IN THE SUPREME COURT OF CANADA (On Appeal from Ontario Court of Appeal)

Transcription

1 IN THE SUPREME COURT OF CANADA (On Appeal from Ontario Court of Appeal) Court File No B E T W E E N : The Attorney General of Canada - and - Appellant (Appellant) G. Hislop, B. Daum, A. McNutt, E. Brogaard and G. Meredith Respondents (Respondents) AND BETWEEN: G. Hislop, B. Daum, A. McNutt, E. Brogaard and G. Meredith - and - The Attorney General of Canada - and - Egale Canada Inc. and the Attorneys General of Alberta, Ontario and Quebec Appellants (Respondents) Respondent (Appellant) Interveners FACTUM OF EGALE CANADA INC. SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West, Suite 1100 Toronto, Ontario M5G 2G8 Cynthia Petersen Tel: Fax: cynthiapetersen@sgmlaw.com Solicitors for Egale Canada Inc. SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street, Suite 500 Ottawa, Ontario K1P 5L4 Michelle Flaherty Tel: Fax: michelleflaherty@sgmlaw.com Ottawa Agent for Egale Canada Inc.

2 TO: THE REGISTRAR OF THE SUPREME COURT OF CANADA AND TO: ROY ELLIOTT KIM O CONNOR LLP 10 Bay Street, Suite 1400 Toronto ON M5J 2R8 R. Douglas Elliott Tel: Fax: rde@reko.ca Counsel, Respondents/Appellants LANG MICHENER O Connor Street Ottawa ON K1P 6L2 Marie-France Major Tel: Fax: mmajor@langmichener.ca Ottawa Agent, Respondents/Appellants AND TO: ATTORNEY GENERAL OF CANADA Bank of Canada Building, East Tower Wellington Street Ottawa ON K1A 0H8 Paul Vickery Tel: Fax: paul.vickery@justice.gc.ca ATTORNEY GENERAL OF CANADA Bank of Canada Building, East Tower Wellington Street Ottawa ON K1A 0H8 Christopher M. Rupar Tel: Fax: Christopher.Rupar@justice.gc.ca AND TO: ATTORNEY GENERAL OF QUEBEC NOEL & ASSOCIES 111, rue Champlain Gatineau, QC J8X 3R1 Sylvie Roussel Tel: Fax: s.roussel@noelassocies.com Ottawa Agent, AG Quebec AND TO: ATTORNEY GENERAL OF ONTARIO 720 Bay Street, 4 th Floor Toronto ON M5G 2K1 Daniel Guttman Tel: Fax: daniel.guttman@jus.gov.on.ca Counsel, AG Ontario NOEL & ASSOCIES 111, rue Champlain Gatineau, QC J8X 3R1 Sylvie Roussel Tel: Fax: s.roussel@noelassocies.com Ottawa Agent, AG Ontario

3 AND TO: ALBERTA JUSTICE Constitutional and Aboriginal Law 4 th Floor, Bowker Building Street Edmonton ALTA T5K 2E8 Nick Parker Tel: Fax: Nick.Parker@gov.ab.ca Counsel, AG Alberta GOWLING LAFLEUR HENDERSON LLP Elgin Street Box 466, Station D Ottawa ON K1P 1C3 Brian A. Crane, Q.C. Tel: Fax: Brian.Crane@gowlings.com Ottawa Agent, AG Alberta

4 Table of Contents Page PART I - FACTS...1 PART II - ISSUES...1 PART III - SUBMISSIONS A. Remedial Principles under Section 52 of the Constitution Act, B. Constitutional Exemption is a Section 52 Remedy...2 C. Constitutional Exemptions as Ancillary Orders under Section D. The Appropriate Remedy in this Case...4 E. The General Sections Have an Unjustifiable Discriminatory Effect...10 F. An Exemption is the Best S.52 Remedy for Adverse Effect Discrimination...11 G. Broad and Generous Interpretation of Section 24(1) of the Charter...12 H. Section 24(1) Remedies in Conjunction with Section 52 Remedies...13 I. There is No Crown Immunity...17 J. A Constitutional Exemption is an Appropriate and Just Remedy under S PART IV - ORDERS SOUGHT...20 PART V - TABLE OF AUTHORITIES...21

5 PART I - FACTS 1. Egale accepts the facts as set out by the Class Members in their facta. PART II - ISSUES 2. Egale s intervention will be limited to two issues raised by the within appeals: (a) (b) Did the Court of Appeal err in concluding that the Class Members are not entitled to a constitutional exemption from the application of ss.60(2) and 72(1) ( the general sections ) of the Canada Pension Plan? Did the Court of Appeal err in concluding that the general sections of the CPP do not infringe s.15 of the Charter? 3. Egale s position is that the correct answer to both of these questions is yes. PART III - SUBMISSIONS A. Remedial Principles under Section 52 of the Constitution Act, In any Charter case, the Court must be mindful of the judicial pronouncement that it is a vain thing to imagine a right without a remedy. Moreover, as Chief Justice McLachlin noted in Dunedin, a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach. In order to fulfill its role as guardian of the rights and freedoms guaranteed by the Charter, the Court must therefore do more than simply provide a remedy for Charter breaches; it must provide a meaningful remedy that vindicates the right infringed According to s.52 of the Constitution Act, 1982, any law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect. Where provisions of a statute are inconsistent with the Charter, the Court has an obligation to strike down the offending provisions or to cure the inconsistency by some other means. Although the Court has no choice but to act, it has considerable flexibility in determining what course of action to take. 2 1 Ashby v. White (1703), 92 E.R. 126, at 136; Mills v. Canada, [1986] 1 S.C.R. 863, at 971; R. v Ontario Inc., [2001] 3 S.C.R. 575 ( Dunedin ), at para.20; Doucet-Boudreau v. Nova Scotia, [2003] 3 S.C.R. 3, at paras.25 and 55 2 Schachter v. Canada, [1992] 2 S.C.R. 679, at para.25; see also Osborne v. Canada, [1991] 2 S.C.R. 69, per Sopinka, J., at 104 (the Court has broad discretion to fashion the appropriate remedy )

6 This Court stated in Schachter that there is no easy formula to follow in determining the appropriate remedy under s.52. There are, however, two principles that guide the exercise of remedial discretion, namely respect for the purposes of the Charter and respect for the role of the legislature. These principles were first articulated by Justice Sopinka in Osborne as follows: In selecting an appropriate remedy under the Charter the primary concern of the court must be to apply the measures that will best vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective. At the same time, the court must be sensitive to its proper role in the constitutional framework and refrain from intruding into the legislative sphere beyond what is necessary to give full effect to the provisions of the Charter Given the diverse and novel problems that the Court may be called upon to redress, and the need to intrude as little as possible into the legislative sphere, it is imperative for the Court to maintain at its disposition a variety of remedies as part of its arsenal. 4 B. Constitutional Exemption is a Section 52 Remedy 8. Although this Court has yet to employ it, a constitutional exemption is one of the remedies at the Court s disposal under s.52. The jurisprudence on this point is somewhat difficult to discern, since constitutional exemptions have primarily been discussed in obiter statements, 5 and have only been ordered as s.24(1) Charter remedies by dissenting judges, typically in cases where the majority found no violation of Charter rights. 6 In both Osborne and Seaboyer, however, the majority of this Court explicitly acknowledged the possibility of resort to a constitutional exemption as a s.52 remedy in a future case. In Schachter, Chief Justice Lamer, writing for the majority, recognized the doctrine of constitutional exemption in the context of his discussion of s.52 remedial measures. Also, a number of appellate courts and lower courts have issued constitutional exemptions under s Schachter, supra, at para.77; Osborne, supra, per Sopinka, J, at Osborne, supra, per Sopinka, J., at See, for e.g. R. v. Edwards Books, [1986] 2 S.C.R. 713, at para.147; Miron v. Trudel, [1995] 2 S.C.R. 418, at 509; R. v. Rose, [1998] 3 S.C.R. 262, per L Heureux-Dube, J., at para.66; R. v. Latimer, [2001] 1 S.C.R. 3, at para.87 6 R. v. Rodriguez, [1993] 3 S.C.R. 519, per Lamer, C.J., at ; Thibaudeau v. Canada, [1995] 2 S.C.R. 627, per McLachlin, J., at Osborne, supra, per Sopinka, J., at ; Schachter, supra, at para.60; R. v. Chief (1989), 51 C.C.C. (3d) 265 (Y.T.C.A.), at ; R. v. Seaboyer (1987), 37 C.C.C. (3d) 53 (Ont.C.A.), per Grange, J.A. at para.54-55, rev d [1991] 2 S.C.R. 577, at 630

7 This Court ought to confirm the availability of a constitutional exemption as a s.52 remedy in this case. Failure to do so would impede the flexibility required by lower courts in the exercise of their remedial discretion. Moreover, it would be illogical to preclude a constitutional exemption, since it is an obvious companion to other s.52 remedies such as reading in or reading down. As Justice Sopinka noted in Osborne, the same result is sometimes achieved regardless of whether the Court reads down legislation or employs a constitutional exemption. Similarly, reading in to a statute does not always extend the application of the legislation; reading in exceptions can effectively exempt groups or individuals from the legislation s reach. The interchangeability of these remedies led British Columbia Chief Justice McEachern to comment in R. v. Chief that a constitutional exemption may simply be a variant of the reading in / reading down doctrine. 8 Indeed, in some cases, this Court has issued s.52 remedies that had the same effect as a constitutional exemption, although they were not labeled as such. 9 In any event, as this Court ruled in Schachter, the focus of the court should be on the appropriate remedy in the circumstances and not on the label used to arrive at the result. 10 C. Constitutional Exemptions as Ancillary Orders under Section In this case, the trial judge ordered a constitutional exemption from the general sections of the CPP as an ancillary remedy to the principal remedy of striking down ss.44(1.1) and 72(2) ( the specific sections ). She held that s.52 gave her the authority to grant both remedies after determining that the specific sections infringe s.15 of the Charter and are not saved by s.1, without conducting a separate s.15 analysis of the general sections. The Court of Appeal erred when it reversed this ruling on the basis that no constitutional remedy can apply to a statutory provision unless that provision itself contravenes the Charter. 11 According to the remedial framework set out in Schachter, the first two steps in any s.52 analysis involve asking the following questions: (1) what is the extent of the impugned provision s inconsistency with the Charter and (2) can the inconsistency be dealt with through that provision alone or are other parts of the legislation inextricably linked to it? Where other sections of a statute are closely connected to the impugned sections, the Court may deal with the other sections through ancillary 8 Osborne, supra, per Sopinka, J., at ; Chief, supra, at See, for e.g., R. v. Sharpe, [2001] 1 S.C.R. 45, at paras ; Miron, supra, at ; R. v. Morrisey, [2000] 2 S.C.R. 90, per McLachlin and Arbour, JJ. (dissenting), at para Schachter, supra, at para.33, citing Knodel v. B.C. (1991), 58 B.C.L.R. (2d) 356 (S.C.) 11 Court of Appeal Reasons for Judgement, at para.101 and 121

8 - 4 - orders, even if they have not been found to violate the Charter. In Schachter, this Court provided the example of distortions and inconsistencies of legislative intention that could result from striking down an invalid section of a statute, where the significance of the part which would remain is substantially changed when the offending part is excised. In such circumstances, the Court noted that the non-offending portions of the statute may also need to be struck down The AG of Canada argues -- and the Court of Appeal incorrectly found -- that ancillary orders are a narrow exception that apply only to severance. 13 Although ancillary orders were discussed in Schachter in the context of severance, and were employed in Divine in a case involving severance, 14 neither of those judgments suggest that such orders must be limited to severance. This Court has repeatedly emphasized the need for flexibility in order to adopt whichever remedial measures best achieve the goal of vindicating Charter rights, while intruding as little as possible into the legislative sphere. If ancillary orders were restricted to severance, the Court would be hampered in its ability to fulfill its remedial duty. The AG of Canada argues that ancillary orders should not be extended to exemptions because the principles applicable to severance are different from those governing exemptions. 15 The jurisprudence does not support this argument. It is well established that the choice of remedy under s.52 must be guided by the twin principles of respect for the purposes of the Charter and respect for the role of the legislature, regardless of which remedial measures are being considered. There are no additional or different principles that govern the use of exemptions as s.52 remedies. D. The Appropriate Remedy in this Case 12. In determining the appropriate s.52 remedy in this case, the Court must first identify the extent of the specific sections inconsistency with the Charter. In doing so, it is not particularly helpful to focus on the technical language with which the sections were drafted. Rather, the extent of the inconsistency can be defined conceptually, in substantive, rather than merely verbal, terms. 16 Section 44(1.1) effectively excludes the Class Members from entitlement to receive a monthly survivor s pension that is payable to the common law partners of deceased 12 Schachter, supra, at paras.29, 64-66, and Responding Factum of the AG of Canada, at paras.13 and 20; Court of Appeal Reasons for Judgment, at para Devine v. Quebec, [1988] 2 S.C.R. 790, at Responding Factum of the AG of Canada, at paras Schachter, supra, at paras.35-36

9 - 5 - plan contributors. This exclusion applies only to same-sex survivors of contributors who died prior to January 1, Section 72(2) limits the quantum of benefits that would otherwise be payable to the Class Members (were they not excluded) by specifying that same-sex survivor pensions will only be payable from August 2000 forward. These specific sections were enacted as part of the Modernization of Benefits and Obligations Act, 2000 (MBOA). 13. In contrast to the way in which the lesbian and gay Class Members are treated under the specific sections, opposite sex survivors are entitled under the CPP to monthly benefits payable from one month after the date of death of their partner, regardless of when their partner died, subject only to the limits imposed by the general sections: s.72(1) limits the recovery of arrears to twelve months for any survivor who delays in applying for their pension and s.60(2) imposes a 12 month limitation period on applications by the estates of eligible survivors. 14. The trial judge correctly found that the specific sections are entirely inconsistent with s.15 of the Charter and must therefore be struck down. The next question is whether this remedy alone is sufficient to cure the inconsistency with the Charter s promise of substantive equality, or whether the Court must deal with other connected sections of the CPP. The AG of Canada argues that the specific sections, which were part of the MBOA amendments, address comprehensively and completely the timing of entitlement and quantum in relation to same-sex survivors and therefore have no connection to the general sections, which predated the MBOA. 17 This is not accurate. While the specific sections apply exclusively to same-sex survivors, they do not constitute a comprehensive code for dealing with issues of entitlement and quantum for same-sex survivors. The general sections also apply to same-sex survivors (and their estates), affecting both their entitlement and quantum. Moreover, the fact that the general sections were not enacted as part of the MBOA is irrelevant. The relevant questions are: (1) whether the inconsistency with the Charter is effectively cured by striking down the specific sections alone and (2) whether, once the specific sections are severed from the statute, any distortions in legislative intent result in the remaining sections. 15. The inconsistency with s.15 of the Charter is not cured by striking down the specific sections alone. While the Class Members would then become entitled to receive a survivor s 17 Responding Factum of the AG of Canada, at para.19

10 - 6 - pension, they still would not enjoy equal benefit of the CPP, which grants opposite sex survivors pensions payable from one month after the death of their partner, subject only to instances where they (or their estates) sit on their rights and fail to make a timely application. The trial judge found that the Class Members did not sit on their rights. 18 They are therefore entitled to benefits equal to those of opposite-sex survivors who do not sit on their rights, namely pensions payable from one month after the death of their partner. To the extent that the general sections preclude or limit their claims, the CPP remains substantively inconsistent with the equality guarantee in s.15 of the Charter. Striking down the specific sections, without more, fails to provide the Class Members with a meaningful remedy that fully vindicates their equality rights. 16. Moreover, striking down the specific sections alone distorts the legislature s intention. The general sections were never intended to apply to individuals (and estates) like the Class Members, who could not have reasonably known that they had any statutory entitlement during the relevant period (since the statute explicitly excluded them). Striking down the specific sections, without more, has the effect of extinguishing or limiting the Class Members entitlement to benefits for reasons that are completely unrelated to the promptness of their claims. This is not what the legislature intended and the Court should therefore provide an ancillary remedy to correct this distortion of legislative intent. 17. The next step is to identify which of the available s.52 remedial measures is the most appropriate ancillary remedy. Severing the general sections would interfere unduly with the legislative scheme, since it would negate Parliament s legitimate aim of precluding both samesex and opposite-sex survivors (and their estates) from sitting on their rights and subsequently making tardy claims for large arrears. A constitutional exemption, on the other hand, would cure the constitutional deficiency while allowing for the ongoing application of the general sections to those individuals (and estates) to whom they were intended to apply. 18. The same result could be achieved by reading in an exception in s.72(1) for a common law partner who was not, immediately before the coming into force of the MBOA amendments, a person described in subparagraph (a)(ii) of the definition of spouse in subsection 2(1) as that definition read at that time (mirroring the language adopted by Parliament in drafting s.44(1.1)). 18 Reasons for judgement of MacDonald, J., at para.120

11 - 7 - An exception could similarly be read into s.60(2). But since the Class Members would exhaust the entire class of persons covered by such exceptions, it is more efficient and less intrusive into the statutory scheme simply to grant them a constitutional exemption. 19. The concerns that have prevented this Court from granting a constitutional exemption as a s.52 remedy in previous cases do not apply in the circumstances of this appeal. In criminal cases involving provisions that are generally valid but may be unconstitutional in their application to some accused, the Court has refused to order an exemption that would effectively instruct trial judges not to enforce the law when its effects would violate Charter rights. As the Court noted in Seaboyer, that would simply amount to saying the law should not be applied when it should not be applied, which would deprive the law of certainty and predictability, a particularly unsatisfactory result when violations of the law are punished by imprisonment. Some Justices of this Court have also found that it would not be appropriate to grant a constitutional exemption in civil cases, where it would leave an over-inclusive statutory prohibition on the books and require trial judges to cure legislation on a case-by-case basis, since the unpredictability of outcome would result in a chill on lawful activity In other cases, however, such as Big M. Drug Mart and Edwards Books, this Court has acknowledged the possibility of granting a constitutional exemption from otherwise valid legislation that indirectly impacts on the religious freedom of some individuals. Those cases were distinguished in Seaboyer on the basis that the exempted group could be defined by a criterion external to the Charter. In other words, the constitutional exemption would not simply apply to those persons whose freedom of religion is violated by the statute, but rather to an identifiable group clearly defined by reference to specific characteristics (e.g. those persons who close their businesses for religious reasons on days other than Sunday ). Thus there would be no case-by-case determinations of who qualifies for the exemption and the remedy would not run afoul of the legal requirements for certainty and predictability In the within appeal, a constitutional exemption would not create any uncertainty or unpredictability in the CPP. The exemption would apply only to the Class Members, who are a 19 Seaboyer, supra, at para.86; R. v.goltz, [1991] 3 S.C.R. 485, per McLachlin, J. (dissenting), at 526; Osborne, supra, per Wilson, J. (dissenting), at R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, at 315; Edwards Books, supra, at para.147; Seaboyer, supra, at 629

12 - 8 - discrete and readily identifiable group. It would be a one-time exemption and would not require case-by-case determinations of the general sections validity in future litigation. 22. The other key concern that influenced this Court s decision not to grant a constitutional exemption in Seaboyer was the fact that it would have radically altered the rape shield law in question, in a manner that substantially contradicted the legislature s intent. The AG of Canada argues that granting a constitutional exemption in this case would similarly interfere with Parliament s intention to balance benefits granted to lesbians and gay men with corresponding obligations under the MBOA. 21 Some of the obligations cited are, however, provincial matters that have nothing to do with the MBOA (e.g. mutual spousal support). The overwhelming majority of obligations imposed on same-sex partners by the MBOA are income tax related. If this were a case involving a challenge to the Income Tax Act, there might be some merit to an argument that the Court ought not to extend tax advantages to same-sex partners without simultaneously imposing tax burdens, but that issue does not arise in this appeal. 23. The AG of Canada asserts that the CPP imposes legal obligations based on relationship status, namely the mandatory division of pensionable earnings upon separation. This so-called legal obligation could just as accurately be described as a benefit, depending on one s point of view (i.e. whether a partner is on the receiving or giving end of the credit split). Certainly, granting the Class Members a survivor s pension with arrears cannot reasonably be characterized as a windfall on the basis that, had their relationships ended in separation rather than death, they would not have been required to split their pensionable earnings (if any). Eligibility to receive a survivor s pension under the CPP is not (and has never been) predicated on the survivor having any pensionable earnings of his/her own. Thus it is disingenuous to assert that Parliament intended to balance the obligation of having to split one s credits upon separation with the benefit of being entitled to receive a survivor pension in the event of one s partner s death. The only relevant balancing of rights and obligations, within the context of the CPP, is the payment of contributions by an employee, which entitles the employee s eligible common law partner to a survivor pension upon their death. Lesbian, gay and bisexual employees have always had the same CPP contribution obligations as heterosexuals. The Class Members deceased partners 21 Main factum of the AG of Canada, at paras.1, 39, 78-79; Responding factum of the AG of Canada, at para.30

13 - 9 - satisfied their contribution obligations and there is therefore no imbalance in awarding their surviving same-sex spouses a pension with full arrears. 24. Finally, the financial impact of granting a constitutional exemption to the Class Members does not militate against the appropriateness of this remedy. Budgetary repercussions are a relevant consideration in choosing a s.52 remedial response, but courts are permitted to make decisions that result in an expenditure of government funds. Indeed, the threshold articulated by this Court in Schachter is very high: a remedy will not be appropriate if it entails such a substantial intrusion into the sphere of budgetary policy that it effectively changes the nature of the legislative scheme. 22 Far from having any substantial budgetary repercussions, the remedies ordered by the trial judge in this case would have only a minimal financial impact on the CPP. This was confirmed by the AG of Canada s expert witness and was, in any event, conceded by the AG of Canada at trial and on appeal Although there is no significant fiscal consequence to paying the Class Members a survivor s pension with full arrears, the AG of Canada and the provincial AGs raise the spectre of indeterminate financial liability, which they claim will result from the precedent established by such a remedy. Their facta are replete with hyperbole about the potential implications of this case, describing the trial judge s ruling as a requirement to pay retroactive arrears to all persons denied benefits under unconstitutional laws and as a finding that retroactive remedies are a constitutional imperative. 24 These are gross overstatements designed to underscore their in terrorem argument that the trial judge s remedies would deter governments from enacting new social programs for fear of potential liability for retroactive arrears in future litigation. 26. This fear is baseless, since any future litigation would be decided on its own particular facts, in its unique context, and with due regard to the legislative history of the statute in question. The evidence in a future case, including evidence relating to costs, might support a s.1 justification or militate in favour of a different s.52 remedy. In this regard, it is important to recall that the CPP is a social insurance scheme, funded entirely by the contributions of employers and employees, together with investment income. It receives no financial assistance 22 Schachter, supra, at para Reasons for judgment of Macdonald, J., at para.116; Court of Appeal reasons for judgment, at para Factum of the AG of Ontario, at para.44; Factum of the AG of Alberta, at para.15; see also Responding Factum of the AG of Canada, at para.28

14 from tax revenues, nor may its assets be diverted to other government programs. 25 Its benefits are, however, taxable and provide a source of revenue for governments. It is therefore different in important respects from social benefits schemes, like the Old Age Security Act at issue in Egan and the Social Aid Act at issue in Gosselin. 26 Social benefits schemes are funded by tax revenues, so the cost implications of extending benefits are different. The payment of arrears to the Class Members in this case would be made from the CPP fund, not from tax revenues. Courts deciding future challenges to under-inclusive social programs will not be bound to reach the same conclusions reached in this case. Rather, they will conduct s.15, s.1 and s.52 inquiries in accordance with the appropriate analytical frameworks, with requisite sensitivity to context and respect for the role of the legislature, including restraint from imposing remedies that have substantial budgetary repercussions. Speculation about the outcome of future cases should have no bearing on the Court s selection of an appropriate remedy in this case. 27. Moreover, this would not be the first time that this Court has ordered a retroactive remedy under s The question is whether such a remedy is appropriate in the circumstances of this case, not whether it might be inappropriate in some future hypothetical case(s). Egale submits, based on all of the foregoing, that retroactive relief in the form of a constitutional exemption is appropriate and that the trial judge s remedies should be reinstated. E. The General Sections Have an Unjustifiable Discriminatory Effect 28. Should this Court find it necessary to conduct a separate s.15 analysis of the general sections of the CPP, Egale submits that the sections are discriminatory and are not justifiable under s.1 of the Charter. We adopt the submissions of the Class Members on these issues and wish to add only a few points with respect to s The general sections extinguish or limit the Class Members entitlement to a survivor s pension for reasons unrelated to the promptness of their claims. The sections therefore draw an indirect distinction between the Class Members and other survivors, whose entitlement to a full pension is not limited unless they sit on their rights and make a tardy application. This 25 Reasons for judgment of the Court of Appeal, at para Egan v. Canada, [1995] 2 S.C.R. 513; Gosselin v. Quebec, [2002] 4 S.C.R. 429; see also Macdonald, J. s reasons for judgment, at para See, for e.g., Miron, supra, at

15 distinction is based on the Class Members sexual orientation because it is directly related to the history of discrimination that they endured as lesbians and gay men during the Class Period (April 1985 to January 1998). The reason why they are now in a position of having to claim arrears is not simply that they were previously excluded from eligibility for a survivor s pension under the provisions of the CPP, but also that they were vulnerable to widespread social, political and legal discrimination based on their sexual orientation. It therefore would have been particularly difficult for them to challenge their exclusion from the CPP and assert a claim to a survivor s pension when their partners died. Doing so would have required not only that they ignore the advice of government officials, who actively discouraged their claims, but also that they publicly disclose their sexual orientation, at a time when such disclosure could have resulted in termination of their employment, ostracism from their families, etc. 30. The Class Members are not, as the AG of Canada suggests, challenging the former CPP legislation which excluded all same-sex partners from eligibility for a survivor s pension. Rather, they are challenging the unintended adverse effects of the general sections under the current legislation. Those effects infringe s.15 because they perpetuate the discrimination to which the Class Members were subjected during the Class Period, including the prejudicial social and legal characterization of their relationships as being unworthy of recognition and respect. F. An Exemption is the Best Section 52 Remedy for Adverse Effect Discrimination 31. The Court has an obligation, under s.52 of the Constitution Act, 1982, to ensure that the general sections are not enforced, to the extent of their inconsistency with the Charter. As noted in Schachter, the manner in which a law violates the Charter is critical to the determination of the extent of the inconsistency. Indirect violations of the Charter typically exhibit a lesser degree of inconsistency than direct violations and therefore call for a tailored remedial response. Severance will rarely be an appropriate remedy in such cases. As the Saskatchewan Court of Appeal ruled in McGillivary, where the inconsistency exists neither in purpose nor in universal effect, and there exists a viable way to confine the extent of the invalidity, then it is incumbent upon the court to so confine it rather than to strike down the law Schachter, supra, at para.43; R. v. McGillivary, (1991) 62 C.C.C. (3d) 407 (Sask.C.A.)

16 This Court has recognized that a constitutional exemption may be the appropriate remedy where a law that is otherwise valid has an unintended negative impact on the Charter rights or freedoms of some individuals. 29 Because an exemption can be tailored to the limited extent of the law s offensive effects, it will be an ideal remedy in most cases of adverse effect (as opposed to direct) discrimination. If, however, a law is invalid in so many of its applications that the statute is riddled with infirmity and multiple exemptions would be required to cure it of its constitutional deficiencies, then it may be preferable to strike it down In this case, the general sections are valid in their purpose and in their general effects, but they have an unintended discriminatory impact on the Class Members. They suffer from a single constitutional defect, which is best remedied by means of a constitutional exemption. This tailored remedy cures the sections of their constitutional deficiency while allowing for their continued application in the circumstances intended by Parliament. It therefore satisfies the twin principles of respect for the purposes of the Charter and respect for the role of the legislature. 34. Since the Class Members equality rights can be fully vindicated by s.52 remedies, it is unnecessary to consider the availability of a personal remedy under s.24(1) of the Charter. The AGs arguments about the inability to combine s.24(1) and s.52 remedies are therefore irrelevant. G. Broad and Generous Interpretation of Section 24(1) of the Charter 35. If this Court concludes that a constitutional exemption is not available as a s.52 remedy, then Egale submits that it should be ordered as a personal remedy under s.24(1) of the Charter. Section 24(1) authorizes the Court to grant the remedy that it considers appropriate and just in the circumstances. As this Court commented in Mills, it is difficult to imagine language which could give the court a wider and less fettered discretion. Section 24(1) confers a broad remedial mandate upon the Court, which should not be frustrated by a narrow and technical reading of the section. Rather, like all Charter provisions, s.24(1) must be construed generously to achieve its purpose of upholding Charter rights by providing effective remedies for their breach. It must be interpreted in a manner that provides a full, effective and 29 Big M. Drug Mart, supra, at 315; Edwards Books, supra, at para.147; see also Corbiere v. Canada, [1999] 2 S.C.R. 203, per L Heureux-Dube, J. (dissenting), at para Osborne, supra, per Sopinka, J., at 105

17 meaningful remedy for Charter violations, one that is relevant to the experience of the claimant and that addresses the circumstances in which the right was infringed The Court must be guided in the exercise of its discretion by the language of s.24(1), which requires that any remedy ordered by the Court be both appropriate and just. An appropriate remedy is one that meaningfully vindicates the right of the claimant, that from the perspective of the person whose right was violated, effectively redresses the violation and corrects the situation. A just remedy is one that is equitable and fair to all who are affected by it, including the perpetrator and, in some cases, the public at large. A just remedy will not impose substantial hardships on the party against whom the order is made and will implement the guarantees of the Charter without unduly interfering with the effective operation of government. Finally, any remedy under s.24(1) of the Charter must employ means that are legitimate within the framework of our constitutional democracy and that respect the separation of functions among the legislature, the executive and the judiciary. 32 H. Section 24(1) Remedies in Conjunction with Section 52 Remedies 37. Despite this Court s pronouncement in Mills in 1986 that it is not for appellate courts to pre-empt or cut down [the] wide discretion granted to trial judges under s.24(1), that is precisely what this Court s subsequent jurisprudence appears to have inadvertently achieved. Brief remarks made by Chief Justice Lamer in Schachter have been construed so narrowly as to severely restrict the availability of s.24(1) remedies in cases where a s.52 remedy is ordered. Notwithstanding this Court s emphasis on the importance of not reducing s.24(1) remedial discretion to some sort of binding formula for general application in all cases, Chief Justice Lamer s remarks have become known as the rule in Schachter -- though it is unclear precisely what the rule requires (see below) The key passage from Schachter reads as follows: An individual remedy under s.24(1) of the Charter will rarely be available in conjunction with action under s.52 of the Constitution Act, Ordinarily, where a provision is declared unconstitutional and immediately struck down 31 Mills, supra, at 965; Dunedin, supra, at paras.18-19; Doucet-Boudreau, supra, at paras.24-25, 52 and Sask. HRC v. Kodellas (1989), 60 D.L.R. (4 th ) 143 (Sask.C.A.), at 162 and 187; Doucet-Boudreau, supra, at paras and 58; Mills, supra, at 964; Guimond v. Quebec, [1996] 3 S.C.R. 347, at para Mills, supra, at 965; Doucet-Boudreau, supra, at para.52; R. v. Demers, [2004] 2 S.C.R. 489, at paras.61-62

18 pursuant to s.52, that will be the end of the matter. No retroactive s.24 remedy will be available. It follows that where the declaration of invalidity is temporarily suspended, a s.24 remedy will not often be available either. To allow for s.24 remedies during the period of suspension would be tantamount to giving the declaration of invalidity retroactive effect. Finally, if a court takes the course of reading down or in, a s.24 remedy would probably only duplicate the relief flowing from the action that court has already taken This passage constitutes a prediction that s.24(1) remedies will rarely be combined with s.52 remedies, but has been misinterpreted as a proscription against combining them. Chief Justice Lamer was not attempting to limit the Court s broad remedial discretion under s.24(1), but rather was merely anticipating that s.24(1) remedies would often be denied in cases where a s.52 remedy is granted. He correctly predicted that, in cases where reading in or reading down was employed by the Court, a s.24(1) remedy would usually be redundant. In subsequent cases such as Miron, Vriend and Sharpe, where the Court read into under-inclusive legislation, the claimants rights were fully vindicated by the s.52 remedy. 35 To order a personal remedy for Mr. Vriend, for example, stipulating that he could file a human rights complaint against his former employer, would have been duplicative of the relief already afforded by the s.52 remedy in that case. Given that constitutional exemptions often operate as a variant of reading in or reading down, personal s.24(1) remedies will also usually be redundant in cases where a constitutional exemption is ordered under s.52, as exemplified by the trial judgment in this case. 40. It is also true that, where a statutory provision is declared invalid, whether or not the declaration is suspended, a retroactive s.24 remedy will often (though not always) be inappropriate. The reason is that the personal remedy would undermine the Court s choice of severance (as opposed to reading in, reading down, etc.) as its s.52 remedy. For example, where the Court opts for a suspended declaration of invalidity under s.52, it will often be because there are multiple ways in which a statute s constitutional deficiency can be repaired, and the choice is best left to the legislature. Ordering a s.24 remedy in such circumstances would effectively deprive the legislature of that choice or, at minimum, fail to respect the legislature s choice. Schachter is a good example of this kind of scenario. In Schachter the claimant was a biological father who challenged a statutory provision that granted 15 weeks of unemployment insurance 34 Schachter, supra, at para Miron, supra; Vriend v. Alberta,[1998] 1 S.C.R. 493; Sharpe, supra

19 benefits exclusively to adoptive parents. The Court struck down the impugned section because it concluded that reading biological parents into the benefits provision would constitute a substantial intrusion into the legislative domain. The Court did not feel comfortable dictating that 15 weeks of benefits be extended to biological parents, since budgetary constraints might lead the legislature to equalize the benefits differently (which is, in fact, what had happened, when the statute was amended before this Court s hearing to provide only 10 weeks of benefits to both adoptive and biological parents). In those circumstances, the Court understandably also did not feel comfortable awarding the claimant 15 weeks of benefits as a s.24(1) remedy. Such a remedy would not have been just in the circumstances of that case Similarly, in Gosselin, the minority judges who found age-based restrictions in Quebec s welfare legislation to be unconstitutional, would have ordered a suspended declaration of invalidity because the creation of a social assistance program that is respectful of the equality rights of young people would not necessarily involve increasing the benefit levels of those under 30 to the level of the 30-year-old beneficiaries and the statutory reform was best left to the legislature. They would have denied the appellant (class of welfare recipients under age 30) damages pursuant to s.24(1) for the same reason. The government had amended the impugned legislation prior to this Court s hearing, not by increasing the benefit levels of young people, but rather by imposing conditions on all beneficiaries, regardless of age. Awarding the appellant s request for damages under s.24(1) would have been inconsistent with deference under s.52 to the legislature s budgetary decision to correct the statutory inequality by different means. In short, retroactive benefits would not have been a just remedy in the circumstances of that case There are cases, however, in which a retroactive s.24 remedy has been combined with severance under s.52. For example, in Parker, the Ontario Court of Appeal ruled that the CDSA prohibition against possession of marijuana violated s.7 of the Charter because it did not provide an exception for medicinal use. The Court held that it would not be appropriate to read a medical exemption into the statute because there were a variety ways in which the law could be reformed, including options that would go further than the minimum required for Charter compliance, and the choice was best left to Parliament. The Court therefore declared the impugned provision 36 Schachter, supra, at paras and Gosselin, supra, per Bastarache, J., at paras

20 invalid, with a temporary suspension of the declaration to allow Parliament time to reform the statute. The Court also stayed the charges against Mr. Parker and granted him a constitutional exemption (during the period of suspension) under s.24(1) of the Charter. These retroactive personal remedies were not inconsistent with the rationale underlying the Court s choice of severance as the s.52 remedy, since it was safe to assume that, whatever amendments were enacted by Parliament, Mr. Parker s medical use of marijuana would not be proscribed This Court reached a similar outcome in Guignard, a case involving an appellant who was convicted of contravening a municipal by-law that prohibited the erection of advertising signs outside an industrial zone. Having found that the impugned sections of the by-law infringed s.2(b) of the Charter and were not saved by s.1, the Court declared them to be invalid, but suspended the declaration for 6 months to give the municipality time to revise its by-law. The appellant was, however, acquitted of the charge against him, a personal remedy that was tantamount to a constitutional exemption under s.24(1). This personal remedy did not undermine the rationale behind the s.52 remedy, since it was safe to assume that the municipality, in revising its by-law, would not enact provisions that would prohibit the appellant s sign Similarly, in this case, it is safe to assume that, faced with a requirement to equalize same-sex and opposite-sex survivor pensions under the CPP, the legislature would neither reduce nor eliminate the benefits for all recipients. The uncertainty that existed in Schachter and Gosselin about how the legislature might respond does not arise in this case because the cost implications of extending the benefits are minimal. There were such serious budgetary repercussions in Gosselin that the minority found that extending retroactive benefits could potentially impact on the general economy of the province of Quebec. In contrast, the evidence in this case establishes that the fiscal impact on the CPP fund of granting the Class Members a survivor s pension with full arrears would be so trivial that the government would not have to consider a reduction in benefits nor increase in contribution rates. 40 There would be no impact on general revenues, since the CPP is a closed pension fund. This is, therefore, a case akin to Parker and Guignard, in which it is appropriate and just to award a retroactive s.24(1) remedy in conjunction with a s.52 order of severance. 38 R. v. Parker, [2000] O.J. No.2787 (Ont. C.A.), per Rosenberg J.A., at 205 and R. v. Guignard, [2002] 1 S.C.R. 472, at 32 and Main factum of the Class Members, at para.45.

21 Chief Justice Lamer, writing for the minority in Rodriguez, concluded that a constitutional exemption under s.24(1) of the Charter should only be ordered temporarily, in conjunction with a s.52 severance remedy during a period of a suspended declaration of invalidity. This dissenting opinion was later cited by the majority in Corbiere as though it were an established principle that a constitutional exemption is only available to protect the interests of a party who has succeeded in having a legislative provision declared unconstitutional, where the declaration of invalidity has been suspended. More recently, this Court in Demers stated the exact opposite, concluding that the rule in Schachter precludes courts from granting a s.24(1) individual remedy during the period of suspended invalidity. In both Corbiere and Demers, the Court explicitly left open the possibility of revisiting these (contradictory) rules in future cases These contradictions in the Court s jurisprudence have caused considerable confusion about the possibility of combining a constitutional exemption under s.24(1) with severance under s.52. Although the issue does not arise in the context of this case, since the exemption is sought in respect of different provisions than those that have been struck down under s.52, it may nevertheless be helpful for the Court to clarify the law on this point. Egale urges the Court to do so by reaffirming the broad remedial discretion available under s.24(1), the need to interpret that section purposively in all cases, and the absence of any inflexible rules that limit the appropriate exercise of s.24(1) discretion in cases where a s.52 remedy is also granted. I. There is No Crown Immunity 47. The AGs argue that a constitutional exemption from the general sections is precluded by another general rule, namely that damages cannot be awarded under s.24(1), absent government conduct that is clearly wrong, in bad faith or an abuse of power. This argument confuses the Class Members claim for equal benefit of the law with a claim for compensatory damages. 48. The Class Members initially made a claim for $20,000 each in symbolic damages, but it was abandoned on appeal. Although a constitutional exemption would result in monetary payments to them, those payments do not constitute damages in the sense employed by this Court in cases like Guimond, Winnipeg CFS, and Mackin, where the rule of limited Crown 41 Rodriguez, supra, per Lamer, C.J., at para.577; Corbiere, supra, at para.22; Demers, supra, at paras.61-62

22 immunity was applied. 42 The principles of remoteness, foreseeability, and mitigation, which govern determination of quantum in damages awards, have no application in this case, because the remedy does not involve an exercise of assessing and compensating for harm caused by the enactment of an invalid law. The difficulty identified by Justice Arbour in Winnipeg CFS of attempting to value a Charter breach does not arise, because no such valuing is taking place. Rather, by granting a constitutional exemption from the general sections, the Court is simply ordering that the Class Members receive equal benefit of the law, namely a survivor s pension from one month after the death of their partner. 49. As this Court stated in Doucet-Boudreau, the judicial approach to remedies [under s.24(1)] must remain flexible and responsive to the needs of a given case. 43 Thus the rule of limited Crown immunity from liability for damages should not be extended to all cases involving monetary remedies, especially where, as in this case, the policy rationale underlying the rule does not apply. The rule exists in damages cases to avoid the possibility of indeterminate liability and interference with the effective operations of government. As explained above, neither of those concerns applies in this case. The arrears would be paid to a relatively small identifiable class, the cost implications would be trivial, and there would be no impact on general revenues, government efficiency or government effectiveness. There would also be no difficulty calculating the benefits payable to the Class Members, unlike in Gosselin, where the minority noted that the amounts owed to each class member would have been impossible to quantify This is not to suggest, as the AGs fear, that there is a constitutional imperative to pay retroactive arrears to all persons denied benefits under unconstitutional laws. Allowing for the possibility (in appropriate cases) of obtaining a retroactive remedy under s.24(1), of combining a s.24(1) remedy with a s.52 remedy, and of obtaining a monetary remedy in the absence of proof of bad faith, does not mean that such remedies will become commonplace, let alone mandatory. On the contrary, retroactive monetary remedies are likely to remain rare under s.24(1) because they often will not possess both of the requisite qualities of appropriateness and justness. Since justness implies fairness to the party ordered to make the payment, in cases where 42 Guimond, supra, at para.19; Winnipeg CFS v. K.L.W., [2000] 2 S.C.R. 519, per Arbour, J. (dissenting), at para.43; Mackin v. N.B., [2002] 1 S.C.R. 405, at paras Doucet-Boudreau, supra, at para See Gosselin, supra, per Bastarache, J., at para.295