Court File No. 30755 IN THE SUPREME COURT OF CANADA (On Appeal from Ontario Court of Appeal) BETWEEN: The Attorney General of Canada Appellant (Appellant) - and - G. Hislop, B. Daum, A. McNutt, E. Brogaard and G. Meredith Respondents (Respondents) AND BETWEEN: G. Hislop, B. Daum, A. McNutt, E. Brogaard and G. Meredith Appellants (Respondents) - and - The Attorney General of Canada Respondent (Appellant) - and - Egale Canada Inc. and the Attorneys General of Alberta, Ontario and Quebec Interveners FACTUM OF EGALE CANADA INC. SACK GOLDBLATT MITCHELL LLP SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West, Suite 1100 30 Metcalfe Street, Suite 500 Toronto, Ontario M5G 2G8 Ottawa, Ontario K1P 5L4 Cynthia Petersen Michelle Flaherty Tel: 416-979-6440 Tel: 613-235-5327 Fax: 416-591-7333 Fax: 613-235-3041 [email protected] [email protected] Solicitors for Egale Canada Inc. Ottawa Agent for Egale Canada Inc. TO: THE REGISTRAR OF THE SUPREME COURT OF CANADA AND TO: ROY ELLIOTT KIM O’CONNOR LLP LANG MICHENER 10 Bay Street, Suite 1400 300-50 O’Connor Street Toronto ON M5J 2R8 Ottawa ON K1P 6L2 R. Douglas Elliott Marie-France Major Tel: 416-362-1989 Tel: 613-232-7171 Fax: 416-362-6204 Fax: 613-231-3191 Email: [email protected] Email: [email protected] Counsel, Respondents/Appellants Ottawa Agent, Respondents/Appellants AND TO: ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA Bank of Canada Building, East Tower Bank of Canada Building, East Tower 1001-234 Wellington Street 1001-234 Wellington Street Ottawa ON K1A 0H8 Ottawa ON K1A 0H8 Paul Vickery Christopher M. Rupar Tel: 613-948-1483 Tel: 613-941-2351 Fax: 613-941-5879 Fax: 613-954-1920 Email: [email protected] Email: [email protected] AND TO: ATTORNEY GENERAL OF QUEBEC NOEL & ASSOCIES 111, rue Champlain Gatineau, QC J8X 3R1 Sylvie Roussel Tel: 819-771-7393 Fax: 819-771-5397 Email: [email protected] Ottawa Agent, AG Quebec AND TO: ATTORNEY GENERAL OF ONTARIO NOEL & ASSOCIES 720 Bay Street, 4th Floor 111, rue Champlain Toronto ON M5G 2K1 Gatineau, QC J8X 3R1 Daniel Guttman Sylvie Roussel Tel: 416-326-4466 Tel: 819-771-7393 Fax: 416-326-4015 Fax: 819-771-5397 Email: [email protected] Email: [email protected] Counsel, AG Ontario Ottawa Agent, AG Ontario AND TO: ALBERTA JUSTICE GOWLING LAFLEUR HENDERSON Constitutional and Aboriginal Law LLP 4th Floor, Bowker Building 2600-160 Elgin Street 9833-109 Street Box 466, Station D Edmonton ALTA T5K 2E8 Ottawa ON K1P 1C3 Nick Parker Brian A. Crane, Q.C. Tel: 780-427-7885 Tel: 613-232-1781 Fax: 780-425-0307 Fax: 613-563-9869 Email: [email protected] Email: [email protected] Counsel, AG Alberta Ottawa Agent, AG Alberta Table of Contents Page PART I - FACTS ..........................................................................................................................1 PART II - ISSUES ..........................................................................................................................1 PART III - SUBMISSIONS A. Remedial Principles under Section 52 of the Constitution Act, 1982 ............................1 B. Constitutional Exemption is a Section 52 Remedy........................................................2 C. Constitutional Exemptions as Ancillary Orders under Section 52 ................................3 D. The Appropriate Remedy in this Case ...........................................................................4 E. The General Sections Have an Unjustifiable Discriminatory Effect ...........................10 F. An Exemption is the Best S.52 Remedy for Adverse Effect Discrimination ..............11 G. Broad and Generous Interpretation of Section 24(1) of the Charter ...........................12 H. Section 24(1) Remedies in Conjunction with Section 52 Remedies ...........................13 I. There is No Crown Immunity ......................................................................................17 J. A Constitutional Exemption is an Appropriate and Just Remedy under S.24 .............19 PART IV - ORDERS SOUGHT ....................................................................................................20 PART V - TABLE OF AUTHORITIES .......................................................................................21 PART I - FACTS 1. Egale accepts the facts as set out by the Class Members in their facta. PART II - ISSUES 2. Egale’s intervention will be limited to two issues raised by the within appeals: (a) Did the Court of Appeal err in concluding that the Class Members are not entitled to a constitutional exemption from the application of ss.60(2) and 72(1) (“the general sections”) of the Canada Pension Plan? (b) Did the Court of Appeal err in concluding that the general sections of the CPP do not infringe s.15 of the Charter? 3. Egale’s position is that the correct answer to both of these questions is “yes”. PART III - SUBMISSIONS A. Remedial Principles under Section 52 of the Constitution Act, 1982 4. In any Charter case, the Court must be mindful of the judicial pronouncement that “it is a vain thing to imagine a right without a remedy.” Moreover, as Chief Justice McLachlin noted in Dunedin, “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.” In order to fulfill its role as guardian of the rights and freedoms guaranteed by the Charter, the Court must therefore do more than simply provide “a remedy” for Charter breaches; it must provide a meaningful remedy that vindicates the right infringed.1 5. According to s.52 of the Constitution Act, 1982, any law that is inconsistent with the Constitution is, “to the extent of the inconsistency, of no force or effect.” Where provisions of a statute are inconsistent with the Charter, the Court has an obligation to strike down the offending provisions or to cure the inconsistency by some other means. Although the Court has no choice but to act, it has considerable “flexibility in determining what course of action to take.”2 1 Ashby v. White (1703), 92 E.R. 126, at 136; Mills v. Canada, [1986] 1 S.C.R. 863, at 971; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 (“Dunedin”), at para.20; Doucet-Boudreau v. Nova Scotia, [2003] 3 S.C.R. 3, at paras.25 and 55 2 Schachter v. Canada, [1992] 2 S.C.R. 679, at para.25; see also Osborne v. Canada, [1991] 2 S.C.R. 69, per Sopinka, J., at 104 (the Court has “broad discretion to fashion the appropriate remedy”) - 2 - 6. This Court stated in Schachter that “there is no easy formula” to follow in determining the appropriate remedy under s.52. There are, however, two principles that guide the exercise of remedial discretion, namely respect for the purposes of the Charter and respect for the role of the legislature. These principles were first articulated by Justice Sopinka in Osborne as follows: In selecting an appropriate remedy under the Charter the primary concern of the court must be to apply the measures that will best vindicate the values expressed in the Charter and to provide the form of remedy to those whose rights have been violated that best achieves that objective.… At the same time, the court must be sensitive to its proper role in the constitutional framework and refrain from intruding into the legislative sphere beyond what is necessary to give full effect to the provisions of the Charter.3 7. Given the “diverse and novel problems” that the Court may be called upon to redress, and the need to intrude as little as possible into the legislative sphere, it is imperative for the Court to “maintain at its disposition a variety of remedies as part of its arsenal.”4 B. Constitutional Exemption is a Section 52 Remedy 8. Although this Court has yet to employ it, a constitutional exemption is one of the remedies at the Court’s disposal under s.52. The jurisprudence on this point is somewhat difficult to discern, since constitutional exemptions have primarily been discussed in obiter statements,5 and have only been ordered as s.24(1) Charter remedies by dissenting judges, typically in cases where the majority found no violation of Charter rights.6 In both Osborne and Seaboyer, however, the majority of this Court explicitly acknowledged the possibility of resort to a constitutional exemption as a s.52 remedy in a future case. In Schachter, Chief Justice Lamer, writing for the majority, recognized the “doctrine of constitutional exemption” in the context of his discussion of s.52 remedial measures. Also, a number of appellate courts and lower courts have issued constitutional exemptions under s.52.7 3 Schachter, supra, at para.77; Osborne, supra, per Sopinka, J, at 104 4 Osborne, supra, per Sopinka, J., at 104 5 See, for e.g. R. v. Edwards Books, [1986] 2 S.C.R. 713, at para.147; Miron v. Trudel, [1995] 2 S.C.R. 418, at 509; R. v. Rose, [1998] 3 S.C.R. 262, per L’Heureux-Dube, J., at para.66; R. v. Latimer, [2001] 1 S.C.R. 3, at para.87 6 R. v. Rodriguez, [1993] 3 S.C.R. 519, per Lamer, C.J., at 572-573; Thibaudeau v. Canada, [1995] 2 S.C.R. 627, per McLachlin, J., at 736 7 Osborne, supra, per Sopinka, J., at 104-105; Schachter, supra, at para.60; R. v. Chief (1989), 51 C.C.C. (3d) 265 (Y.T.C.A.), at 277-278; R. v. Seaboyer (1987), 37 C.C.C. (3d) 53 (Ont.C.A.), per Grange, J.A. at para.54-55, rev’d [1991] 2 S.C.R. 577, at 630 - 3 - 9. This Court ought to confirm the availability of a constitutional exemption as a s.52 remedy in this case. Failure to do so would impede the flexibility required by lower courts in the exercise of their remedial discretion. Moreover, it would be illogical to preclude a constitutional exemption, since it is an obvious “companion” to other s.52 remedies such as “reading in” or “reading down”. As Justice Sopinka noted in Osborne, “the same result” is sometimes achieved regardless of whether the Court reads down legislation or employs a constitutional exemption.