Judgments

Decision Information

Schachter v. Canada (C.A.)

Collection Judgments
Date 1990-02-16
Report citation [1990] 2 F.C. 129
File numbers A-1002-88
Subjects Constitutional Law
Unemployment Insurance

Decision Content

A-1002-88
Her Majesty the Queen and Canada Employment and Immigration Commission (Appellants) (Defendants)
v.
Shalom Schachter (Respondent) (Plaintiff)
and
Women's Legal Education Action Fund (Respondent) (Intervenor)
INDEXED AS: SCHACHTER V. CANADA (CA.)
Court of Appeal, Heald, Mahoney and Stone JJ.A.—Toronto, November 27, 28 and 29, 1989; Ottawa, February 16, 1990.
Constitutional law — Charter of Rights — Equality rights — S. 32 Unemployment Insurance Act granting child care benefits to adoptive parents but not to natural parents — Trial Judge finding s. 32 inconsistent with Charter s. 15 and, pursuant to Charter s. 24(1), addressing underinclusiveness of legislation by extending benefits to natural parents — Nature and extent of Court's power to grant remedy where infringe ment of equality rights — S. 15(1) conferring positive right to equality which can only be guaranteed by positive remedy — Extension of benefits in cases of underinclusive legislation remedy respecting purposive nature of Charter while giving effect to rights enshrined in s. 15 — Appeal dismissed.
Constitutional law — Charter of Rights — Enforcement — Trial Judge finding s. 32 Unemployment Insurance Act (child care benefits to adoptive parents) inconsistent with Charter s. 15(1) — Granting remedy pursuant to Charter s. 24(1) extend ing benefits to natural parents — Whether erred in not declar ing s. 32 of no force or effect pursuant to s. 52(1) Constitution Act, 1982 — S. 52(1) not only remedial route where legislation found inconsistent with Constitution — S. 52(1) not engaged as underinclusive character of s. 32, not legislation itself, uncon stitutional — Court not overstepping constitutional role of judiciary although decision requiring expenditure of public monies not appropriated by Parliament — Positive remedy necessary to enforce Charter equality right.
Unemployment insurance — S. 32 Unemployment Insurance Act granting child care benefits to adoptive parents only inconsistent with Charter s. 15 — Trial Judge, under Charter s. 24, extending benefits to natural parents — Interface be tween ss. 15(1) and 24(1) Charter and s. 52(1) Constitution Act, 1982 — Charter s. 24 empowering Court to address underinclusiveness of legislation by extending benefits to groups aggrieved by exclusion — Remedy constitutionally
permissible although resulting in appropriation of public monies not otherwise authorized by Parliament.
The Trial Judge found section 32 of the Unemployment Insurance Act, 1971 to be inconsistent with section 15 of the Charter because it did not accord natural parents equal benefit of the law. Section 32 entitles adoptive parents, but not natural parents, to child care benefits. The Trial Judge, pursuant to section 24 of the Charter, addressed the underinclusiveness of the section by extending the section 32 benefits to natural parents.
The finding that section 32 provides unequal benefit of the law was not challenged. The appeal raises three issues: (1) the jurisdiction of the Trial Judge to fashion a remedy under subsection 24(1) notwithstanding subsection 52(1) of the Con stitution Act, 1982; (2) the nature and extent of a court's powers under subsection 24(1) to grant a remedy for the infringement of section 15 equality rights in the case of underinclusive legislation; (3) the role of the judiciary in grant ing a remedy which results in a judicial amendment to the legislation and entails the appropriation of public monies for a purpose not authorized by Parliament.
Held (Mahoney J.A. dissenting): the appeal should be dismissed.
Per Heald J.A. (Stone J.A. concurring): The Trial Judge had jurisdiction to grant the relief embodied in the decision at issue. The appellants' submission, that where a law is found to be inconsistent with the provisions of the Constitution the only recourse open to a court is to declare it of no force or effect pursuant to subsection 52(1) of the Constitution Act, 1982, could not be accepted. In Big M Drug Mart Ltd., Dickson J. indicated that subsection 24(1) "[was] not ... the only recourse in the face of unconstitutional legislation". Those remarks show that there is more than one remedial route to pursue when an individual's Charter rights have been infringed. They cannot be read as precluding access to section 24 in cases where section 52 would apply. His Lordship added that "Where ... the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary." In the case at bar, however, it is the omission rather than the legislation that is unconstitu tional. The language of section 32 does not contravene the Charter; it is the underinclusive character of the provision that renders it insufficient and accordingly unconstitutional. Because of that underinclusive character, subsection 52(1) cannot be engaged and the course adopted by the Trial Judge does not run contrary to the remarks of Dickson J. in Big M.
The Trial Judge did not err in the exercise of the powers conferred upon him by section 24. A court of competent jurisdiction is empowered to use its section 24 powers with flexibility and imagination and is free to employ a full discre tion in the exercise of those powers. Subsection 15(1) confers a positive right to equality which can only be guaranteed by the fashioning of a positive remedy. The remedy granted below protects that right; a declaration that section 32 is of no force or effect would fail to do so.
Nor did the Trial Judge overstep his judicial function in imposing a legislative scheme to replace that found constitu tionally defective. Underinclusive legislation invites a remedy extending benefits. Such a remedy respects the purposive nature of the Charter while at the same time giving effect to the equality rights enshrined in section 15. Since the remedy granted was the only one appropriate and just in the circum stances, it was constitutionally permissible. Furthermore, the judgment of the Trial Division merely provided a temporary remedy, leaving it to "Parliament to remedy the situation in accordance with the Charter". The Court had not impinged on Parliament's prerogative to choose amongst constitutionally valid policy options in enacting legislation which conforms to the Charter.
Support could not be found for the submission that the relief granted represented an invasion of Parliament's constitutional authority to exact taxes. This was not the first case of a court having rendered a decision requiring the expenditure of public funds not otherwise authorized by Parliament.
Per Mahoney J.A. (dissenting): Dickson J.'s comments in the Big M case cannot be read as indicating that subsections 24(1) and 52(1) offer alternative recourses in the case of legislative underinclusion. The interaction of those provisions was not really addressed. The only "remedy" sought, considered and granted therein was a declaration of invalidity pursuant to subsection 52(1).
Caution must be exercised when interpreting Charter rights in a purposive and generous manner. The Charter is not the whole Constitution; its provisions are neither subordinate nor paramount. The entire Constitution, not the Charter alone, is the "statement of the will of the people to be governed in accordance with certain fundamental principles". No principle is more firmly established than the one inherited from the British Constitution that no money can be levied without the authorization of Parliament. The appropriation of public monies by a court is offensive to that principle. A purposive approach to remedies under subsection 24(1) cannot take a court that far. The responsibility of the courts is to define the limits of legislation permissible under the Charter; that of Parliament is to enact legislation that meets its requirements.
The Constitution of Canada does not permit the remedy crafted by the Trial Judge. Having found section 32 to be inconsistent with a provision of the Constitution, the Trial Judge was bound to find it to be of no force and effect. Had that finding been made, the absence of any conflict between subsections 24(1) and 52(1) would be apparent. There is no offending legislation and, therefore, no subsection 24(1) remedy called for. Subsection 52(1) states a constitutional fact which no court can ignore when it is invoked in a proceeding and found to apply.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown, 1688 [Bill of Rights], 1 Will & Mary, Sess. 2, c. 2 (U.K.).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2, 7, 15(1), 24(1), 33.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C., 1985, Appendix II, No. 5], preamble.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 52(b)(iii), 57(3).
Federal Court Rules, C.R.C., c. 663, R. 324.
Unemployment Insurance Act, 1971, S.C. 1970-71-72,
c. 48, s. 32 (as am. by S.C. 1980-81-82-83, c. 150, s. 5). Unemployment Insurance Act, R.S.C., 1985, c. U-1,
s. 20.
CASES JUDICIALLY CONSIDERED
APPLIED:
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. ( 4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. ( 2d) 273; 36 C.R.R. 193; 91 N.R. 255; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; 94 N.R. 373; Re Hoogbruin et al. and Attorney-General of British Columbia et al. (1985), 24 D.L.R. (4th) 718; [1986] 2 W.W.R. 700; 70 B.C.L.R. 1 (C.A.).
CONSIDERED:
R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. ( 4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 914,023; 13 C.R.R. 64; 58 N.R. 81; R. v. Jones, [1986] 2 S.C.R. 284; (1986), 31 D.L.R. (4th) 562; [1986] 6 W.W.R. 577; 28 C.C.C. (3d) 513; 25 C.R.R. 63; 69 N.R. 241; Re Blainey and Ontario Hockey Asso ciation et al. (1986), 54 O.R. (2d) 513; 24 D.L.R. (4th) 728; 14 O.A.C. 194 (C.A.); leave to appeal to the Supreme Court of Canada denied, [ 1986] 1 S.C.R. xii; R. v. Rahey, [1987] 1 S.C.R. 588; (1987), 78 N.S.R. (2d) 183; 39 D.L.R. (4th) 481; 193 A.P.R. 183; 33 C.C.C. (3d) 289; 57 C.R. (3d) 289; 75 N.R. 81; Califano v. Westcott, 443 U.S. 76 (1979); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. ( 4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9
C.R.R. 355; 84 DTC 6467; 55 N.R. 241; Reference re Manitoba Language Rights, [1985] 1 S.C.R 721; (1985), 19 D.L.R. (4th) 1; [1985] 4 W.W.R. 385; 35 Man. R. (2d) 83; 59 N.R. 321; R. v. Hamilton (1986), 57 O.R. (2d) 412; 17 O.A.C. 241 (C.A.); R. v. Van Vliet (1988), 45 C.C.C. (3d) 481; 10 M.V.R. 190 (B.C. C.A.); Auck- land Harbour Board v. The King, [1924] A.C. 318; Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29 D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 67 N.R. 241; R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161; R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C. (3d) 1; 63 C.R. 113; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 3 O.A.C. 321; 11 C.C.C. (3d) 481; 53 N.R. 169; Marchand v. Simcoe County Board of Educa tion et al. (1986), 55 O.R. (2d) 638; 29 D.L.R. (4th) 596; 25 C.R.R. 139 (H.C.).
REFERRED TO:
Singh et al. v. Minister of Employment and Immigra tion, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; Reg. v. Barnet London Borough Council Ex parte Nilish Shah, [1983] 2 W.L.R. 16 (H.L.); Addy v. The Queen, [1985] 2 F.C. 452; (1985), 22 D.L.R. (4th) 52; 8 C.C.E.L. 13; 5 C.P.C. (2d) 127; 19 C.R.R. 193 (T.D.); R. v. Punch, [1985] N.W.T.R. 373; [1986] 1 W.W.R. 592; 22 C.C.C. (3d) 289; 48 C.R. (3d) 374; 18 C.R.R. 74 (S.C.); Dixon v. B.C. (A.G.), [1989] 4 W.W.R. 393 (B.C.S.C.); Refer ence re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513; 25 D.L.R. (4th) 1; 13 O.A.C. 241 (C.A.).
AUTHORS CITED
Canada. Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. Minutes of Proceedings and Evidence, Issue No. 36 (January 12, 1981), at page 36:19.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
COUNSEL:
David Sgayias and Roslyn J. Levine for appellants (defendants).
Brian G. Morgan and Larry Ritchie for respondent (plaintiff).
Mary Eberts and Jennifer E. Aitken for respondent (intervenor).
SOLICITORS:
Deputy Attorney General of Canada for appellants (defendants).
Osier, Hoskin & Harcourt, Toronto, for respondent (plaintiff).
Tory, Tory, DesLauriers & Binnington, Toronto, for respondent (intervenor).
The following are the reasons for judgment rendered in English by
HEALD J.A.: I have read the reasons for judg ment prepared in this appeal in draft form by my brother Mahoney J.A. With every deference I am unable to agree with the result which he proposes. Accordingly, I think it necessary to discuss the issues which, in my appreciation of the matter, are raised by this appeal, and to explain my reasons for reaching a conclusion different from that of my colleague.
As I perceive this appeal, it raises three broad issues: firstly, whether a court of competent juris diction has the power to fashion remedies under subsection 24(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], notwithstanding the provi sions of subsection 52(1) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. Put another way, this appeal raises squarely the ques tion of the interface between subsections 24(1) of the Charter and 52(1)' of the Constitution Act, 1982; secondly, the relationship between subsec tions 24(1) and 52(1) when considered in the context of other sections of the Constitution Act, 1982 such as, for example, subsection 15(1) deal
' 24. (1) 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.
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
ing with equality rights, 2 and, specifically, the nature and extent of the Court's power to grant a remedy for the infringement of equality rights under section 15 in the particular circumstances of this case; and thirdly, the role of the judiciary in circumstances where the granting of a Charter remedy results in a judicial amendment to the legislation and, as well, entails the appropriation of public monies from the Consolidated Revenue Fund for a purpose not authorized by Parliament.
As noted by Mr. Justice Mahoney, the learned Trial Judge [[1988] 3 F.C. 515; (1988), 52 D.R.L. (4th) 525; 18 F.T.R. 199] found section 32 of the Unemployment Insurance Act, 1971 [S.C. 1970- 71-72, c. 48 (as am. by S.C. 1980-81-82-83, c. 150, s. 5)] (now section 20, R.S.C., 1985, c. U-1) to be inconsistent with section 15 of the Charter because it did not accord natural parents equal benefit of the law. It gave child care benefits to adoptive parents, but not to natural parents. The learned Trial Judge, pursuant to section 24 of the Charter, addressed the underinclusiveness of the section by granting an extension. The conse quence of his judgment is to entitle natural parents to the same child care benefits as adoptive parents.
1. The interface between subsections 24(1) of the Charter and 52(1) of the Constitution Act, 1982
Counsel for the appellants stated at the outset that there was no challenge to the finding by the learned Trial Judge that section 32 provides un equal benefit of the law, and, consequently, is contrary to section 15 of the Charter. It is also conceded that, assuming jurisdiction to grant a remedy under section 24, the remedy devised was just and appropriate in the circumstances. It is the submission of the appellants, however, that the learned Trial Judge erred in failing to declare section 32 to be of no force and effect and further
2 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.
erred in purporting to amend section 32 by provid ing for the payment of benefits to natural parents.
Couched in simple terms, the appellants' sub mission is that subsection 52(1) operates automati cally where there is a law that is found to be inconsistent with the provisions of the Constitu tion. It was the position of counsel that section 24 of the Charter cannot be used where section 52 applies. He did not go so far as to claim para- mountcy for section 52. However, he did submit that section 24 cannot be used to avoid the opera tion of section 52. In paragraph 39 of his memo randum of fact and law he expressed the submis sion as follows:
... subsection 24(1) does not empower the Court to ignore the clear dictate of subsection 52(1). Indeed, where the question is one of the consistency of a statutory provision with the Charter, subsection 24(1) does not come into play.
In support of this submission, counsel relies on a statement by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd. et a1. 3 Big M was a case where the company was charged with a violation of the Lord's Day Act [R.S.C. 1970, c. L-13]. The ground of defence was that the Act violated the Charter's guarantee of freedom of religion. The Crown submitted that the trial court lacked the competence to make a declaration of invalidity under section 24. In rejecting this argument, Mr. Justice Dickson stated, for the majority:
Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on the challenging party is irrelevant.
With deference to those who hold a contrary view, it is my opinion that the above quoted opinion makes it perfectly clear that there is more than one remedial route to pursue when an individual's Charter rights have been infringed by unconstitu tional legislation. I think it apparent that Mr.
3 [1985] 1 S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321; [1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C. (3d) 385; 85 CLLC 914,023; 13 C.R.R. 64; 58 N.R. 81, at p. 313 S.C.R.
Justice Dickson was not precluding access to section 24 in cases where section 52 would apply. I say this because of his statement that the section 24 remedy is not the only remedy in the face of unconstitutional legislation. To the same effect are the comments of Madame Justice Wilson in the case of Singh et al. v. Minister of Employment and Immigration. 4
It seems to me that the route to be followed by an individual seeking redress may well depend upon the manner in which the substantive right was infringed. Mr. Justice Strayer focused on the unusual way in which underinclusive legislation violates Charter rights. He stated (at page 544 F.C.):
Section 32 is defective, not because the benefits it provides are prohibited by the Charter, but rather because neither it nor any other part of the Act goes far enough in equally providing benefits to others similarly situated: that is, it is "under-inclu sive".
In my view, Strayer J. is here distinguishing be tween legislation which is unconstitutional because of what it provides and legislation which is uncon stitutional because of what it omits. Section 32 of the Unemployment Insurance Act, 1971 falls into the latter category. In the passage quoted supra, Mr. Justice Dickson expressed the view that where the challenge is based on the unconstitutionality of the legislation, recourse to section 24 is unneces-
4 [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1, at p. 221 S.C.R. where she stated:
4. Remedies
I turn now to the issue of the remedy to which the appellants are entitled. Sections 24(1) of the Charter and 52(1) of the Constitution Act, 1982 both apply. Section 52(1) requires a declaration that s. 71(1) of the Immigration Act, 1976, is of no force and effect to the extent it is inconsistent with s. 7. The appellants who have suffered as a result of the application of an unconstitutional law to them are entitled under s. 24(1) to apply to a court of competent jurisdiction for "such remedy as the court considers appropri ate and just in the circumstances". What remedy is available in the context of this case?
The Court's jurisdiction is invoked in two contexts. In the first, these are appeals from dismissals by the Federal Court of Appeal of applications for judicial review under s. 28 of the Federal Court Act. In this context the Court is limited to the powers the Federal Court is entitled to exercise pursuant to s. 28. In the other context, however, the Court's broad remedial powers under s. 24 of the Charter are invoked.
sary. However, that is not this case. Here the language of section 32 itself does not contravene the Charter. As submitted by counsel for the respondent, its underinclusive character renders it insufficient and therefore unconstitutional. It is the omission in this case that is unconstitutional, not the legislation itself. On this view of the matter then, it would be permissible to resort to section 24 for a remedy. Hence, in my view, the course adopted by Strayer J. does not run contrary to the opinion expressed by Dickson J. supra.'
I find additional support for this approach to the matter in the reasons for judgment of Madame Justice Wilson in the case of R. v. Jones. 6 The legislation under attack in that case was certain sections of the Alberta School Act [R.S.A. 1980, c. S-3]. The sections in issue were said to violate paragraph 2(a) of the Charter (freedom of reli gion) as well as section 7 thereof (interference with liberty). All of the judges of the Supreme Court of Canada hearing the appeal held that paragraph 2(a) was not infringed. Additionally all of the panel excepting Madame Justice Wilson held that section 7 of the Charter was, likewise, not infringed. Wilson J. was of the view that the impugned legislation breached section 7 of the Charter. Accordingly, she was the only member of the panel who found it necessary to address the question of remedy. At page 323 S.C.R. she said:
I would like to address one further point which was clearly a matter of concern to the Court of Appeal. It found that the appellant, not having been denied a certificate under s. 143(1), was not entitled to raise the validity of the legislation "in the abstract". If I understand the Court's thinking correctly, it seems to be that no relief can be given under s. 24(1) on the basis of the invalidity of the legislation per se but only on the basis of some action taken under it. While the appellant could have claimed relief by way of the prerogative writs if he had been denied a certificate, the validity of the legislation can only
5 Chief Justice Dickson raises a similar point in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385, at p. 784 S.C.R.
6 [1986] 2 S.C.R. 284; (1986), 31 D.L.R. (4th) 562; [1986] 6 W.W.R. 577; 28 C.C.C. (3d) 513; 25 C.R.R. 63; 69 N.R. 241, at p. 323 S.C.R.
be brought in issue through a constitutional reference or an application for a declaratory judgment.
With respect, I think the Court must be in error in this regard. A remedy must be available under s. 24(1) if legislation is found under s. 52(1) to be inconsistent with the provisions of the Constitution. [Emphasis added.]
While the factual situation at bar differs from that in Jones (supra), in that this plaintiff did commence an action for declaratory relief, and would thus likely avoid the qualification imposed by the Alberta Court of Appeal, I find particularly persuasive the dicta of Madame Justice Wilson to the effect that "A remedy must be available under s. 24(1) if legislation is found under s. 52(1) to be inconsistent with the provisions of the Constitu tion."
In essence, the appellants' submission is that section 24 can only be used where there is a Charter infringement otherwise than by legisla tion. As noted by counsel for the respondent, the words "otherwise than by legislation" or other language of like import, are not to be found in section 24. In his submission, sections 24 and 52 do not conflict. I agree with this submission. How ever, it is also important to remember, as noted supra, that in the particular circumstances of this case, the constitutional infirmity of section 32 arises not from its inconsistency, but, rather, from its insufficiency. Accordingly, in this case, subsec tion 52(1) of the Charter is not engaged. There is no clear indication that one of the provisions was intended to be exhaustive or inclusive; therefore, both section 52 and section 24 prima fade operate.' However, because of the underinclusive character of the legislation, section 52 cannot apply.
We were also invited by counsel for the respon dent to consider remarks made by the Minister of Justice and Attorney General of Canada to the Special Joint Committee of Parliament on the Constitution of Canada on January 12, 1981 [at page 36:19]:
7 Compare: Construction of Statutes, 2nd ed., E. A. Driedg- er, at p. 235.
Remedies:
The Canadian Civil Liberties Association, the Canadian Jewish Congress, many members of this Committee and other witnesses expressed the strong view that the Charter requires a remedies section. This would ensure that the Courts could order specific remedies for breach of Charter rights.
I would be prepared to see a new section stating 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 just and appropriate in the circumstances.
This would ensure that an appropriate remedy as determined by the courts would be afforded to anyone whose rights have been infringed whether through enactment of a law or by an action of a government official.
I am cognizant of the caveat articulated by Lamer J. in the Re B.C. Motor Vehicle Act case 8 with respect to the Minutes of the Special Joint Committee. However, it is my opinion that the comments of the Minister of Justice supra clearly indicate an intention by the addition of section 24 to the Charter to afford an appropriate remedy to "anyone whose rights have been infringed whether through enactment of a law or by action of a government official". I think also that a court is entitled to look at Parliamentary Debates as aids to interpretation of the purpose or policy of Parliament. 9 If this is permissible, then it seems to me that, similarly, the Court is entitled to attach some weight to such comments as those of the Minister of Justice and Attorney General supra made by him to the Special Joint Committee of Parliament. I have this view because of the reality that this Minister is the Minister charged with the responsibility of piloting the Constitution Act through the House of Commons.
For the foregoing reasons, then, I have conclud ed that the learned Trial Judge had jurisdiction under section 24 of the Charter to grant the relief embodied in the decision a quo.
8 [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266, at pp. 508-509 S.C.R.
9 See Reg. v. Barnet London Borough Council Ex parte Nilish Shah, [1983] 2 W.L.R. 16 (H.L.), at p. 30.
2. The interface between subsections 24(1) and 52(1) when considered in the context of subsection 15(1)
The leading authority on section 15 of the Charter is the Andrews case. 10 At page 170 S.C.R., Mr. Justice McIntyre stated:
The principle of equality before the law has long been recognized as a feature of our constitutional tradition and it found statutory recognition in the Canadian Bill of Rights. However, unlike the Canadian Bill of Rights, which spoke only of equality before the law, s. 15(1) of the Charter provides a much broader protection. Section 15 spells out four basic rights. (1) the right to equality before the law; (2) the right to equality under the law; (3) the right to equal protection of the law; and (4) the right to equal benefit of the law. The inclusion of these last three additional rights in s. 15 of the Charter was an attempt to remedy some of the shortcomings of the right to equality in the Canadian Bill of Rights.
Again at pages 170 and 171 S.C.R., he said:
It is readily apparent that the language of s. 15 was deliberately chosen in order to remedy some of the perceived defects under the Canadian Bill of Rights. The antecedent statute is part of the "linguistic, philosophic and historical context" of s. 15 of the Charter.
It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and con sideration. It has a large remedial component. Howland C.J. and Robins J.A. (dissenting in the result but not with respect to this comment) in Reference re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513, attempt to articulate the broad range of values embraced by s. 15. The state at p. 554:
In our view, s. 15(1) read as a whole constitutes a compendi- ous expression of a positive right to equality in both the substance and the administration of the law. It is an all-encom passing right governing all legislative action. Like the ideals of "equal justice" and "equal access to the law", the right to equal protection and equal benefit of the law now enshrined in the Charter rests on the moral and ethical principle fundamental to a truly free and democratic society that all persons should be treated by the law on a footing of equality with equal concern and respect.
In the quotation from the Ontario Court of Appeal in the Reference re an Act to Amend the Educa tion Act (1986), 53 O.R. (2d) 513; 25 D.L.R. (4th) 1; 13 O.A.C. 241, reference is made to the
' 0 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255.
positive right to equality conferred by subsection 15(1). A mere declaration of invalidity is inade quate in the circumstances at bar, because it would not guarantee the positive right conferred pursuant to subsection 15(1). That positive right can only be guaranteed by the fashioning of a positive remedy. That is precisely what the learned Trial Judge attempted to do in the decision a quo. I find further support for this approach in the decision of the Supreme Court of Canada in the Brooks case. " That case was concerned with Safeway's Group Insurance Plan which disentitled pregnant women during a seventeen-week period from receiving accident or sickness benefits under the Plan. Safeway argued, inter alla, that the Plan was not discriminatory but merely underinclusive of the potential risks it could conceivably insure. The submission was that the decision to exclude preg nancy from the scope of the Plan was not a question of discrimination but was, rather, a ques tion of deciding to compensate some risks and to exclude others. Chief Justice Dickson, writing the judgment of the Court, addressed this argument as follows (at page 1240 S.C.R.):
In Canada, as I have noted, discrimination does not depend on a finding of invidious intent. A further consideration militating against the application of the concept of underinclusiveness in this context, stems, in my view, from the effects of so-called "underinclusion". Underinclusion may be simply a backhanded way of permitting discrimination. Increasingly, employee ben efit plans have become part of the terms and conditions of employment. Once an employer decides to provide an employee benefit package, exclusions from such schemes may not be made in a discriminatory fashion. Selective compensation of this nature would clearly amount to sex discrimination. Ben efits available through employment must be disbursed in a non-discriminatory manner.
These comments by the Chief Justice of Canada are particularly apposite to the situation at bar. The consequence of the underinclusiveness in sec tion 32 of the Unemployment Insurance Act, 1971 results in discrimination against a natural parent such as this respondent. In deciding that Safeway's Plan discriminated on the basis of sex, the Court allowed the appeal and remitted "the complaints of the appellants to the adjudicator for determina tion of the appropriate remedy pursuant to the Manitoba Human Rights Act [S.M. 1974, c. 65]." Iri other words, the Court in that case fashioned a
" Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; 94 N.R. 373.
positive remedy in guarantee of a positive right. In similar fashion, the remedy given by the Trial Judge in this case, accomplishes a like result.
We were also referred to the decision of the British Columbia Court of Appeal in the Hoog- bruin case. 12 In that case, the petitioners, both permanent residents and registered voters in Brit- ish Columbia were temporarily absent while attending University in Ontario. During their absence from the province, a provincial election was held in British Columbia. They were unable to vote in that election because there was no provision in the Election Act [R.S.B.C. 1979, c. 103] for absentee voting. They applied for a declaration that their right to vote, as guaranteed by section 3 of the Charter, had been infringed. The Court of Appeal granted a declaration that, "in the court's view the right to vote as guaranteed by s. 3 of the Charter is denied to British Columbia registered voters where the sole reason they are unable to exercise their right to vote is that no procedural mechanism exists which would reasonably enable them to do so" [at page 723 D.L.R.]. At pages 722-723 D.L.R., the Court (Nemetz C.J.B.C., Aikins and Macdonald JJ.A.) stated:
Mr. Edwards, for the respondents, in urging that no remedial action be taken by this court, has raised the spectre of the danger of the court "subsuming or directing" the functions of the Executive or Legislature if a declaration were to be made. In our opinion there is no merit in this argument. If any law is inconsistent with the provisions of the Charter, it is the court's duty, to the extent of such inconsistency, to declare it to be of no force or effect (s. 52(1)).
Before the Charter, the courts could and did declare legisla tion invalid on division of powers grounds. When they did so, we know of no recent occasion when the legislative branch of government did not faithfully attempt to correct the impugned legislation. Likewise, when this court declares a statute or portion thereof to be "of no force and effect" where it is inconsistent with the Charter, it is for the Legislature to decide what remedial steps should be taken in view of the declaration. Section 24(1) of the Charter empowers the courts to grant citizens remedies where their guaranteed rights are infringed or denied. The Charter provides:
12 Re Hoogbruin et al. and Attorney-General of British Columbia et al. (1985), 24 D.L.R. (4th) 718; [1986] 2 W.W.R. 700; 70 B.C.L.R. 1 (C.A.).
24.(1) 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.
It would be anomalous, indeed, if such powers were reserved only for cases where limitations are expressly enacted and not for cases where an unconstitutional limitation results because of omission in a statute. [Emphasis added.]
It is apparent from these reasons that the Court of Appeal of British Columbia was of the view that a court of competent jurisdiction is empowered pursuant to subsection 24(1) to provide a remedy to address the underinclusiveness of a statute.
Counsel for the respondent as well as counsel for the intervenor also relied on the Blainey case, a decision of the Ontario Court of Appeal.' 3 In Blainey the appellant was a twelve-year-old girl who had been prevented from playing on a boys' hockey team by the regulations of the Ontario Hockey Association and the Canadian Amateur Hockey Association. Section 1 of the Ontario Human Rights Code, 1981 [S.O. 1981, c. 53] provides that:
1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizen ship, creed, sex, age, marital status, family status or handicap.
However, subsection 19(2) of that Code [rep. by S.O. 1986, c. 64, s. 18(12)] stated:
19....
(2) The right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex.
The appellant applied for a declaration that sub section 19(2) of the Code is contrary to subsection 15(1) of the Charter. The majority of the Court of Appeal panel held that subsection 19(2) infringed section 15 of the Charter because its effect was to permit direct discrimination on the basis of gender. The majority held further that the subsection was not saved by section 1 of the Charter since it was
13 Re Blainey and Ontario Hockey Association et al. (1986), 54 O.R. (2d) 513; 24 D.L.R. (4th) 728; 14 O.A.C. 194 (C.A.). Leave to appeal to Supreme Court of Canada denied [[1986] 1 S.C.R. xii].
an unreasonable limit on the right to the equal protection and equal benefit of the law. In Blainey the offending subsection was drafted as an excep tion to the general protection against discrimina tion conferred by section 1 of the Code. Hence, in that case, the relief sought by Ms. Blainey could be achieved through a declaration of invalidity in respect of subsection 19(2), pursuant to section 52 of the Constitution Act, 1982, since the conse quence of such a declaration would result in Ms. Blainey being afforded the general protection against discrimination as set out in section 1 of the Code. In other words the substantive effect of the declaration of invalidity in Blainey resulted in an extension to Ms. Blainey of the right to be free from discrimination as conferred pursuant to sec tion 1 of the Code.
Both counsel noted that a similar result was achieved in the Andrews case supra. In Andrews the Supreme Court of Canada declared that the requirement in the Barristers and Solicitors Act of British Columbia [R.S.B.C. 1979, c. 26] that only a Canadian citizen may be called to the Bar of British Columbia is inconsistent with section 15 of the Charter and is, therefore, of no force and effect. In the submission of counsel, the conse quence of this decision is that the Court has granted an extension to the applicant for admis sion to the bar by removing a constitutionally impermissible obstacle to that application. It is further submitted that the Court's jurisdiction to prescribe Charter remedies does not depend upon the way in which a legislative provision is drafted. For example, had section 32 of the Unemployment Insurance Act, 1971 been drafted in the reverse, i.e., by providing that child care benefits were available to all parents excepting those who were natural parents, appropriate relief could be given by striking out the exception under section 32 since natural parents would then be restored to a position of equality with all other parents. In reality, the learned Trial Judge did exactly that, since, by his order, he restored natural parents to a position of equality with all other parents. As put by counsel for the respondent:
It would otherwise be arbitrary and capricious to have such great substantive differences turn solely on stylistic differences in drafting. [Respondent's memorandum of fact and law, para graph 64.]
Counsel for the intervenor stated (intervenor's memorandum of fact and law, paragraph 44):
... while a declaration of invalidity in this case would place natural and adoptive parents in the same position, it would not promote equality. Ensuring that groups or individuals have the same entitlement to no benefits is contrary to the purpose of the equality guarantee in section 15 and, produces only sameness, not equality.
In oral argument, she added that such a result amounted to "Equality with a vengeance" because of the punitive aspect of the result. She submitted that it was not possible to achieve the equality envisioned by section 15 simply by taking a benefit away from others.
I agree with the submissions of both counsel in this regard. In my view, the Canadian jurispru dence does not foreclose the use of section 24 in the circumstances of this case. To the contrary, my belief is that the preponderance of that jurispru dence supports the exercise of the Court's section 24 jurisdiction in a situation such as this. ' 4 At page 636 S.C.R. of the decision of the Supreme Court of Canada in R. v. Rahey, 15 Mr. Justice La Forest, when discussing the "Interrelationship of Right and Remedy" in the context of the tradi tions of trial within a reasonable time, and the similar requirement contained in paragraph 11(b) of the Charter, stated:
What sets the Charter apart from this tradition is not solely its constitutional expression of the right, a right known to the common law, after all, for more than 750 years, but also the broad and flexible nature of the remedy it provides for its breach. In other words, it is not only the fact that the right is constitutionally enshrined that requires us to look at it afresh, but that it is reaffirmed in the context of an entirely novel procedural mechanism, one which was obviously intended to be used with flexibility and imagination. Courts, therefore, can no longer treat existing remedies as defining the scope of the right.
14 In addition to cases analyzed supra, I refer to the case of Addy v. The Queen, [1985] 2 F.C. 452; (1985), 22 D.L.R. (4th) 52; 8 C.C.E.L. 13; 5 C.P.C. (2d) 127; 19 C.R.R. 193 (T.D.)' and R. v. Punch, [1985] N.W.T.R. 373; [1986] 1 W.W.R. 592; 22 C.C.C. (3d) 289; 48 C.R. (3d) 374; 18 C.R.R. 74 (S.C.).
15 [1987] 1 S.C.R. 588; (1987), 78 N.S.R. (2d) 183; 39 D.L.R. (4th) 481; 193 A.P.R. 183; 33 C.C.C. (3d) 289; 57 C.R. (3d) 289; 75 N.R. 81.
In effect the Charter places the guarantee of trial within a reasonable time in a procedural context that empowers the courts to give full meaning to it for the first time.
At page 648 S.C.R. he said:
Remedy
As I have repeatedly indicated, a court of competent jurisdic tion is free to employ the full discretion conferred on it by s. 24(1) of the Charter in choosing a remedy for breach of the right to trial within a reasonable time. That choice as McIntyre J. explains in the passage cited earlier will depend on all the circumstances. The Charter clearly tells us that the remedy to be given is that which "the court considers appropriate and just in the circumstances".
Both of these quotations reinforce my view that the Court is empowered to use its section 24 powers with "flexibility" and "imagination" and is free to employ a full discretion in the exercise of those powers.
Mr. Justice McIntyre, in Mills v. The Queen, 16 also makes a persuasive case for the breadth of the jurisdiction conferred pursuant to section 24:
It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion .... the circum stances will be infinitely variable from case to case and the remedy will vary with the circumstances.
As noted in the jurisprudence discussed supra, our courts have granted positive remedies, varying those remedies to fit the circumstances present in each particular case. In my opinion, and for all of the reasons given supra, the learned Trial Judge, in this case, did not err in his exercise of the discretion conferred upon him pursuant to, section 24.
16 [1986] 1 S.C.R. 863; (1986), 29 D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 67 N.R. 241, at pp. 965-966 S.C.R.
3. The role of the judiciary where the granting of a Charter remedy results in a judicial amendment to the legislation and results, as well, in the appro priation of public funds for a purpose not author ized by Parliament
(a) Judicial amendment
The appellants submit that the Charter has not transferred to the courts the power to rewrite or amend legislation in order to bring it into accord with the Charter. In the submission of counsel "it remains the responsibility of Parliament to select among the constitutionally permissible policy options and enact legislation which meets the Charter's requirements" (appellants' memoran dum of fact and law, paragraph 43). On this basis then, it is the view of the appellants that the Trial Judge "overstepped the proper judicial function by selecting and imposing a legislative scheme to replace that found constitutionally defective" (appellants' memorandum of fact and law, para graph 44).
I have problems with this submission. Such an approach ignores the existence of section 33 of the Charter" which specifically preserves parliamen tary supremacy concerning the rights enunciated in section 2, as well as in sections 7 to 15 of the Charter. It should be kept in mind that constitu tional supremacy (including the Charter) was imposed on the legislators by the legislators, after a full airing in the political arena, the media and
" Section 33 reads:
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legisla ture, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
the courts. In the Skapinker' 8 case, Mr. Justice Estey described the role of the courts vis-à-vis the Charter as follows:
We are here engaged in a new task, the interpretation anc application of the Canadian Charter of Rights and Freedoms. ... This is not a statute or even a statute of the extraordinary nature of the Canadian Bill of Rights. ... It is a part of the constitution of a nation adopted by constitutional process which, in the case of Canada in 1982, took the form of a statute of the Parliament of the United Kingdom. The adoptive mech anisms may vary from nation to nation. They lose their relevan cy or shrink to mere historical curiosity value on the ultimate adoption of the instrument as the Constitution. The British North America Act of 1867 was such a law .... In the inter pretation and application of this document the Judicial Com mittee of the Privy Council ... said: "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits."
The Charter comes from neither level of the legislative branches of government but from the Constitution itself. It is part of the fabric of Canadian law. Indeed, it "is the supreme law of Canada" ... The fine and constant adjustment process of these constitutional provisions is left by a tradition of necessity to the judicial branch. Flexibility must be balanced with certainty. The future must, to the extent foreseeably possible, be accommodated in the present .... With the Con stitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court.
Keeping in mind the principles enunciated by Mr. Justice Estey supra, I turn now to the circum stances in the case at bar. The consequence of a declaration of invalidity pursuant to subsection 52(1) is to deprive adoptive parents of the child care benefits granted to them pursuant to section 32 of the Unemployment Insurance Act, 1971. Such a result is just as much a judicial amendment as the remedy proposed by the Trial Judge. Bear ing in mind the view of the Supreme Court of Canada that the proper approach to the granting of Charter remedies should be both flexible and functional 19 and that a purposive approach should be applied to the administration of Charter reme dies as well as in the interpretation of Charter
18 Law Society of Upper Canada v. Skapinker, [ 1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 3 O.A.C. 321; 11 C.C.C. (3d) 481; 53 N.R. 169, at pp. 365-367 S.C.R.
19 Mills v. The Queen, [1986] 1 S.C.R. 863, at pp. 894-905 per Lamer J.
rights, 20 I have the view that the remedy provided in this case is just and appropriate in the particular circumstances of this case. In my view, underinclu- sive legislation invites a remedy extending benefits. The right to equality of result enshrined pursuant to section 15 will be meaningless unless positive relief is provided in cases of underinclusive provi sions such as those to be found in section 32 of the Unemployment Insurance Act, 1971. In these cir cumstances, section 24 clearly contemplates and sanctions the kind of remedy provided herein by the Trial Judge. The remedy granted represents a rational and reasonable "reconciliation between the individual and the community" as envisaged by Estey J. in Skapinker supra. The Charter deals with the protection of existing rights. The judg ment of the Trial Division protects the existing rights of the respondent and others like him. On the other hand, the judgment proposed by the appellants will not protect those existing rights. Accordingly I think the remedy prescribed is con stitutionally permissible.
Furthermore, the judgment of the Trial Division merely provides a temporary remedy, leaving it to "Parliament to remedy the situation in accordance with the Charter, either by extending similar ben efits to natural parents, or by eliminating the benefits given to adoptive parents, or by some provision of more limited benefits on an equal basis to both adoptive and natural parents in respect of child-care" (at page 544 F.C.). The remedy given by Mr. Justice Strayer does not in any way impinge on Parliament's prerogative to choose amongst constitutionally valid policy options in enacting legislation which conforms to the requirements of the Charter. Since the remedy here is a temporary one, it is unlikely that Parlia ment would find it necessary to rely upon section 33 of the Charter. For the foregoing reasons then, I am unable to agree with the submissions of the appellants on this issue.
2 0R. v. Gamble, [1988] 2 S.C.R. 595; (1988), 31 O.A.C. 81; 45 C.C.C. (3d) 204; 66 C.R. (3d) 193; 89 N.R. 161 at p. 641 S.C.R. per Wilson J.
(b) The appropriation of public funds for a pur pose not authorized by Parliament
It is the submission of the appellants that the relief granted by the learned Trial Judge repre sents an invasion of the fiscal preserve of Parlia ment in that the relief granted results in the appropriation of public funds to pay the judicially extended benefits. In the view of the appellants, the power to exact taxes and to disburse revenues falls within the exclusive province of Parliament. In their view, the Court must respect Parliament's constitutional authority over the public purse.
In my view, this proposition is not supported by the jurisprudence. In the case of R. v. Rowbotham et al., 2' the Ontario Court of Appeal (Martin, Cory and Grange JJ.A.) ordered a remedy under subsection 24(1) of the Charter which involved the expenditure of public funds. At page 371 O.A.C., the Court said:
To sum up: where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused, as previously indicated, has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one. Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter where the prosecution insists on proceeding with the trial in breach of the accused's Charter right to a fair trial. It is unnecessary in this case to decide whether the trial judge in those circumstances would also be empowered to direct that Legal Aid or the appropriate Attorney General pay the fees of counsel.
Likewise, in the case of Marchand v. Simcoe County Board of Education et al., 22 Sirois J. of the Ontario High Court of Justice, after finding that the plaintiffs constitutional rights to minority language education had been denied, declared pur suant to subsection 24(1) of the Charter, that the plaintiff and those whom he represents have a right under section 23 of the Charter to have their children receive secondary school instruction in the French language in French language educational
21 (1988), 25 O.A.C. 321; 41 C.C.C. (3d) 1; 63 C.R. 113.
22 (1986), 55 O.R. (2d) 638; 29 D.L.R. (4th) 596; 25 C.R.R. 139 (H.C.), at pp. 661 to 663 O.R.
facilities provided out of public funds. It should also be kept in mind that in the Singh case supra, the Supreme Court of Canada, in ordering that the refugee claims of the appellants be remanded to the Immigration Appeal Board for a full oral hearing in each case was prescribing a remedy that resulted in a substantial expenditure of public funds not authorized by Parliament.
Furthermore, as noted by counsel for the inter- venor, the remedy suggested by the appellants, namely a declaration of invalidity pursuant to subsection 52(1) will likewise impact upon the public purse in that such a result would save the Government of Canada monies heretofore payable as child care benefits under section 32 to adoptive parents. If a positive result is constitutionally invalid for this reason, then surely a negative result would, likewise be impermissible.
In my view, section 24 does empower a court to extend benefits to groups aggrieved by an exclu sion of benefits. Such an extension of benefits appears to be the only remedy which respects the purposive nature of the Charter while at the same time giving effect to the equality rights enshrined in section 15 of the Charter. Since in these circum stances extension appears to be the only remedy that is "appropriate and just", I think it to be permissible even though the remedy granted does result in the appropriation of funds not authorized by Parliament.
CONCLUSION
In conclusion, since I have not been persuaded, for all of the reasons advanced herein, that the learned Trial Judge was in error in his disposition of the issues raised by this appeal nor in his judgment dated August 30, 1988, it follows that the appeal should be dismissed. In so far as the costs of the appeal are concerned, I agree with Mr. Justice Mahoney that the respondent Schachter should be allowed his party and party costs of the appeal.
STONE J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
MAHONEY J.A. (dissenting): This appeal from a reported decision of Mr. Justice Strayer, [ 1988] 3 F.C. 515, raises, in stark terms, a fundamental constitutional question. That is whether a com petent court, when it has found legislation to be inconsistent with a provision of the Constitution of Canada, has the power to grant a remedy which trespasses upon Parliament's jurisdiction to legis late and, in the present circumstances at least, to appropriate monies. The legislation which was found inconsistent with section 15 of the Canadian Charter of Rights and Freedoms, because it did not accord natural parents equal benefit of the law, is section 32 of the Unemployment Insurance Act, 1971, now section 20, R.S.C., 1985, c. U-1. It entitles adoptive parents, but not natural parents, to child-care benefits. The learned Trial Judge devised a remedy under section 24 of the Charter which entitles natural parents to the same child care benefits and requires the disbursement of public monies in circumstances Parliament has not provided for.
The precise wording of the impugned legislation and the judgment below are not critical to these reasons. They are, nevertheless, set out in the Appendix.
Only one aspect of the order, other than the power to make it at all, was raised on appeal. That was the inclusion of the provision whereby natural mothers' entitlement to the child-care benefits under section 32 should not be abated by their entitlement to maternity benefits otherwise pro vided for. I see no discrete error in that. The amendment to the prayer for relief allowed at trial, A.B. XIV, pages 2032 ff., introduced the inter action of child-care and maternity benefits into the pleadings. While the respondent Schachter could himself have no entitlement to maternity benefits, the interaction necessarily came into play once the Charter contravention was established, there being
no constitutionally supportable distinction between fathers and mothers in the context of child-care benefits.
Aside from that, none of the matters actually dealt with by the learned Trial Judge are seriously in issue. He found, and it is now conceded, that section 32 denies by discrimination equal benefit of the law to natural parents. It is not contended that the order made, if it could be made at all, is not a just and appropriate remedy. Among the remedies sought in the alternative was a declara tion that section 32 is invalid and of no force and effect with the proviso that it remain in force for a period to permit remedial legislation, A.B. I, page 6.
The appellants say that when legislation is found to be inconsistent with the Constitution which, of course, includes the Charter, it must, by section 52 of the Constitution Act, 1982, be held to be of no force and effect. That, in their submission, is the end of the matter. It is up to Parliament to enact legislation that does not offend the Constitution. The Court is without jurisdiction to invoke section 24 of the Charter and devise a remedy that extends the benefit of the law to those whom Parliament has omitted, whether by design or oversight. That argument, if put to the learned Trial Judge, was not dealt with. He did not consid er whether he was obliged to make the declaration urged by the appellants although he certainly con sidered it an option and rejected it.
The respondents do not deny that a declaration of invalidity may be the appropriate and just remedy in some circumstances where legislation is inconsistent with the Charter. They cite an absence of equal benefit of the law by reason of legislative overintrusion. A just and appropriate remedy may well lie in declaring a severable ove- rintrusion to be of no force and effect. But here equal benefit of the law is denied by legislative underinclusion. To achieve it by denying some thing, be it entitlement or exemption, to those
whom Parliament has expressly granted it is said to be neither appropriate nor just; it is offensive to reason and to Parliament's probable intention. It is not to be achieved by depriving those whom Par liament has endowed but by endowing those whom Parliament has unconstitutionally overlooked.
Both appellants and respondents derive consid erable comfort from the thought that the action each urges is, at Parliament's option, of fleeting legislative consequence. Legislation, retroactive in its effect if desired, may address the matter should Parliament not find the Court's solution satisfacto ry.
The provisions of the Constitution in issue here are subsections 15(1) and 24(1) of the Charter and 52(1) of the Constitution Act, 1982.
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.
24. (1) 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.
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The respondents find highly respectable support for the proposition that a section 24 remedy should be available in the judgment of the Supreme Court of the United States in Califano v. Westcott, 443 U.S. 76 (1979), a case factually similar to this. The legislation in issue provided financial entitle ment to needy children deprived of parental sup port by their fathers' unemployment. It was found unconstitutional in that it established a classifica-
tion which discriminated solely on the basis of sex. The District Court had effectively amended the legislation by substituting "parent" for "father". The respondents sought, on appeal, to substitute "principal wage-earner". The majority opinion had this say, at pages 89 ff.:
"Where a statute is defective because of underinclusion," Mr. Justice Harlan noted, "there exist two remedial alterna tives: a court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legisla ture intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion." Welsh v. United States, 398 U.S. 333, 361 (1970) (concurring in result). In previous cases involving equal protection chal lenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course. [Citations omitted.] Indeed, this Court regularly has affirmed District Court judgments ordering that welfare ben efits be paid to members of an unconstitutionally excluded class. [Citations omitted.]
There is no need, however, to elaborate here the conditions under which invalidation rather than extension of an underin- clusive federal benefits statute should be ordered, for no party has presented that issue for review. All parties before the District Court agreed that extension was the appropriate remedy.
Whenever a court extends a benefits program to redress uncon stitutional underinclusiveness, it risks infringing legislative pre rogatives. The extension ordered by the District Court possesses at least the virtue of simplicity: by ordering that "father" be replaced by its gender-neutral equivalent, the court avoided disruption of the AFDC-UF program, for benefits simply will be paid to families with an unemployed parent on the same terms that benefits have long been paid to families with an unemployed father. The "principal wage-earner" solution, by contrast, would introduce a term novel in the AFDC scheme, and would pose definitional and policy questions best suited to legislative or administrative elaboration.
Under these circumstances, any fine-tuning of AFDC coverage along "principal wage-earner" lines is properly left to the democratic branches of the Government. In sum, we believe the District Court, in an effort to render the AFDC-UF program gender neutral, adopted the simplest and most equitable exten sion possible.
This decision demonstrates that the remedy devised by the learned Trial Judge is well estab lished as the sort of remedy that would, in the circumstances, have been granted in the United States and also the basic principle of its formula tion. However, as observed by Mr. Justice Lamer, speaking for the majority in Re B.C. Motor Vehi cle Act, [1985] 2 S.C.R. 486, at page 498:
... [The U.S.] Constitution, it must be remembered, has no s. 52 nor has it the internal checks and balances of ss. 1 and 33. We would, in my view, do our own Constitution a disservice to simply allow the American debate to define the issue for us, all the while ignoring the truly fundamental structural differences between the two constitutions.
The respondents have advanced numerous argu ments in support of maintaining the remedy grant ed here. These include the purposive approach, and generous rather than legalistic interpretation of Charter guaranteed rights, propounded in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; (1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14 C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9 C.R.R. 355; 84 DTC 6467; 55 N.R. 241, reiterated in R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, and, perhaps, somewhat extended in its application by the majority, per Wilson J., in R. v Gamble, [1988] 2 S.C.R. 595, at page 641:
A purposive approach should, in my view, be applied to the administration of Charter remedies as well as to the interpreta tion of Charter rights.
As to section 24 remedies, that approach is clearly supported by the legislative history, particularly the statement of the Minister of Justice, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of
Commons on the Constitution of Canada, January 12, 1981, at page 36:19. The respondents urge the availability of the remedy from the practical points of view already stated: Parliament can effectively act if it is not content with the remedy; a stay of the remedy can be ordered should the Court con sider it unduly disruptive, as in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; (1985), 19 D.L.R. (4th) 1; [1985] 4 W.W.R. 385; 35 Man. R. (2d) 83; 59 N.R. 321, and the remedy granted probably comes closer to the attainment of Parliament's real intentions than would a bare declaration of invalidity. They suggest that persons whose equality rights are violated by legislative underinclusion ought not be put in the "dog in the manger" position of seeking, as the only available remedy, to deprive others of some advantage and ask, if that is the necessary result, why any right- minded person would undertake such a Charter challenge. Persons ought not be deterred from asserting their rights. A declaration of invalidity does nothing to promote equality; equal access to nothing is not equality.
The validity of a purposive approach is not open to question and I accept the logic and force of the practical considerations. If the learned Trial Judge had the power to grant the remedy he did, I would not disturb it. I do think that it does best fulfil a purposive approach to remedy; it does promote equality while a declaration of invalidity cannot, except in sterile formality. However, as counsel for the respondent Schachter recognized in oral argu ment, the appellants challenge the judgment below on principle. They are not questioning an exercise of discretion; they question the Court's power to grant such a remedy at all.
I have found only one conceivable reference by the Supreme Court of Canada to the interaction of the subsections. That is in the judgment of Dick- son J., as he then was, speaking for the majority in R. v. Big M Drug Mart Ltd. et al., at page 313 S.C.R.:
Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rights under the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, as here, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effect on the challenging party is irrelevant.
Section 52 sets out the fundamental principle of constitution al law that the Constitution is supreme.
The respondents would have us infer, from the statement that subsection 24(1) is not the only recourse in the case of unconstitutional legislation, that subsections 24(1) and 52(1) necessarily offer alternative recourses in an appropriate case, legis lative underinclusion being such a case. I cannot read the passage as indicating a concluded opinion as to that. The interaction of the provisions is not really addressed. Certainly the only "remedy", if that be a proper description, sought, considered and granted was a declaration of invalidity of the impugned legislation pursuant to subsection 52(1).
The Supreme Court, again per Dickson J., in Hunter et al. v. Southam Inc., a case of legislative overintrusion, not underinclusion, has said at page 148 S.C.R.:
The Constitution of Canada, which includes the Canadian Charter of Rights and Freedoms, is the supreme law of Canada. Any law inconsistent with the provisions of the Consti tution is, to the extent of the inconsistency, of no force or effect. Section 52(1) of the Constitution Act, 1982 so mandates.
and at pages 168 ff S.C.R.:
The appellants submit that even if subss. 10(1) and 10(3) do not specify a standard consistent with s. 8 for authorizing entry, search and seizure, they should not be struck down as inconsist ent with the Charter, but rather that the appropriate standard should be read into these provisions.... In the present case, the overt inconsistency with s. 8 manifested by the lack of a neutral and detached arbiter renders the appellants' submis-
sions on reading in appropriate standards for issuing a warrant purely academic. Even if this were not the case, however, I would be disinclined to give effect to these submissions. While the courts are guardians of the Constitution and of individuals' rights under it, it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. Without appropriate safeguards legislation authorizing search and seizure is inconsistent with s. 8 of the Charter. As I have said, any law inconsistent with the provi sions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The responsibility of the courts is to define the limits of legislation permissible under the Charter but it remains the responsibility of Parliament to enact legislation that meets its requirements.
R. v. Hamilton (1986), 57 O.R. (2d) 412; 17 O.A.C. 241 (C.A.) and R. v. Van Vliet (1988), 45 C.C.C. (3d) 481; 10 M.V.R. 190 (B.C.C.A.), both considered equality before the law in relation to provisions of the Criminal Code [R.S.C. 1970, c. C-34] which were proclaimed in force in some, but not all, provinces. They were not in force in either Ontario or British Columbia when their Courts of Appeal were called upon to deal with the claims of persons convicted to be treated as though they had been proclaimed. The Ontario Court of Appeal granted that claim; the British Columbia Court of Appeal, by a majority decision, rejected it. In neither case was a declaration of invalidity of the legislation sought, an important difference from the present case.
For the Ontario Court, Dubin J.A., at page 438 O.R., said:
No attack having been made on the constitutionality of the Criminal Code provisions under consideration, it is for an individual to show that his rights or freedoms as guaranteed by the Charter have been infringed or denied. Only such an individual is entitled to a remedy. Where the evidence discloses that the individual is within the class of persons contemplated
as one eligible for the court's consideration for a discharge, the appropriate remedy is to provide such an individual with the same right that individuals have in like circumstances in other parts of Canada.
He appears not to have directed his mind to the possibility that the grant of that remedy may, in fact, have been a legislative act since it entailed either treating the provisions as though they had been proclaimed in force in Ontario or as though the proclamation requirement had not been enact ed. The B.C. Court of Appeal, on the other hand, did consider it and it concluded that to grant the same remedy would be to legislate and beyond its power. At page 519 C.C.C., Southin J.A., (Car- rothers J.A., concurring), said:
Parliament might very well not have included s-s.(5) in the 1985 Act if the proclamation section had not also been includ ed. In reality, the Ontario Court of Appeal has repealed the proclamation section.
To do what was done in R. y Hamilton is to amend the 1985 Act. To amend is to legislate. To legislate is to usurp the function of Parliament.
Our political system as it is found in the Constitution Act, 1867, confers the power to legislate only upon Parliament and the. Legislatures.
She then went on to consider sections 17, 18, 91 and 92 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5]], and, at page 520 C.C.C., concluded:
The executive power is vested in the Sovereign and the power to legislate is vested in Parliament. Neither is vested in the courts.
The Charter has not conferred the powers of ss. 91 and 92 upon the courts but has conferred only the power to strike down legislation.
With respect, the last observation is not quite accurate. It is not the Charter but subsection 52(1) of the Constitution Act, 1982, that provides the courts' power to strike down legislation and, as the Supreme Court observed in the Reference re Manitoba Language Rights, at page 746 S.C.R.:
[It] does not alter the principles which have provided the foundation for judicial review over the years. In a case where constitutional manner and form requirements have not been complied with, the consequence of such non-compliance contin ues to be invalidity. The words "of no force or effect" mean
that a law thus inconsistent with the Constitution has no force or effect because it is invalid.
I think the conclusion that under the Constitution of Canada, the exclusive power to legislate is vested in Parliament (and the provincial legislative assemblies) is unexceptionable. I am content to adopt the constitutional and historical observations made by Southin J.A., in reaching that conclusion and shall add my own only with respect to the direct fiscal consequences of the judgment below, an element not present in the Criminal Code cases.
The Unemployment Insurance Act [R.S.C., 1985, c. U-1] provides:
117. (1) There shall be paid out of the Consolidated Reve nue Fund and charged to the Unemployment Insurance Account
(a) all amounts paid as or on account of benefits under this Act;
An entitlement to benefits gives rise directly to a liability to disburse monies from the Consolidated Revenue Fund. The remedy in issue here creates such a liability in circumstances not provided for by Parliament. When, in R. v. Big M Drug Mart Ltd. et al. at page 344 S.C.R., Dickson J., empha sized the importance of a purposive and generous approach to Charter rights, he went on to caution:
At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, ... be placed in its proper linguistic, philosophic and historical contexts.
It is also to be recalled that the Charter is part of the Constitution; it is not the whole Constitution; its provisions are neither subordinate nor para mount. The Supreme Court, in the Reference re Manitoba Language Rights, at page 745 S.C.R., defined a country's constitution as the:
... statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government.
The entire Constitution, not the Charter alone, is that statement by the people of Canada.
The preamble to the Constitution Act, 1867, proclaims the desire of the confederating provinces "to be federally united ... with a Constitution similar in Principle to that of the United King dom". No principle of the British Constitution is, or was in 1867, more firmly established or funda mental than the Houses of Parliament's declara tion "vindicating and asserting their ancient Rights and Liberties", the Bill of Rights of 1688 [ 1 Will & Mary, Sess. 2, c. 2 (U.K.)], which declared
That levying Money for or to the Use of the Crown, by Pretence of Prerogative, without Grant of Parliament, for longer Time, or in other Manner than the same is or shall be granted, is illegal.
That this principle embraces the disbursement of public funds as well as the levying of taxes is beyond doubt. The Judicial Committee of the Privy Council stated the constitutional position in Auckland Harbour Board v. The King, [ 1924]
A.C. 318, at pages 326 ff.
... it has been a principle of the British Constitution now for more than two centuries, a principle which their Lordships understand to have been inherited in the Constitution of New Zealand with the same stringency, that no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorization from Parliament itself. The days are long gone by in which the Crown, or its servants, apart from Parliament, could give such an authorization or ratify an improper payment.
The appropriation of public monies by a court is as offensive to that principle as is its appropriation by prerogative.
Parliament has made a general appropriation for satisfying judgments of this Court by enacting subsection 57(3) of the Federal Court Act, R.S.C. 1985, c. F-7:
57....
(3) There shall be paid out of the Consolidated Revenue Fund any money or costs awarded to any person against the Crown in any proceedings in the Court.
That appropriation does not cover the remedy granted here. A declaration that a class of persons, not designated for the purpose by Parliament, is entitled to be paid unemployment insurance ben efits is not an award of money.
With respect, I do not understand R. v. Rowbo- tham et al. (1988), 25 O.A.C. 321, to be a prece-
dent for an appropriation of public funds by way of a section 24 remedy. Indeed, as I read it, that is precisely what the Ontario Court of Appeal declined to deal with when, at page 371 O.A.C., it concluded:
It is unnecessary in this case to decide whether the trial judge in those circumstances would also be empowered to direct that Legal Aid or the appropriate Attorney General pay the fees of counsel.
Likewise, I do not consider that the myriad court orders requiring local governments, be they munic ipalities, school boards or other, to carry out their mandates according to law and, thereby, requiring them to spend money to be constitutionally compa rable to a judicial appropriation of funds within the exclusive control of a sovereign Parliament or legislature.
Even if the power of a court to legislate by way of a subsection 24(1) remedy were found to exist in circumstances which do not entail the appro priation of public monies, no such power can be found to exist where the remedy appropriates monies from the Consolidated Revenue Fund for a purpose not authorized by Parliament. A purposive approach to remedies under subsection 24(1) cannot take a court that far.
In my opinion, the appellants are correct: the Constitution of Canada does not permit the remedy crafted by the learned Trial Judge. Having found that section 32 of the Unemployment Insur ance Act, 1971 was inconsistent with a provision of the Constitution of Canada, the learned Trial Judge was bound to find it to be of no force and effect. Had that finding been made, the absence of any conflict between subsections 24(1) and 52(1) would be apparent. There is no offending legisla tion and, therefore, no subsection 24(1) remedy called for.
In my opinion, subsection 52(1) does not provide a "remedy" in any real sense of that word. It states a constitutional fact which no court can ignore when it is invoked in a proceeding and found to apply.
I would allow the appeal and set aside the judgment of the Trial Division except as to costs. Pursuant to subparagraph 52(b)(iii) of the Federal Court Act, I would render the judgment that ought to have been rendered and, in compliance with subsection 52(1) of the Constitution Act, 1982, declare that section 20 (formerly section 32) of the Unemployment Insurance Act is of no force and effect by reason of its inconsistency with section 15 of the Charter. As requested by the appellants, I would not disturb the award of costs below and, in the circumstances, would allow the respondent Schachter his party and party costs of this appeal.
There is no compelling public interest justifying a stay of execution of the judgment to permit remedial legislative action, as was found in the Reference re Manitoba Language Rights and Dixon v. B.C. (A.G.), [1989] 4 W.W.R. 393 (B.C.S.C.). A stay, if sought, to permit an appeal to be taken to the Supreme Court of Canada, would be a different thing. It may be sought by Rule 324 [Federal Court Rules, C.R.C., c. 663] application.
APPENDIX
32. (1) Notwithstanding section 25 but subject to this sec tion, initial benefit is payable to a major attachment claimant who proves that it is reasonable for that claimant to remain at home by reason of the placement with that claimant of one or more children for the purpose of adoption pursuant to the laws governing adoption in the province in which that claimant resides.
(2) Subject to subsection 22(3), initial benefit is payable under this section for each week of unemployment in the period
(a) that begins with the week in which the child or children are actually placed with the major attachment claimant; and
(b) that ends
(i) seventeen weeks after the week in which the child or children are so placed,
(ii) with the week in which it is no longer reasonable for that claimant to remain at home for the reason referred to in subsection (1), or
(iii) with the week immediately preceding the week for which benefit is claimed and payable pursuant to another section of this Part,
whichever is the earliest.
(3) Where benefits are payable to a major attachment claimant under this section and earnings are received by that claimant for any period that falls in a week in the period described in subsection (2), the provisions of subsection 26(2) do not apply and all such earnings shall be deducted from the benefit payable for that week.
(4) Benefits shall not be paid pursuant to this section to more than one major attachment claimant in respect of a single placement of a child or children for the purpose of adoption.
(5) Where, before any benefit has been paid to a major attachment claimant in respect of a single placement of a child or children for the purpose of adoption, two insured persons with whom the child or children are placed for the purpose of adoption claim benefit under this section, no benefit shall be paid under this section until one of such claims is withdrawn.
JUDGMENT
UPON this action having come on for trial in the presence of counsel for each party on all juridical days commencing on April 11, 1988 through April 20, 1988, at Toronto, Ontario; and
UPON having read the pleadings, the agreement regarding the admission of documents, statutes and international instru ments, and the other documents exhibited, and having heard the witnesses' testimony and what was alleged orally by coun sel; and
UPON this Court having found that section 32 of the Unem ployment Insurance Act, 1971, as amended, creates unequal benefit of the law contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms by making a distinction between natural and adoptive parents in respect of a period of child-care benefits following introduction of a child into the home; and
THERE BEING no justification tendered under section 1 of the Canadian Charter of Rights and Freedoms for that unequal benefit; now
1. THIS COURT ORDERS AND ADJUDGES THAT a declaration be issued that, during that period in which section 32 of the Unemployment Insurance Act, 1971, as amended (the "Act") remains in its present form, a major attachment claimant who is the natural father or mother of a newborn child, or of newborn children, shall be entitled to benefits under the Act in respect of periods taken off work to care for that child or those children on the same terms as adoptive parents are so entitled, giving effect to the following criteria and conditions of benefits under section 32;
(a) Fifteen weeks of benefits are provided for either parent to stay home during the seventeen-week period after the child arrives in the claimant's home, subject to the limit in para graph 22(3)(a) of the Act referred to therein during any
benefit period, provided that the natural mother should not be precluded by paragraph 22(3)(a) from entitlement to child-care benefits, in whole or in part, by reason of having received pregnancy benefits within the same benefit period. Such benefits are payable even though the claimant is not available for work, although the claimant must be otherwise entitled to these benefits under the Act.
(b) Either parent if otherwise a qualified claimant can receive these benefits if it is "reasonable" for the claimant to remain at home by reason of the arrival in the home of the child, but only so long as it remains "reasonable" to do so.
(c) Not more than one parent can receive benefits with respect to the arrival in the home of the child.
(d) Such benefits are paid in respect of child-care and not in respect of maternity.
2. THIS COURT FURTHER ORDERS AND ADJUDGES THAT the defendant Canada Employment and Immigration Commission shall review the plaintiff's claim for initial benefit made August 2, 1985 and shall determine the plaintiff's entitlement to initial benefit on the basis that, if the plaintiff's claim meets the other requirements of the Act and paragraph one of this judgment, the plaintiff is entitled to such initial benefit.
3. THIS COURT FURTHER ORDERS AND ADJUDGES THAT this judgment is hereby suspended until the expiry of the time for appeal, and if an appeal is taken thereafter pending final determination of that appeal.
4. THIS COURT FURTHER ORDERS AND ADJUDGES THAT the defendants shall pay the plaintiff's costs of and incidental to this action on a party-and-party basis forthwith after taxation thereof.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.