Federal Court Decisions

                                                                                                                          Date: 20011101

                                                                                                                         Docket: T-46-00

                                                                                              Neutral Citation: 2001 FCT 1192

Between:

                                                              ROSE BEAR,

                                                                                                                                     Applicant,

                                                                     - and -

                                       ATTORNEY GENERAL OF CANADA,

                                                                                                                                Respondent.

                                                    REASONS FOR ORDER

Muldoon, J.

1. Introduction

[1]                 This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, Chap.F-7 as amended, seeking judicial review of a decision made by a representative of the Minister of National Revenue, dated December 9, 1992, refusing the applicant's request to contribute certain amounts retroactively to the Canada Pension Plan. The letter in which that decision is expressed, applicant's record p. 24, states :

Dear Rose:

The letter dated November 18, 1992 from your lawyer, regarding contributions to the Canada Pension Plan (C.P.P.) Has been reviewed.

Section 6(2)(j.1) of the Canada Pension Plan Act and regulations says, in effect, that the employment of an Indian as defined in the Indian Act was exempt from Canada Pension contributions as they did not have qualifying income.

Effective December 7, 1988 Regulations 29.1(1) & (2) were added to the Act outlining the manner in which an Indian can make contributions into the plan.

There is no provision under the Canada Pension Plan Act for any individual to make payments into the plan retroactively.

Our records indicate that your employer made an election on behalf of their employees to be covered under the Canada Pension Plan effective January 1, 1989 and that you have made contributions into the plan since that time.

We trust this clarifies the situation for you.

Yours sincerely,

2. Order Sought

[2]                 The applicant seeks the following remedies:

a.        an order that the Canada Pension Plan be declared in breach of section 15 of the Canadian Charter of Rights and Freedoms, section 1 of the Canadian Bill of Rights, and the rule of law under the Constitution Act, 1867 and the Constitution Act, 1982, because it discriminates against her, and denies her fundamental rights accorded to other Canadians in the following ways:

i.         it prohibits the applicant from contributing into Canada Pension Plan;

ii.         it prohibited the applicant from contributing into the Canada Pension Plan from its inception in 1966; and

iii.        it does not require the applicant or her employer to contribute mandatorily into Canada Pension Plan as do all other Canadians and their employers.

b.        an order that the applicant's employment since 1966 be declared to be "pensionable employment" within the meaning of the Canada Pension Plan;

c.        an order that the applicant be permitted to contribute into the Canada Pension Plan since its inception in 1966; and

d.        orders that the respondent pay damages and solicitor-and-client costs to the applicant.

At the hearing of this case, on June 26 and 27, 2001, in Winnipeg, the applicant abandoned the relief prayed for in paragraphs (1)c)f) and g) of her notice of application.

[3]                 The respondent requests that this application be dismissed with costs, and raises no "limitation of actions" concerns in her record or written submissions.

3. Statement of Facts

[4]                 The applicant, Rose Bear, is 61 year-old status Indian under the Indian Act. The applicant has been employed since July 4, 1966, by the Brokenhead Ojibway First Nation in Scanterbury, Manitoba. From 1966 to 1988, the applicant, and all status Indians who were employed on Indian reserves, have been prohibited from participating in the Canada Pension Plan (the CPP).

[5]                 The CPP is a universal pension plan which was enacted on April 3, 1965, S.C. 1964-65, Chap. 52, coming into force on May 5, 1965, and effective as of January 1966 to provide employed Canadians with a monthly pension upon turning sixty. Employers and employees contribute equally to the CPP, and the contributions are invested to provide a fund from which pensions are paid. The amount which a contributor receives varies with the amount which he or she contributed to the plan. The applicant submits that she is being denied retirement income because she was denied the right to contribute to the CPP for 22 years.

[6]                 At first, it seemed just too difficult for even the Tax Appeal Board to comprehend how serious Parliament was in enacting the Canada Pension Plan and the Bill of Rights. The decision in Toth v. M.N.R., 69 DTC 115 based on discrimination by reason of sex, is clearly wrongly decided, especially the passages reported on pages 120-121.

[7]                 The CPP mandates that one's contribution period starts on January 1, 1966, or when one turns 18, and ends at the age of 70, or when one dies, or when the one starts a retirement pension. Contributions are calculated using one's pensionable employment income, which is based on one's taxable income under Income Tax Act. Although the Income Tax Act does not specifically refer to Aboriginal Canadian Indians, paragraph 81(1)(a) of the Income Tax Act exempts from taxation, amounts which are declared to be exempt by any other enactment of Parliament. Section 87 of the Indian Act exempts from taxation the income earned by an Indian on an Indian reserve. The conjunctive effect of the CPP, of the Income Tax Act, and of the Indian Act is that income earned by an Indian employed on an Indian reserve is not taxable, and therefore is, or was, not pensionable under the CPP - until December, 1988.

[8]                 On December 7, 1988, the Canada Pension Plan Regulations were amended to allow those status Indians employed on Indian reserves to participate in the CPP, if the Indian were a Canadian resident, and the employer elected to participate in the plan. Participation in the CPP is not mandatory for these employers as it is for other Canadian employers. If the employer choose not to participate in the CPP, the employee must contribute as a self-employed individual, and thus loses the employer's matching contribution. In this case, the applicant's employer has opted into the plan, and she has been contributing since 1988. After the CPP was amended, the applicant requested that Revenue Canada allow her to contribute the maximum amount retroactively. An official at Revenue Canada refused her request by letter dated December 9, 1992, exhibit C to Rose Bear's affidavit, her record herein, p.24, (supra).

4. Issues

a.        Can the Charter apply retrospectively?

b.         Does the CPP violate section 15 of the Charter?

c.         Does the CPP violate section 6 of the Charter?

d.        Is the violation justifiable under section 1 of the Charter?

e.        Does the CPP violate the Canadian Bill of Rights?

f.         Does the CPP violate the rule of law?

g.        What remedy is appropriate here?

5. Summary of Disposition

[9]                 The applicant's Canadian Bill of Rights argument is well founded and should be allowed. The Charter is probably not applicable to the present case due to the prohibition against retroactive application.

[10]            All other issues are ancillary and are summarized in the parties submissions which follow her summary, at the end of these reasons.

6. Analysis of the Case

[11]            The applicant's inability to participate in the CPP, (participation in which is based on a person's taxable income), derives from tax exemptions to which she was entitled and was unable to reject as a status Indian employed on an Indian reserve under section 87 of the Indian Act, R.S., Chap. I-6, thus :

87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83, the following property is exempt from taxation, namely,

(a) the interest of an Indian or a band in reserve lands or surrendered lands; and

(b) the personal property of an Indian or a band situated on a reserve.

(2) No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property.

[12]            It was held in the seminal decision, R. v. Nowegijick [1983] 1 S.C.R. 29, that the "personal property of an Indian situated on a reserve" includes personal income. Speaking for the court, Mr. Justice Dickson reasoned as follows, as reported at pp. 38-41:

A tax on income is in reality a tax on property itself. If income can be said to be property I cannot think that taxable income is any less so. Taxable income is by definition, s. 2(2) of the Income Tax Act, "his income for the year minus the deductions permitted by Division C". Although the Crown in paragraph 14 of its factum recognizes that "salaries" and "wages" can be classified as "personal property" it submits that the basis of taxation is a person's "taxable" income and that such taxable income is not "personal property" but rather a "concept", that results from a number of operations. This is too fine a distinction for my liking. If wages are personal property it seems to me difficult to say that a person taxed "in respect of" wages is not being taxed in respect of personal property. It is true that certain calculations are needed in order to determine the quantum of tax but I do not think this in any way invalidates the basic proposition.

The words "in respect of" are, in my opinion, words of the widest possible scope. They import such meanings as "in relation to", "with reference to" or "in connection with". The phrase "in respect of" is probably the widest of any expression intended to convey some connection between two related subject matters.

[...]

Section 87 provides that "the personal property of an Indian ... on a reserve" is exempt from taxation; but it also provides that "no Indian ... is ... subject to taxation in respect of any such property". The earlier words certainly exempt certain property from taxation; but the latter words also exempt certain persons from taxation in respect of such property. As I read it, s. 87 creates an exemption for both persons and property. It does not matter then that the taxation of employment income may be characterized as a tax on persons, as opposed to a tax on property.

We must, I think, in these cases, have regard to substance and the plain and ordinary meaning of the language used, rather than to forensic dialectics. I do not think we should give any refined construction to the section. A person exempt from taxation in respect of any of his personal property would have difficulty in understanding why he should pay tax in respect of his wages. And I do not think it is a sufficient answer to say that the conceptualization of the Income Tax Act renders it so.

I conclude by saying that nothing in these reasons should be taken as implying that no Indian shall ever pay tax of any kind. Counsel for the appellant and counsel for the intervenors do not take that position. Nor do I. We are concerned here with personal property situated on a reserve and only with property situated on a reserve.

[13]            The applicant could not participate in the Canada Pension Plan for the period 1966 to 1988, when she was employed by Brokenhead Ojibway First Nation in Scanterbury, Manitoba due to her tax exempt status. The applicant challenges this distinction as being discriminatory and unjustifiable under section 15 of the Canadian Charter of Rights and Freedoms and section 2(b) of the Bill of Rights.

a. Can the Charter apply retrospectively?

[14]            Retroactivity and retrospectivity are terms which are often confused. In Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, the Supreme Court of Canada, quoting E.A. Driedger, stated, at p. 381:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event. [Emphasis in original].

[15]            The Supreme Court of Canada has often stated that the Charter does not apply retroactively. However, the Court has rejected a rigid test, preferring to evaluate each case on its own merits, and by evaluating the nature of the particular Charter right at issue. Not every situation involving events which occurred before the Charter came into force involves a retrospective application of the Charter. In R. v. Gamble, [1988] 2 S.C.R. 595 at 625, Madam Justice Wilson wrote thus:

In approaching this crucial question it seems to be preferable...to avoid an all or nothing approach which artificially divides the chronology of events into the mutually exclusive categories of pre and post Charter. Frequently an alleged current violation will have to be placed in the context of its pre-­Charter history in order to be fully appreciated...

...

And, at p. 628

Some rights and freedoms in the Charter seem to me to be particularly susceptible of current application even though such application will of necessity take cognizance of pre-Charter events. Those Charter rights the purpose of which is to prohibit certain conditions or states of affairs would appear to fall into this category. Such rights are not designed to protect against discrete events but rather to protect against an ongoing condition or state of affairs... Section 15 may... fall into this category.

[16]            In considering how the Charter applies to facts which occurred before it came into force, a Court must determine if the facts demonstrate a discrete event, or if they establish an ongoing state of affairs or characteristic. As Driedger states in Construction of Statutes (2d) 1983, at p. 192:

These past facts may describe a status or characteristic, or they may describe an event. It is submitted that where the fact-situation is a status or characteristic (the being something), the enactment is not given retrospective effect when it is applied to persons or things that acquire that status or characteristic before the enactment, if they have it when the enactment comes into force; but where the fact situation is an event (the happening of or the becoming something), then the enactment would be given retrospective effect if it is applied so as to attach a new duty, penalty or disability to an event that took place before the enactment. (Benner v. Sec. of State [1977] 1 S.C.R. at p. 382)

[17]            In Benner, supra, the appellant argued that the Citizenship Act offended section 15 of the Charter. The appellant was born in 1962 in the United States of a Canadian mother and an American father. He applied for Canadian citizenship, and his application was perfected on October 27, 1988. The Citizenship Act provided that persons born abroad before February 15, 1977, were entitled to be granted citizenship if they were born of a Canadian father, but were required to undergo a security check if they were born of a Canadian mother. During the security check, the Registrar of Citizenship discovered that the appellant had been charged with several criminal offences. The Registrar determined that Benner was prohibited from acquiring citizenship, and his application was rejected.

[18]            The Supreme Court of Canada ordered the Registrar to reconsider the appellant's application for citizenship. The Court held that applicants who were born abroad after February 15, 1977, were entitled to citizenship if their mother or their father was a Canadian Citizen. The issue was whether the Charter was being used retroactively or retrospectively. Mr. Justice Iacobucci stated in Benner, supra, at paras. [44], [45] and [46]:

Section 15 cannot be used to attack a discrete act which took place before the Charter came into effect. It cannot, for example, be invoked to challenge a pre-Charter conviction : R.v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713; Gamble, supra. *** If it continues to impose its effects on new applicants today, then it is susceptible to Charter scrutiny today: Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143.

The question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of law which happened to be passed before the Charter came into effect?

***

Successfully determining whether a particular case involves applying the Charter to a past event or simply to a current condition or status will involve determining whether, in all the circumstances the most significant or relevant feature of the case is the past event or the current condition resulting from it. This is, as I already stated, a question or characterization, and will vary with the circumstances. Making this determination will depend on the facts of the case, on the law in question, and on the Charter right which the applicant seeks to apply. (Benner, supra, pp. 383-84)

[19]            Section 15 of the Charter cannot be engaged to attack a discrete wrong which occurred before the Charter came into effect. The Court notes however that the Charter cannot be invoked to challenge a pre­-Charter conviction. Thus, where the effect of the law is simply to impose an ongoing discrimination or disability on an individual, then it is not insulated from Charter review simply because it was enacted before April 17, 1985. If the resulting prejudice continues to be imposed on new applicants today, the legislation is subject to Charter scrutiny.

[20]            Iacobucci J. characterized Mr. Benner's situation in terms of status or an ongoing condition:

From the time of his birth, he has been a child, born outside Canada prior to February 15, 1977, of a Canadian mother and a non-Canadian father. This is no less a ‘status' than being of a particular skin colour or ethnic or religious background: it is an ongoing state of affairs. People in the appellant's condition continue to this day to be denied the automatic right to citizenship granted to children of Canadian fathers. (Benner, supra, [52] at p. 386).

[21]            The applicant's situation here is also an ongoing condition which had endured from 1966 to 1988, and continues to this day in a different form. The applicant is still prevented from contributing to the CPP retroactively for the years 1966 to 1988. As of the coming-into-force date of section 15 of the Charter, the applicant was and is prevented from participating fully in the CPP, because she will not receive the benefits which she might have received had she been able to contribute to the CPP from its inception.

[22]            Notwithstanding the retrospective aspects of the plaintiff's case, this Court maintains that the applicant has no Charter entitlement to any remedy before 1985, which is when section 15 came into force. To allow such a Charter remedy would amount to a retroactive application of the Charter. The law granting the remedy must have actually existed for the period contemplated by the proposed remedial measure. In this respect, the Benner decision can be distinguished from the present case because Mr. Benner's discrimination crystalized when the Charter was in effect. Further, his subsequent acquisition of citizenship was a prospective remedy which did not require the Courts to change his pre-Charter status. In the present case, however, the alleged discrimination against the applicant, Ms. Bear, crystalized in 1966, well before the coming into force of the Charter, and the proposed remedy is retroactive in that it seeks to put the applicant in a position she would have occupied had she been allowed to participate in the CPP from its inception, before the Charter's existence. As such, the plaintiff's Charter argument should fail for reasons of the retroactivity of the application being sought.

[23]            In the event the Charter is deemed applicable, the following section 15 analysis is pertinent.

b.    Does the CPP violate section 15 of the Charter?

[24]            The Canadian Charter of Rights and Freedoms (enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, Chap. 11, came into force on April 17, 1982). Section 15, which came into force on April 17, 1985, provides:

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.

[25]            The basic principles for a subsection 15(1) analysis were articulated in Law v. Canada, [1999] 1 S.C.R. 497, wherein Mr. Justice Iacobucci stated (p. 548):

(1) It is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach.

(2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues:

(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;

(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and

(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

(3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

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?

[26]            In the present case, the applicant has clearly established differential treatment premised on the grounds of race. The position of the applicant and her class, status Indians employed on a reserve, is unique. No other class of people in Canada have tax exemptions and a corresponding exclusions from the CPP.

[27]            Regarding the issue of discrimination in a substantive sense, the applicant's exclusion from the CPP amounts to withholding a benefit in a manner contrary to human dignity, based on race, or ethnic origin, or colour. There are two reasons for this Court to reach this conclusion.

[28]            First, the respondent's argument that the differential treatment of the applicant is based on situs instead of personal immutable characteristics is not persuasive. Tax exemptions for status Indians residing and working on reserves is an integral part of the applicant's identity, which cannot be separated from her. The very notion of "Status Indian" tells the story in deep distinction from all other Canadians. Moreover, the

applicant's distinct legal identity is primarily attributable to over 100 years of government policy for aboriginal peoples. The obvious importance of such policy in defining aboriginal peoples in Canada should preclude the government of Canada from arguing that its legal treatment of aboriginal peoples is distinct from personal identity. The differential treatment in this case is premised on the applicant's identity as a status Indian.

[29]            Second, tax exemptions in the Indian Act are meant to protect the ability of Indians to benefit from their property. In Mitchell v. Peguis Indian Band, [1990] 2. S.C.R. 85, Mr. Justice La Forest noted at pages 130 and 131 that the Crown is honour bound to shield Indians from any efforts by non-natives to dispossess Indians of property they hold qua Indians:

__The exemptions from taxation and distraint have historically protected the ability of Indians to benefit from this property in two ways. First, they guard against the possibility that one branch of government, through the imposition of taxes, could erode the full measure of the benefits given by that branch of government entrusted with the supervision of Indian affairs. Secondly, the protection against attachment ensures that the enforcement of civil judgments by non-natives will not be allowed to hinder Indians in the untrammelled enjoyment of such advantages as they had retained or might acquire pursuant to the fulfilment by the Crown of its treaty obligations. In effect, these sections shield Indians from the imposition of the civil liabilities that could lead, albeit through an indirect route, to the alienation of the Indian land base through the medium of foreclosure sales and the like...

[30]            Participation in the CPP does not risk dispossession of Indian property. Rather, it is an universal pension plan, funded by compulsory contributions, designed to provide employed Canadians with a monthly pension upon turning 65. Thus, it is a benefit, which the applicant has been denied, thereby satisfying the third element of the test for discrimination.

c.       Does the CPP violate section 6 of the Charter?

Section 6 arguments are not determinative of this case and probably not relevant due to the likely inapplicability of the Charter to the applicant's claim. Submissions on this point by the parties are addressed later in these reasons, under party submissions.

d.      Is the violation justifiable under section 1 of the Charter?

[31]            As is known, once the applicant has established a violation of section 15 of the Charter, the burden shifts to the respondent to justify it. This Court accepts the applicant's submission that the discriminatory effects of the impugned legislation cannot be justified under section 1 of the Charter.

[32]            The principles governing the section 1 analysis derived from R. v. Oakes, [1986] S.C.R. 103. They are reproduced succinctly in Egan v. Canada, [1995] 2 S.C.R. 513 at 605, by Cory and Iacobucci, JJ., dissenting:

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 guarantees;

(3)            there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all Section 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.

[33]            The respondent's justification of the impugned legislation is feeble, and far short of convincing. The exclusion from the CPP of status Indians employed on reserves cannot be construed as having the pressing and substantial objective of preserving the tax-exempt status of status Indians. This argument is not persuasive because the legislation was amended with the respondent's complicity, in 1988 to permit status Indians employed on reserves to participate in the CPP, without affecting their tax-exempt status! That the impugned legislation was so amended demonstrates that the original objective of the legislation was ill-conceived and was not pressing and substantial.

e.     Does the CPP violate the Canadian Bill of Rights?

[34]            If this Court holds, as it does, that the Charter cannot be applied retrospectively, which is true, it can surely hold that there was discrimination under the Canadian Bill of Rights, and structure a remedy accordingly.    In this respect, the applicant argues that the CPP violates subsection 1(b) of the Canadian Bill of Rights:

It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, color, religion or sex, the following human rights and fundamental freedoms, namely...

(b)           the right of the individual to equality before the law and the protection of the law.

[35]            This argument is convincing. In R. v. Drybones, [1970] S.C.R. 282, the Supreme Court held that subsection 94(b) of the Indian Act was inconsistent with section 1(b) of the Canadian Bill of Rights. Under subsection 94(b) of the Indian Act, it was an offence for an Indian, but no one else, to be intoxicated anywhere off of an Indian reserve. The Supreme Court of Canada, after approving the thoughts of Cartwright J. in Robertson and Rosetanni v. The Queen [1963] S.C.R. 651 at p. 662, interpreted subsection 1(b) of the Canadian Bill of Rights to mean:

...that no individual or group of individuals is to be treated more harshly than another under the law, and I am therefore of the opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed an offence or having been made subject to any penalty. (Ritchie, J. among the majority in Drybones, at p. 297).

[36]            In R. v. Harden, [1983] 23 Man. R. (2d) 315 (C.A.), an accused was charged with being intoxicated while on an Indian reserve, an offense which was contrary to the Indian Act. The Court, through Hall, J.A., held that the provision was contrary to subsection 1(b) of the Canadian Bill of Rights, stating:

[9]            Parliament has enacted no other law making it an offence to be intoxicated in any other place in Canada. It is only on the reservation that it is made an offence for any person to be intoxicated. The mere fact that the impugned law applies to every person does not save it, for it is obvious that the predominant group on the reservation are Indian people whereas off the reservation the predominant people are of a non-native origin. In other words there is inequality before the law. It is not an offence to be intoxicated off the reservation but it is an offence to be in that condition on the reservation. It is surely a double standard that cannot be countenanced under the Bill of Rights. (pp. 317-18).

[37]            In Singh v. M.E.I., [1985] 1 S.C.R. 177, the Supreme Court considered whether the appellant had a right to a hearing before the Immigration Appeal Board. The Court divided equally, and three of the six judges relied upon the Canadian Bill of Rights to hold that a hearing was necessary, illustrating that the Canadian Bill of Rights can still be invoked.

[38]            Respecting the remedial power of the Canadian Bill of Rights, section 2 states that every law of Canada shall be construed so as not to abrogate, abridge or infringe of any of the rights or freedoms recognized in the Canadian Bill of Rights, unless it is expressly declared by an Act of Parliament to operate notwithstanding the Canadian Bill of Rights.    In this respect, the applicant correctly submits that section 2 of the Canadian Bill of Rights provides the authority to provide a remedy for the infringement of her rights.

[39]            In support of such authority, the Federal Court of Appeal recently cited the Drybones decision with approval in Northwest Territories v. Public Service Alliance of Canada, (2001) 201 D.L.R. (4^th) 129, wherein Mr. Justice Létourneau stated the sanction or remedy under the Canadian Bill of Rights.

[60]__It is well established that, in case of incompatibility between a federal legislative provision and paragraph 2(e) of the Canadian Bill of Rights, a declaration of inoperability of that provision is the appropriate sanction or remedy:__ Singh et al. v. M.E.I., [1985] 1 S.C.R. 177, at pages 238-39; The Queen v. Drybones, [1970] S.C.R. 282; MacBain v. Lederman, [1985] 1 F.C. 856 (F.C.A.); In Re Human Rights Tribunal and Atomic Energy Can., [1986] 1 F.C. 103, at pages 116-19.__In addition, as stated by Heald J.A. in the McBain case, at page 882, quoting Ritchie J. in Drybones, supra:__"another characteristic of the relief to be granted under the Bill is that there must be a degree of particularity introduced into a finding that statutory provisions are inoperative".__ This means that a finding of inoperability is restricted to the case at bar and its particular fact circumstances.

f. Does the CPP violate the rule of law?

[40]            The question of whether the CPP violates the rule of law is ancillary. The parties submissions are summarized below for reference.

g.        What remedy is appropriate here?

[41]            The appropriate remedy is a direction to allow the applicant to pay back her CPP premiums in order to qualify for full benefits upon attainment of age 65.

4. Applicant's Submissions

[42]            The applicant submits that the CPP violates her right to be free from discrimination based on race as guaranteed by section 15 of the Charter. Subsection 15(1) of the Charter provides:

Every person 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.

[43]            In Law v. Canada, [1999] 1 S.C.R. 497 at 524, the Supreme Court (Iacobucci, J.) summarized the approach to be taken when analyzing section 15 applications:

[39] In my view, the proper approach to analyzing a claim of discrimination under section 15(1) of the Charter involves a synthesis of these various articulations. ... [A] court that is called upon to determine a discrimination claim under section 15(1) should make the following three broad inquiries. 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 section 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of section 15(1) of the Charter in remedying such ills as prejudice, stereotyping. and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by section 15(1).

Comparator Group

[44]            In this analysis, the applicant compares her treatment under the CPP with the treatment of all other Canadians who are employed.

Differential Treatment

[45]            The CPP imposes differential treatment on the applicant by denying her the right to receive CPP benefits in the same manner as other working Canadians. Upon retirement, the applicant will receive a pension based solely on her contributions from 1988 onwards because she was prohibited from contributing into the CPP from 1966 to 1988. This differential treatment is based on her status as an Indian working on a reserve.

Is the Differential Treatment Based an Enumerated Grounds?

[46]            The applicant submits that the unequal benefit of the law arises because of her race, which is an enumerated ground of discrimination. All Indians employed on reserves between 1966 to 1988 were denied the equal benefit of the law. No other identifiable group has been subject to this treatment under the CPP. The identity of such group is based on race, ever since the influx of Europeans and others.

[47]            The document entitled Assembly of First Nations: Disparity and Despair, First Nations and the CPP, at 402, corroborates the applicant's assertions:

Evidence suggests that systemic barriers, such as unrecognized employment, weak economic conditions, illiteracy among First Nations, and racism, precluded the participation of First Nations in the CPP. First Nation people and organizational representatives are now raising the question whether Canada Pension Plan legislation denied First Nations a fundamental right of equal benefit of the law. They are further suggesting that an exclusionary principle based on race was established. First Nation elders face extreme hardship and may end up living in economic conditions well below the poverty line as a result of no pension income.

[48]            The applicant is treated equally under the law for other government benefits. Under the Employment Insurance Act, status Indians do not have to pay tax on the benefits received because of their hereditary position, but are nonetheless required to contribute to the unemployment insurance fund. [Williams v. Canada, [1992] 1 S.C.R. 877 at pp. 884-87].

Does this Treatment Constitute Discrimination in a Substantive Sense?

[49]            The Supreme Court established through Iacobucci, J., in Lovelace, [2000] 1 S.C.R. 950, the contextual approach which should used during the third step of the inquiry

[68] ...there are four contextual factors which provide the basis for organizing the third stage of the discrimination analysis, they are: (i) pre­existing disadvantage, stereotyping. prejudice, or vulnerability, (ii) the correspondence, or lack thereof, between the ground(s) on which the claim is based and the actual need, capacity, or circumstances of the claimant or others, (iii) the ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society, and (iv) the nature and scope of the interest affected by the impugned government activity. *** I conclude that no discrimination exists through the operation of the casino program. (at pp. 990-91)

[50]            The applicant submits that the differential treatment under the CPP has violated her human dignity and freedom by imposing disadvantage, stereotyping, and social prejudice, and by failing to treat her with equal recognition at law as a human being, and as a member of Canadian society, equally capable and equally deserving of concern, respect, and consideration. The Court affirms those submissions. The applicant's counsel articulated her sense of grievance as recorded in vol.1 of the hearing transcript, p. 41 (line 18) to p. 64 (line 4).

Pre-Existing Disadvantage

[51]            In Law, supra at p. 534, the Supreme Court held that pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by an individual or group are important to the extent that the applicant is already subject to unfair circumstances, or treatment in society by virtue of particular traits or circumstances. The Court held that it is reasonable to assume that further differential treatment will contribute to the perpetuation of the unfair treatment, and will have a more severe effect on those who are once disadvantaged since they are already vulnerable.

[52]            The Court held in Corbière v. Canada, [1999] 2 S.C.R. 203 at 209, that equality rights affecting aboriginal people and communities must be evaluated with special attention to the rights of aboriginal people in Canada, and with respect for and consideration of the cultural attachment and background of Indian people.

[53]            The applicant's tax exemption is unique to status Indians, and is based on historical circumstances which cannot be used to justify the denial of benefits. In the House of Commons debates on March 8, 1965, the Honourable Mr. E.J. Benson, speaking for the government of the day, was asked to say whether the government fully looked into the question when formulating the CPP, and Mr. Benson said:

Mr. Chairman, in drawing up the plan it was decided that the only logical basis on which to institute a plan such as this without all sorts of definitions of "earnings", and other things which are quite unrelated to the determination of income under the Income Tax Act, was to adopt the general policy that income under this act would be the same as income as determined under the Income Tax Act. I can assure my hon. friend and also the hon. member who spoke before him that in the drafting of this legislation there was no intention to discriminate against against any sort of person in Canada because of race, colour, creed or marital status. It was simply because, on the basis of legislation like this which is going to cover such a vast number of people in Canada and which has to be administered by my department, the sound and logical basis on which to base the legislation was to use the same definition of "income"as that used under the Income Tax Act. This obviates taking one's income as determined under the Income Tax Act and then making all sorts of adjustment in order to arrive at the amount on which a contribution is made to the Canada pension plan. I believe the plan would become almost administratively impossible, or you might have to set up a separate administrative procedure, if you were to vary greatly from the determination of income for the purposes of this act as compared with the determination of income for the purposes of the Income Tax Act. [H. of C. Debates - Vol. 109 - No.229 - 2^nd Session - 26^th Parliament. Respondent's Record, Vol. 1, tab 18, pp. 205-06].

The reasons posited by the Minister, as recorded in Hansard, seem hardly convincing for a government determined to avoid or eradicate racism from its proposed legislation - especially when compared with its more enlightened later legislation on the same subject.

Relationship Between the Grounds and the Claimant's Characteristics

[54]            The Supreme Court noted in Law, supra at pp. 532-33:

[59] The determination of the appropriate comparator, and the evaluation of the contextual factors which determine whether legislation has the effect of demeaning a claimant's dignity must be conducted from the perspective of the claimant. As applied in practice in several of this Court's equality decisions, and as neatly discussed by L'Heureux-Dubé J. in Egan, supra, at para. 56, the focus of the discrimination inquiry is both subjective and objective: subjective in so far as the right to equal treatment is an individual right, asserted by a specific claimant with particular traits and circumstances; and objective in so far as it is possible to determine whether the individual claimant's equality rights have been infringed only by considering the larger context of the legislation in question, and society's past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances. The objective component means that it is not sufficient, in order to ground a section 15(1) claim, for a claimant simply to assert, without more, that his or her dignity has been adversely affected by a law.

[60] As stated by L'Heureux-Dubé J. in Egan, supra, at para. 56, the relevant point of view is that of the reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant. Although I stress that the inquiry into whether legislation demeans the claimant's dignity must be undertaken from the perspective of the claimant and from no other perspective, a court must be satisfied that the claimant's assertion that differential treatment imposed by legislation demeans his or her dignity is supported by an objective assessment of the situation. All of that individual's or that group's traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.

[55]            Moreover, at page 3 of the minutes of a meeting of the Sub-Committee of the Interdepartmental Committee to Study Amendments to the Indian Act, dated January 31, 1968, the respondent in effect acknowledged that the government did not wish to discriminate against Indians, and that it would be desirable to have them covered by the CPP from its inception.

[56]            In a document entitled Coverage of Indians Precluded from Making Contributions by Virtue of Earning for Services Rendered on Reserves Being Tax Exempt Report from the Interdepartmental Sub-Committee on Coverage, dated July 26, 1972, the report states at page 1 that the coverage of Indians "should have depended solely on the individual Indian meeting the conditions of general application of the CPP rather than on the discriminating and indirect operation of the tax exemption." The report states:

In making provision for covering these Indians in the future, amendments should be so devised that the ill-effects of the initial exclusion should not continue to place them at a disadvantage. The problem is to devise an equitable means of providing insurance coverage to such Indians who are still in the labour force comparable to that possessed by other Canadians of a similar age who have already been insured, keeping in mind the need for administrative simplicity.

The members of the Sub-Committee astutely recognized that aboriginals were being denied equality of civil rights by legislation.

[57]            The Interdepartmental Sub-Committee on Coverage report states that the manner in which Indians who were employed on reserves were treated put them in the same category as immigrants, or as students who were just beginning to work in Canada. At page 2 of the report, it is stated that denying the right of Indians to participate in the CPP was because of a "malfunction" in the legislation:

They did not fail to contribute from 1966 on because they were not in the labour market; they were employed and generating earnings which should have been included and it is, in effect, a malfunction in the legislation that they did not contribute. (Draft report - tab 28, respondent's record, p. 260).

"A malfunction in the legislation" *** [end of quotation]. Quite an admission!

[58]            The Government was aware, before the enactment of CPP, that Indians earning income on reserves could not contribute to the CPP. In 1965, the Minister of National Revenue, during Parliamentary debate, rejected the suggestion that the CPP could be amended by regulation to allow Indians employed on reserves to participate. However, the Minister acknowledged that Indians employed on reserves could be included by a change to the Income Tax Act, and to the Indian Act, and to the CPP without the consultation of the provinces. Minister Benson stated the following:

I would not like to indicate in any way that the government has any intention to introduce such a bill as that suggested by my hon. friend...I am informed the government would have the power to introduce such a bill, if it were government policy, without consultation with the provinces.

[59]            The Government and, in effect Parliament, knew that the CPP would discriminate against Indians employed on reserves. Mr. Howard, an Opposition M.P., brought the matter to the government's attention on March 8, 1965, during debate:

Here however, you have an exclusion based on racial inheritance. Surely in any legislation which the parliament of Canada enacts and which provides benefits to the people of Canada, there should be no exclusion because of an individual's race. However, this is precisely what this particular bill is doing.

So, the Government of Canada can never pretend, "we did not know of that racial discrimination."

Ameliorative Purpose of Section 15

[60]          In Law, supra, para.[46], on p. 527 the Supreme Court of Canada states that the purpose of subsection 15(1) is "not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society." The Court holds that ameliorative legislation which excludes from its scope the members of a historically disadvantaged group will rarely escape the charge of discrimination. The applicant, as a status Indian employed on a reserve, has been disadvantaged compared with other employed Canadians by being excluded from the CPP since its inception, until 1988.

Nature of the Interest Affected

[61]            The respondent's actions perpetuate the negative view of some folk in Canada that Indians on reserves, notably those who are approaching retirement and who are becoming eligible for CPP benefits, are less deserving of concern, respect, or consideration than other working Canadians. (The Court takes judicial notice of that view, and invokes the Royal Commission's report.) The effect is to deny the applicant long-term financial security outside of the social welfare system. The negative effect of the welfare system on aboriginal peoples has been studied and documented by the Royal Commission on Aboriginal Peoples. The Commission has stated that the long-term effect of denying CPP benefits to aboriginals is the idea that they are less capable and less worthy of recognition or value as human beings or as members of Canadian society. This indirect quotation expresses a biased view which seems to affect the applicant's sense of self-esteem, or could, if she would let it..

c. Section 6 of the Charter - Mobility Rights

[62]            Subsection 6(2) of the Charter provides that:

Every citizen of Canada and every person who has the status of permanent resident of Canada has the right

(a)           to move to and take up residence in any province; and

(b)           to pursue the gaining of a livelihood in any province.

[63]            The applicant could only have received the full CPP benefits by residing off of her reserve, which would deny her the right to reside where she wants to in Manitoba. It would not breach subsection 6(2), but would tend to induce a restriction on freedom of mobility, in order to gain the CPP benefits, as claimed in claim1 g), p.2 of the notice of application.

[64]            Therefore, the effect of the CPP violates the intent of section 6 of the Charter by prohibiting or inhibiting the applicant from freely moving around within Canada. However, the applicant's counsel withdrew this claim : transcript; Vol.I, page 21, lines 24-25; page 22, lines 1 and 2.

d. Section 1 of the Charter

[65]            The applicant submits that the discriminatory effects of the impugned legislation cannot be justified under section 1 of the Charter. The section provides that Canadians' rights and freedoms are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[66]            The principles governing the section 1 analysis derive from R. v. Oakes, [1986] S.C.R. 103. They are reproduced succinctly in Egan v. Canada, [1995] 2 S.C.R. 513 at 605:

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 guarantees;

(3)            there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right. In all Section 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.

These three criteria appear not to be satisfied in this case.

[67]            Once the applicant has established a violation of section 15 of the Charter, as she has, the burden shifts to the respondent to justify it. The respondent may attempt to justify the impugned legislation by stating that the objective of the legislation was pressing and substantial because it sought to preserve the tax-exempt status of status Indians. This argument is not persuasive because the legislation was amended in 1988 to permit status Indians employed on reserves to participate in the CPP without affecting their tax-exempt status. That the impugned legislation was amended, demonstrates that the original objective of the legislation, regarding status Indians' exemption, was ill-conceived and was not pressing and substantial. Otherwise how could the amendment operate, as it does, without creating trouble and dislocations?

e. Canadian Bill of Rights

[68]            The applicant submits that CPP violates subsection 1(b) of the Canadian Bill of Rights:

It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely...

(b)           the right of the individual to equality before the law and the protection of the law.

The respondent simply cannot be heard - and has not been heard herein - to deny the applicant's humanity. She is entitled to equality of human rights.

[69]            In R. v. Drybones, [1970] S.C.R. 282, the Supreme Court held that subsection 94(b) of the Indian Act was inconsistent with section 1(b) of the Canadian Bill of Rights. Under subsection 94(b) of the Indian Act, it was an offence for an Indian to be intoxicated anywhere off of an Indian reserve. The Supreme Court of Canada, in the words of Mr. Justice Ritchie, interpreted subsection 1(b) of the Canadian Bill of Rights to mean:

... without attempting any exhaustive definition of "equality before the law" I think that s. 1(b) means at least that no individual or group of individuals is to be treated more harshly than another under the law, and I am therefore of the opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed an offence or having been made subject to any penalty.

[70]            In R. v. Hayden, [1983] 23 Man. R. (2d) 315 (C.A.), an accused was charged with being intoxicated while on an Indian reserve, an offense which was contrary to the Indian Act. The Court held that the provision was contrary to subsection 1(b) of the Canadian Bill of Rights, stating:

Parliament has enacted no other law making it an offence to be intoxicated in any other place in Canada. It is only on the reservation that it is made an offence for any person to be intoxicated. The mere fact that the impugned law applies to every person does not save it, for it is obvious that the predominant group on the reservation are Indian people whereas off the reservation the predominant people are of a non-native origin. In other words there is inequality before the law. It is not an offence to be intoxicated off the reservation but it is an offence to be in that condition on the reservation. It is surely a double standard that cannot be countenanced under the Bill of Rights.(at pp. 317-18)

[71]            In Singh v. M.E.I., [1985] 1 S.C.R. 177, the Supreme Court considered whether the appellant had a right to a hearing before the Immigration Appeal Board. Three Supreme Court judges, of six, relied upon the Canadian Bill of Rights to hold that a hearing was necessary, illustrating that the Canadian Bill of Rights could still be invoked as late as 1983. Section 2 (e) if the Bill of Rights was held to be the relevant provision according to Mr. Justice Beetz, who is reported to have stated :

Thus, the Canadian Bill of Rights retains all its force and effect, together with the various provincial charters of rights. Because these constitutional instruments are drafted differently, they are susceptible of producing cumulative effects for the better protection of rights and freedoms. But this beneficial result will be lost if these instruments fall into neglect. It is particularly so where they contain provisions not to be found in the Canadian Charter of Rights and Freedoms and almost tailor-made for certain factual situations as those in the cases at bar.

[72]            If this Court holds that the Charter cannot be applied retrospectively, as is the case, it can nevertheless hold that in the circumstances there was discrimination of the kind prohibited under the Canadian Bill of Rights, and the Court ought then to structure a remedy accordingly. Section 2 of the Canadian Bill of Rights states that every law of Canada shall be construed not to abrogate, abridge or infringe of any of the rights or freedoms recognized in the Canadian Bill of Rights, unless it is expressly declared by an Act of Parliament to operate notwithstanding the Canadian Bill of Rights. The applicant submits that section 2 of the Canadian Bill of Rights provides the authority to provide a remedy for the infringement of her right to equality before, and protection of [by], the law, without discrimination by reason of her race.

f. Rule of Law

[73]            The applicant submits that the CPP violates the rule of law as incorporated by the preamble to the Constitution Act, 1867, and by the preamble to the Constitution Act, 1982. [see Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at 750-51; Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at 239-40, 247-63]. Further, no racial discrimination is expressly permitted to operate by the CPP, the Indian Act or the Income Tax Act notwithstanding the Bill of Rights.

[74]            The rule of law consists of three principles: the law is supreme, there is one law for all, and the relationship between the state and the individual is regulated by the law. The second principle of the rule of law is violated here, because status Indians who are employed on reserves are denied the right to contribute to the CPP as are other Canadians, and have been entitled to contribute to the CPP only since 1988. Further, the CPP discriminates because participation is optional for the employers of status Indians employed on reserves, but is mandatory for all other Canadian employers. The fact that such employers may now, and Rose Bear's employer does so, contribute, should be taken as done and ratified.

g. Remedies

[75]            Subsection 52(l) of the Constitution Act, 1982 states that the Constitution of Canada is the supreme law of Canada, and any law which is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. Under subsection 52(1), a Court may read a remedy into the legislation, or rule that a provision in the legislation is of no force or effect if it authorizes discriminatory treatment.

Reading-In

[76]            The Court's ability to read into legislation under section 52 was demonstrated in Schachter v. Canada, [19921 2 S.C.R. 679, where Chief Justice Lamer stated:

A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. l scrutiny. S.52 of the Constitution Act, 1982, mandates the striking down of any law that is inconsistent with the provisions of the constitution, but only "to the extent of the inconsistency". Depending upon the circumstances, a Court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in. *** (p. 695)

[77]            Reading in is a desirable option which can be exercised in the appropriate circumstances. However "the purposes of the Charter may encourage one kind of response more strongly than another" :

This is best illustrated by the case of the Attorney-General of Nova Scotia v. Philips (1986), 34 D.L.R. (4^th) 633 (N.S.C.A.). In that case, a formal welfare benefit was available to single mothers but not single fathers. This was held to violate s.15 of the Charter since benefits should be available to single mothers and single fathers equally. However, the court held that s.15 merely required equal benefit, so that the Charter would be equally satisfied whether the benefit was available to both mothers and fathers or to neither. Given this and the Court's conclusion that it could not extend benefits, the only available course was to nullify the benefits to single mothers. The irony of this result is obvious.

Perhaps in some case s.15 does simply require relative equality and is just as satisfied with equal graveyards as equal vineyards, as it has sometimes been put (see Caminker at page 1186). Yet the nullification of benefits to single mothers does not sit well with the overall purpose of s.15 of the Charter and for s.15 to have such a result clearly amounts to ‘equality with a vengeance', as LEAF, one of the interveners in this case has suggested. While s.15 may not absolutely require that benefits be available to single mothers, surely it at least encourages such action to relieve the disadvantaged position of persons in those circumstances. In cases of this kind, reading in allows the court to act in a manner more consistent with the basic purposes of the Charter.

Reading in should therefore be recognized as a legitimate remedy akin to severance and should be available under s.52 in cases where it is an appropriate technique to fulfill the purposes of the Charter and at the same time minimize the interference of the court with the parts of legislation which do not themselves violate the Charter. (Pp.701-02)

[78]            The applicant submits that this Court should read into the CPP an entitlement for status Indians employed on reserves to contribute to the CPP. Before the amendment to the CPP in 1988, there was a combination of three provisions which resulted in status Indians employed on reserves being prevented from contributing to the CPP. No single statute specifically excluded status Indians before the amendment.

Striking Down the Legislation

[79]            The supremacy clause of section 52 states that a law enacted outside the authority granted by the Constitution is ultra vires. In Constitutional Law of Canada, Peter Hogg, states at page 1241:

An unconstitutional act is not a law; it confers no rights; it imposes no duty; it affords no protection; it creates no offence; it is, in legal contemplation, as inoperative as though it had never been passed.

A judicial decision that the law is unconstitutional is retroactive in the sense that it involves the nullification of the law from the outset. Indeed, any judicial decision must be retroactive in order to apply to the facts before the Court, since those facts must have already occurred. That a Court makes new law when it overrules prior doctrine or even when it decides an unprecedented case is not open to doubt; but a Court does not make new law in the same way as a legislative body, that is, for the future only.

[80]            If the applicant be successful in establishing there was discrimination, the Court, according to the applicant, must be prepared to read into the legislation, and the applicant submits that the Court should rule that the provisions of the legislation at issue are of no force or effect.

Section 24 of the Charter

[81]            Subsection 24(1) of the Charter states that

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a Court of competent jurisdiction to obtain such remedy as the Court considers appropriate and just in the circumstances.

[82]            When a Charter violation has been established, subsection 24(1) affords the Court the latitude to structure an appropriate remedy considering the values expressed in the Charter, and the rights which have been violated. It provides for "such remedy as the court considers appropriate and just in the circumstances". Subsection 24(1) provides individual remedies for a person whose rights, "as guaranteed by this Charter", have been violated under a law which is constitutional. The remedy-creating powers in the Bill of Rights are somewhat more restricted.

[83]            The applicant has suffered financial disadvantage because of discrimination under the CPP. The applicant submits that this Court should order the Director of Income Securities to accept a payment from the applicant for the contributions which she was prevented from making. Therefore, the applicant would then be entitled to full CPP benefits upon retirement. To be noted are paragraphs 19 through 23 of Rose Bear's affidavit sworn on October 31, 2000, in her supplementary record filed the next day.

h. Summary

[84]            Because of the discrimination, the applicant would have an entitlement to receive only a fraction of the pension benefits which a non-Indian in a similar position would receive. Consequently, she would be forced to rely on government welfare programs such as the Guaranteed Income Supplement. Many, if not most Canadian citizens live out their retirement years with a sense of pride in receiving a pension because of a lifetime of contributions. The applicant is not seeking a handout, but rather is asking that she be treated like all other Canadians, and be entitled to retire after 34 years of employment with a sense of pride and accomplishment.    Indeed, far from a handout, the applicant asks this Court to declare that she is entitled to pay into the CPP a sum equal to the total of her unpaid contributions which were prohibited and rejected between 1966 and 1985.

5.    Respondent's Submissions

a. Background

[85]            The purpose of the CPP is to provide contributors and their families with a reasonable minimum income replacement upon retirement, disability, or death of a wage earner. As stated in the White Paper on the CPP:

The purpose of the Canada Pension Plan is to make reasonable minimum levels of income available at normal retirement ages, to people who become disabled, and to the dependents of people who die. There will be scope for the continuation and extension of private pension plans to provide benefits over these minimum levels.

[86]            The Plan was never intended to provide completely for Canadians' retirement income. The CPP provides basic support which is to be supplemented by private pension plans or by private savings. The Government of the day thought that the total amount of replacement income which a person wanted should be left to personal choice:

The Plan is comprehensive in the sense of covering as many people as is practicable. It is not intended to provide all the retirement income or survivors' income which many Canadians wish to have. This is a matter of individual choice and, in the Government's view, should properly be left to individual savings and to private pension plans...

[87]            The Canadian retirement income system has three tiers. The first tier is the OAS (Old Age Security) program, which includes the Guaranteed Income Supplement (GIS). The OAS program is a universal benefit which is based on age and residence, and provides a level of income under which Canadians' retirement income will not fall. The second tier is the CPP, which provides individuals with retirement income based on past contributions. The third tier consists of employer-sponsored pension plans and private savings plans.

[88]            The issue of CPP coverage for Indians was first raised in the House of Commons in March, 1965, during debate. The government submitted that income earned off of a reserve would be treated as income for the purposes of the CPP, but knew that income earned on a reserve was exempt from tax and would not be eligible for the CPP. The Minister of National Revenue, E. J. Benson, believed that changes would be required to the Income Tax Act, and to the Indian Act. Minister Benson noted that it was an "entirely different matter" if the Government wanted to proceed with the CPP legislation on a different basis from the one established in the Income Tax Act, which was that income earned by Indians on a reserve was established under the Indian Act, and was exempt from taxation. He noted that any change from this policy would require amendments to the CPP bill, and that any change to basing CPP earnings on income other than under the Income Tax Act was a major change for a future government. Minister Benson also opined that it would be "very dangerous to move from determination of income as it is under the Income Tax Act", noting that "it has taken a good deal of time and jurisprudence to determine what is income under that Act." He then stated:

...one would be opening some sort of Pandora's box...if one took this particular step of saying that something that was not treated as income under the Income Tax Act should be treated as income under this act...

...in drawing up this plan it was decided that the only logical basis on which to institute a plan such as this without all sorts of definitions of "earnings", ...was to adopt the general policy that income under this act would be the same as income as determined under the Income Tax Act...

[I]n the drafting of this legislation there was no intention to discriminate against any sort of person in Canada because of race, colour, creed or marital status. It was simply because, on the basis of legislation like this which is going to cover such a vast number of people in Canada and which has to be administered by my department, the sound and logical basis on which to base the legislation was to use the same definition of "income" as that used under the Income Tax Act...I believe the plan would become almost administratively impossible, or you might have to set up a separate administrative procedure, if you were to vary greatly from the determination of income for the purposes of this act as compared with the determination of income for the purposes of the Income Tax Act. (House of Commons Debates - Vol. 109 - No 229 - 2^nd Session - 26^th Parliament, March 8, 1965).

[89]            After the enactment of the CPP in 1966, an interdepartmental committee met several times to address the participation of tax-exempt Indians in the CPP. The committee agreed that Indians should be covered under the CPP, and that the coverage should be compulsory. However, in 1967, the Superintendent General of Indian Affairs indicated that the National Indian Advisory Council could not reach a consensus regarding CPP coverage. Consequently, no amendment was made, although discussions occurred throughout the 1960s and 1970s. Referred to at the hearing herein on June 26 and 27, 2001, were the parliamentary documents of the ‘60's and ‘70's which were filed by consent and yielded a plethora of historical detail.

[90]            In the 1970s, and in the early 1980s, the tax exempt status of Indians was questioned by a number of judicial decisions. In R. v. Nowegijick, [1983] 1 S.C.R. 29, the Supreme Court of Canada held (pp. 40 & 41) that Indians' incomes were exempt from the Income Tax Act. While the matter was being considered by the courts, the government took a cautious approach in addressing CPP coverage for aboriginals. Government officials were also uncertain whether the First Nations themselves supported compulsory CPP coverage. In addition to the lack of consensus from the National Indian Advisory Council in 1967, the Department of National Health and Welfare received letters from individual band councils requesting the right to make voluntary contributions. In 1983, the Union of New Brunswick Indians appeared before the Parliamentary Committee on Pension Reform requesting voluntary CPP coverage.

[91]            On December 7, 1988, regulation SOR/88-631 was implemented by order-in-council P.C. 1988-2640 to provide that income earned by Indians employed on reserves could be included as pensionable income for CPP purposes, if the employer arranged with Revenue Canada to collect the contributions. If the employer did not arrange to collect the contributions, the employee could elect to be covered under the CPP as a self-employed person.(Joint Book of Authorities, Vol.I, tab 3.) In January, 1989, the applicant and her employer started to contribute to the CPP.

[92]            The implementation of this scheme was recommended by an interdepartmental committee to provide flexibility in including Indians employed on reserves. Bill C-116 provided that on-reserve employment be considered as pensionable employment in a manner prescribed by the regulation to allow the government sufficient flexibility to provide CPP coverage to Indians. As stated in the Senate Committee on Social Affairs, Science and Technology which studied Bill C-116:

Basically, what we have done here is create a mechanism for them to follow. It will be up to the Indian groups, the Department of Indian and Northern Affairs and Revenue Canada to work out how quickly they can bring this into effect. There is not complete unanimity. There are some groups which definitely asked to be covered by the CPP and others which haven't, which have opposed it. The Quebec Pension Plan has not been entirely successful in getting coverage either.

[93]            Under the current provisions, the applicant will receive $288.90 per month in CPP Retirement benefits in 2004 if she applies at age 65. Her total average monthly combined CPP/OAS/GIS payments in 1999 were $1,117.78. Because all of the applicant's income is tax-exempt, including her CPP benefit, she will receive the maximum GIS because income in the OAS Act is determined under the Income Tax Act. Given that the applicant's CPP/OAS/GIS payments are exempt from the claw-back reduction under the current provisions, she will receive a net amount of approximately $1,320 per month from the public pension system.

[94]            If the applicant be successful in her application, she will receive approximately $784.58 in CPP benefits in 2004. This is an increase of approximately $500 per month. Given that she will probably receive the maximum amount of OAS/GIS benefits, and the provincial supplement, she will receive approximately $1816.08 per month from the public pension system, which is $500 more than an individual who is not tax-exempt. If the tax exemption under the Indian Act did not exist, and the applicant had been required to contribute to the CPP since 1966, her total monthly pension income would have been slightly more than what it is under tax-exempt status. The respondent's calculations in this regard, are probably quite accurate. But why should the respondent ask the applicant to turn history in reverse gear and pretend that her other entitlements have to go into relieving the government of Canada of its full statutory responsibilities? The applicant's counsel responded to those pathetic considerations as is recorded on pp. 59 and 60 of transcript Vol. I. The government should not be heard to tell Ms. Bear that she ought to forego any of her lawful entitlements in order to spare the treasury, or dilute the Bill of Rights or the Charter.

b. A Constitutional Challenge Should Specify the Provisions Being Challenged

[95]            The applicant, says the respondent, has not provided sufficient specificity regarding the constitutional infringement. Merely stating that the CPP violates section 15 of the Charter is insufficient.

[96]            As noted by Mr. Justice Rothstein in Archibald v. Canada, [2000] 4 F.C. 479 at [103] (C.A.),

...in this case the appellants did not initially specify the provisions of the Canadian Wheat Board Act and Canadian Wheat Board Regulations that they alleged were unconstitutional...It is insufficient for a constitutional challenge to refer only to a concept or a process required by an enactment. The specific provisions being challenged must be specified. (pp. 521-22)

[97]            This finding is consistent which Schachter, supra at 702 where the Supreme Court of Canada, through Lamer, C.J.C., stated:

The first step in choosing a remedial course under section 52 is defining the extent of the inconsistency which must be struck down. Usually, the manner in which the law violates the Charter and the manner in which it fails to be justified under section 1 will be critical to this determination.

In Archibald, however, the trial judge recited the plaintiffs/appellant's complaints with sufficient specificity in his reasons.

[98]            The respondent submits that it was not the CPP legislation which prohibited Indians from participating in the CPP. Contributions to the CPP are calculated using the taxable income under the Income Tax Act. Because the applicant's wages were earned on a reserve, she was not subject to taxation under section 87 of the Indian Act. Consequently, neither she nor her employer made any contributions during the period from 1966 to 1988. That tells why they did what they did, but that does not make what they did constitutionally and legally right. One can hardly impute blame to the applicant, however.

[99]            Even accepting the applicant's claims, the respondent submits that the provisions of the CPP do not violate the Charter, but rather, it is the alleged discriminatory effect under the Indian Act, the Income Tax Act and section 12 of the CPP when read together which are at issue. This submission is correct, but again it does not confer constitutional and legal rectitude on the impugned legislation vis-à-vis Rose Bear or anyone else in her plight.

c. Retrospective Application Of the Charter

[100]        The statutory amendments to the CPP in 198­8 now permit Indians with taxable income from employment to participate in the CPP. The applicant's complaint about the inability to contribute to the CPP does not concern the current CPP, but rather the pre-1988 legislation. Almost all of the material events here pre-date section 15 of the Charter, which came into force on April 17, 1985. The most recent relevant period here is from April 17, 1985 to December 7, 1988, the date when the applicant was allowed to participate in the CPP. One must also examine the operation of the Bill of Rights.

[101]        The respondent submits that the Charter cannot be applied retrospectively or retroactively because it is unfair to apply laws which were not in effect at the time of the events in issue. [R. v. Stevens, [1988] 1 S.C.R. 1153 at 1157; Murray v. Canada (1998), 161 D.L.R. (4th) 185 (F.C.A.); Re Residential Schools [2000], 9 W.W.R. 437 (Alta.Q.B.)]

[102]        No law has a retrospective application unless that application is very clear in the terms of the statute, or arises by necessary and distinct implication. At common law, the presumption was limited to matters of substance, and not to matters of procedure. The rights at issue here are substantive, and the presumption against retrospective operation of law applies. [Maxwell on the Interpretation of Statutes, 12^th ed. (1969) at 215 & 222; Angus v. Sun Alliance Insurance Company, [1988] 2 S.C.R. 256 at 262]

[103]        Although the applicant's race is an immutable characteristic and is properly characterized as a status or ongoing condition, the alleged discrimination is based upon the nature of the tax-exempt income from 1966 to April 17, 1985. Although the applicant argues that she will be denied the benefits of CPP because of her pre-Charter inability to contribute, the respondent submits that it is only a continuing breach, and not the resulting diminished retirement income, which attracts Charter scrutiny. [See Re Residential Schools, supra]

[104]        In Benner, supra, the Supreme Court of Canada unanimously held that the discrimination which Mr. Benner faced was not because of the former legislation, but because of the actual Citizenship Act which was in effect at the time of his application. At page 388, the Court held that applying the Charter to the 1989 application for citizenship did not involve a retroactive or retrospective application of the Charter.

[105]        After retiring, the applicant may argue that she is undergoing an unequal receipt of benefits because she was unable to contribute to the CPP before 1988. However, Iacobucci J. stated in Benner at p. 382 of [1997] 1 S.C.R.:

In considering the application of the Charter in relation to facts which took place before it came into force, it is important to look at whether the facts in question constitute a discrete event or establish an ongoing status or characteristic.

He is reported further in the same decision at p. 383:

Section 15 cannot be used to attack a discrete act which took place before the Charter came into effect. ...

And further - at p. 388:

...

[56] In applying section 15 to questions of status, or what Driedger, supra, calls "being something", the important point is not the moment at which the individual acquires the status in question, it is the moment at which that status is held against him or disentitles him to a benefit. Here, that moment was when the respondent Registrar considered and rejected the appellant's application. Since this occurred well after section 15 came into effect, subjecting the appellant's treatment by the respondent to Charter scrutiny involves neither retroactive nor retrospective application of the Charter.

[57] Létourneau J.A. stated, at p. 291, that "[i]t is not enough for one to say that one still suffers from a discriminatory event or legislation which took place or existed prior to the Charter. Otherwise, just about every instance of past discrimination since the turn of the century could be reviewed under section 15, provided the victims still suffer from that past discrimination."This is certainly true, but I do not believe, with respect, that it accurately describes the appellant's situation. Had he applied for citizenship before section 15 came into effect and been refused, he could not now come before the court and ask that section 15 be applied to that refusal. But this is not what happened. Until his application in 1988, the appellant had not engaged the legislation governing his entitlement to citizenship at all. The law set out only what his rights to citizenship would be if and when he applied, not what they were.

[106]        Of course the applicant's race is an ongoing status. However, the trigger is not only that she is an Indian, but also that she earned tax-exempt income on a reserve. The discrete events were the applicant's inability to contribute to the CPP for 22 years. However, the applicant seeks to correct those pre-Charter events by making a retroactive payment. Had the applicant chosen before 1988 to work for income off of the reserve, her income would have been taxable, and she would have been obliged to contribute to the CPP. Unlike Benner, the applicant here had been engaged with the law before 1985, throughout the currency of the Canadian Bill of Rights, which she is entitled to invoke.

d. Section 15 Violation

Differential Treatment

[107]        Before the 1988 amendments, there was no prohibition, nor was there any specific mention of Indians in the CPP, or in any relevant provision of the Income Tax Act. There was differential treatment under section 87 of the Indian Act because of the special tax exemption on personal property of Indians living on reserves. The tax exemption, and the inability to make CPP contributions, did not apply generally to Indians as a group, but only to Indians who were employed on reserves. Differential treatment existed, but it was indirect and arose under the Indian Act.

Enumerated or Analogous Ground

[108]        A differential treatment arises out of the application of the Indian Act, the Income Tax Act, and the CPP because contributions are calculated using taxable income under the Income Tax Act. The effect of the three statutes is that the applicant could not contribute to the CPP.    This differentiation is not based solely upon race, but also, on the situs of the property and income which was earned. Racial origin is however, the overriding sine qua non of the differentiation. This is a personal characteristic, even although Indians who earn taxable income off of a reserve are treated in the same manner as other Canadian taxpayers. The differential treatment here is based on the differential treatment of race and residence, which are stated in section 91 head 24 of the Constitution Act, 1867, to be a class of subject within the exclusive legislative authority of the Parliament of Canada - that is : "Indians, and lands reserved for the Indians.".

Does the Differential Treatment Discriminate in a Substantive Sense

[109]        The tax-exempt status of income earned by Indians has existed to preserve entitlements of Indians to their reserve lands, as discussed by Mr. Justice Gonthier in Williams v. R., [1992] 1 S.C.R. 877 at 885 et seq.:

The question of the purpose of ss. 87, 89 and 90 has been thoroughly addressed by La Forest J. in the case of Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85. La Forest J. expressed the view that the purpose of these sections was to preserve the entitlements of Indians to their reserve lands and to ensure that the use of their property on their reserve lands was not eroded by the ability of governments to tax, or creditors to seize. The corollary of this conclusion was that the purpose of the sections was not to confer a general economic benefit upon the Indians (p. 885)

...

Therefore, under the Indian Act, an Indian has a choice with regard to his personal property. The Indian may situate this property on the reserve, in which case it is within the protected area and free from seizure and taxation, or the Indian may situate this property off the reserve, in which case it is outside the protected area, and more fully available for ordinary commercial purposes in society. Whether the Indian wishes to remain within the protected reserve system or integrate more fully into the larger commercial world is a choice left to the Indian. (p. 887)

Of course not every Indian, and not every other Canadian, has such an apparently free choice - as stated - in economic terms of residence and income earning.

Pre-existing Disadvantage

[110]        By working for paid employment on a reserve, the applicant, unlike other Canadians, benefitted by not having to pay CPP deductions, and by not having to pay income tax for 22 years. She could have spent the extra money as she pleased. The net income advantages of this special treatment must be considered when discussing her inability to contribute to the CPP. That the applicant had extra disposable income, which could have been used for her retirement savings, should be balanced against the disadvantage of not participating in the CPP during the same period. These are "smokescreen" considerations which do not dilute the inequality faced by the applicant; nor do they justify it.

Relationship Between Grounds & Claimant's Characteristics

[111]        The applicant claims that the special status granted to Indians who earn tax-exempt income on a reserve is discriminatory. That the applicant may choose the type of income which is earned, as discussed in Williams, supra, and that the applicant benefits from receiving tax-exempt income, are two reasons why, it is alleged, the differential treatment does not demean her human dignity. From the perspective of the reasonable person who is dispassionate and fully apprised of the circumstances, and who possesses similar attributes to, and is under similar circumstances as the claimant, the respondent submits it is not demeaning to the applicant's dignity to have her tax-exempt income to be treated as ineligible for contributions to the CPP. This is what bullfighters call a veronica. It presents a false, but irrelevant target. It is not really proper comment on the respondent's part.

[112]        The evidence shows that there was no consensus among Indian groups themselves regarding the compulsory participation. At best, some groups requested that the participation be voluntary. Although the government occasionally recognized the desirability of allowing Indians with tax-exempt income to contribute to the CPP, there was no easy answer to this issue. The result was a political decision which allegedly balanced the rights of all parties. This line of thought presents no justification for the demonstrated inequality.

[113]        The impugned distinction arising from the effect of excluding Indians who are in the position of the applicant did not stigmatize them, nor did it perpetuate the view that Indians earning tax-exempt income were less deserving of concern, respect or consideration. Nor did the legislation withhold a government benefit because of stereotypical assumptions about the demographic group of which the applicant happens to be a member. The social, political, and legal contexts of the claim demonstrate that the exclusion of tax-exempt income was not discriminatory. The law merely reflected that the calculation of CPP contributions was best achieved through use of the Income Tax Act. Another veronica, if not a double, contributing just a volume of words, but little meaning to the debate about Ms. Bear's claim.

Nature of the Interest Affected

[114]        In Law, supra at 540-41,(paras. 74 & 75), the Supreme Court stated that it is relevant to consider whether the distinction restricts access to a fundamental social institution, whether it affects a basic aspect of full membership in Canadian society, or whether it constitutes a complete non-recognition of a particular group.

[115]        The effect of the tax exemption under the Indian Act excluded the applicant from participation in the CPP until 1988. Viewed objectively, it can be said that the exemption demeaned her dignity. Viewed subjectively, from the perspective of Indian groups who opposed compulsory participation in the CPP, or who wanted to keep the tax exemption, the exemption did constitute their choice. Because the applicant's employment income is exempt from tax, she will receive the maximum OAS/GIS. Since 1988, she has contributed to the CPP, and she will receive benefits. This limits the nature of the interest affected, it is said. It paints the respondent as lady bountiful in complete disregard of the applicant's complaint of unequal treatment, as if that factor justified unequal treatment.

e. Inter-Provincial Mobility Rights

[116]        The tax exemption is not based on residence per se, but rather upon consideration of a number of connecting factors. In Williams v. Canada, [1992] 1 S.C.R. 877 at 892- 93, the Supreme Court described the following methodology to determine where employment income is situated:

The first step is to identify the various connecting factor; which are potentially relevant. These factors should then be analyzed to determine what weight they should be given in identifying the location of the property, in light of three considerations: (1) the purpose of the exemption under the Indian Act; (2) the type of property in question; and (3) the nature of the taxation of that property. The question with regard to each connecting factor is therefore what weight should be given that factor in answering the question whether to tax that form of property in that manner would amount to the erosion of the entitlement of the Indian qua Indian on a reserve.

[117]        The language of section 6 of the Charter indicates that it is provincial boundaries which are at issue. The leading case of Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 at 205, Messrs. Justices Iacobucci and Bastarache explicitly discuss provincial boundaries. There it was stated that the "fundamental purpose underlying the section,*** [Charter section 6] is to guarantee the mobility of individuals to other provinces in the pursuit of their livelihood by prohibiting discrimination based on residence."In Canadian Egg Marketing Agency, supra, the Court refers to Black v. Law Society of Alberta, [1989] 1 S.C.R. 591.

[118]        The Supreme Court stated that subsection 6(2)(b) and subsection 6(3)(a) must be read as defining a single right, rather that one right under subsection 6(2)(b) which was be saved by subsection 6(3)(a). The Court adopted the explanation from Malartic Hygrade Gold Mines Ltd. v. The Queen (1982) 142 D.L.R. (3d) 512 (Que Sup Ct):

a.             The principle: The right to pursue the gaining of a livelihood in any province,

b.             The exception: This right is subject to any laws or practices of a general application in force in that province,

c.             The exception to the exception: Except if these laws discriminate among persons primarily on the basis of the province of residence.

[119]        Under this framework, the applicant's right to pursue a livelihood in any province was not infringed by her exclusion from the CPP for the following reasons:

a.        section 6 cases involve situations in which the actual earning of a livelihood is at issue. The CPP does not concern pursuing a livelihood;

b.        if the applicant's right under subsection 6(2) has been infringed, the right is still subject to any laws of general application in force in the province. The CPP is such a law; in the respondent's view; and

c.        the specific guarantee described in section 6 is mobility in the gaining of a livelihood subject to those laws which do not discriminate on the basis of residence. The exception to the exception does not apply because the CPP does not discriminate on the basis of residency. The ability to contribute to the CPP does not depend where the income is earned, unless it be earned on an Indian reserve, by an Indian, i.e. the applicant.

This consideration is not greatly relevant, in the circumstances.

f. Justification under Section 1 of the Charter

[120]        The Supreme Court stated in Vriend v. Alberta, [1998] 2 S.C.R. 3 that a section 1 analysis must focus on the objective of the legislation as a whole, the impugned provision of the Act, and on the omission itself, i.e., the effect of excluding Indians from contributing to the CPP. In M. v. H., [1999] 2 S.C.R. 3, at 70, Messrs. Justices Cory and Iacobucci , for the majority, held that it was not necessary to identify a separate objective for the omission itself. (para.101). From the extracts from Hansard and other parliamentary proceedings already quoted, this Court holds that the omission of Ms. Bear and others in her position, was quite deliberate.

[121]        The objective of the legislation as a whole was to provide contributors and their families with reasonable minimum income replacement upon retirement. The legislation did not intend to provide all of the retirement income which Canadians wished to have. The Government of the day thought that the total amount of replacement income a person wished to have should be left to personal choice. The exclusion of the applicant from the CPP did not prevent her from arranging for retirement income from other sources, as the respondent argues. It is not the CPP which is at issue, but rather the provision of section 87 of the Indian Act which makes the applicant's income tax-exempt. Does this make her omission right and just? No, this is merely another veronica.

g. Bill of Rights

[122]        In Constitutional Law of Canada, at p.32-2, Professor Hogg asserts that the Bill of Rights lost most of its importance in 1982 after the adoption of the Charter. Most of the rights and freedoms guaranteed by the Bill of Rights are now guaranteed by the Charter, he states. There are only two provisions in the Bill of Rights which are not duplicated by the Charter: subsection 1(a), the due process clause, and subsection 2(e), the guarantee of a fair hearing for the determination of rights and obligations. Professor Hogg notes that those provisions of the Bill of Rights go beyond the Charter, and continue to be relevant. Otherwise, in his view, the Bill of Rights duplicates the same rights in the Charter which are of no force and effect. However Professor Hogg, still in Chapter 32 of his textbook, presents certain modifications of this latter view, and recent jurisprudence beathes life, or diagnoses it, in the Bill of Rights: Federal Court of Appeal, per Létourneau, J.A. for the majority in Northwest Territories v. Public Service Alliance of Canada, paras. [49], [50], [54], [55], [59], [60] and [61]. The subject is a fair hearing. The Bill liveth. There is nothing particularly relevant to Ms. Bear's case in Prof. Hogg's textbook.

[123]        The equality guarantee in the Bill of Rights is duplicated and expanded in the Charter. Chief Justice Dickson in Beauregard v. Canada, [1986] 2 S.C.R. 56 at 90 provided a brief history of the restrictive approach to the equality provision of the Bill of Rights before the Charter and, although the Bill of Rights still survives, concluded that the day has passed to re-evaluate the direction the Court has taken in interpreting the Bill of Rights:

[67] This short history of "equality before the law" under section 1(b) of the Canadian Bill of Rights demonstrates that a majority of the Court was never prepared to review impugned legislation according to an exacting standard which would demand of Parliament the most carefully tailored, finely crafted legislation. On the contrary, a majority of the Court was consistently prepared to look in a general way to whether the legislation was in pursuit of a valid federal legislative objective. This approach was followed in cases involving legislative distinctions on the basis of race, sex and age, and in cases involving profoundly important interests of the person asserting the equality right. The passages which I have quoted from these cases indicate that the Court was concerned with the merely statutory status of the Canadian Bill of Rights and the declaratory nature of the rights it conferred. I believe the day has passed when it might have been appropriate to re-evaluate those concerns and to reassess the direction this Court has taken in interpreting that document.

Not even the dicta of such a distinguished judge can rpeal the effect of the Canadian Bill of Rights, which enjoys quasi-constitutional vigour, although it is not constitutionally entrenched.

[124]        There was no express discrimination in the 1966 CPP legislation. The applicant's arguments fail because the respondent would have the Court believe the day has passed to imbue the equality provision of the Bill of Rights with the right to strike down legislation, and because there was no express conflict between the Bill of Rights and the CPP. The Court cannot give effect to such an argument unless and until the Bill of Rights be repealed in and for all of Canada. Although it is not constitutionally entrenched, it remains effective.

h. Hansard Speeches, Whiteduck Report

[125]        Although Hansard debates are admissible to provide background for the Court, this evidence is of limited reliability, and the evidence should be evaluated accordingly. [Reference Re Motor Vehicle Act, [1995] 2 S.C.R. 486 at 504; R. v. Morgentaler, [1993] 3 S.C.R. 463 at 484]. Some of the speeches provided by the applicant were delivered by opposition members. As such, these should be taken merely as opinions from members opposing the Bill, unless, of course they show that the government of the day, and Parliament itself thereby received notice of the inequality of which Ms. Bear complains herein.

[126]        The Whiteduck report refers to the exclusion of Indians from the CPP because of the high rate of unemployment among aboriginals, and because of income levels which are much lower than the mainstream population. This has resulted in little to no contributions to the CPP. Further, the Whiteduck report is acknowledged as a very preliminary analysis which will be used for further investigation, but it operates as well as a notice giver and destroyer of complacency.

i. OAS & GIS are not Welfare

[127]        The applicant incorrectly equates the OAS (Old Age Security) with welfare benefits. The OAS is a universal benefit which is received by all Canadians based on age and residence. The OAS pension provides a minimum amount of personal income to seniors, and is a base of income upon which Canadians may build other forms of retirement income such as the CPP, employer-sponsored pension plans, and private savings. The OAS also serves to supplement benefits provided under the OAS Act so that seniors have a guaranteed level of income. The applicant incorrectly characterizes her participation in the OAS and the GIS as being akin to welfare payments. Although the GIS is income-based, it is not stigmatizing. [Collins v. Canada, [2000] 2 F.C. 3 at 73 to 75]. The respondent once again makes an irrelevant argument, another veronica. The OAS does not cure the inequality of treatment in the CPP between 1966 and 1988.

j. Remedies

[128]        The respondent submits that this Court should not take any action if the applicant is successful because the provisions at issue have been amended to permit the applicant to participate in the CPP. In Schachter, supra, the Court noted the danger of a reading in remedy when the amended legislation is different from what the remedy would have provided. Reading in a remedy, as suggested by the applicant, is appropriate only in exceptional cases because it is an unusual step to read subsequent legislation retroactively into expired legislation. The Supreme Court has taken such a step only when there was a lack of financial implications for the government. Here, the implications are immense. [Miron v. Trudel, [1995] 2 S.C.R. 418 at 480, 510]. That may be so, but over a few decades, the same parliament which enacted the Canadian Bill of Rights and approved the Charter, despite notice, walked into this problem with its eyes wide open.

[129]        The applicant is not complaining of actions by governmental actors but of the discriminatory effects of three statutes. The Government of Canada is composed of governmental actors, not automata. This respondent's argument is not substantial, and should be dismissed for being of feeble, if any, relevance.

7. Summary of Conclusions

[130]        The Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms are both effective in the determination of this litigation, which raises important points of constitutional, and quasi-constitutional law. The chosen approach here is by judicial review, a grant of declaratory relief, governed by sections 18 and 18.1 of the Federal Court Act. The applicant has leave under subsection 18.1(2) to make this application as of November 1, 2000, the day upon which her supplementary applicant's record was filed in the registry, and within such further time as may be required in light of the importance of the questions herein litigated.

[131]        Sections 15 of the Charter, and 1 of the Bill of Rights, along with every other statutory provision which contributed to the discriminatory inequality suffered by Ms. Bear and others in her plight were no doubt solemnly enacted by Parliament which meant what it enacted, and enacted what it meant. It is not the rôle of this Court to deviate from the rights laws which are binding on the Court. It is no use for the respondent to claim justification because the applicant has other benefits under other legislation. That is the kind of evasion which the respondent has attempted in argument herein. The applicant should have the decision she seeks from this Court.

[132]        The decision she seeks involves the declarations that parts of the Indian Act, the Income Tax Act and the Canada Pension Plan Act are of no force and effect insofar as they create inequality of treatment for the applicant, compared with other Canadians who are employed for pay off of the territory of an Indian reserve. Costs, to be taxed, if not agreed, shall be paid on a party-and-party basis by the respondent in favour of the applicant. It is, after all, she who suffers discrimination because of the discriminatory effect of the statutes of Canada, through no fault of her own. After all is said and done, there is good reason to follow the usual rule as to costs. They follow the event.

[133]        A notice of a constitutional question has been duly served.

                                                                                                                                     Judge