Robin J. McKinnon v. Minister of National Revenue, [1991] 2 CTC 2284, 91 DTC 1002

Sobier, T.C.J.: —The appellant appeals the reassessments of the respondent whereby the respondent disallowed the federal sales tax credits claimed in the 1988 and 1989 taxation years.

The appellant was confined to a prison or similar institution, namely, Milhaven Institution throughout all of 1988 and 1989.

It was agreed that during those years, the appellant purchased items, the purchase price of which contained an element of federal sales tax. The Court is not convinced that it is necessary to establish that fact in order for the appellant, or any other taxpayer, to be able to claim the federal sales tax credit. The issue raised in this appeal by the appellant is whether the provisions of section 122.4 of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") infringe a right guaranteed by section 15 of the Canadian Charter of Rights and Freedoms (the "Charter") and if it is established that an infringement has taken place, can the infringement be justified under section 1 of the Charter.

Sections 1 and 15 of the Charter read as follows:

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 the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(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.

Of course, subsection (2) of section 15 is not applicable in this case.

The alleged offending portion of section 122.4 of the Act is said to be contained in subsection 122.4(2), being a subsection deeming certain persons not to be eligible individuals where any such person was confined to a prison or similar institution for a period or periods the aggregate of which in the year was more than six months. [1] The appellant was such a person. The other exceptions deal with officers and servants of foreign countries and their family or servants in addition to non-residents of Canada.

It is the appellant's contention that singling out inmates imprisoned for at least six months in a year infringes section 15 of the Charter in that, he and others like him are not afforded the right to equality before and under the law, and the right to equal protection and equal benefit of the law since they are not entitled to the federal sales tax credit.

The first question therefore is whether subsection 122.4(2) of the Act infringes on the appellant's rights to equal benefit of the law without discrimination. The leading cases dealing with infringement of rights under section 15 of the Charter include Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 56 D.L.R. (4th) 1 (S.C.C).

In dealing with a section 15 infringement, Mr. Justice McIntyre had this to say at page 168 (D.L.R. 13):

For the reasons outlined above, the test cannot be accepted as a fixed rule or formula for the resolution of equality questions arising under the Charter. Consideration must be given to the content or the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application. The issues which will arise from case to case are such that it would be wrong to attempt to confine these considerations within such a fixed and limited formula.

It is not every distinction or differentiation in treatment at law which will transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious that legislatures may—and to govern effectively—must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society. As noted above, for the accommodation of differences, which is the essence of true equality, it will frequently be necessary to make distinctions.

While agreeing with Mcintyre, J. in Andrews, LaForest, J. said at pages 193-94 (D.L.R. 37-38):

I am not prepared to accept at this point that the only significance to be attached to the opening words that refer more generally to equality is that the protection afforded by the section is restricted to discrimination through the application of law.

That having been said, I am convinced that it was never intended in enacting s. 15 that it become a tool for the wholesale subjection to judicial scrutiny of variegated legislative choices in no way infringing on values fundamental to a free and democratic society. Like my colleague, I am not prepared to accept that all legislative classifications must be rationally supportable before the courts. Much economic and social policy-making is simply beyond the institutional competence of the courts: their role is to protect against incursions on fundamental values, not to second-guess policy decisions.

I realize that it is no easy task to distinguish between what is fundamental and what is not and that in this context this may demand consideration of abstruse theories of equality. For example, there may well be legislative or governmental differentiation between individuals or groups that is so grossly unfair to an individual or group and so devoid of any rational relationship to a legitimate state purpose as to offend against the principle of equality before and under the law as to merit intervention pursuant to s. 15. For these reasons I would think it better at this stage of Charter development to leave the question open. I am aware that in the United States, where Holmes J. has referred to the equal protection clause there as the “last resort of constitutional arguments" (Buck v. Bell, 274 U.S. 200 (1927), at p. 208), the courts have been extremely reluctant to interfere with legislative judgment. Still, as I stated, there may be cases where it is indeed the last constitutional resort to protect the individual from fundamental unfairness. Assuming there is room under s. 15 for judicial intervention beyond the traditionally established and analogous policies against discrimination discussed by my colleague, it bears repeating that considerations of institutional functions and resources should make courts extremely wary about questioning legislative and governmental choices in such areas.

[Second emphasis added.]

Cory, J. in Rudolf Wolff & Co. v. Canada, [1990] 1 S.C.R. 695; 69 D.L.R. (4th) 392 (S.C.C.) seems to have summed up the matter when he said at pages 700-701 (D.L.R. 396-97):

The manner in which a court must approach an alleged infringement of s. 15(1) was set forth by McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. He made it clear, at p. 182, that one complaining of the violation of s. 15 “must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.”

In carrying through its social policy-making using the federal sales tax credit, Parliament has drawn a distinction but that distinction is not discriminatory. The purpose of the credit is to benefit low income taxpayers to the exclusion of high income taxpayers in a manner which does not invite the Court to intervene because it is not ”. . . so grossly unfair to an individual or group and so devoid of any rational relationship to a legitimate state purpose as to offend against the principle of equality before and under the law as to merit intervention pursuant to s. 15" (Andrews, supra at 194 (D.L.R. 38)).

Parliament has chosen to exclude those individuals who it saw fit not to benefit, namely certain types of prison inmates. This is a valid distinction since the objective is to assist low income families and individuals and not to benefit persons serving prison terms.

The distinction is made as part of a legitimate exercise of social policy- making which is Parliament's right. To strike this down, as Dickson, C.J.C. said, would be tantamount to "overshooting" the actual right being sought to be protected (R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 18 D.L.R. (4th) 321 at 344 (D.L.R. 360).

The matter of differentiation versus discrimination was put even more directly and succinctly by Wilson, J. who said at page 154 (D.L.R. 34) in Andrews:

This, in my view, remains an appropriate standard when it is recognized that not every distinction between individuals and groups will violate s. 15. If every distinction between individuals and groups gave rise to a violation of s. 15, then this standard might well be too stringent for application in all cases and might deny the community at large the benefits associated with sound and desirable social and economic legislation. This is not a concern, however, once the position that every distinction drawn by law constitutes discrimination is rejected as indeed it is in the judgment of my colleague, McIntyre J.

In addition, not all inmates are excluded, only those incarcerated for crimes the sentences for which exceed six months. The effect of the section in no manner so severely trenches on individual or group rights that the legislative object is outweighed by the right (R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at 768; 35 D.L.R. (4th) 1).

Reference was made in argument to the analogous position of prison inmates and their voting rights. However, in those cases the complaining parties were arguing the infringement of a specific right contained in section 3 of the Charter, [2] whereas section 15 deals with equality generally.

Recently Mr. Justice Strayer of the Federal Court-Trial Division dealt with the application of section 15 in prisoners' voting rights (Walter Stanley Be- Iczowski v. The Queen, (unreported)). His judgment was based on section 3 of the Charter. Although the following comment relating tosection 15 of the Charter was obiter dicta and clearly did not form part of his reasons for judgment, they are of interest.

At page 9 of the unreported judgment he stated that:

. . . for there to be “discrimination” as prohibited by subsection 15(1) the grounds of discrimination must be those specified in subsection 15(1) or others analogous thereto. I am unable to conclude that a law applied to the plaintiff to his disadvantage by reason of the circumstance that he has committed a crime and is imprisoned under lawful sentence amounts to discrimination on some ground an analogous to those specified in subsection 15(1).

There has been no infringement of any of the appellant's rights under subsection 15(1) of the Charter. In addition, it is the Court's view that while section 122.4 of the Act may create a distinction or differentiation between groups, it does not discriminate and therefore it does not infringe on the appellant's rights to equal benefit of the law without discrimination.

The appeal is dismissed.

Appeal dismissed.