
is
aimed
at
guaranteeing
the
integrity
of
its
system
of
revenue-collecting
powers
under
the
federal
revenue
statutes.
In
a
very
real
sense,
he
says,
the
federal
government
is
representing
and
protecting
the
Canadian
public
at
large
when
it
asserts
the
priority
and
puts
the
recovered
tax
arrears
in
the
public
coffers.
Section
1
justification
is
now
controlled
by
the
criteria
set
out
in
the
judgment
of
Chief
Justice
Dickson
in
Regina
v.
Oakes,
supra.
There,
the
Chief
Justice
constructs
a
preliminary
evidentiary
presumption
to
the
effect
that
the
right
and
freedoms
of
the
Charter
are
guaranteed
unless
the
party
invoking
section
1
—
invariably
the
government
—
can
bring
itself
within
what
he
calls
the
“exceptional
criteria’
which
can
justify
their
limitation;
and
the
standard
of
proof
for
justification
is
the
civil
standard
of
proof
on
a
preponderance
of
probability.
Chief
Justice
Dickson
clarifies
the
weight
and
depth
of
the
civil
standard
in
Charter
cases
by
adding
this
important
qualification
at
138
(C.C.C.
347):
Having
regard
to
the
fact
that
s.
1
is
being
invoked
for
the
purpose
of
justifying
a
violation
of
the
constitutional
rights
and
freedoms
the
Charter
was
designed
to
protect,
a
very
high
degree
of
probability
will
be,
in
the
words
of
Lord
Denning,
“commensurate
with
the
occasion”.
Where
evidence
is
required
in
order
to
prove
the
constituent
elements
of
as.
1
inquiry,
and
this
will
generally
be
the
case,
it
should
be
cogent
and
persuasive
and
make
clear
to
the
court
the
consequences
of
imposing
or
not
imposing
the
limit:.
.
..
He
then
moves
on,
at
348,
to
develop
two
“central
criteria"
for
the
justificatory
process.
I
summarize
these
criteria
and
their
component
parts
thus:
1.
The
objective
of
the
government
action
or
measure
must
be
of
sufficient
importance
to
warrant
overriding
a
constitutionally
protected
right
or
freedom;
such
objective
must
relate
to
concerns
which
are
“pressing
and
substantial”.
2.
If
such
an
objective
is
identified,
the
means
chosen
must
satisfy
a
“proportionality
test”
having
three
components:
(a)
the
measure
chosen
must
be
carefully
designed
to
achieve
the
objective
in
the
sense
that
“it
must
not
be
arbitrary,
unfair
or
based
on
irrational
considerations”,
i.e.,
it
must
be
rationally
connected
to
the
objective;
(b)
the
measure
chosen
should
impair
as
little
as
possible
the
right
or
freedom
in
question;
(c)
there
must
be
proportionality
between
the
effects
of
the
measure
and
the
objective
identified
as
being
of
sufficient
importance.
In
applying
these
criteria
to
the
instant
case,
I
note,
preliminarily,
that
Crown
counsel
elected
to
tender
no
socio-economic
evidence
before
me
to
demonstrate
that
the
objective
of
the
Crown
priority
related
to
concerns
of
a
“pressing
and
substantial”
character.
Mr.
Vita
simply
based
his
position
on
logical
argumentation
and
reasoning
that
the
priority
buttressed
the
integrity
of
federal
tax-collecting
procedures
and
was
in
the
public
interest.
To
me,
the
Crown
argument
smacks
of
an
invitation
to
accept
the
Crown
priority
as
an
act
of
faith.
It
must
be
remembered,
I
believe,
that
the
doctrine
of
Crown
prerogative
developed
in
a
feudal
society
when
the
King
was
monarch
in
fact
as
well
as
theory.
While
the
doctrine
was
carried
over
into
later
eras
when
constitutionalism
and
democratic
government
displaced
a
pure
monarchial
system,
I
cannot
conclude
that
an
ancient
doctrine,
or
any
of
its
aspects,
can
be
any
longer
justified
against
the
commands
of
the
Charter
by
reference
to
a
vague
argument
that
the
integrity
of
our
federal
tax-collecting
system
is
vitally
at
stake.
In
support
of
arguments
like
that
I
would
like
to
see
some
concrete
evidence
showing
the
past
importance
of
the
Crown
priority
within
the
tax-collection
structure
of
the
federal
government
and,
as
well,
why,
in
the
current
era,
the
federal
government
could
not
enact
more
narrowly
tailored
and
less
intrusive
statutory
provisions
which
could
achieve
the
same
objective
as
the
Crown
priority
but
which
would
be
much
more
rational,
less
arbitrary
and
infinitely
fairer.
In
short,
I
am
unpersuaded
on
Mr.
Vita’s
argument
that
the
Crown
priority
raises
a
legitimate
state
concern
of
the
“pressing
and
substantial"
kind
delineated
under
Chief
Justice
Dickson's
first
criterion.
Equally,
I
conclude
that
it
cannot
meet
the
rigorous
demands
within
the
three-aspect
second
criterion.
The
Crown
prerogative,
and
its
priority
component,
can
hardly
be
called
a
“carefully
designed"
measure.
It
is
rather,
a
common-law
rule
which
flowed
from
the
autocratic
powers
of
the
monarchy.
Even
assuming,
arguendo
that
this
priority
claim
is
rationally
related
to
the
objective
identified
by
the
Crown,
it
clearly
is
not
crafted
to
impair
“as
little
as
possible"
the
right
or
freedom
in
question.
And,
finally,
I
see
no
proportionality
between
the
“effects"
of
the
priority
and
the
alleged
“sufficiently
important"
objective.
In
the
event,
an
order
will
go:
(1)
declaring
that
the
asserted
claim
of
the
Crown
for
priority
is
of
no
force
and
effect;
(2)
ordering
the
Sheriff
of
the
County
of
Middlesex
to
distribute
the
seized
moneys
in
his
hands,
rateably
amongst
the
applicant,
the
Crown
in
the
right
of
Canada
and
the
other
execution
creditors;
(3)
ordering
costs
of
this
application
against
the
Crown
on
the
party
and
party
scale.
I
may
be
spoken
to
if
any
further
ancillary
orders
are
required.
Order
accordingly.
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