Lavoie et al. v. Canada et al., 2002 SCC 23

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court of Canada
• Case Date: March 08, 2002
• Jurisdiction: Canada (Federal)
• Citations: 2002 SCC 23;(2002), 284 N.R. 1 (SCC);JE 2002-494;210 DLR (4th) 193;284 NR 1;[2002] SCJ No 24 (QL);15 CCEL (3d) 159;[2002] 1 SCR 769;92 CRR (2d) 1

Lavoie v. Can. (2002), 284 N.R. 1 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. MR.005

Elisabeth Lavoie, Jeanne To-Thanh-Hien (appellants) v. Her Majesty The Queen in Right of Canada and the Public Service Commission (respon­dents)

Janine Bailey (appellant) v. Her Majesty The Queen in Right of Canada and the Public Service Commission (respondents) and Center for Research-Action on Race Relations (intervenor)

(27427; 2002 SCC 23)

Indexed As: Lavoie et al. v. Canada et al.

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

March 8, 2002.

Summary:

Section 16(4)(c) of the Public Service Employment Act provided that non-citizens were not to be referred for open competition positions in the federal public service until the inventory of qualified citizens was exhausted. The section gave preferred status to citizens for public service jobs. Three permanent residents, who had chosen not to obtain citizenship, challenged s. 16(4)(c) as violating their equality rights under s. 15 of the Charter of Rights and Freedoms.

The Federal Court of Canada, Trial Divi­sion, in a judgment reported 95 F.T.R. 1, held that s. 16(4)(c) discriminated against non-citizens, but was a reasonable limit prescribed by law under s. 1 of the Charter. The permanent residents appealed.

The Federal Court of Appeal, Linden, J.A., dissenting, in a judgment reported 242 N.R. 278, dismissed the appeals. Marceau, J.A., stated that the challenged legislation was not sub­­ject to s. 15(1) Charter scrutiny where it ap­plied to all non-citizens without differen­tia­tion. Non-citizens did not have the inherent right to participate in all Canadian legislative attributes and benefits on the same level as citizens. If s. 15(1) did apply, the distinction made by the challenged legis­lation did not violate s. 15(1), as there was no discrimination absent an effect on human dignity. Desjardins, J.A., concurring in the result, found it unnecessary to determine whether the section imposed an invalid distinction constituting discrimination under s. 15(1) or whether the challenged legislation was beyond the scrutiny of s. 15(1). In either case, the challenged legislation had to be justified as a reasonable limit prescribed by law under s. 1 of the Charter. Desjardins, J.A., held that the Oakes test was satisfied where the challenged legislation had a pressing and substantial objective, the means chosen were reasonable, and the means were rationally connected to the objective, impaired rights as little as possible and there was proper balance between the effect of the limitation and the legislative objective. Linden, J.A., dissenting, stated that the citizenship preference violated s. 15(1) and was not saved as a reasonable limit pre­scribed by law under s. 1 (failed the minimal impairment test). The permanent residents appealed.

The Supreme Court of Canada dismissed the appeals. Basta­rache, Gonthier, Iacobucci and Major, JJ., held that s. 16(4)(c) violated equality rights under s. 15(1), but was a reasonable limit prescribed by law under s. 1. Arbour, J. (concurring in the result), held that s. 16(4)(c) did not violate s. 15(1) and, if it had, it would not have been saved by s. 1. LeBel, J. (concurring in the result), held that s. 16(4)(c) did not violate s. 15(1) and that it was unnecessary to deter­mine whether it was saved by s. 1. McLach­lin, C.J.C., L'Heur­eux-Dubé and Binnie, JJ. (dissenting in the result), agreed that s. 16(4)(c) violated s. 15(1), but would have found that it was not a reasonable limit prescribed by law under s. 1.

Civil Rights - Topic 989.1

Discrimination - Employment - On basis of nationality, race or ethnic origin - [See Civil Rights - Topic 5650 ].

Civil Rights - Topic 5516

Equality and protection of the law - Gen­eral principles and definitions - Tests for inequality - General - The Supreme Court of Canada restated the three broad inquiries to be undertaken in determining whether there was discrimination under s. 15(1) of the Charter: "(A) 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? (B) Is the claimant subject to differential treatment based on one or more enumer­ated and anal­ogous grounds? and (C) Does the dif­ferential treatment dis­criminate, by impos­ing a burden upon or withhold­ing a benefit from the claimant in a manner which reflects the stereotypical ap­plication of pre­sumed group or personal charac­teristics, or which other­wise has the effect of per­petu­ating or pro­moting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Cana­dian society, equally deserving of concern, respect, and con­sideration?" - See paragraph 38.

Civil Rights - Topic 5650

Equality and protection of the law - Civil or public servants - Section 16(4)(c) of the Public Service Employment Act gave preference to citizens for open competition federal public service positions, but did not bar non-citizens - The Supreme Court of Canada held that s. 16(4)(c) violated equality rights of non-citizens under s. 15 of the Charter, but was a reason­able limit pre­scribed by law under s. 1 - Basta­rache, Gonthier, Iaco­bucci and Major, JJ., held that (1) perma­nent resi­dents who were non-citi­zens were sub­jected to dif­ferential treat­ment based on an analogous ground (citi­zenship), placing an additional burden on an already disad­van­taged group, but (2) s. 16(4)(c) was a reasonable limit pre­scribed by law - Arbour, J. (con­cur­ring in the result), held that s. 16(4)(c) did not violate s. 15(1) and, if it had, it would not have been saved by s. 1 - LeBel, J. (con­curring in the result), held that s. 16(4)(c) did not violate s. 15(1) and that it was unnecessary to deter­mine whether it was saved by s. 1 - McLach­lin, C.J.C., L'Heur­eux-Dubé and Binnie, JJ. (dissent­ing in the result), agreed that s. 16(4)(c) violated s. 15(1), but would have found that s. 16(4)(c) was not a reasonable limit pre­scribed by law.

Civil Rights - Topic 5671.2

Equality and protection of the law - Citi­zenship - [See Civil Rights - Topic 5650 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 5650 ].

Cases Noticed:

Andrews v. Law Society of British Col­um­bia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 1].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 2].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Jus­tice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1, refd to. [para. 2].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1, appld. [para. 2].

Adler et al. v. Ontario et al., [1996] 3 S.C.R. 609; 204 N.R. 81; 95 O.A.C. 1, refd to. [para. 6].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 7].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 7].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 12].

Irwin Toy Ltd. v. Québec (Procureur gén­é­ral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 13].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 13].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 13].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 14].

Winner v. S.M.T. (Eastern Ltd.), [1951] S.C.R. 887, refd to. [para. 31].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 37].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 42].

Eldridge et al. v. British Columbia (At­torney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 42].

Conway v. Canada, [1993] 2 S.C.R. 872; 154 N.R. 392, refd to. [para. 42].

Weatherall v. Canada (Attorney General) - see Conway v. Canada.

Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161, refd to. [para. 42].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 49].

Harrison v. University of British Colum­bia, [1990] 3 S.C.R. 451; 120 N.R. 1, refd to. [para. 49].

Stoffman v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 49].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 50].

Mathews v. Diaz (1976), 426 U.S. 67, refd to. [para. 56].

Sugarman v. Dougall (1973), 413 U.S. 634, refd to. [para. 56].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 61].

Mow Sun Wong v. Hampton (1977), 435 F.Supp. 37 (Dist. Ct. Cal.), refd to. [para. 68].

Canadian Broadcasting Corp. v. Dage­nais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 70].

Smith, Kline & French Laboratories Ltd. et al. v. Canada (Attorney General), [1987] 2 F.C. 359; 78 N.R. 30 (F.C.A.), refd to. [para. 84].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 93].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 15(1) [para. 29].

Public Service Employment Act, R.S.C. 1985, c. P-33, sect. 16(4) [para. 29].

Authors and Works Noticed:

Berezowski, N.M., and Trister, B.J., Citi­zenship 1996 (1996), p. 6 [para. 116].

Canada, Department of Justice, Equal­ity Issues in Federal Law: A Dis­cussion Paper (1985), pp. 49 to 50 [para. 54].

Canada, Hansard, House of Commons Debates, 1st Sess., 20th Parliament (October 22, 1945), vol. 2, p. 1335 [para. 57].

Canada, Report of the Standing Committee on Citizenship and Immigration, Cana­dian Citizenship, A Sense of Belonging (1994), pp. 5 to 7, 11, 15 [para. 58].

Hogg, Peter W., Constitutional Law of Canada (1992 Looseleaf Ed.), vol. 2, pp. 35-38 [para. 40]; 52-2, 52-3 [para. 40].

Kaplan, William, Belonging: The Meaning and Future of Canadian Citizenship (1993), pp. 221 to 244 [para. 40].

Kymlicka, William, Multicultural Citizen­ship (1995), pp. 173 to 176 [para. 57].

Schuck, Peter H., The Re-evaluation of American Citizenship (1997), 12 George­town Immigration L.J. 1, p. 14 [para. 52].

Sharpe, Robert J., Citizenship, Constitution and Charter in William Kaplan (ed.) Belonging: The Meaning and Future of Canadian Citizenship (1993), pp. 221 to 244 [para. 40].

Counsel:

David J. Jewitt, for the appellants, Elisa­beth Lavoie and Jeanne To-Thanh-Hien;

Andrew Raven and David Yazbeck, for the appellant, Janine Bailey;

Graham R. Garton, Q.C., and Yvonne Milosevic, for the respondents;

Joanne St. Lewis and Milton James Fern­andes, for the intervenor.

Solicitors of Record:

Jewitt & Associates, Ottawa, Ontario, for the appellants, Elisa­beth Lavoie and Jeanne To-Thanh-Hien;

Raven, Allen, Cameron & Ballantyne, Ottawa, Ontario, for the appellant, Janine Bailey;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondents;

Joanne St. Lewis and Milton James Fern­andes, Montreal, Quebec, for the intervenor.

These appeals were heard on June 12, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Basta­rache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On March 8, 2002, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C., and L'Heureux-Dubé, J. (Binnie, J., concurring), dissenting - see paragraphs 1 to 20;

Bastarache, J. (Gonthier, Iacobucci and Major, JJ., concurring) - see para­graphs 21 to 72;

Arbour, J. (concurring in the result) - see paragraphs 73 to 123;

LeBel, J. (concurring in the result) - see paragraphs 124 to 125.