Rosenberg,
J.
[ORALLY]:—
Nature
of
Application
This
is
an
application
under
section
52
of
the
Constitution
Act,
1982,
section
24
of
the
Charter
of
Rights
and
Freedoms,
section
110
of
the
Courts
of
Justice
Act
and
rule
14.05(3)(h)
of
the
Rules
of
Civil
Procedure
for
a
declaration
that
sections
146(2),
56(1
)(h)
and
(t),
and
subsection
60(i)
and
(1)
of
the
Income
Tax
Act
(the
Act)
are
contrary
to
sections
15,
7,
and
2(a)
of
the
Charter
of
Rights
and
Freedoms
and
therefore
are
null
and
void
and
of
no
force
and
effect.
The
Facts
(a)
The
Legislative
Scheme
Section
146
of
the
Act
creates:
a
Registered
Retirement
Savings
Plan
(R.R.S.P.);
a
Retirement
Savings
Plan
(R.S.P.)
which
meets
the
requirements
of
the
Act
will
be
accepted
for
registration
by
the
Minister;
an
R.R.S.P.
is
a
contract
between
an
individual
and
a
company
carrying
on
the
annuity
business
to
provide
an
annuitant
or
his
or
her
spouse,
a
retirement
income
upon
the
maturity
of
the
plan.
An
R.R.S.P.
can
also
be
an
arrangement
between
the
annuitant
and
a
Canadian
trust
company,
an
investment
company,
a
bank
or
credit
union
which
is
set
up
for
the
purpose
of
providing
the
annuitant
with
retirement
income
upon
maturity
of
the
plan.
Retirement
income
is
defined
as:
(i)
a
life
annuity
with
or
without
a
guaranteed
term;
or
(ii)
a
fixed
term
annuity.
Maturity
is
defined
as
the
date
fixed
under
an
R.R.S.P.
for
the
commencement
of
the
payment
of
retirement
income.
The
R.R.S.P.
cannot
mature
before
the
annuitant
reaches
the
age
of
60
and
it
must
mature
no
later
than
the
end
of
the
year
in
which
the
annuitant
reaches
the
age
of
71.
In
cases
where
the
annuitant
or
the
annuitant’s
spouse
receive
a
disability
pension,
or
where
the
spouse
of
the
annuitant
has
died,
leaving
the
annuitant
in
receipt
of
a
survivor's
pension,
the
R.R.S.P.
can
mature
before
the
minimum
age
of
60.
The
R.R.S.P.
cannot
provide
for
the
payment
of
any
benefit
before
the
date
of
maturity,
and
any
benefit
paid
after
the
date
must
be
in
the
form
of
retirement
income,
i.e.
an
annuity.
The
payment
of
retirement
income
must
be
in
equal
periodic
amounts.
The
annuity
which
is
payable
under
the
R.R.S.P.
is
not
capable
of
being
surrendered,
commuted
or
assigned
either
in
whole
or
in
part.
The
amount
of
premiums
paid
by
an
annuitant
under
an
R.R.S.P.
during
the
year,
or
within
60
days
after
the
end
of
the
year,
can
be
deducted
from
the
income
of
the
annuitant
to
the
extent
of
the
lesser
of
$5,500
and
20
per
cent
of
the
annuitant's
income
for
that
year.
If
the
annuitant
is
entitled
to
an
employment
pension
fund,
or
deferred
profit
sharing
plan,
the
deductible
amount
is
limited
to
the
lesser
of
$3,500
and
20
per
cent
of
earned
income.
Premiums
may
be
paid
into
the
R.R.S.P.
at
any
time,
but
they
are
not
payable
after
the
maturity
date
of
the
R.R.S.P.
Upon
the
maturity
date
of
the
R.R.S.P.,
the
annuitant
has
four
choices:
(i)
the
money
accumulated
in
the
fund
can
be
withdrawn
and
brought
into
the
income
of
the
annuitant;
(ii)
a
life
annuity,
with
or
without
a
guaranteed
term
can
be
purchased;
(iii)
a
term
annuity
to
age
90
can
be
purchased;
or
(iv)
the
funds
can
be
transferred
into
a
Registered
Retirement
Income
Fund
(R.R.I.F.).
I
am
satisfied
on
the
evidence
that
at
least
for
the
purpose
of
this
motion,
the
applicant,
Alexander
Gerol,
is
better
able
to
invest
his
money
and
receive
a
better
return
from
a
Government
of
Canada
bond
than
he
will
under
the
type
of
annuity
which
is
available
to
him
pursuant
to
these
options.
The
rate
of
return
on
the
R.R.I.F.
or
the
annuity
is
lower
and
makes
allowance
for
commissions,
risk
and
administration
that
would
not
be
present
if
the
applicant
were
investing
his
own
funds.
He
could,
however,
under
the
R.R.I.F.
plan,
purchase
such
a
Government
of
Canada
Bond
and
pay
a
slight
commission
for
management
fees
to
a
company
recognized
under
the
Act
to
manage
the
self-administered
fund.
He
would
be
spending
money,
in
his
view,
for
nothing
and
doing
something
that
is
more
undesirable
from
his
point
of
view.
An
R.R.I.F.
can
only
be
purchased
by
way
of
a
transfer
from
an
R.R.S.P.
The
R.R.I.F.
is
an
arrangement
between
an
individual
and
a
carrier,
a
com-
pany
carrying
on
an
annuity
business
or
life
insurance
company,
a
trust
company,
a
bank
or
an
investment
company,
whereby
the
carrier
agrees
to
make
payments
to
the
individual
under
the
R.R.I.F.
The
R.R.I.F.
funds
may
be
invested
in
any
qualified
investment
and
it
is
important
to
note
that
they
can
be
managed
either
by
the
carrier
or
by
the
individual
him
or
herself
in
a
self-administered
plan
set
up
through
a
carrier.
Payments
made
from
the
R.R.I.F.
must
begin
in
the
first
year
after
the
creation
of
a
fund
and
they
are
made
on
a
calculation
which
is
based
on
a
fraction
of
the
market
value
of
the
fund.
The
fraction
in
turn
is
based
on
the
number
of
years
remaining
until
the
individual
reaches
90.
The
payments
increase
in
each
year
until
the
fund
is
exhausted.
All
capital
and
interest
in
the
fund
must
be
paid
out
to
the
individual
no
later
than
in
the
year
in
which
the
individual
turns
90.
The
term
of
the
annuity
is
90
years
less
the
annuitant's
age
at
the
beginning
of
the
term
in
which
the
R.R.I.F.
was
purchased.
The
term
can
be
longer
if
the
annuitant
elects
to
calculate
the
total
on
the
basis
of
a
younger
spouses'
age.
The
income
generated
by
the
fund
is
not
taxable
while
in
the
R.R.I.F.,
only
the
payments
made
the
individual
are
subject
to
tax.
The
applicant,
a
senior
citizen,
will
be
71
years
of
age
on
November
11,
1985.
The
applicant
has
the
following
five
R.R.S.P.’s
totalling
as
of
the
30th
day
of
January
1985,
$96,388.14:
|
(i)
National
Bank
|
—
$10,156.12
|
|
(ii)
Royal
Bank
of
Canada
|
—
$15,617.61
|
|
(iii)
The
Permanent
|
—
$17,296.75
|
|
(iv)
The
Permanent
|
—
$23,245.03
|
|
(v)
Canada
Trust
|
—
$30,077.63
|
The
Law
Section
2(a)
Section
2(a)
of
the
Charter
of
Rights
and
Freedoms
reads
as
follows:
Everyone
has
the
following
fundamental
freedoms:
(a)
Freedom
of
conscience
and
religion.
Sections
56(1)(h),
56(1
)(t),
60(i),
60(l)
and
146(2)
of
the
Income
Tax
Act
do
not
deny
the
applicant
freedom
of
conscience
and
religion
and
are
not
contrary
to
paragraph
2(a)
of
the
Charter.
R.
v.
Big
M
Drug
Mart
(1985),
18
C.C.C.
(3d)
385
(S.C.C.)
at
424
and
446
and
R.
v.
Videoflicks
(1984),
48
O.R.
(2d)
395,
(C.A.)
at
420
and
422.
Section
7
Section
7
of
the
Charter
reads
as
follows:
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.
The
sections
of
the
Income
Tax
Act
under
review
do
not
deny
the
applicant
the
right
to
life,
liberty
and
security
of
the
person
contrary
to
the
principles
of
fundamental
justice.
The
right
to
life,
liberty
and
security
of
the
person
is
the
single
interrelated
right
which
guarantees
the
individual
freedom
from
interference
with
the
person.
It
is
meant
to
provide
protection
from
physical
threats
or
punishment
and
from
arrest
and
detention.
Security
of
the
person
refers
to
physical
and
personal
integrity
of
an
individual.
Even
if
the
rights
included
certain
economic
freedoms,
they
do
not
include
the
right
to
unrestrained
conduct
in
business
affairs,
nor
complete
economic
freedom.
The
Queen
v.
Operation
Dismantle
Inc.,
et
al.
(1983),
3
D.L.R.
(4th)
193
at
199,
200
and
217,
Public
Service
Alliance
of
Canada
v.
The
Queen
in
Right
of
Canada
et
al.
(1984),
11
D.L.R.
(4th)
337
(F.C.T.D.)
affirmed
(1984)
11
D.L.R.
(4th)
387;
Singh
et
al.
v.
Minister
of
Employment
and
Immigration
(1985),
17
D.L.R.
(4th)
422
at
458;
R.
v.
Videoflicks
(1984),
48
O.R.
(2d)
395
(C.A.)
at
433;
Gersham
Produce
Co.
Ltd.
v.
The
Motor
Transport
Board
(1985),
14
D.L.R.
(4th)
722
(Man.
Q.B.)
at
730;
Becker
v.
The
Queen
in
Right
of
Alberta
(1983),
7
C.R.R.
232
(Alta.
Q.B.)
at
237;
P.
Garant,
in
W.
Tarnopolsky,
G.
Beaudoin,
eds.
The
Canadian
Charter
of
Rights
and
Freedoms,
1982,
p.
263,
270.
There
has
been
no
violation
of
the
principles
of
fundamental
justice.
The
Queen
et
al.
v.
Operation
Dismantle
Inc.
et
al.,
[1983]
3
D.L.R.
(4th)
193
at
211;
Re
Potma
and
The
Queen
(1983),
41
O.R.
(2d)
43
(C.A.)
at
52;
Re
Town
of
Milton
and
Ontario
Waste
Management
Corp.
(1983),
50
O.R.
(2d)
715
(Div.
Ct.)
at
724.
Section
15
of
the
Charter
Section
15(1)
reads
as
follows:
Every
individual
is
equal
before
the
law
and
under
the
law
and
has
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.
This
section
is
more
difficult
to
apply
to
the
present
circumstances.
Age
is
often
used
at
law
to
determine
rights
of
individuals.
No
one
would
argue
that
a
two-year-old
has
the
same
right
to
a
driving
licence
as
a
21-year-old
or
that
an
eight-year-old
can
purchase
liquor
wisely
in
all
cases
and
should
therefore
be
entitled
to
a
liquor
licence,
although
individuals
of
different
ages
may
be
shown
to
be
more
capable
than
those
within
the
allowable
age
group.
There
must
be
some
distinctions
made
on
the
basis
of
age.
A
30-
year-old
cannot
claim
discrimination
on
the
basis
that
a
person
of
65
or
over
is
entitled
to
receive
benefits
under
a
Canada
Pension
Plan
that
he
is
not
entitled
to
receive.
Discrimination
can
be
defined
as
the
use
of
distinction
based
on
a
prohibited
ground
which
results
in
a
nullification
of
rights
and
which
has
a
detrimental
effect
on
the
complainant.
Distinctions
which
do
not
create
adverse
results
are
not
of
themselves
discriminatory.
Canadian
Human
Rights
Act,
S.C.
1976-77,
c.
33,
s.
5;
Quebec
Charter
of
Human
Rights
and
Freedoms,
S.Q.,
s.
10;
International
Conventions
on
the
Elimination
of
All
Forms
of
Racial
Discrimination
(U.N.
1965);
Post
Office
v.
Union
of
Post
Office
Workers,
[1974]
1
All
E.R.
229
at
238
(H.L.);
W.
Tarnopolsky,
Discrimination
and
the
Law
in
Canada,
1982,
p.
85.
The
age
distinction
which
determines
the
maturity
date
does
not
nullify
any
right
or
benefit
but
rather
triggers
the
receipt
of
a
benefit,
i.e.
retirement
income.
The
four
alternatives
may
not
be
the
best
possible
alternatives
that
could
be
conceived
of.
It
is
not
for
the
courts
to
judge
the
merits
of
legislation,
or
whether
better
legislation
is
possible
or
whether
one
is
happy
with
the
provisions
of
legislation
or
the
choices
given
to
them.
We
must
not
demean
the
Charter
by
treating
every
provision
of
every
statute
that
one
does
not
like
as
an
invasion
of
one's
liberty.
The
proper
approach
is
the
one
the
applicant
has
apparently
adopted
which
shows
some
signs
of
success,
that
is
to
lobby
for
a
change.
Section
1
of
the
Charter
Section
1
of
the
Charter
reads
as
follows:
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.
If
section
15
of
the
Charter
had
been
violated
by
the
provisions
of
the
Income
Tax
Act
under
review,
can
provisions
such
as
these
be
demonstrably
justified
pursuant
to
section
1
of
the
Charter?
In
order
to
determine
whether
legislation
which
otherwise
impinges
on
the
Charter
of
Rights
can
be
demonstrably
justified,
the
courts
must
develop
a
test
which
takes
into
account
the
purpose
of
the
legislation
and
the
means
being
used
to
achieve
that
end.
In
the
present
case,
the
determination
which
must
be
made
is
whether
a
criterion
of
age
as
the
basis
for
maturation
of
an
R.R.S.P.
can
be
used
to
accomplish
the
legislative
purpose
of
the
R.R.S.P.
provisions.
This
involves
a
two-stage
inquiry
by
the
Court.
(1)
Is
the
legislative
purpose
valid?
(2)
Are
the
means
being
used
valid?
This
test
was
described
by
Chief
Justice
Dickson
as
a
proportionality
test
R.
v.
Big
M
Drug
Mart,
supra,
p.
430.
The
purpose
is
either
to
create
a
retirement
income
for
self-employed
people
and
people
not
having
other
retirement
plans
or
to
allow
them
tax
postponement
which
enables
them
to
create
this
retirement
income.
In
either
event,
the
purpose
is
valid.
Are
the
means
being
used
valid?
In
my
view,
they
are.
The
requirement
that
the
moneys
be
withdrawn
at
age
71
and
taxes
paid
thereon
would,
if
this
were
the
only
provision,
be
valid.
This
would
limit
the
tax
benefit
to
a
postponement
to
age
71
both
on
the
taxpayer's
income
and
income
in
the
R.R.S.P.
However,
the
benefit
does
not
stop
there,
for
those
people
who
do
not
wish
to
withdraw
all
of
the
funds
they
have
three
other
options.
I
am
satisfied,
as
I
have
said,
that
they
are
not
the
best
possible
options
that
could
have
been
allowed
by
the
Legislature.
There
are
other
options
which
the
taxpayer
would
find
more
beneficial
and
which
would
not
reduce
taxes
collected.
This
is
not
a
ground
in
my
view
for
setting
aside
legislation
under
the
Charter.
If
it
were,
the
courts
would
be
asked
to
judge
the
wisdom
of
all
legislation.
That
is
not
the
function
of
the
court.
There
is
a
rational
relationship
between
the
goal
of
providing
pension
security
to
persons
in
their
later
years
and
the
R.R.S.P.
scheme
contained
in
the
Income
Tax
Act.
The
use
of
retirement
as
a
criteria
for
triggering
the
beginning
of
the
option
period
or
the
electing
of
one
of
the
four
alternatives
is
not
practical
in
my
view
because
it
would
be
difficult
to
define
when
one
is
retired.
If
the
test
was
based
on
the
number
of
hours
worked
per
week,
there
would
be
many
arguments
why
such
a
test
was
undesirable.
Even
if
this
were
a
better
method
of
triggering
the
election,
that
is
for
the
Legislature
to
decide
and
not
the
court.
The
scheme
is
clearly
defined
and
is
known
to
the
taxpayer
when
the
election
is
made
to
commence
the
R.R.S.P.
Under
the
existing
scheme
the
applicant
can
achieve
everything
that
he
complains
he
is
being
denied,
except
the
flexibility
of
cashing
the
investment
at
such
time
as
he
sees
fit.
This
is
certainly
an
undesirable
feature
from
his
point
of
view,
but
does
not
justify
the
striking
down
of
the
legislation.
The
fee
that
he
will
have
to
pay
for
a
self-administered
R.R.I.F.
does
not
make
the
legislation
invalid.
The
R.R.S.P.
is
a
rational
taxation
scheme
which
addresses
a
legitimate
social
concern,
that
of
providing
secure
retirement
income.
This
application
is
dismissed
with
costs.
Application
dismissed.
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