Collins v. Canada, docket T-1980-88

                   

Date: 19991025

Docket: T-1980-88

BETWEEN:

     MARY T. COLLINS

      Plaintiff

        - and -

            HER MAJESTY THE QUEEN IN RIGHT OF CANADA

   Defendant

JUDGMENT

1.        The plaintiff's claim is dismissed.

2.       The parties may contact the registrar within 14 days of the date of these reasons to arrange to speak to costs.

                   "Marshall Rothstein"                

        JUDGE

                   

                   

Date: 19991025

Docket: T-1980-88

BETWEEN:

     MARY T. COLLINS

      Plaintiff

        - and -

            HER MAJESTY THE QUEEN IN RIGHT OF CANADA

   Defendant

     REASONS FOR JUDGMENT

ROTHSTEIN J.

1.           INTRODUCTION

[1]       This case involves the constitutionality of certain provisions of the Old Age Security Act,^[1] which accord to spouses of pensioners a spouse's allowance when they reach the age of 60, payable until they themselves become pensioners at age 65. The plaintiff alleges that these provisions violate subsection 15(1) of the Canadian Charter of Rights and Freedoms^[2] on the ground of marital status because they exclude separated spouses from receiving the spousal allowance.

2.           RELEVANT STATUTORY PROVISIONS

[2]       The relevant statutory provisions are:

Old Age Security Act

2. "spouse", in relation to any person, includes a person of the opposite sex who is living with that person, having lived with that person for at least one year, if the two persons have publicly represented themselves as husband and wife;

...

19(1). Subject to this Act and the regulations, for each month in any fiscal year, a spouse's allowance may be paid to the spouse of a pensioner if the spouse:

(a) is not separated from the pensioner...

...

(5). A spouse's allowance under this section ceases to be payable on the expiration of the month in which the spouse in respect of whom it is paid dies, attains sixty-five years of age, ceases to be a spouse or becomes separated from the pensioner.

Old Age Security Regulations

17. A spouse of a pensioner shall be deemed to be separated from the pensioner for the purpose of paragraph [19(1)(a)] and subsection [19(5)] of the Act where

(a) the pensioner has deserted the spouse according to the law of the province in which the spouse and the pensioner last resided together;

(b) the spouse has deserted the pensioner according to the law of the province in which the spouse and the pensioner last resided together;

(c) the spouse and the pensioner are living separate and apart under a legal or de facto matrimonial separation; or

(d) the spouse and the pensioner have been divorced and a final decree has issued.

Canadian Charter of Rights and Freedoms

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

...

15(1). Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2). Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

3.       FACTS

[3]       Mary Collins married Henry Collins on August 3, 1951. In 1975, she separated from him after approximately 23 years of marriage. In or about 1984, Henry Collins turned 65 and applied for and received the old age security (OAS) and guaranteed income supplement (GIS), pursuant to the provisions of the Old Age Security Act.^[3]

[4]       The Act also provides for a spousal allowance (SPA) to be paid to the spouse of a pensioner when that spouse is between 60 and 64 years of age and the couple's combined income falls below a specified level.^[4] In or about June 1987, when she was 61, Mary Collins applied for the SPA, citing Henry Collins as her spouse. Her application was rejected because she was separated from Henry Collins. By letter dated September 4, 1987, H. Mead, Income and Securities Programs, Nova Scotia, Health & Welfare Canada, wrote to Mrs. Collins:

Spouse's Allowances is [sic] not paid to spouses who have severed             their relationship as husband and wife and live in separate dwellings.

It appears that you and your spouse are separated. Therefore, there is          no entitlement to Spouse's Allowance at this time.

[5]       There is no indication in the evidence that Mrs. Collins was otherwise ineligible for the SPA, e.g. on account of residency, income, etc. The denial was based solely on the fact she was separated from the pensioner Henry Collins.

4.           SPOUSAL ALLOWANCE: HISTORY AND ENTITLEMENT

[6]       Before proceeding, it is useful to review the history of the SPA and who was entitled to receive it at the time of the plaintiff's application in 1987.

[7]       The SPA was introduced in 1975. Many couples at or approaching retirement age at that time had been living on the single income of the working spouse, usually the male. Upon retirement of the working spouse, couples who did not have private pension plans or were ineligible under the Canada Pension Plan, would have to live on the OAS and the GIS of the pensioner. The SPA was intended to supplement this income.

[8]       The decision to provide the SPA to spouses of pensioners who are 60 years of age but not yet 65 was linked to the federal government's assumption of responsibility for the OAS and the GIS. The SPA is calibrated to simulate the income of the couple if they were each eligible for the OAS and the GIS.

[9]       The SPA was not available to separated, divorced, widowed or single persons between the ages of 60 and 64 who would otherwise be eligible for the SPA. The government of the day was of the view that its resources were only sufficient to assist the SPA "target" couple. While there was recognition that there were needy individuals in these other statuses, the government, in view of its limited resources, determined that provincial social assistance would have to be the recourse for such individuals if they so qualified. Indeed, the federal government funded a significant portion of provincial social assistance by its grants to the provinces under the Canada Assistance Plan.^[5]

[10]     Prior to 1978, if a SPA recipient became widowed, the SPA benefit was cut off. However, in 1978, the government provided for a six month extension of SPA benefits for individuals who became widowed.^[6] In 1979, widows' benefits^[7] were extended again so that SPA recipients who became widowed could continue to receive the SPA until age 65 when they became entitled to the OAS and GIS themselves.^[8] In 1985, the widows' benefit was extended to all widows regardless of when they became widowed or the age of their spouse at death.^[9]

[11]     As of July 1, 1999, SPA recipients who become separated before they reach age 65 are entitled to continue to receive the SPA for 3 months after separation.^[10]

5.           SUBSECTION 15(1) ANALYSIS

[12]     In Law v. Canada (Minister of Citizenship & Immigration),^[11] Iacobucci J., speaking for a unanimous court, summarized the basic elements of a subsection 15(1) analysis as involving three broad inquiries. He stated,

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 or 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 historic disadvantage?^[12]

This approach to a subsection 15(1) analysis has subsequently been applied by the Supreme Court of Canada in M. v. H.^[13], Corbiere v. Canada (Minister of Indian and Northern Affairs)^[14] and Délisle v. The Attorney-General of Canada^[15].

5. A.           Existence of Differential Treatment

(i)           Who is included and who is excluded?

[13]     When discussing the existence of differential treatment, it is important to determine who is entitled to receive the SPA and who is specifically excluded. In order to qualify for a SPA, a person must meet the requirements in paragraph 19(1) of the Act. First, subsection 19(1) indicates that the person applying must be a "spouse". By dictionary definition, a spouse means, "a married man in relation to his wife, or a married woman in relation to her husband."^[16] Section 2 of the Act extends the definition of "spouse" to include persons in prescribed common law relationships as it "includes a person of the opposite sex who is living with that person, having lived with that person for at least one year, if the two persons have publicly represented themselves as husband and wife."

[14]     Next, subsection 19(1) provides that eligibility for a SPA is restricted to the spouse of a pensioner, i.e. a person 65 years of age or more and whose application for an OAS pension has been approved.

[15]     Third, paragraph 19(1)(a) states that the spouse must "not be separated from the pensioner." For the purposes of subsection 19(1), section 17 of the Regulations provides that a spouse of a pensioner is deemed to be separated from the pensioner in specified circumstances. This will be the case where either the spouse or pensioner has deserted the other according to the law of the province in which they last resided together, the spouse and pensioner are living separate and apart under a legal or de facto matrimonial separation agreement, or the spouse and pensioner are legally divorced.[17] It is clear that as a result of paragraph 19(1)(a), where a spouse falls within the circumstances described in section 17 of the Regulations, he or she is not eligible to receive the SPA.

[16]     The last two requirements for SPA eligibility in subsection 19(1) are that the spouse of the pensioner be between the ages of 60-64 years and that he or she meet certain residency requirements.

[17]     The SPA is an income tested allowance based on the family income of the pensioner and the spouse. The formulas for determining whether the SPA is payable and the amount to be paid are contained in subsections 22(2) and (3) of the Old Age Security Act.

(ii)           Is there a formal distinction in the law?

[18]     In Law, Justice Iacobucci stated that the first question to be asked is whether the law 1) draws a formal distinction between the claimant and others or 2) fails to take into account the claimant's already disadvantaged position in Canadian society, on the basis of one or more personal characteristics resulting in substantively differential treatment between the claimant and others. In this case, this issue can be decided without reference to the alternative: whether the law fails to take into account a person's already disadvantaged position within Canadian society.

[19]     In this case, a formal distinction is drawn by paragraph 19(1)(a) whereby separated spouses are not eligible for the SPA benefit. Section 17 of the Regulations describes under which circumstances spouses will be deemed to be separated and therefore not qualified to receive SPA payments. The operation of these two provisions makes a formal distinction between those entitled to the SPA and those who are not on the basis of spousal separation.

(iii)           Is being separated a personal characteristic?

[20]     It is next necessary to determine whether separation is a "personal characteristic". There are cases in which the decision to separate is either imposed upon a spouse by his or her spouse, i.e. desertion, or motivated by factors which leave a person with little choice but to live separate and apart, e.g. abuse. In Miron v. Trudel,[18] McLachlin J. speaking for the majority with respect to subsection 15(1), found that marital status (in that case, whether a person was legally married or living in a common law relationship) often lies beyond the individual's effective control - McLachlin J. characterized this as attenuated immutability. In Thibaudeau v. Canada,[19] while addressing the issue of whether the status of being divorced or separated is an analogous ground under the Charter (a point which the majority of the court did not have to consider), McLachlin J. used the following words:

One's status vis à vis one's former spouse involves the individual's freedom to form family relationships and touches on matters so intrinsically human, personal and relational that a distinction based on this ground must often violate a person's dignity.[20]

Without reference to her "dignity" conclusion, which touches an issue remaining to be addressed herein, I think her characterization of an individual's status vis-à-vis a former spouse makes it clear that being separated is a "personal characteristic".

(iv)           Does the legislation result in substantively

differential treatment?

[21]     Finally in respect to this stage of the analysis under subsection 15(1), the impugned sections and regulations of the OAS do impose substantively different treatment between the plaintiff and others. As a separated spouse, she is denied the spousal allowance which the legislation otherwise provides to cohabiting spouses, whether they are married or meet the Act's requirements for common law couples.   

(v)          Conclusion of first stage

[22]     With respect to the first stage of inquiry under subsection 15(1), I conclude that the denial of eligibility for the SPA imposes substantively differential treatment upon separated spouses as compared to cohabiting spouses. It does so by expressly denying an economic benefit on the grounds of separation as well as affecting one's freedom to make a choice in a personal matter, specifically whether to remain cohabiting with one's previously chosen mate.

5. B. Marital Status as an Analogous Ground

[23]     The next requirement set forth by Iacobucci J. in Law is to determine whether the differential treatment to which Mrs. Collins was subject was on the basis of an enumerated or analogous ground.

[24]     The plaintiff argues that marital status constitutes an analogous ground for purposes of subsection 15(1) of the Charter and that being separated is a marital status.

(i)           Is marital status an analogous ground?

[25]     In Miron, supra, McLachlin J. accepted that marital status was an analogous ground under subsection 15(1) of the Charter. While I would not conclude from her words that McLachlin J. expressly sought to define the term "marital status", she described the relationships of unmarried couples as a form of marital status.

[26]     Past jurisprudence on subsection 15(1) has suggested that what is an analogous ground in one case, might not be an analogous ground in another.[21] However, as a result of the Supreme Court's decision in Corbiere, supra, that issue need not be addressed. In Corbiere, McLachlin J., speaking for the majority of the Court, had the opportunity to address the question of whether analogous grounds under the Charter vary from case to case. She was clear that analogous grounds should not be thought of as existing in one circumstance and not in another but rather, stand as constant markers of potential discrimination.    She states,

To say that a ground of distinction is an analogous ground is merely to identify a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality. Like distinctions made on enumerated grounds, distinctions made on analogous grounds may well not be discriminatory. But this does not mean that they are not analogous grounds or that they are analogous grounds only in some circumstances. Just as we do not speak of enumerated grounds existing in one circumstance and not another, we should not speak of analogous grounds existing in one circumstance or another. The enumerated and analogous grounds stand as constant markers of suspect decision making or potential discrimination. What varies is whether they amount to discrimination in the particular circumstances of the case.[22]

[emphasis added]

[27]     Based on the majority reasons in Corbiere, marital status, having been determined to be an analogous ground in Miron, is an analogous ground for the purposes of subsection 15(1) of the Charter.

(ii)           Does being separated constitute a marital status?

[28]     I now turn to whether being separated constitutes a marital status. The jurisprudence is not definitive as to this particular issue. In St. Paul's Roman Catholic Separate School District #20 v. C.U.P.E. Local 2268,[23] the issue was whether the decision of a human rights board of arbitration that the school board's termination of a teacher living in a common law relationship was discrimination on the basis of marital status was patently unreasonable. In his reasons, Bayda C.J.S. noted the social realities which contribute to the common understanding that marital status encompasses a number of recognized forms:

The inquiry "what is your marital status?" put into ordinary parlance comes out: "Are you married?"....The person answering the question does not need to and does not engage in any sophisticated legal analysis of his status before he answers..... In (the case of a separated spouse) the strict formalistic answer to the question "are you married?" should be a straightforward "yes". But social realism seems to compel the separated person to answer in effect "yes, but I am living separate from my spouse". He feels the need to bring attention to his living arrangement even though the answer to the question "Are you married?" is not, strictly speaking, an inquiry about his living arrangement.[24]

The reasoning of Bayda C.J.S. supports the view that being separated constitutes a form of marital status.

[29]           Provincial human rights enactments provide further guidance. In the Human Rights Acts of all Canadian provinces and of Canada, marital status is a prohibited ground of discrimination. In the case of six provinces and Canada, marital status is not defined. However, in the four provinces in which it is, the status of being separated is included in the definition of marital status. The definition of marital status in subsection 10(1) of the Ontario Human Rights Act[25] provides:

"marital status" means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage.

[emphasis added]

The definition of marital status in the Alberta Human Rights, Citizenship and Multiculturalism Act[26] states:

"marital status" means the status of being married, single, widowed, divorced, separated or living with a person of the opposite sex in a conjugal relationship outside marriage;

[emphasis added]

The Nova Scotia Human Rights Act[27] was amended in 1991[28] to include a definition of marital status which included the status of being separated:

"marital status" means the status of being single, engaged to be married, married, separated, divorced, widowed, or a man and a woman living in the same household as if they were married."

[emphasis added]

Under the Saskatchewan Human Rights Code,[29] a definition has been supplied by way of Regulation 216/79, subsection 1(a) of which states:

"marital status" means that state of being engaged to be married, married, single, separated, divorced, widowed or living in a common-law relationship..."

                                     [emphasis added]

[30]     While care should be taken not to draw inappropriate parallels between human rights legislation and the Charter in light of their differences, in Andrews v. Law Society of British Columbia[30] McIntyre J. wrote that "in general, it may be said that the principles which have been applied under the Human Rights Acts are equally applicable in considering questions of discrimination under section 15(1)."[31] The definitions of marital status in a number of human rights enactments include the status of being separated.

[31]     There is ample legal authority to conclude that being separated is a form of marital status and that marital status constitutes an analogous ground.

(iii)          Conclusion relative to the second stage of subsection 15(1)

analysis

[32]     The plaintiff has met the requirements of the second stage of the subsection 15(1) analysis mandated by Law.

5.C.    Is There Discrimination in the Substantive Sense?

(i)           Proof of Discrimination Required

[33]     Having found that the legislation makes a distinction based on an analogous ground, the third step in the subsection 15(1) inquiry is the determination of whether the differential treatment is truly discriminatory, i.e. does it impose real burdens or disadvantages, or bring into play the purpose of subsection 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historic disadvantage? The jurisprudence is consistent and clear on the point that for a claim under subsection 15(1) to succeed, there must be proof of actual discrimination beyond mere proof of a distinction on an enumerated or analogous ground.[32]

[34]     In Law, supra, Iacobucci J. explained the overarching purpose of subsection 15(1), which is to be kept in mind when analyzing whether a legislative distinction based upon an enumerated or analogous ground is discriminatory in the substantive sense. He stated:

It may be said that the purpose of s.15(1) is to prevent violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.[33]   

[emphasis added]

[35]     Human dignity may be harmed by the unfair treatment or devaluing of individuals or groups, or by a failure to take account of an individual's or group's actual circumstances when applying the law. As Iacobucci J. stated in Law,

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?[34]    

[emphasis added]

At this stage of the analysis, if legislation is found to result in a violation of human dignity in that it devalues individuals or groups, treats them unfairly, or fails to take account of their actual circumstances, it will be found to conflict with the purpose of subsection 15(1) and be a violation of the Charter.

(ii)          Indicators of a Violation of Human Dignity

[36]     In Law, Iacobucci J. suggested four contextual factors which may demonstrate that legislation has the effect of demeaning a person's dignity in a manner which violates the purpose of subsection 15(1) of the Charter. While he cautioned that the list is not closed and there is no specific formula which must be applied in every case, I consider the factors suggested by Iacobucci J. in Law to be of assistance in this case. The four factors are:

a)           Is there pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue?

b)           Is there correspondence, or lack of it, between the ground on which a claim is based and the actual need, capacity or circumstances of the claimant or others?

c)           Does the legislation have an ameliorative purpose or effect for a group which has been historically disadvantaged in the context of the legislation?

d)           What is the nature of the interest affected by the legislation?

a)           Is there pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue?

[37]     With respect to this element, Iacobucci J. stated in Law that the presence of pre-existing disadvantage, stereotyping, prejudice or vulnerability is compelling in establishing a claim of discrimination:

   As has been consistently recognized throughout this Court's jurisprudence, probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability,stereotyping, or prejudice experienced by the individual or group: see, e.g., Andrews, supra, at pp. 151-53, per Wilson J., p. 183, per McIntyre J., pp. 195-97, per La Forest J.; Turpin, supra, at pp. 1331-33; Swain, supra, at p. 992, per Lamer C.J.; Miron, supra, at paras. 147-48, per McLachlin J.; Eaton, supra, at para. 66. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that, in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact upon them, since they are already vulnerable.[35]

[38]     It is equally well established, however, that being within a historically disadvantaged group or a discrete and insular minority is not an essential precondition for bringing a claim under subsection 15(1) of the Charter.[36] Although such factors are commonly accepted indicia of a violation of subsection 15(1), their absence is not necessarily fatal to a claimant's case.

[39]     Do separated spouses constitute a historically disadvantaged group? There was little evidence adduced by the plaintiff directly on this point. Some of the evidence indicated that the incidence of poverty was significantly greater among unattached individuals (single, separated, divorced and widows), than among families. The question is whether the separated, as a subset of the unattached group, can be attributed with the same characteristic? No statistical evidence was presented to demonstrate that the incidence of poverty among the separated was above or below the average of the unattached group as a whole or was above or below the average for the family group.

[40]          Conversely, the defendant has presented evidence suggesting that incomes and workforce participation of separated women in the 60 to 64 age range are higher than for married and widowed women of the same age. However, this data is very dated and I do not treat it as proof of an absence of disadvantage or vulnerability among separated women.

[41]     While intuitively, one might think that separated individuals might suffer pre-existing disadvantage or vulnerability, (e.g. having higher expenses per person, such as the cost of two places of residence rather than one and the social disadvantage of not having the emotional support of a mate), there is no evidence on these issues. I am certain that the relative circumstances of separated individuals must be affected by a variety of factors and without evidence on the subject of the significant advantages and disadvantages faced by the group, I do not think it advisable to place more than minimal weight on limited examples of disadvantage and vulnerability based upon generalized perceptions of the Court.

[42]     Having said this, there is Canadian jurisprudence recognizing that women have incurred a number of burdens associated with the breakdown of spousal relationships. L'Heureux-Dubé J., in Moge v. Moge[37], recognized that separated women have tended to suffer economic disadvantage and hardship from marital breakdown:

[w]omen have tended to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditional divisions of labour within that institution. Historically, or at least in recent history, the contributions made by women to the marital partnership were non-monetary and came in the form of work at home, such as taking care of the household, raising children, and so on...once the marriage dissolves, the kinds of non-monetary contributions made by the wife may result in significant market disabilities. The sacrifices she has made at home catch up with her and the balance shifts in favour of the husband who has remained in the work force and focussed his attention outside the home. In effect she is left with a diminished earning capacity and may have conferred upon her husband an embellished one.[38]

[43]     In Marzetti v. Marzetti,[39] a unanimous judgment of the Supreme Court, Iacobucci J. confirmed the recognition in Moge, supra, that there is no doubt that divorce and its economic effects are "playing a role in the feminization of poverty."

[44]     Such hardship has also been recognized where the separated spouse is a custodial parent. As McLachlin J. observed in Thibaudeau v. Canada, supra:

Second, separated...custodial parents considered as a group have historically been subject to disadvantageous treatment. The social opprobrium to which this group has been subjected over the years may have lessened with time. Nevertheless, even today evidence of disadvantage suffered by such persons is overwhelming.[40]

[45]     The evidence in this case does not suggest that the plaintiff has suffered economic disadvantage as a result of marital breakdown because of any unequal division of labour in her marriage, or that she has suffered disadvantage because she is a custodial parent. I treat the references in the Supreme Court jurisprudence with some caution because the circumstances of the subgroups in each case are different. However, I think a generalized recognition appears to be emerging that the separated as a group, and particularly separated women, constitute a disadvantaged and vulnerable group.   

[46]     In the result, I am faced with little, if any, direct evidence on the disadvantage and vulnerability suffered by separated individuals. Nonetheless, I place some weight on generally known obvious examples of disadvantage and vulnerability suffered by the group and the generalized recognition of disadvantage of subgroups of the separated group emerging from Supreme Court jurisprudence. There is some basis for a finding of historic disadvantage or vulnerability of the individuals affected by the impugned provisions. However, because of the absence of direct evidence on the issue, I prefer not to take that alone as proof of discrimination in this case, but rather look additionally at other contextual factors before arriving at such a conclusion.

b)           Is there correspondence, or lack of it, between the ground on which a claim is based and the actual need, capacity or circumstances of the claimant or others?

[47]     As stated by Iacobucci J. in Law, supra, a factor which may demonstrate a negative effect upon the dignity of the claimant might be the relationship between the ground upon which the claim is based and the nature of the differential treatment.[41] The enumerated and analogous grounds under subsection 15(1) frequently correspond with the needs, capacity, or circumstances of the individual; therefore, it can be expected that differential treatment on such grounds may have a negative impact upon the claimant where there is no regard for his or her needs, capacity or circumstances.

[48]          Changes in one's marital status (the grounds in this case) can have a negative effect on one's capacity and circumstances. I have already referred to the recognition of the economic impact of marital breakdown upon women in particular as described by L'Heureux-Dubé J. in Moge, supra.

[49]     Given this connection between marital status and one's capacity and circumstances, what is the effect upon the claimant of her exclusion from the SPA? On this point, Iacobucci J. in Law, supra, referring to Andrews, supra, and Eaton v. Brant County Board of Education,[42] stated that :

...legislation which takes into account the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society will be less likely to have a negative effect on human dignity."[43]

[50]     The question is whether the provisions of the Act which provide the SPA to non-separated spouses but deny it to spouses who are separated solely on that ground, takes into account the actual needs and circumstances of Mrs. Collins and other separated spouses who would otherwise qualify for the benefit. The SPA is a means of income support. The needs in question, therefore, are the financial needs of separated spouses who have limited means. There is no indication that the actual needs of such separated spouses are recognized, addressed or accommodated in any way by the legislation which denies them the SPA.     

c)           Does the legislation have an ameliorative purpose or effect for a group historically disadvantaged in the context of the legislation?

[51]           Legislation which seeks to ameliorate disadvantage already suffered by certain individuals or groups in society may not offend subsection 15(1) of the Charter even though it excludes certain other individuals or groups. However, this will only be the case where the group that is excluded from the legislation is more advantaged in a relative sense than those the legislation seeks to assist. Iacobucci J., in Law, stated:

An ameliorative purpose or effect which accords with the purpose of s.15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. I emphasize that this factor will only be relevant where the person or group that is excluded from the scope of ameliorative legislation or other state action is more advantaged in a relative sense. Underinclusive ameliorative legislation that excludes from its scope the members of an historically disadvantaged group will rarely escape the charge of discrimination: seeVriend, supra, at paras. 94-104, per Cory J.[44]

[emphasis added]

[52]     The SPA seeks to address the plight of elderly low-income couples who are forced to live on the OAS and GIS of one spouse. The legislation seeks to protect this group when the income earning spouse moves from having an employment income to an OAS and GIS and his or her spouse is 60 - 64 years of age. There is no evidence that low income separated spouses are more advantaged than low income cohabiting spouses. I do not think it can be said in this case that the legislation is ameliorative in that it excludes more advantaged individuals than those being targeted by the legislation.

d)           What is nature of the interest affected by the legislation?

[53]     When considering the nature of the interest affected, the question to ask is whether the "distinction restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society, or constitutes a complete non-recognition of a particular group."[45] In this case, the interest most directly and adversely affected by the impugned distinction is the economic interest of separated spouses who would otherwise qualify for the SPA.

[54]           Separated spouses are specifically excluded from the benefit, notwithstanding that they may require it. The exclusion of separated spouses from the SPA benefit denies them access to a basic component of federal government assistance which is available to some other older Canadians. It implies that separated spouses are less in need of this type of income support regardless of their actual circumstances. As L'Heureux-Dubé J. recognized in Thibaudeau, supra, "the economic well-being of family units, whatever their form, is an important social interest. Although subsistence will always be possible, the impugned distinction may visit significant economic hardship upon the affected group."[46] Here, the economic hardship of separated spouses who would otherwise qualify for the SPA is not recognized by the legislation.

[55]     While provincial social assistance may be an alternative, in Egan, Cory J. found that, except in specific circumstances (e.g. provincial and federal legislation being expressly coordinated) it is inappropriate at the subsection 15(1) stage, to see if provincial legislation corrects or rectifies the denial of a benefit under a federal Act:

Most importantly, the question of how federal and provincial statutes interact should not be considered in a s. 15(1) analysis. It is a question which goes to the possible justification for an act which can only be addressed under s. 1 of the Charter. [47]

5. D.          Conclusion Regarding Subsection 15(1)

[56]     At paragraph 20 of these reasons, I referred to the words of McLachlin J. in Thibaudeau, supra, to the effect that distinctions made on the basis of one's status vis-à-vis one's former spouse must often violate a person's dignity. In my view, the exclusion of separated spouses from the SPA is such a case. I conclude that there has been a violation of the human dignity of the plaintiff, Mary Collins, and other separated spouses who, while otherwise entitled to it, are denied the SPA solely because they are separated. Therefore, paragraph 19(1)(a) of the Old Age Security Act violates subsection 15(1) of the Charter.

6.           SUBSECTION 15(2)

[57]     The Defendant submitted that the denial of the SPA benefit to separated spouses does not offend subsection 15(1) because it is an ameliorative program within the meaning of subsection 15(2) of the Charter. I reproduce subsection 15(2) here for ease of reference:

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[58]     The essence of the respondent's position is that the SPA is a subsection 15(2) ameliorative program, that separated spouses are outside the object of the SPA and, therefore, they cannot sustain a claim that the SPA is underinclusive. This argument is based on the interpretation of subsection 15(2) provided by the Ontario Court of Appeal in Lovelace v. Ontario[48].

[59]     The Supreme Court of Canada has yet to address in detail the scope of subsection 15(2) of the Charter and its relationship with subsection 15(1), although certain members of the Court have commented on subsection 15(2) from time to time. In its elaboration and application of subsection 15(2) in Lovelace, supra, the Ontario Court of Appeal summarized some of the comments that have been made by the Supreme Court.

[60]     In Lovelace, certain non-status, off-reserve Indians who were not registered as bands under the Indian Act,[49] applied for a declaration that they were entitled to share in the profits of a commercial casino project located on an Indian reserve. The purpose of the project was to improve socio-economic conditions on reserves throughout Ontario by distributing net revenues received from the operation of the casino. However, only registered bands were entitled to receive these distributions. The non-status, off-reserve Indians argued that their disentitlement was discriminatory and infringed their subsection 15(1) equality rights.

[61]     The Ontario government argued that the project was a program authorized by subsection 15(2) of the Charter and, therefore, did not violate subsection 15(1). It was argued that the project was aimed at improving the conditions of registered Indian bands, which were disadvantaged in Canadian society.

[62]     The Ontario Court of Appeal in Lovelace made three findings that are relevant here. First, subsection 15(2) is not an exception or defence to subsection 15(1) but rather a provision which explains and enhances the guarantee of equality in subsection 15(1):

We view s.15(2) of the Charter as furthering the guarantee of equality in s.15(1), not as providing an exception to it. This view is grounded in our concept of equality and in the Supreme Court of Canada's equality jurisprudence...the Supreme Court of Canada has consistently stated that the purpose of the equality guarantee in s.15(1) is to remedy historical disadvantage, that identical treatment can perpetuate disadvantage and that equality may sometimes require different treatment. Section 15(2) enhances this concept of equality by recognizing that achieving equality may require positive action by government to improve the conditions of historically and socially disadvantaged individuals and groups in Canadian society. We therefore read s.15(1) and 15(2) of the Charter together to embrace this one consistent concept of equality. Treating s.15(2) as an exception or defence to s.15(1) is antithetical to this concept.[50]

[63]     A second point made by the Ontario Court of Appeal which emanates from the first is that even if a law or program has as its object the amelioration of the conditions of a disadvantaged group, it is nevertheless possible that in some way it may still have a discriminatory aspect and violate subsection 15(1). In Lovelace, the Ontario Court of Appeal stated:

A s. 15(2) program that excludes from its reach disadvantaged individuals or groups that the program was designed to benefit likely infringes s. 15(1)...In the context of human rights legislation, the decision of this court in Roberts, supra,[51] and the recent decision of the Supreme Court of Canada in Gibbs v. Battlefords and District Co-operative Ltd., [1996] 3 S.C.R. 566, 140 D.L.R. (4th) 1, are examples of benefit programs found to be discriminatory because they excluded or differentiated between individuals with the same disadvantage at which the program was aimed... In each of these two cases the purpose of the program was to provide a benefit to a specific disadvantaged group, but the program actually excluded or treated more harshly some members of that group".[52]

[64]     A third point made in Lovelace, supra, is that in cases where a law or program, although ameliorative, is found to be discriminatory under subsection 15(1), its constitutionality is determined under section 1:

"(i)f some aspect of a program infringes the equality guarantee, the government's rationale or justification for the infringement should be considered under section 1 of the Charter."[53]

[65]     In its analysis, the Ontario Court of Appeal referred to a comment of McLachlin J. in R. v. Hess[54]:

Subsection 15(2) is potentially far-reaching in its application. Interpreted expansively, as the Attorney General suggests, it threatens to circumvent the purpose of s.1. Under s.15(2) it must only be shown that the "object" of the legislation was the amelioration of conditions of a disadvantaged individual or group, and there is no need to demonstrate that the legislation used proportionate means.[55]

I take from this comment the caution that an expansive reading of subsection 15(2) could result in it being used as a justification for a discriminatory law or program instead of section 1 with its legislative and judicially built-in restraints. I agree that a broad interpretation of subsection 15(2) could lead to exactly what the Ontario Court of Appeal warns against, using subsection 15(2) as a defence to a claim of discrimination under subsection 15(1) and confusion and conflict between the roles of subsection 15(2) and section 1. I, therefore, approach the interpretation of subsection 15(2) with a degree of circumspection.

[66]     I agree with the Ontario Court of Appeal that: 1) subsection 15(2) does not provide an exception or defence to discrimination found under subsection 15(1); 2) programs which serve to ameliorate conditions of a disadvantaged group may still be found discriminatory under subsection 15(1); and 3) any justification for a law or program which violates subsection 15(1) must take place within the framework of section 1 of the Charter. What then is the role of subsection 15(2)?

[67]     In promoting the aims of subsection 15(1), subsection 15(2) serves to protect laws and programs for the amelioration and protection of the disadvantaged in society from Charter attacks by members of more advantaged groups. Colloquially such programs are known as "affirmative action programs" and such attacks are known as "reverse discrimination" claims. It is quite clear that one purpose of subsection 15(2) is to ensure that affirmative action programs will not, because they exclude more advantaged groups, be found to be discriminatory on that account alone.

[68]     In Lovelace, however, the Court of Appeal was faced with the situation of a section 15 attack on a program, not by an advantaged group, but by members of a sector of society that also experiences disadvantage -- non-status, off-reserve Indians.

[69]     The determination in Lovelace, supra, was that although the off-reserve Indians were a disadvantaged group, their exclusion from participation in the casino project was not discriminatory under section 15 of the Charter. This finding rested upon distinguishing between challenges by disadvantaged groups within the object of the program and challenges by disadvantaged groups outside the object of the program:

...we think it is important to distinguish between challenges by disadvantaged groups within the object of the program and challenges by disadvantaged groups outside the object of the program.

A s. 15(2) program that excludes from its reach disadvantaged individuals or groups that the program was designed to benefit likely infringes s. 15(1)...

We take a different view of the constitutionality of a s. 15(2) program when a claim of underinclusiveness is made by a disadvantaged group outside the object of the program. In our view such a claim cannot be maintained. Section 15(2) affirms that the government may target and attempt to remedy specific disadvantage. Government should, therefore, be able to rely on s. 15(2) to provide benefits to a specific disadvantaged group and should not have to justify excluding other disadvantaged groups even if those other groups suffer similar disadvantage. To hold that an affirmative government program violates s. 15 because it excludes disadvantaged groups or individuals that were never the object of the program would undermine the effectiveness of s. 15(2) and the ability of governments to redress disadvantage.[56]

[70]     In the case before this Court, the defendant did not invoke subsection 15(2) on the basis that separated spouses were a more advantaged group in society than cohabiting spouses. This is not a claim of reverse discrimination against an affirmative action program which subsection 15(2) is intended to prevent. Rather, the argument is the same as in Lovelace, supra, that separated spouses, while a disadvantaged group, are not within the object of the SPA.

[71]     The respondent's subsection 15(2) argument based on Lovelace, supra, was developed and made before the Supreme Court's recent advancement of the interpretation of subsection 15(1) in Law, supra. The approach developed in Law, supra, in my respectful opinion, supersedes the Lovelace approach with respect to underinclusive ameliorative laws and programs, notwithstanding that the decision in Law, supra, is under subsection 15(1). Of course, I am bound by the Supreme Court of Canada jurisprudence in analyzing the SPA legislation in this case.

[72]     In my view, for this Court to adopt the approach of the Court of Appeal in Lovelace, supra, would result in this Court effectively displacing the analysis of allegedly underinclusive ameliorative programs under subsection 15(1) now mandated by Law, supra. Conversely, under the Lovelace approach, in a case where the determination under subsection 15(2) is that a disadvantaged group within the object of the program was excluded from it, there would seem to be little left to consider under subsection 15(1). As Professor Patricia Hughes pointed out:[57]

"It is difficult to conceive of a situation in which a group intended to be included in the object of the affirmative action could be excluded without its (sic) being discriminatory to exclude them."

[73]     In Law, supra, the Supreme Court has emphasized that the notion of human dignity is at the centre of the legal analysis under subsection 15(1). Once a distinction on an enumerated or analogous ground is established, the question of the impact of some government action upon the human dignity of the claimant is clearly the controlling factor in determining whether there will be a finding of discrimination. As was stated by Iacobucci J., the equality guarantee in subsection 15(1) of the Charter must be understood and applied in light of its purpose, which is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law: "The overriding concern with protecting and promoting human dignity in the sense just described infuses all elements of the discrimination analysis."[58] It may well be that a claimant's circumstances are so remote from the object of the ameliorative law or program that exclusion from the law or program will not offend the human dignity of the individual. The same finding might result from application of the subsection 15(2) analysis in Lovelace. However, I think whether a claimant is within or outside the object of a law or program, is now to be considered in the human dignity context in the subsection 15(1) analysis.

[74]     It is for these reasons that I think the approach to subsection 15(1) in Law supersedes the approach of the Ontario Court of Appeal in Lovelace. I think the circumstances here must be analyzed under subsection 15(1), and when a violation of subsection 15(1) is found, the focus must then shift to section 1 to determine whether the violation may be justified.

7.          SECTION 1

[75]     Having found a breach of subsection 15(1) of the Charter, I now turn to section 1 of the Charter in order to determine whether the breach has been demonstrably justified by the defendant. Section 1 provides:

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.

7. A. Stare Decisis, Egan and M. v. H.

[76]     In Egan v. Canada, supra, nine judges of the Supreme Court of Canada were faced with whether section 2 of the Old Age Security Act infringed subsection 15(1) of the Charter and if so, whether the infringement was saved under section 1. Five members of the Court found a violation of subsection 15(1) of the Charter. While Sopinka J. comprised one member of this majority on subsection 15(1), he found that the legislation was saved under section 1. Four members of the Court found no violation of subsection 15(1) but indicated that had a subsection 15(1) violation been found, the legislation would still have been upheld under section 1. Therefore, a majority of the Court saved the impugned legislation under section 1.

[77]     In M. v. H., supra, a majority of the Supreme Court found that section 29 of the Ontario Family Law Act[59] breached subsection 15(1) of the Charter. In discussing whether the breach was saved by section 1, Iacobucci J. addressed the question of whether, in light of the majority section 1 finding in Egan and the principle of stare decisis, an independent examination of section 29 was necessary. In holding that section 29 must be evaluated on its own merits, Iacobucci J. stated:

The appellant asserts that the principle of stare decisis binds this Court to the decision in Egan, supra, and that the s.1 analysis in that case ought to apply with equal force to the case at bar. Although I recognize the fundamental role of precedent in legal analysis, I cannot accept this submission. Granted, Egan, like the case now before this Court, was also concerned with the opposite-sex definition of "spouse" in provincial legislation. However, the similar focus of the two cases is not sufficient to bind the Court to the Egan decision. The instant case is based on entirely different legislation with its own unique objectives and legislative context. As a result, it must be evaluated on its own merits.[60]

[emphasis added]

[78]     The issue in Egan was entitlement to the SPA under the Old Age Security Act, the same legislation at issue in the case at bar. The circumstances here are much closer to those in Egan than were the circumstances in M.v. H.

[79]          Accordingly, I am inclined to the view that the majority section 1 finding in Egan is binding upon me. Nonetheless, I will review and apply the relevant jurisprudence in relation to section 1, given that the group excluded from the SPA benefit in this case is different than the group excluded in Egan: i.e. here, separated spouses; in Egan, members of same sex couples.    As will be seen, the conclusion of this analysis is the same as the conclusion of the majority in Egan, that the impugned legislation is saved by section 1 of the Charter.

7. B.           Approach to Section 1: Oakes Test and Subsequent Refinements to the Section 1 Analysis

[80]     The Supreme Court in R. v. Oakes,[61] set out the analytical framework for determining whether a law constitutes a reasonable limit on a Charter right. In Egan, supra, Iacobucci J. summarized that framework as follows:

A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objectives so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all s. 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.[62]

This approach has been adopted in subsequent cases: Vriend, supra, Eldridge v. British Columbia,[63] Thomson Newspapers Co. v. Canada,[64] Corbiere, supra, and M. v. H., supra.

[81]     While the standard of proof which is to be imposed upon the government in meeting the various elements of the Oakes test is the traditional civil standard (upon a balance of probabilities), courts need not insist upon scientific proof. In RJR-MacDonald, supra, McLachlin J. acknowledged that:

Discharge of the civil standard does not require scientific demonstration; the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view: see Snell v. Farrell, [1990] 2 S.C.R. 311.[65]

In Thomson Newspapers Co. v. Canada, supra, Bastarache J. interpreted the words of McLachlin J. in RJR-MacDonald, supra, to mean that the civil standard may be met in different ways depending on the context surrounding the legislative objective at issue.[66]

[82]     In its jurisprudence on section 1 of the Charter, the Supreme Court has frequently emphasized that the Oakes test must be applied flexibly, with regard to the factual and social context of the case.[67]    The analysis at all stages of the section 1 test is contextual in nature. In M. v. H., supra, Iacobucci J. reaffirmed the importance of context as earlier described by Bastarache J. in Thomson Newspapers Co. v. Canada, supra:[68]

The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes, [1986] 1 S.C.R. 103 requires a court to establish the objective of the impugned provisions which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determine whether that objective is justified, and to weighing whether the means used or sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

[83]     In M. v. H., supra,[69] Iacobucci J. confirmed that the role of the legislature demands deference from the Courts to those types of policy decisions that the legislature is best placed to make. Deference is a consideration that can enter into the discussion of whether the legislature has discharged its burden at any of the stages in the section 1 analysis. However, deference at the section 1 stage should not be determined in a general sense at the outset. In other words, deference must be considered, when appropriate, under the specific steps of the section 1 analysis.

7.C.1 Is the Objective of the Legislation Pressing and Substantial?

[84]     In Oakes, supra, Dickson C.J. stated that "the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom."[70] In Vriend, supra, Iacobucci J. set out the approach in cases where a law has been found to violate the Charter owing to underinclusion. He stated:

In my view, where, as here, a law has been found to violate the Charter owing to underinclusion, the legislation as a whole, the impugned provisions, and the omission itself are all properly considered.[71]

This approach was adopted by the majority of the Court in M. v. H., where Iacobucci J. stated that "the first stage of the s.1 analysis is properly concerned with the object of the legislation as a whole, the impugned provisions of the Act, and the omission itself."[72]

[85]     As I understand this approach, the omission referred to by Iacobucci J. is an omission in the legislation that results in a denial of the benefit of the legislation and is, therefore, the source of the violation of the Charter right. In Vriend, the Individual's Rights Protection Act[73]of Alberta made no mention of sexual orientation as a prohibited ground of discrimination.    As a result, homosexuals were not protected under the Act. In M. v. H., the Family Law Act[74] of Ontario defined "spouse" as a man and a woman who were married or who were cohabiting within the meaning of the Act.    Members of same sex couples were thus not covered by the spousal support provisions in the legislation.

[86]     The case at bar is not one of a legislative omission. On the contrary, the limitation on the Charter right - exclusion of separated persons from the SPA benefit -is expressly set out in the legislation. In this case, therefore, the analysis must recognize that exclusion from the SPA benefit is a result of an express provision - specifically paragraph 19(1)(a). Since in this case we are not dealing with a legislative omission, it is appropriate to consider whether the exclusion of separated persons in paragraph 19(1)(a) from the SPA has a pressing and substantial objective.

(i) Objective of the Legislation as a Whole

[87]     The Old Age Security Act is one component of Canada's old age security program. The Canada Pension Plan,[75] as well as the Income Tax Act,[76] are also relevant to the old age social security programs for Canadians.

[88]     In broad terms, the Old Age Security Act is structured to provide three types of benefits. The first is the OAS, or old age pension, which provides a minimum amount of personal income to persons 65 years and older. It is payable on application regardless of need. However, commencing in 1989, under the Income Tax Act there is provision whereby all or part of the old age pension will be recovered by the government from individuals with higher incomes.[77]

[89]     The second benefit under the Old Age Security Act is the GIS, or guaranteed income supplement. It is payable to persons 65 years of age and over and is subject to an income test. It is therefore payable only to those with little or no other income than the basic old age pension.

[90]     The third type of benefit under the Old Age Security Act is the SPA and the widows' SPA which have been previously described. These benefits are also subject to an income test.

[91]     A brief consideration of the historical development of the old age security system provides some insight as to the motivating considerations for the various benefits as they were developed. The first federal old age pension legislation in 1927 provided for a pension to persons 70 years of age and over, subject to a means test. In 1951, the British North America Act[78] was amended by adding to it section 94A which provides:

94A. It is hereby declared that the Parliament of Canada may from time to time make laws in relation to old age pensions in Canada, but no law made by the Parliament of Canada in relation to old age pensions shall affect the operation of any law present or future of a Provincial Legislature in relation to old age pensions.

In 1952, the Old Age Security Act was enacted, providing for a universal OAS to persons 70 years of age and over, without a means test. However, a means tested old age assistance program was also provided for persons 65-69 years of age.

[92]     In 1966, the contributory Canada Pension Plan was brought into existence.

[93]     From 1966 to 1970, the OAS eligibility age was reduced from 70 years to 65 years. In 1967, a GIS was introduced as a supplementary benefit to the OAS. The GIS was income tested. In 1975, the SPA was introduced and between 1978 and 1985 the widows' SPA was introduced and expanded. In 1989 the Income Tax Act[79] was amended to tax back all or part of the old age pension from individuals with higher incomes. In July 1999, an extension of the SPA to separated spouses for a period of three months after separation was provided.

[94]     Why were these legislative measures taken? It is to state the obvious that as individuals reach older age they are often no longer able to work and earn income to support themselves and their spouses. Those who were not able to save for their old age or were not members of a pension plan could not survive financially after they could no longer work. Old age pensions were a response of society to this problem.

[95]     It is apparent that Parliament, through provisions such as the Old Age Security Act and the contributory Canada Pension Plan, has, since 1927, undertaken measures, by way of direct government assistance and a structure for contributory public pensions, to provide income support for older Canadians. In pursuit of this overall objective, Parliament has made various revisions to the relevant legislation over the years, adopting measures to enhance pension benefits, making pension benefits available to Canadians at younger ages, targeting pension benefits more directly at those requiring financial assistance, and providing supplementary benefits to groups of older Canadians, between 60 and 64 years who, in the view of Parliament, were most disadvantaged.

[96]          Initially, the Old Age Pension was means tested. This gave way in 1952 to a universal old age pension without a means test. Since that time, however, there would appear to be a broad complementarity between the enhancement of pension benefits and the targeting of those benefits. On the one hand, pension benefits were increased and were provided to older Canadians at younger ages. On the other, they were confined to those who were considered to be most in need of financial assistance. Today, all pension and supplementary benefits paid under the OAS Act are, presumably for fiscal reasons, subject either directly or indirectly (through the tax system) to an income test.

[97]     In Oakes, supra, Dickson C.J. said in respect of section 1 of the Charter that the courts must be guided, as section 1 mandates, by the values and principles essential to a free and democratic society. He wrote that these values and principles would include respect for the inherent dignity of individuals and social justice. These are values which have been recognized by the creation and development of the Old Age Security Act and its objectives can be described as pressing and substantial.

(ii) Objective of the SPA Provisions

[98]     It is clear that until they become pensioners at age 65, the OAS Act does not provide a broad income assistance program for all older Canadians who are in financial need. Social assistance, or welfare, is provided by the provinces. It is only those Canadians that meet the eligibility requirements for the SPA who will receive these benefits.

[99]     The objective of the SPA provisions was discussed by the Supreme Court in Egan. LaForest J. set out the rationale for the SPA benefit targeted at couples, which is consistent with the evidence relating to the purpose of the SPA benefit before me. He stated:

As is evident from this description, Parliament, in addition to providing greater benefits to the elderly in need, long ago took special account of married couples in need; as I mentioned earlier, before 1975 the term "spouse" only applied to persons who were legally married. This special interest was clearly expressed by the Minister of National Health and Welfare, the Honourable Marc Lalonde, when testifying before the Standing Committee on Health, Welfare and Social Affairs in relation to the amendment adding the spousal allowance in 1975. He stated:

Its objective is clear and singular in purpose. It is to ensure that when a couple is in a situation where one of the spouses has been forced to retire, and that couple has to live on the pension of a single person, that there should be a special provision, where the breadwinner has been forced to retire at or after 65, to make sure that particular couple will be able to rely upon an income which would be equivalent to both members of the couple being retired at 60 [sic] years of age and over. That is the purpose of this Bill no more than that, no less than that.

(See Minutes of Proceedings and Evidence, June 12, 1975 at p. 25:7)[80]

[100] Iacobucci J., in dissent on section 1 in Egan, but whose comments were not disagreed with on this point, also described the objective of the SPA in the following terms:

I am of the view, as was Linden J.A. in the Court below, that the objective of the spousal allowance is to ensure that, when one partner in a couple retires, that couple will continue to receive income equivalent to the amount that would be earned were both members of the couple to be retired, provided, of course, that the non-retired spouse be between the ages of 60 and 64.

...

Similarly, in a news release dated June 3, 1975, the federal government identified the purpose of the allowance in the following manner:

The purpose of this amendment is to provide relief in situations where two persons would otherwise have to live on the pension of one.[81]

[101] According to the interpretations of both LaForest and Iacobucci JJ. regarding the objective of the SPA benefit legislation, the SPA is designed to provide income to elderly couples equivalent to what would be received if both spouses were pensioners 65 or over, where the retired spouse has become an OAS / GIS pensioner and has a financially dependent spouse between the ages of 60 and 64.[82]    I agree with La Forest J. and Iacobucci J. that these are pressing and substantial objectives.   

(iii)     Objective of the Exclusion

a)        Is the exclusion the antithesis of the legislation as a whole?

[102] Having considered the objectives of the OAS legislation as a whole, and the provisions which create the SPA, I now turn to the exclusion of separated spouses from entitlement to the SPA under paragraph 19(1)(a) of the OAS Act. While I have preceded discussion of this exclusion with the analysis of the wider legislative framework and the provisions granting the SPA, it is this exclusion which is the focal point of the first part of the Oakes test. As was stated by Iacobucci J. in Vriend, supra:

Section 1 of the Charter states that it is the limits on Charter rights and freedoms that must be demonstrably justified in a free and democratic society. It follows that under the first part of the Oakes test, the analysis must focus upon the objective of the impugned limitation, or in this case, the omission ...

However, in my opinion, the objective of the omission cannot be fully understood in isolation. It seems to me that some consideration must also be given to both the purposes of the Act as a whole and the specific impugned provisions so as to give the objective of the omission the context that is necessary for a more complete understanding of its operation in the broader scheme of the legislation.[83]

[emphasis in original]

[103] In Vriend, supra, it was found that the legislature's failure to include sexual orientation as a prohibited ground of discrimination in the Alberta Individual's Rights Protection Act was "on its face the very antithesis of the principles embodied in the legislation as a whole."[84] While the exclusion of separated spouses from the SPA in this case is direct and deliberate, such exclusion is consistent with the focused objective of the program as a supplementary benefit. This is not to ignore the fact that there are separated spouses of pensioners who are in financial need. However, earlier I noted that the OAS Act was not intended to provide a broad income assistance program for all older Canadians who are in financial need until they become eligible as pensioners at age 65. Had the OAS provided broad income assistance at age 60, exclusion of separated spouses from such a comprehensive benefit program could not be described as pressing and substantial. Such circumstances would resemble those in Vriend, supra, where the legislation was a comprehensive human rights protection scheme for all Albertans, but left out sexual orientation as a basis for protection of those rights.

[104] On the contrary, OAS/GIS pension benefits are provided to pensioners 65 and over and in relation to that group, the SPA is specifically focused on a group considered to be particularly disadvantaged - cohabiting 60 - 64 year-old dependent spouses of such pensioners. For the plaintiff to bring this case in line with Vriend, i.e. that the exclusion was the antithesis of either the legislation as a whole or the SPA specifically, would require a recharacterization of the SPA as a comprehensive benefit program for all those in financial need between the ages of 60 - 64. Clearly the object of the SPA is not that broad.

b)           The two objectives of the exclusion

[105] There are two objectives served by excluding separated persons from the SPA. The direct objective is to deny benefits to members of this group. There is no suggestion that this objective, in isolation, is pressing and substantial. The other objective is to provide a supplementary benefit program to a group that Parliament considered was particularly disadvantaged. The Minutes of the Standing Committee on Health and Welfare and the Parliamentary debates make it clear that the only way supplementary spousal benefits could be provided would be on a restricted basis. Expanding benefits to other categories of individuals between 60 - 64 years was debated and rejected by Parliament. This is indicated by a number of statements in the Parliamentary debates when the SPA was introduced, such as the following by the Minister of National Health and Welfare:

We are not attempting to extend universal pension (sic) from the age of 60, or to lower the pensionable age. Instead, we are trying to solve a specific problem a real problem, that of the couple who must live on a single pension. That is the problem this bill is attempting to solve.[85]

[106] The question of the SPA program possibly being discriminatory on the basis of marital status was considered as early as February 12, 1980, notably before implementation of the Charter.[86] Expansion of the SPA at that time was rejected for a number of reasons, one being the potential for unintended behavioural changes such as, for example, inducing persons to leave employment, and employers coming to regard age 60 as the normal retirement age. In 1985, there is express mention by the Minister of National Health and Welfare that the structure of the SPA might be attacked as being discriminatory on account of marital status.[87]

  

[107] In 1992, the government indicated that should the courts order that the SPA program be expanded requiring the expenditure of substantial amounts of money, the provision of the existing program would have to be seriously reconsidered.[88]

[108] It is apparent that Parliament was not unaware of the claims of groups excluded from the SPA when it created the program, nor in the years following when changes to OAS pension and supplementary benefits were debated and enacted. Yet it is also apparent that if the SPA program as legislated was to be provided at all, it would have to be on a restricted basis. As the legislated program has been found to be pressing and substantial and its provision being contingent upon there being exclusions, the exclusions must also be pressing and substantial.

[109] In the recent case of Délisle v. The Attorney-General of Canada,[89] Iacobucci and Cory JJ. addressed the question of legislation that has two objectives, one of which is pressing and substantial and the other being contrary to the Charter. In such circumstances, they said that it would be contrary to the purpose of section 1 to find that even though legislation serves a demonstrably justified purpose, it should be deemed not to have such a purpose for other reasons. They stated:

To conclude on the issue of legislative objective, we are of the view that, where impugned legislation has two objectives, one of which is pressing and substantial in a free and democratic society, while the other is contrary to the Charter, the legislation will satisfy the first stage of the s. 1 inquiry. The fact that one purpose of the impugned provision is impermissible clearly means that the Charter is infringed. However, it seems contrary to the purpose of s. 1 to find that, even though legislation serves one demonstrably justified purpose, it nonetheless should be deemed not to have such a purpose for other reasons. It is more in keeping with the overall framework of the Oakes inquiry to consider the existence of the second, invalid purpose as one element of the context underlying the proportionality analysis.[90]

[110] In the case at bar, the exclusion of separated spouses from access to the SPA has two objectives: the exclusionary objective, which is discriminatory, and the objective of making the SPA available, albeit on a restricted basis, which is pressing and substantial. In accordance with the reasoning of Cory and Iacobucci JJ. in Délisle, supra, the exclusion satisfies the pressing and substantial objective test.   

c)           Implication of the widows' SPA

[111] I now turn to the argument as to whether the widows' SPA evidences a broader objective of the legislation - to provide benefits to individuals in a group who are not cohabiting dependents of OAS/GIS pensioners. If the objective of the legislation is to provide benefits irrespective of a linkage to an OAS/GIS pensioner, it might be said that excluding separated spouses from the SPA because they are not cohabiting with an OAS/GIS pensioner is not consistent with the pressing and substantial objective of the legislation.

[112] In considering this argument, context is particularly important. The widows' SPA was initially introduced in 1979 as a six-month "adjustment" extension to recipients of the SPA who had become widowed. Later in 1979, it was extended to provide the SPA to such recipients until they reached age 65 and became eligible for the OAS and GIS in their own right. In 1984, a further extension granted the SPA to individuals who were eligible for the SPA but who were not receiving it prior to the death of their pensioner spouse. To this point, there was still a linkage to an OAS/GIS pensioner as the widows' SPA was not payable to anyone who had not received or was not eligible for the SPA prior to the death of his or her pensioner spouse.

[113] With the extension of the SPA to all widows at age 60, the necessity to have been (or be eligible to be) a SPA recipient prior to the death of a pensioner spouse was eliminated. The reason given for this extension was the recognition by Parliament at the time that the vast majority of widows were women who had been financially dependent on their spouses for most, if not all, of their lives.[91] This is reflected in the statement of The Minister of National Health and Welfare when the amendments to the OAS extending the widows' SPA were debated in Parliament:

...the vast majority of the persons who will benefit from this Bill are women who have been financial dependents for most, if not all of their lives. They did not question this financial dependence because society deemed it appropriate.[92]

[114] While some individuals may have become widows at an early age, and may not have been dependent on a spouse for most of their lives, age demographics (that mortality or death rates increase with age) are such that it is safe to assume that the vast majority of persons who become widows do so as they and their deceased spouse have become older.

[115] It is apparent that by strictly limiting eligibility to the widows' SPA to SPA recipients or spouses eligible to be SPA recipients before widowhood, resulted in exclusions which Parliament wished to address. For example, a widow of an OAS/GIS pensioner who died before that surviving widow reached age 60, but who had a lifetime of financial dependency on the deceased pensioner would not be entitled to the widows' SPA upon reaching age 60. Similarly, a widow aged 60 - 64 who had been dependent all of her adult life on a spouse who died shortly before becoming an OAS/GIS pensioner at age 65 would be ineligible for the SPA. Once Parliament decided to provide for a widows' SPA, extension of that benefit to all widows appears to have been thought necessary to avoid such exclusions. Therefore, the objective of extending the widows' SPA to all widows, while not restricting the benefit to individuals who are necessarily linked to an OAS/GIS pensioner, was still to provide the benefit to individuals, the vast majority of whom were expected to have had a lifetime of financial dependency on a breadwinner spouse by the time they reached age 60.     

[116] By contrast, while some separated individuals will have lived for many years with a spouse before separating and will have been dependent for most of their lives, there is no demographic reason or statistical evidence to the effect that this is the case for any large percentage of separated persons. This appears to have been the view of the government at the time the widows' SPA was extended. The Minister of National Health and Welfare stated:   

... (as to) the matter of whether this Bill could extend the same benefits to Canadians who are separated, divorced and single. I do not have the ability to take each individual case of people who would fall into those categories and say that they are not as much in need as the group to which this legislation addresses itself (widows). I think Members would recognize that the most urgent need as a group -- and I am not arguing individual cases could not be raised to make the other point -- to which this legislation addresses itself are those in greatest need.[93]

The widows' SPA is focused on a needy group, not on needy individuals. It is apparent that there was not the same lifetime of spousal dependency expectation about the vast majority of separated persons as there was in the case of widows. Excluding separated persons from the SPA benefit is, therefore, not inconsistent with the pressing and substantial objective of the widows' SPA.    

(iv)          Conclusion in Respect of Pressing and Substantial Objectives

[117] I accept that the pressing and substantial objectives of the legislation as a whole, and the SPA provisions including the widows' SPA are to provide benefits in limited and specific circumstances, and that the exclusion of separated individuals is not inconsistent with these pressing and substantial objectives and at least in part, is itself pressing and substantial. The legislation satisfies the first stage of the section 1 analysis.

7.C.2.          Proportionality Analysis

(i)          Rational Connection

[118] At this stage of the analysis, it is necessary to consider whether there is a rational connection between the goal of the legislation and the means chosen by the government to implement its objective.

[119] In Vriend, supra, after finding that the objective of omitting sexual orientation from the Alberta Individual's Rights Protection Act, supra, was not pressing and substantial (and, therefore, not justified under section 1), Iacobucci J. went on to assume, solely for the sake of a complete section 1 analysis, that the pressing and substantial part of the Oakes test otherwise had been satisfied. He then went on to find that there was no rational connection between the goal of protecting persons from discrimination and denying such protection to a group which has been historically subject to discrimination, i.e. homosexuals.

[120] This case is unlike Vriend in that here, the exclusion of separated individuals from the SPA is not "antithetical" to the goal of the legislation. Rather, the restriction of the SPA benefit to non-separated spouses is rationally connected to the objective of the legislation, which is to ensure that when one person in the couple retires and becomes a pensioner, the couple will continue to receive income equivalent to the amount if both members of the couple were pensioners. It is, therefore, rational that a program designed to benefit couples in such circumstances would be focused on cohabiting spouses.

[121]           Section 17 of the Regulations specifically defines separated persons as those living "separate and apart" from one another. As I have already stated, although some separated individuals undoubtedly experience financial hardship, the SPA benefit is not a comprehensive income support program. It is, therefore, rational that the government would exclude separated spouses from the benefit of the SPA legislation.

(ii)           Minimal Impairment

a)           The nature of the test

[122] At this stage of the analysis, the government must demonstrate that there has been only a minimal impairment of the Charter right at issue. The burden upon the government is to demonstrate that its actions infringe the Charter right in question no more than is reasonably necessary to achieve the goals of the legislation.[94] The test encompasses not just the effects of the Charter violation on the claimant, but also considers whether the government had a "reasonable basis" to determine that its course of action would result in a minimal impairment of a Charter right. In M. v. H., supra, the section 1 analysis was, like the case before this Court, in the context of underinclusive legislation which violated subsection 15(1). The majority in M v. H. phrased the minimal impairment test as requiring the government to show that "it had a reasonable basis for concluding that the rights of same-sex couples were impaired no more than was reasonably necessary to achieve its goals".[95]

[123] In RJR-MacDonald, supra, McLachlin J. described the nature of the onus upon government on the issue of minimum impairment.    

The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impugned no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.[96]

b)           Factors signifying appropriateness of deferential approach by the Court

[124] Before embarking upon the minimal impairment analysis, the question arises as to how rigorously the Court will review Parliament's actions. The broad justification for curial deference was recently restated by Iacobucci J. in M. v. H., supra.

This Court has often stressed the importance of deference to policy choices of the legislature in the context of determining whether the legislature has discharged its burden of proof under s. 1 of the Charter: ... As a general matter, the role of the legislature demands deference from the courts to those types of policy decisions that the legislature is best placed to make.[97]

As previously indicated,[98] curial deference can enter into a discussion of whether the legislature has discharged its burden under any of the steps of the section 1 test. However, the question of deference has most frequently arisen at the minimal impairment stage of the Oakes test.

[125] Before exploring the contextual factors that are relevant to the issue of deference at the minimal impairment stage in this case, it is necessary to consider the types of contextual factors the Court should be looking for which have emerged from cases where deference has been considered.

[126] It has been stated that deference is more appropriate where the government is balancing competing social interests and less so when it is acting as a "singular antagonist of the individual whose right has been infringed".[99]

[127] In a number of cases where the impugned legislation has involved the balancing of claims of competing groups in respect of the distribution of scarce resources, the Supreme Court has said that Parliament and the legislatures must be afforded "wide latitude"[100] to determine the reconciliation of such claims and the appropriate distribution of resources in society. The fundamental justification for this basis for deference was stated by Dickson C.J. and Wilson J. in Irwin Toy, supra :[101]    

When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and different justified demands on scarce resources. Democratic institutions are meant to let us all share in these difficult choices. Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function.

[128] In addition to respect for the representative role of Parliament, deference to its choices when it is mediating competing interests is also in recognition that in such cases it will be difficult to apply formal legal tests with any degree of certainty as to the correct conclusions. In McKinney v. University of Guelph,[102] LaForest J. stated:

The majority in Irwin Toy Limited v. Quebec (Attorney General), supra, made it clear that the reconciliation of claims not only of competing individuals or groups but also the proper distribution of scarce resources must be weighed in a section 1 analysis. Having observed that the courts can ascertain with "some certainty" whether the "least drastic means" has been chosen to achieve a desired objective where the government is the "singular antagonist", typically in the case of criminal sanctions and prosecutions, the majority then noted that this was not the case with polycentric situations. It added, at p. 994:

The same degree of certainty may not be achievable in cases involving the reconciliation of claims of competing individuals or groups or the distribution of scarce government resources.

[129] In Eldridge, supra, LaForest J. reiterated this principle and stated it was especially applicable where Parliament is faced with making choices among disadvantaged groups in the allocation of social benefits:

It is also clear that while financial considerations alone may not justify Charter infringements (Schachter, supra, at p. 709), governments must be afforded wide latitude to determine the proper distribution of resources in society; see McKinney, p. 288, and Egan, at para. 104 (per Sopinka J.). This is especially true where Parliament, in providing specific social benefits, has to choose between disadvantaged groups; see Egan, at para. 105-110 (per Sopinka J.).[103]

[130] Thus, deference at the minimal impairment stage may be accorded to Parliament in polycentric situations[104] or where the distribution of significant public resources is at issue. In such situations, the jurisprudence instructs that this is because of a recognition of the democratically representative role of Parliament in mediating various claims, and the fact that the Court is not in a position to ascertain "with some certainty" whether the "least drastic means" has been chosen to achieve a desired objective.[105]

[131] The relevancy of financial considerations in determining the standard of deference at the minimal impairment stage in cases such as the present was reaffirmed by Lamer C.J. in Re Provincial Court Judges,[106] where he stated:

While purely financial considerations are not sufficient to justify the infringement of Charter rights, they are relevant to determining the standard of deference for the test of minimal impairment when reviewing legislation which is enacted for a purpose which is not financial. Thus, in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p.994, the Court stated that "the distribution of scarce resources" was a reason to relax the strict approach to minimal impairment taken in R. v. Oakes, [1986] 1 S.C.R. 103; the impugned legislation was aimed at the protection of children. In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, where the issue was the constitutionality of a provision in provincial human rights legislation, LaForest stated at p. 288 that "the proper distribution of scarce resources must be weighed in a s.1 analysis". Finally, in Egan v. Canada, [1995] 2 S.C.R. 513, where a scheme for pension benefits was under attack, Sopinka J stated at para. 104 that

government must be accorded some flexibility in extending social benefits...It is not realistic for the Court to assume that there are unlimited funds to address the needs of all.

[emphasis added]

[132] With specific regard for social benefit programs, in Egan, Sopinka J. further explained the reasons for a deferential approach by the Court. Public funds are not unlimited and judicial activism would tend to make governments reluctant to create new programs because of the uncertainty of the potential liability involved. He stated:

It is not realistic for the court to assume that there are unlimited funds to address the needs of all. A judicial approach on this basis would tend to make a government reluctant to create any new social benefit schemes because their limits would depend on an accurate prediction of the outcome of court proceedings under s. 15(1) of the Charter. The problem is identified by Professor Hogg in Constitutional Law of Canada, 3rd ed. (Scarborough, Ontario: Carswell, 1992), at pp. 911-12, where he states:

It seems likely that virtually any benefit programme could be held to be under-inclusive in some respect. The effect of Schachter [1990] 2 F.C. 129 (C.A.)] and Tétreault-Gadoury [1991] 2 S.C.R. 22] is to subject benefit programmes to unpredictable potential liabilities. These decisions by-pass the normal processes by which a government sets its priorities and obtains parliamentary approval of its estimates.[107]

[133] It should be noted that incrementalism, while a reason for deference cited by Sopinka J. in Egan, is no longer accepted. In his majority reasons in Vriend, supra,[108] and M. v. H., supra,[109] Iacobucci J. has characterized incrementalism as an inappropriate justification for violations of the Charter.

c)           Competing interests in this case

[134] I now turn to the question of competing interests in this case. The government's evidence is that in developing and implementing income support policies and programs such as the SPA, it does so in the context of mediating many different social and economic interests. It also pointed to the large financial costs associated with extending the SPA to separated spouses and perhaps others if marital status were eliminated entirely as a criterion for receiving the SPA. The Supreme Court has already decided that the Old Age Security Act is legislation which involves the balancing of claims of competing groups. In Egan, supra, Sopinka J. stated:

With respect to minimal impairment, the legislation in question represents the kind of socio-economic question in respect of which the government is required to mediate between competing groups rather than being the protagonist of an individual.[110]

[135] In establishing the SPA, Parliament was confronted with choices to be made with respect to the competing concerns of various groups. As the financial evidence to which I will refer shortly indicates, expanding the SPA would have involved significant financial resources. Should Parliament have reduced the amount of the SPA benefit or increased the age of eligibility in order to cast the net wider? Should Parliament have withdrawn or restricted funds from other existing social programs or should it have foregone future social initiatives in order to finance an expanded SPA benefit? Or should it have funded a broader SPA program by raising taxes or foregoing a potential tax reduction, or at the relevant time, increasing the deficit, the cost of which is borne by future generations? Such questions point out the competing interests involved in a decision to restrict the SPA benefit. I think these conflicting interests make it obvious that the policy choices involved are of a type that Parliament is in a better position than the courts to make; the Court would be overstepping the bounds of its institutional competence to rigorously review Parliament's approach to providing the SPA in attempting to ascertain whether the least drastic means has been chosen to achieve the legislative objective. In the "Approach to Section 1" portion of his reasons in M. v. H., supra, Iacobucci J. stated:

"These policy choices (of the legislature) may be of the type that the legislature is in a better position than the court to make, as in the case of difficult policy judgments regarding the claims of competing groups or the evaluation of complex and social science research: Irwin Toy, supra, at p. 993, per Dickson C.J. and Lamer and Wilson JJ.    Courts must be cautious not to overstep the bounds of their institutional competence in reviewing such decisions."[111]

d)           Implication of plaintiff's evidence on marital status

[136] The plaintiff's own pleadings and evidence lend support to a deferential approach by the Court. The plaintiff attacks the legislation on two levels. At the most immediate level to her, the plaintiff's amended statement of claim seeks to eliminate from the Old Age Security Act, the provision that specifically denies her the SPA. Initially, she asks that paragraph 19(1)(a) ("is not separated from a pensioner") be declared of no force and effect.

[137] In addition, however, the relief claimed in her amended statement of claim asks for an order "striking out all references, whether direct or indirect, to marital status in the said Act". The implication of this aspect of the relief claimed is to extend the SPA to all persons age 60 - 64 and in financial need regardless of marital status.

[138] During argument, plaintiff's counsel restricted the relief sought to separated spouses only and asked the Court not to address the question of marital status generally.

[139] Nonetheless, consistent with her pleadings, the expert evidence adduced on behalf of the plaintiff approaches the issue on the broader level, i.e. entitlement to the SPA irrespective of marital status.

[140] Monica Townson, a social policy analyst, was the plaintiff's expert witness. Ms. Townson holds a BSc. Econ. (Hons.) from the London School of Economics. She has held a variety of public and private sector positions and a number of appointments to commissions and boards particularly relating to pensions and women's issues.

[141] Ms. Townson was of the opinion that if the SPA is to be free of discrimination based on marital status, entitlement could not be linked to marriage to a pensioner spouse. She states at page 22 of her report:

If the Spouse's Allowance Programme is to be free of any discrimination based on marital status, then it would have to be available to all those in the age group 60-64 who meet the income test, regardless of marital status. In other words, it would have to be extended to individuals who have never married, to those who are separated, or divorced, and to those individuals who are married, but whose spouse has not yet reached age 65.

At page 33 of her report, she concludes:

Ultimately, however, it seems invidious to suggest that widows and widowers as a group are somehow more deserving of help than single, separated or divorced persons, or married persons whose spouses have not yet reached age 65. If a program such as Spouse's Allowance is based on need, it must surely be unacceptable to eliminate some categories of the needy on the grounds of marital status.

[142] At the minimal impairment stage of the section 1 analysis, the plaintiff's pleadings and evidence raise difficult policy and financial questions which make it apparent that the Court is not well placed to determine whether, in scoping the SPA as it has, Parliament has chosen the least drastic means of providing the program. These questions have been raised by the plaintiff and argued by the parties, both of whom have presented considerable evidence on them. I do not think they can be avoided by a late in the day attempt to divert attention from these considerations by limiting the relief sought by the plaintiff.

[143] This is not a case such as Eldridge, supra, in which the government raised arguments that the position of deaf persons was not different from non-official language speakers. In that case, LaForest J. held that argument to be speculative, citing reasons for distinguishing between the two groups. Further, there was no evidence as to the potential cost or scope of an oral language medical interpretation program. He further found the position of deaf persons to be unique in terms of their ability to communicate with the wider population.[112]

[144] In the case at bar, it was the plaintiff who raised eliminating marital status as a ground for restricting the SPA. There is evidence as to the potential cost and scope of doing so from both the plaintiff and defendant.

[145] The Court must not base its deference determination on idle speculation. However, in this unusual case, in which the plaintiff herself has introduced evidence of other claims to the SPA based on marital status discrimination and the associated costs, the Court would proceed in a "curious isolation" (to borrow a phrase of Iacobucci J. used in another context in Symes, supra) to ignore this evidence as it pertains to the issue of deference in the minimal impairment analysis.   

e)        Evidence of cost

[146] Ms. Townson estimated the cost of extending the SPA not only to separated persons but also to all needy persons age 60-64. Her estimated cost was based on one hundred percent "take-up" and "1992 take-up levels". "Take-up" is the extent to which persons eligible for a social benefit actually claim that benefit. "One hundred percent take-up" reflects the government's maximum exposure, assuming all eligible persons claimed all that they were entitled to receive. The 1992 take-up levels reflect the take-up experience in that year.

[147] On this point, the government's evidence was that as a public program becomes broadened in scope, take-up levels generally increase. In the case of a SPA benefit for all those between 60 - 64 years of age, the expected increase in take-up would be as a result of greater public awareness and the simple eligibility criteria (age).[113]    

[148] At one hundred percent take-up levels and 1992 take-up levels, Ms. Townson estimated the cost of the SPA as follows:

Item                         100% Take-up                1992 Take-up Levels

      (million)                                (million)

Single                       257.5                           186.7

Married or

Common-law

Union                       839.5                            779.8

Separated                   78.4                           53.4

Divorced                 155.5                           94.9

Widowed                344.8                            211.4

____________            ________________

TOTAL:                     1675.6                       1326.4

[149]        Included in these figures are payments to currently eligible married and common law union spouses and widows. In 1998, the actual cost of the SPA was approximately $200 million and the widows' SPA roughly $200 million for a total of almost $400 million.

[150]        The incremental cost of including separated spouses would add $53.4-$78.4 million. If divorced spouses were included because under section 17 of the Regulations they are deemed to be separated, the incremental cost would be $148.3 -$233.9 million. Extending the SPA by eliminating marital status as a condition to entitlement would incrementally add $825 million to $1.275 billion to the existing cost of approximately $400 million according to Ms. Townson's estimates.

[151]        The defendant's expert Melvin Rodney Hagglund is the Senior Adviser - Retirement Income Policy with the Department of Human Resources Development. Mr. Hagglund's career with the government, commencing in 1972, has been spent in the areas of pensions and income security. While Mr. Hagglund agreed with Ms. Townson's estimates at 100% take-up of the incremental cost of $78.3 million for separated spouses, he was of the opinion that the total cost of adding all groups at 100% would approximate $2.4 billion, as compared to Ms. Townson's $1.6756 billion. A large portion of the difference between them of approximately $725 million annually is explained by some different assumptions used by Ms. Townson and Mr. Hagglund. In general, Mr. Hagglund's approach appears to me to be more consistent with the existing structure of the programs. However, although the difference of $725 million is large, nothing turns on it. Whether the added costs to the program are $825 million, $1.275 billion or $2 billion (i.e. $2.4 billion minus the current cost of $400 million), they are undeniably significant. Indeed, incremental costs of $53.4-$78.4 million annually if only separated spouses are considered are not trivial.

[152] This is clearly not a case such as Eldridge, supra, in which the additional cost of providing medical interpretation services for the deaf amounted to $150,000 per year or .0025% of the British Columbia health care budget. We are here considering increasing the cost of a program from approximately $400 million annually by between 13.5% and 20%, if only separated spouses of pensioners are considered. If divorced are included as well, the increase would be between 37% and 58.5%. If extension of benefits to all needy persons 60-64 years of age is considered, the cost increases would be roughly double ($825 million) to five times ($2 billion) the cost of the existing program. Unlike the case of Eldridge, we do not have a mere assertion by government of a potential "ripple effect" and nothing more.[114] The plaintiff's expert testified to the expansion of the SPA on the grounds of marital status discrimination. The incremental cost increases are not speculative. They are estimated by the plaintiff's expert herself as well as by the government's witness.

[153] As previously noted, extension of the SPA to persons in other marital statuses was debated at the time the SPA was introduced and subsequently.[115] The policy choice of Parliament was not to extend the SPA to all needy persons between 60 and 64 years of age. As I have already indicated, in a case such as this, the Court must be cautious not to overstep the bounds of its institutional competence in rigorously reviewing the policy decisions of Parliament with respect to the SPA. This is a case for curial deference.

f)         Social and economic implications

[154] Based on the evidence in this case, there is another reason for deference by the Court. This is a case in which the extension of an underinclusive program could have immense social as well as economic implications. To extend benefits as claimed by the plaintiff in her pleadings and in the expert evidence of Ms. Townson, i.e. to eliminate marital status as a basis of eligibility for the SPA, would result in what has been termed a guaranteed annual income at age 60.

[155] There is more going on here than the mere tinkering with a particular eligibility requirement for the SPA. In McKinney, supra, mandatory retirement provisions at age sixty-five were held to violate subsection 15(1) of the Charter on the enumerated ground of age, but provincial human rights legislation which authorized this practice was upheld under section 1. LaForest J. wrote that "mandatory retirement forms part of a web of interconnecting rules mutually impacting on each other"[116] and that "mandatory retirement cannot be looked at in isolation."[117]

[156]          Similarly in this case, extending the SPA cannot be looked at in isolation. Changes in behaviour of the population arising from the availability of a guaranteed annual income through the SPA at age 60 could have significant social and economic implications. Individuals may opt to retire earlier than age 65 because of the wider availability of the SPA. It is already known that demographic changes will present increasing financial obligations on the government to fund programs under the OAS Act. In the April, 1998 Report of the Auditor General of Canada to the House of Commons, the Auditor General stated:

6.1 Canada today is sitting on a very favourable demographic structure, with a historically low ratio of youth and elderly to the working-age population. In the coming few decades, the situation will be radically transformed. By the second decade of the next century, when the leading edge of the baby boom generation reaches normal retirement age, the growth in Canada's elderly population will accelerate while that of the working-age population will slow to a crawl.

6.2 This demographic shift has the potential to affect government finances in a significant way. An aging population puts pressure on government spending through higher pension payments and increased demands for health care services. Also, unless there are significant changes in the patterns of work, this demographic change will reduce labour force growth dramatically, which in turn would slow down economic growth and, with that, the growth in government revenues. This combination could put enormous pressures on our public finances when the full impact of this demographic change is felt by the second decade of the next century, particularly if Canada's debt burden and tax levels remain high.

In this context, the social and economic implications of a broadening of the SPA further justify restraint by the Court.

g)          Total impairment

[157] I am not unmindful that the exclusion from the SPA constitutes a total impairment (i.e. a complete denial of the SPA benefit to all separated individuals). Indeed, the plaintiff gave the example of a SPA recipient who suddenly found herself deserted thereby rendering her ineligible for continued SPA payments. (While the plaintiff placed this argument in the pressing and substantial objectives portion of the section 1 analysis, I think it more properly belongs at the minimal impairment stage because it entails a consideration of alternatives that could have been chosen by Parliament other than a total exclusion of all separated individuals from the SPA.)

[158]           Indeed, it is not difficult to think of other situations which would evoke a compassionate response. For example, a SPA recipient might be forced to leave a cohabiting relationship because of abuse and thus be ineligible for continued benefits.

[159] As compelling as such examples are, they are not the circumstances of the plaintiff. She separated from her spouse before she was 50. There is no indication that she received financial support from him. It is apparent that what counsel for the plaintiff seeks to do is to bootstrap a case for the extension of the SPA to all separated individuals upon examples of the most unfortunate circumstances, but not those of the plaintiff.

[160]           Indeed, the plaintiff's argument underscores the wide ranging implications of the extension of the SPA which she seeks, and the significant financial commitment of public funds that would be involved in such an extension. It is because of these policy and financial implications that the Court must exercise restraint.

[161] In taking this view, I am not unconcerned with the often difficult and tragic circumstances that can lead to separation. Nor do I doubt that separation has imposed certain hardships upon the plaintiff herself. However, in my respectful opinion, Parliament is better suited to make judgments about the extent of social programs than is the Court.

[162] In the broader context, what is at issue is a limited five-year period prior to which no benefit is available and subsequent to which the individual becomes entitled to the OAS and GIS. During the five year period, those in need will have access to provincial social assistance which, for the reasons outlined in the Proportionality of Effects analysis infra, I think is also a relevant consideration at this stage. Indeed, the plaintiff in this case did avail herself of provincial social assistance.

h)          Minimal impairment conclusion

[163] I am satisfied that Parliament gave consideration to the situation of separated spouses when it created the SPA and that it had a basis for concluding that there was a reasonable alternative to address the needs of low income separated individuals. In light of these facts, and the aspects of this case which have been identified as calling for judicial deference on this issue, I conclude that the government has shown it had a reasonable basis for confining the SPA to cohabiting spouses and widows.

(iii) Proportionality of Effects

a)          Defining the test

[164] In Oakes, supra, the Supreme Court stated that the last stage of the section 1 analysis involves an examination as to whether there is proportionality between the effects of the measure and its objectives.[118] However, since Oakes, the Supreme Court has had an opportunity to reformulate this last stage of the section 1 analysis. In Dagenais v. Canadian Broadcasting Corporation,[119] Lamer C.J. stated:

... there must be proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.[120]

[emphasis in original]

This reformulation of the effects test in Oakes was informed by the view that even where the prior stages of the Oakes test are satisfied and the objective is not outweighed by the deleterious effects, it could still be possible that those deleterious effect could outweigh the salutary effects such that the measure could not be reasonable and demonstrably justified within the meaning of section 1. This reformulated approach to the effects analysis was followed by Iacobucci J. in M. v. H., supra.[121]

[165] As I understand this stage of the proportionality test, it requires a weighing, first of the objective of the legislation against the deleterious effects of the Charter violation, and second, the salutary effects of the legislation against the deleterious effects of the Charter violation. In his majority reasons in Thomson Newspapers v. Canada, supra, Bastarache J. states that the weighing of the objective against the deleterious effects of the legislation is effectively accomplished in the rational connection and minimal impairment stages of the Oakes test:

In my view, the first part of this (effects) reformulation is already achieved by virtue of the first two parts of the Oakes proportionality test. The subsequent development of the Oakes test, particularly the broad contextual approach which has been adopted by this Court since the decision in the Edmonton Journal case, ensures that the rational connection and the minimal impairment tests are sufficient to determine whether there is a proportionality between the deleterious effects of a measure, and its objective.[122]

Therefore, the fact that the impugned provisions of the SPA pass the rational connection and minimal impairment tests is also indicative that the objective of the legislation is not outweighed by its deleterious effects. The determining question at this stage thus becomes whether the salutary effects of the legislation outweigh the deleterious effects of exclusion from the SPA benefit.

b)          Salutary effects

[166] In this case, the salutary effect of the SPA program coincides with its objectives. The SPA provides financial support to qualified recipients, which is its objective. The salutary effects of the SPA are not only to provide benefits to the spouses of OAS/GIS pensioners but also that it does so in the amounts provided by the legislation, that is to say, up to the equivalent of the total of the OAS and GIS if the SPA recipient were a pensioner.

c)           Deleterious effects

[167] The deleterious effect of denying the SPA to separated spouses is that these individuals are denied this federal financial assistance when they would, having regard to all other requirements, qualify for it. However, denial of the SPA does not mean that separated persons have no means of support. Given that they are, by definition, persons of low income, in order to meet their basic needs, they must resort to employment, family support, or provincial social assistance. Obtaining income or having one's needs provided from these other sources will alleviate the financial consequences of exclusion from the SPA.

[168]          However, access to the SPA benefit would be preferable, at least as compared to support from family or provincial social assistance and, as compared to employment, if the individual is indeed not suited for employment for health or other similar reasons. Accordingly, in considering employment, family support and provincial social assistance in this context, I do not ignore that resort to such sources may itself have a deleterious effect. However, at this stage of the analysis, it is necessary to assess the weight to be given to the deleterious effect of the exclusion as compared with the weight to be given to the salutary effects of the legislation. That separated persons may avail themselves of other means of support mitigates the deleterious financial effect of being denied the SPA.

d)          Weighing the salutary and deleterious effects

[169] In this case, the plaintiff resorted to provincial social assistance. The evidence indicates that the plaintiff received more money under the Nova Scotia Family Benefits Act[123] than she would have received had she been entitled to the SPA payable to a cohabiting spouse. However, even if she had received less than what she would have received if she were entitled to the SPA benefit, the availability of provincial social assistance would still be a factor mitigating the deleterious effect of not being entitled to the SPA.   

[170] I am aware of the reasoned comments of Iacobucci J. in his dissenting section 1 analysis in Egan on the interaction of federal and provincial legislation - that it is inappropriate to look to provincial legislation to justify discrimination in federal legislation unless "the provinces have specifically ensured that the discriminatory effect of federal legislation be eliminated through provincial enactments or law".[124] While there is much force to the views expressed by Iacobucci J., they do prescribe an exacting standard which, apparently, the majority in Egan was not prepared to accept.

[171] At the effects stage of the analysis, it does not seem illogical to have regard for known facts. All provinces have social assistance programs designed to assist low income individuals in providing for their basic needs. In all cases, there is a provincial program that will mitigate the financial effects upon a person who is denied the SPA. In the context of weighing the salutary and deleterious effects of discriminatory federal legislation, I find it difficult not to consider the availability of provincial social assistance. The availability of such assistance is a fact. It would ignore that fact to say that the deleterious effect of exclusion from the SPA leaves those excluded individuals without any source of support for their basic needs. I think, therefore, that while the federal government may not invoke provincial social assistance at the subsection 15(1) stage or as an easy overall justification for discriminatory legislation, it is a factor to be taken into account in weighing the salutary and deleterious effects of the SPA legislation in this case (and in the context in which it is considered at the minimal impairment stage above). When it is taken into account, the deleterious financial effect is either eliminated as in this case, or mitigated when the amount of social assistance is not equivalent to or greater than the SPA.

[172] Beyond the financial aspect of resort to provincial social assistance, the plaintiff argued that access to provincial social assistance cannot serve as an appropriate justification for the discrimination experienced by her because of the negative social stigma associated with receiving "welfare". The plaintiff brought evidence to show that the elderly, in particular, are reluctant to take advantage of provincial social assistance. I interpret this argument to mean that the perceived negative social stigma associated with social assistance is another deleterious effect of denying the SPA benefit to separated persons. While I do not wish to be taken as saying that these effects felt by the plaintiff are not real or are trivial, after taking this argument into account, I must still conclude that the deleterious effects do not outweigh the salutary effects of the SPA.

[173] To hold that the salutary effect of the SPA is outweighed by the negative social stigma associated with accessing provincial "welfare" would, I think, result in this Court accepting and perpetuating the proposition that accessing provincial social assistance is relatively more demeaning than is in fact the case here. In the context of weighing salutary and deleterious effects of the SPA legislation, it is necessary not to overstate the impact on dignity of having to resort to provincial social assistance.

[174]           Provincial social assistance is an accepted component of Canada's social safety net. It is a social program in every province of Canada and it plays a role with respect to the incomes of many Canadians. Although it is a needs tested rather than income tested program, it is like the SPA in that it is only available to low income persons upon an application being made. Financial information must be disclosed in both cases. Benefits decline as income increases. The SPA is not available to all persons universally regardless of income as is the OAS. As between the SPA and provincial social assistance, both are government social support programs to which persons resort according to their circumstances. There is, therefore, a dignity issue involved in both accessing the SPA and provincial social assistance. It is in this context that I think the relative indignity of having to access provincial social assistance is of less force than would otherwise be the case, for example the relative indignity of accessing provincial social assistance as compared with being employed.

[175] In weighing the deleterious effects of the exclusion of separated spouses against the legislative objectives and the salutary effects of the SPA, I conclude that the legislation passes this last stage of the Oakes test.

8.          CONCLUSION

[176] I conclude that the exclusion of separated spouses from the SPA benefit pursuant to paragraph 19(1)(a) of the OAS Act is justified under section 1 of the Charter as a reasonable limit on the constitutional rights in subsection 15(1) of the Charter.

[177] The plaintiff's claim will be dismissed. The parties may contact the registrar within 14 days of the date of these reasons to arrange to speak to costs.

                                 "Marshall Rothstein"                

         JUDGE

Ottawa, Ontario

October 25, 1999

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