Judgments

[1994] 1 F.C. 40

A-1190-91

Elaine Schachtschneider (Applicant/Appellant)

v.

Her Majesty the Queen (Respondent)

Indexed as: Schachtschneider v. Canada (C.A.)

Court of Appeal, Mahoney, Linden JJ.A. and Gray D.J.—Toronto, May 17; Ottawa, July 6, 1993.

Income tax — Income calculation — Deductions — Application to review TCC decision dismissing appeal from income tax assessment disallowing equivalent to married tax credit under ITA, s. 118(1)(b) — Taxpayer, married and living with spouse, claiming tax credit in respect of dependent child — S. 118 said to infringe freedom of religion (Charter, s. 2(a)), and to deny equal benefit of law (Charter, s. 15(1)) — Object of provision explained — ITA not discriminating between married and not married taxpayers.

Constitutional law — Charter of Rights — Fundamental freedoms — Whether denial of tax credit under ITA, s. 118(1)(b) violation of taxpayer’s freedom of religion — ITA secular statute with no religious purpose — Tax credits in s. 118(1) not directed at curtailing freedom of religion — Trivial, insubstantial interference with religion insufficient to violate Charter, s. 2(a) — S. 118(1) having no coercive effect.

Constitutional law — Charter of Rights — Equality rights — Differential treatment of married and unmarried taxpayers under ITA, s. 118(1)(b) denial of equal benefit of law — Whether denial of equality discriminatory under Charter, s. 15(1) — Distinction between ground of discrimination and group discriminated against — Marital status analogous ground of discrimination for purposes of s. 15 — Married persons not discrete and insular minority nor independently disadvantaged group — S. 118(1)(b) not contravening equality provisions of Charter, s. 15(1) on grounds of marital status or religion.

This was an application to review a decision of the Tax Court of Canada dismissing the taxpayer’s appeal from her 1989 income tax assessment. The taxpayer lived with her husband and child during the relevant period. She claimed the “equivalent to married” tax credit for her dependent child under paragraph 118(1)(b) of the Income Tax Act. Her position was that she married, rather than just living with her husband, because the latter arrangement was prohibited by her religion. The Minister rejected her claim on the basis that married persons living with their spouses were not entitled to that credit; nor was she entitled to a tax credit under paragraph 118(1)(a) because, while married, she did not support her husband. Accordingly, she was only entitled to claim, in addition to the single status exemption, the lesser deduction for her child under paragraph 118(1)(d). As a result, the taxpayer paid more income tax in 1989 than she would have had to pay had she not been married and had she been allowed to claim an equivalent to married credit for her son. In taxpayer’s opinion, paragraph 118(1)(b) of the Act violates her freedom of religion under paragraph 2(a) of the Charter in so far as it imposes a substantial financial burden on her for adhering to her religion. The issue was whether the taxing provision in question has the effect of infringing the taxpayer’s freedom of religion accorded by paragraph 2(a) of the Charter and her right to equality on the basis of her marital status and religion under subsection 15(1) of the Charter.

Held (Linden J.A. concurring in the result), the application should be dismissed.

Per Mahoney J.A.: In the first of a triad of cases, the Supreme Court of Canada has defined freedom of religion in a broad sense as embracing both the absence of coercion and constraint and the right to manifest religious beliefs and practices. In the present case, the taxpayer asserted indirect coercion respecting her freedom of religion. Subsection 118(1) of the Income Tax Act does not, directly or indirectly, coerce anyone. It does not impose a sanction on anyone and does not engage freedom of religion and conscience. The incidental cost to the taxpayer and her husband of continuing to cohabit in matrimonial status, occasioned by the birth of a child to the union, did not interfere with their religious belief or practice.

A tax credit is a benefit under the law and subsection 118(1) provides a greater benefit to a taxpaying couple with a child cohabiting common law than to a married couple in like circumstances. However, the provision of different tax credits because of different family and personal circumstances has nothing to do with religion and cannot be characterized as discrimination based on religion. Moreover, the inequality in benefit under the law did not arise simply by reason of the taxpayer’s marital status. It was the birth of the child that gave rise to significant inequality. The present case cannot be disposed of on an acceptance, even for purposes of argument, that marital status is an analogous ground to those enumerated in subsection 15(1) of the Charter. Whether or not it finds discrimination offensive to subsection 15(1), a court is not invited to proclaim an analogous ground as a broad category in the fashion the enumerated grounds themselves have been expressed; rather, it is invited to define the ground in terms of the discrete and insular minority distinguished by a personal characteristic analogous to those of the enumerated grounds. The group in issue, which is composed of married persons with a child, living together and not supporting each other, is not disadvantaged in the context of its place in the entire social, political and legal fabric of our society; it is not a distinct and insular minority within the contemplation of section 15 of the Charter. The distinction made by subsection 118(1) of the Act between married and unmarried persons in those like circumstances is not discriminatory.

Per Linden J.A. (concurring in the result): The Income Tax Act is a secular statute with no religious purpose whatsoever. The equivalent to married credit in paragraph 118(1)(b) of the Act recognizes the reduced ability of taxpayers to pay tax where they assume responsibility for supporting a dependent person. There is no religious purpose associated with the objectives of that provision. A trivial or insubstantial interference with religion is insufficient to violate paragraph 2(a) of the Charter. Any potential effect upon freedom of religion herein can only be described as “minuscule”, “trivial” or “insubstantial”. The relationship between section 118 of the Act and the ability to practice one’s religion is too remote to offend the Charter.

Paragraph 118(1)(b) draws a distinction between married and unmarried taxpayers, and its operation provides a greater benefit to the latter group. Although this differential treatment constitutes a denial of equal benefit of the law, subsection 15(1) will not be violated unless the denial of equality is determined to be discriminatory. It is important to distinguish between the ground of discrimination and the group which is discriminated against. A ground of discrimination does not necessarily refer to a particular group. Distinguishing between the ground of discrimination and the group discriminated against permits a court to use one as a reference point to identify the other. The main ground of discrimination urged on behalf of the taxpayer was marital status which is not included among the prohibited grounds of discrimination in subsection 15(1), but can properly be considered an analogous ground for the purposes of that provision. This ground of discrimination should not be confused with the group claiming discrimination, that is married people. Since married persons are not a discrete and insular minority, nor are they an independently disadvantaged group, the taxpayer could not claim to be discriminated against as a married person. As to whether advantaged people may also be discriminated against, suffice it to say that, in order to establish the indicia of discrimination, a member of an advantaged group would have to show direct or immediate prejudice and stereotyping, although not necessarily intentional discrimination. The standard and the method of analysis applicable to both advantaged and disadvantaged groups would remain the same. Unlike the guarantee of freedom of religion in paragraph 2(a) of the Charter, the promise of equality in section 15 does not exclude claims on the basis that the violation is minuscule, trivial or insubstantial. Nevertheless, the taxpayer’s challenge to the tax credit system cannot succeed on the basis of religious discrimination. There was no evidence that such system creates invidious stereotyping or prejudice against the majority of religions.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

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(a), 15(1),(2).

Canadian Human Rights Act, R.S.C., 1985, c. H-6.

Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8).

Human Rights Act, S.M. 1974, c. 65.

Income Tax Act, S.C. 1970-71-72, c. 63, ss. 117.1 (as am. by S.C. 1988, c. 55, s. 91), 118 (as am. by S.C. 1993, c. 24, s. 52), (1) (as am. by S.C. 1988, c. 55, s. 92), 252 (as am. by S.C. 1993, c. 24, s. 140).

Lord’s Day Act, R.S.C. 1970, c. L-13.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

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 14,023; 13 C.R.R. 64; 58 N.R. 81; 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; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; 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; 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; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; R. v. Swain, [1991] 1 S.C.R. 933; (1991), 75 O.R. (2d) 388; 71 D.L.R. (4th) 551; 63 C.C.C. (3d) 481; 5 C.R. (4th) 253; 3 C.R.R. (2d) 1; 125 N.R. 1; 47 O.A.C. 81.

APPLIED:

Re MacVicar and Superintendent of Family & Child Services et al. (1986), 34 D.L.R. (4th) 488; [1987] 3 W.W.R. 176; 10 B.C.L.R. (2d) 234; 29 C.R.R. 37 (S.C.).

CONSIDERED:

Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; [1989] 4 W.W.R. 193; 58 Man. R. (2d) 161; 26 C.C.E.L. 1; 10 C.H.R.R. D/6183; 89 CLLC 17,012; 45 C.R.R. 115; 94 N.R. 373; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; (1989), 59 D.L.R. (4th) 352; [1989] 4 W.W.R. 39; 58 Man. R. (2d) 1; 25 C.C.E.L. 1; 10 C.H.R.R. D/6205; 89 CLLC 17,011; 47 C.R.R. 274; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 39 C.R.R. 306; 96 N.R. 115; 34 O.A.C. 115.

REFERRED TO:

Mercier (M.) v. M.N.R., [1992] 1 C.T.C. 2506; (1992), 92 DTC 1693 (T.C.C.); Bailey et al. v. Minister of National Revenue (1980), 1 C.H.R.R. D/193 (C.H.R.T.); Weronski (J.H.) v. M.N.R., [1991] 2 C.T.C. 2431; (1991), 91 DTC 1105; 35 R.F.L. (3d) 441 (T.C.C.); Druker v. C.I.R., 697 F. 2d 46 (2nd Cir. 1982).

AUTHORS CITED

Bittker, Boris I. “A Comprehensive Tax Base as a Goal of Income Tax Reform” (1967), 80 Harv. L. Rev. 925.

Bittker, Boris I. “Federal Income Taxation and the Family” (1975), 27 Stan. L. Rev. 1389.

Blumberg, Grace. “Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers” (1972), 21 Buff. L.R. 49.

Canada. House of Commons, Report of the Parliamentary Committee on Equality Rights: Equality for all, Ottawa, Queen’s Printer, 1985.

McCaffery, Edward J. “Taxation and the Family: A Fresh Look at Behavioral Gender Biases in the Code” (1993), 40 UCLA L. Rev. 983.

Morrison, Richard J. and Jillian Oderkirk. Married and Unmarried Couples: The Tax Question, 1991.

APPLICATION for judicial review of a decision of the Tax Court of Canada ([1991] T.C.J. No. 1023 (QL)) which dismissed the taxpayer’s appeal from an income tax assessment disallowing the “equivalent to married” tax credit under paragraph 118(1)(b) of the Income Tax Act. Application dismissed.

COUNSEL:

Marvin J. Huberman for applicant/appellant.

J. Paul Malette and David W. Chodikoff for respondent.

SOLICITORS:

Morris, Rose, Ledgett, Toronto, for applicant/ appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Mahoney J.A.: This is an application for judicial review of an unreported decision of the Tax Court of Canada, ensuing upon an informal hearing.[1] It dismissed the applicant’s appeal from an assessment of her 1989 income tax return disallowing the “equivalent to married” non-refundable tax credit she had claimed in respect of a dependent child and allowing a “dependent child” tax credit instead. Subsection 118(1) of the Income Tax Act [S.C. 1970-71-72, c. 63, s. 118 (as am. by S.C. 1988, c. 55, s. 92)] is in play.[2] The amounts set out in the subsection may automatically vary from year to year with indexing pursuant to section 117.1 [as am. idem, s. 91].

The applicant was married, lived with and did not support her spouse in 1989. They had a child born in 1988. The applicant claimed credit in respect of herself and the child under paragraph 118(1)(b). The Minister allowed her credit under paragraphs 118(1)(c) and (d). The result was that the applicant and her husband together paid more income tax in 1989 than they would have had they been living together, unmarried, all else the same. The amount of the difference is several hundreds of dollars.

The applicant was not entitled to a tax credit under paragraph (a) because, while married, she did not support her spouse; she was not entitled to a credit under paragraph (b) because she lived with her spouse.[3] Thus, not being entitled to a credit under either paragraph (a) or (b), she was entitled to a credit under paragraph (c). Except as limited by paragraph 118(4)(c),[4] the tax credit under paragraph (d) is in addition to that under paragraph (a), (b) or (c) as the case may be. Accordingly, she was entitled to tax credits under both paragraphs (c) and (d).

The applicant and her husband had been married ten years, living in Canada, when they testified before the Tax Court in September, 1991. Depending on their respective annual taxable incomes during that decade and prior to the birth of the child, the Income Tax Act entitled one or the other of them to the credit allowed under paragraph (a) or both to a credit under paragraph (c). There was no meaningful difference under the personal exemption regime which non-refundable tax credits replaced during the decade. No significant tax disadvantage from cohabiting in a married state can be said to have arisen until the birth of the child.

The evidence of the applicant, her husband and a pastor of the church to which they belong is that its members are required to be married to live together, to remain living together once married, and to be married to have and raise children. The applicant and her husband both testified that the exemption had been claimed because of financial need and moral entitlement. In her notice of objection, she stated:

I was married for religious reasons but now maintain a common-law relationship with Walter Schachtschneider. I am entirely rational & would not have married just to pay more income tax!

The Issues

The applicant asserted that the provisions of subsection 118(1) that have the effect of denying her the credit under paragraph 118(1)(b) infringe the freedom of religion and conscience accorded by paragraph 2(a) of the 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]] and equality before and under the law without discrimination accorded by subsection 15(1). As to the latter, the applicant alleged discrimination based on both the enumerated ground “religion” and on an analogous ground “marital status”. She did not, on this application, pursue the subsection 15(1) claim based on the enumerated ground, however, since the reasons below are not reported, I propose to deal with it briefly.

Freedom of Conscience and Religion

The Charter provides:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

The first of a triad of cases in which the Supreme Court of Canada has construed paragraph 2(a) is R. v. Big M Drug Mart Ltd. et al.[5] That dealt with the Lord’s Day Act[6] which was described in the third of the triad as “a direct command, on pain of sanction, to conform to a particular religious precept.”[7] The Income Tax Act is certainly not to be so characterized. The decision is particularly instructive for its discussion of the parameters of freedom of religion and its definition of coercion. At pages 336-337 it was said:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. ... Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. [Underlining added.]

It is indirect coercion respecting her freedom of religion that the applicant asserts.

The next of the triad is R. v. Jones,[8] a case where religious conviction was alleged to prevent an individual from either permitting his children to attend public school or obtaining governmental certification of efficient home instruction, the only relevant options allowed by provincial legislation. Again, sanctions for non-compliance were provided. Madam Justice Wilson, for a majority which concluded that paragraph 2(a) was not infringed and that recourse to section 1 was not required, wrote:

The appellant’s real complaint, it seems to me, is effects-based rather than purpose-based. … not every effect of legislation on religious beliefs or practices is offensive to the constitutional guarantee of freedom of religion. Section 2(a) does not require the legislature to refrain from imposing any burdens on the practice of religion. Legislative or administrative action whose effect on religion is trivial or insubstantial is not, in my view, a breach of freedom of religion.

Indirect coercion was immediately in issue in R. v. Edwards Books and Art Ltd.[9] There provincial legislation required, subject to certain exceptions, that retail stores be closed on specified holidays, including all Sundays. Penalties were provided for its violation. It was accepted that its purpose was to provide uniform holidays for retail workers. It clearly imposed financial burdens on persons whose “Sabbath” was not observed on Sunday. Five of the seven judges held that paragraph 2(a) was infringed. A clear majority concurred in the judgment of Dickson C.J., on that issue. At page 759, he wrote:

It matters not, I believe, whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable. All coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2(a).

This does not mean, however, that every burden on religious practices is offensive to the constitutional guarantee of freedom of religion. It means only that indirect and unintentional burdens will not be held to be outside the scope of Charter protection on that account alone. ... The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial.

Subsection 118(1) of the Income Tax Act does not, directly or indirectly, coerce anyone. It is not a form of control of any description which determines or limits anyone’s course of religious conduct or practices. It does not impose a sanction on anyone. It simply does not engage freedom of religion and conscience in any fashion whatsoever. The incidental tax cost to the applicant and her husband of continuing to cohabit in matrimonial status, occasioned by the birth of a child to the union, cannot be found capable of interfering with their religious belief or practice.

Equal Benefit of the Law

The Charter provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

No doubt a tax credit is a benefit under the law and no doubt subsection 118(1) provides a greater benefit to a taxpaying couple with a child cohabiting common law than to a married couple in like circumstances. The applicant argues that subsection 118(1) “discriminates on the enumerated ground of religion because of its differential and adverse impact on those whose religious beliefs require them to be married to those with whom they live and have children” and that it discriminates on the ground of marital status, “specifically to the disadvantage of married women with children”, marital status being a ground analogous to those enumerated in subsection 15(1).

a.         Religion

Subsection 118(1) recognizes the reduced ability of taxpayers with dependants to pay tax and accords tax credits on the basis of the personal and family circumstances of the taxpayer. All taxpayers who are married, cohabiting with, neither supporting nor supported by their spouses, and supporting a child of the marriage, are entitled to the same tax credit. If they are supporting more than one child, they are entitled to a greater tax credit. Whether it is only religious conviction that impels a couple with a child to maintain their state of matrimony and cohabitation, whether it is among the reasons they do, or whether it has nothing at all to do with the decision, is entirely immaterial. The differentials of the tax credits available under subsection 118(1) have nothing whatever to do with religion. The provision of different tax credits because of different family and personal circumstances cannot be characterized as discrimination based on religion.

The applicant’s case has necessarily been presented on the basis that their religious conviction is the only reason for her ongoing cohabitation with her husband. It is not only the Charter guarantees of freedom of religion and conscience and of legal equality without discrimination based on religion that have been trivialized.

b.         Marital Status

The inequality in benefit under the law does not arise and cannot be said to arise simply by reason of the applicant’s marital status. It was the birth of the child that gave rise to significant inequality. Since there is no evidence whatever as to the income of the applicant’s spouse, there is no basis for concluding that, without the child, the aggregate tax credit for husband and wife together would have been significantly different had one been entitled to credit under paragraph 118(1)(a) or both been entitled to credit under paragraph (c). This case has proceeded on the basis that the discrimination in equal benefit of the law arose because the applicant was not allowed credit for herself and the child under paragraph (b) but was given credit for herself under paragraph (c) and the child under paragraph (d). It cannot, in my respectful opinion, be disposed of on an acceptance, even for purposes of argument, that marital status is an analogous ground to those enumerated in subsection 15(1).

The Supreme Court of Canada approved the “enumerated and analogous grounds” approach to determining the role of subsection 15(1) in Andrews v. Law Society of British Columbia.[10] A helpful exposition of that approval is found in the Court’s judgment in R. v. Turpin,[11] per Madam Justice Wilson.

McIntyre J. recognized in Andrews that the “‘enumerated and analogous grounds’ approach most closely accords with the purposes of s. 15 and the definition of discrimination outlined above” (p. 182) and suggested that the alleged victims of discrimination in Andrews, i.e., non-citizens permanently resident in Canada were “a good example of a ‘discrete and insular minority’ who came within the protection of s. 15” (p. 183). Similarly, I suggested in my reasons in Andrews that the determination whether a group falls into an analogous category to those specifically enumerated in s. 15 is “not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society” (p. 152). If the larger context is not examined, the s. 15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation.

After she had rejected the proposition, previously accepted by several provincial Courts of Appeal, that subsection 15(1) dictates that “the criminal law apply equally throughout the country”, Madam Justice Wilson wrote, at page 1334:

In my view, s. 15 mandates a case by case analysis as was undertaken by this Court in Andrews to determine 1) whether the distinction created by the impugned legislation results in a violation of one of the equality rights and, if so, 2) whether that distinction is discriminatory in its purpose or effect.

The proper approach to subsection 15(1) was also described by Lamer C.J., in R. v. Swain.[12]

The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentional or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

Since subsection 15(1) mandates a case by case analysis, it is my view that, if one is constrained to conclude that a group does fall within an analogous ground, one ought to define that ground in precise terms of the group even though a wider inclusive group may have been recognized by legislators for purposes of Human Rights Acts. The distinction between the Charter and Human Rights Acts was noted in Andrews at page 175.

… discrimination in s. 15(1) is limited to discrimination caused by the application or operation of law, whereas the Human Rights Acts apply also to private activities. Furthermore, and this is a distinction of more importance, all the Human Rights Acts passed in Canada specifically designate a certain limited number of grounds upon which discrimination is forbidden. Section 15(1) of the Charter is not so limited.

The enumerated and analogous ground approach has been adopted because it most closely accords with the purposes of section 15 and the definition of discrimination. The accepted definition, by McIntyre J., writing at page 174 of Andrews, is:

… discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

Madam Justice Wilson, had written at page 152:

I believe that it is important to note that the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances. For example, Stone J. writing in 1938, was concerned with religious, national and racial minorities.[13] In enumerating the specific grounds in s. 15, the framers of the Charter embraced these concerns in 1982 but also addressed themselves to the difficulties experienced by the disadvantaged on the grounds of ethnic origin, colour, sex, age and physical and mental disability. It can be anticipated that the discrete and insular minorities of tomorrow will include groups not recognized as such today.

The analysis indicated by Swain, Andrews and Turpin is not, in my respectful opinion, the consecutive consideration of (1) whether, as here for example, marital status is a ground analogous to those enumerated in subsection 15(1) for some good reason not relevant to the particular grievance, e.g., the historic disadvantages of unwed mothers, and then (2) whether or not the distinction in issue treats different taxpayers in a discriminatory fashion on the basis of that analogous ground. Rather, it is in the determination whether the differential treatment mandated by subsection 118(1) is discriminatory that it is to be decided whether the applicant and others in her circumstances are defined by personal characteristics, as they plainly are, and, if so, whether those personal characteristics are analogous to the personal characteristics of the enumerated grounds—analogous in the sense that they, too, define a discrete and insular minority commonly disadvantaged because of those characteristics. In other words, whether or not it finds discrimination offensive to subsection 15(1), a court is not invited to proclaim an analogous ground as a broad category, perhaps pleaded, in the fashion the enumerated grounds themselves have been expressed; rather, it is invited to define the ground in terms of the discrete and insular minority identified by the evidence. What is required to be identified is not, strictly speaking, an “analogous ground” in the ordinary sense of the phrase; rather it is a discrete and insular minority, distinguished by a personal characteristic analogous to those of the enumerated grounds. That approach appears, in fact, to have been the practice as well as the teaching of the Supreme Court, e.g., “non-citizens permanently resident in Canada” in Andrews and, in Turpin, “persons accused of the crimes listed in s. 427 of the Criminal Code in all provinces except Alberta.” No definition of an analogous ground is to be found in those decisions beyond the identification of the group.

It seems to me that in this case, had the learned Deputy Judge taken the approach indicated and practised by the Supreme Court, he would not have found it necessary to hold that “[m]arital status ... comes within the ambit of subsection 15(1) as being an analogous ground” before deciding, correctly in my opinion, that the distinction in issue was not discrimination within the purview of subsection 15(1). Likewise, I do not reflect on the result reached by the learned Local Judge of the Supreme Court of British Columbia in Re MacVicar and Superintendent of Family & Child Services et al.[14] It does, however, seem to me that, had she adopted the approach of the Supreme Court of Canada, she would not have found it necessary to pronounce marital status an analogous ground on the way to deciding that the natural fathers of children put up for adoption by their unwed mothers were a discrete and insular minority, historically denied the social and legal incidents of parenthood and unequally treated by the legislation in issue.

The disadvantage shown in the present proceeding would, of course, accrue in equal measure to father as to mother were he, rather than she, to seek the tax credit in issue, all else being the same. It is not possible, in the context of the impugned legislation, to define the discrete and insular minority in terms of women at all.

There may be others differently treated by subsection 118(1) on the basis of personal characteristics, but the group now in issue is composed of married persons with a child of the marriage, living together and not supporting each other. In my opinion, that is not a group that can be described as being disadvantaged in the context of its place in the entire social, political and legal fabric of our society. It follows that it is not a distinct and insular minority within the contemplation of section 15. The distinction made by subsection 118(1) of the Income Tax Act between married and unmarried persons in those like circumstances is not discriminatory.

Conclusion

I am of the opinion that the applicant’s right to equal benefit of the law under subsection 15(1) of the Charter is not infringed by subsection 118(1) of the Income Tax Act. I would dismiss this application.

Gray D.J.: I agree.

* * *

The following are the reasons for judgment rendered in English by

Linden J.A.: I agree with the result arrived at by Mr. Justice Mahoney, but would travel a somewhat different route to reach it.

This is an application by a taxpayer for judicial review of a decision of the Tax Court on the basis that paragraph 118(1)(b) of the Income Tax Act violates the Canadian Charter of Rights and Freedoms, interfering with her freedom of religion (paragraph 2(a)) and denying her equal benefit of the law because of her marital status and her religion (subsection 15(1)).

The applicant, who was married and living with her husband and one young child, claimed what is commonly referred to as the “equivalent to married” credit for her dependent child under paragraph 118(l)(b) of the Income Tax Act. The Minister disallowed this credit on the basis that married persons living with their spouses were not entitled to this credit under paragraph 118(1)(b). Had she been living in a common law relationship, she argues, she could have claimed the equivalent to married credit. As a result, the taxpayer paid more tax than she would have if she were not married. The taxpayer appealed, unsuccessfully, the Minister’s reassessment for the year 1989 to the Tax Court and now brings this application for judicial review pursuant to section 28 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 8)].

The Income Tax Act Provisions Explained

Before tackling the constitutional issues, the tax legislation being challenged must be described. The following are the relevant excerpts from the Income Tax Act.

118. (1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted an amount determined by the formula

A x B

where

A is the appropriate percentage for the year, and

B is the aggregate of,

(a)—in the case of an individual who at any time in the year is a married person who supports his spouse, an amount equal to the aggregate of

(i) $6,000, and

(ii) an amount determined by the formula

$5,000—(C—$500)

where

C    is the greater of $500 and the income of the individual’s spouse for the year or, where the individual and the individual’s spouse are living separate and apart at the end of the year by reason of a breakdown of their marriage, the spouse’s income for the year while married and not so separated;

(b)—in the case of an individual not entitled to a deduction by reason of paragraph (a) who, at any time in the year,

(i) is an unmarried person or a married person who neither supported nor lived with his spouse and is not supported by his spouse, and

(ii) whether by himself or jointly with one or more other persons, maintains a self-contained domestic establishment (in which the individual lives) and actually supports therein a person who, at that time, is

(A) except in the case of a child of the individual, resident in Canada,

(B) wholly dependent for support on the individual, or the individual and such other person or persons, as the case may be,

(C) related to the individual, and

(D) except in the case of a parent or grandparent of the individual, either under 18 years of age or so dependent by reason of mental or physical infirmity,

an amount equal to the aggregate of

(iii) $6,000, and

(iv) an amount determined by the formula

$5,000—(D—$500)

where

D    is the greater of $500 and the income for the year of the dependent person;

(c) except in the case of an individual entitled to a deduction by reason of paragraph (a) or (b), $6,000; and

(d) for each dependant of the individual for the year, an amount equal to

(i) if the dependant was under the age of 18 years at any time in the year, an amount determined by the formula

$388—(E—$2,500)

where

E    is the greater of $2,500 and the income for the year of the dependant, except that where the individual has more than 2 such dependants for the year, the reference to the amount “$388” in the formula under this subparagraph shall, in respect of all but 2 of those dependants, be read as twice that amount, and

(ii) in the case of a person dependent on the individual by reason of mental or physical infirmity and to whom subparagraph (i) does not apply, an amount determined by the formula

$l,471—(F—$2,500)

where

F    is the greater of $2,500 and the income for the year of the dependant.

These provisions are by no means self-explanatory. Paragraph 118(l)(a) provides for what is known as the married status credit or married tax credit. This credit of $6,000 plus $5,000 (adjusted) may be claimed only by an individual who is married and supports a spouse. In 1989, the year in question, the maximum value of this credit was $859 in tax savings (not including provincial tax).

Subject to the specified limitations, paragraph 118(1)(b) provides a similar credit for taxpayers who support a wholly dependent person. This credit, commonly referred to as the equivalent to married tax credit, relies on the same formula as the married tax credit and is also worth a maximum $859 in tax savings. The scheme of the Act mandates that the equivalent to married tax credit cannot be claimed by an individual who is married and lives with a spouse. The equivalent to married tax credit may be claimed only by an individual who is single, widowed, divorced, or separated. In order to claim this credit, a taxpayer must have supported an individual living in their home who is wholly dependent upon the taxpayer and others living in the home. The dependent person and the taxpayer must be related by blood relationship, marriage or adoption. This excludes a number of different types of dependent relationships including common law partners and lesbian and gay partners who cannot, therefore, claim an equivalent to married credit for each other, but who may claim that credit for a child they raise or a physically or mentally disabled individual for whom they care. (See as to alleged discrimination on the basis of age, Mercier (M.) v. M.N.R., [1992] 1 C.T.C. 2506 (T.C.C.), now on appeal.)

Under paragraph 118(l)(c), those who cannot claim either married status or equivalent to married status deductions may claim the single status exemption of $6,000. Thus, if two people reside together and both work, each can claim the $6,000 as long as they do not fit under paragraph 118(l)(a) or 118(1)(b).

Any taxpayer may claim, in addition, a dependant tax credit under paragraph 118(l)(d) for any additional dependants they support. However, the credit provided in that paragraph is significantly less than the married tax deduction and the equivalent to married tax credit.

The treatment of common law spouses under the system of tax credits in section 118 of the Income Tax Act has been recently changed by Bill C-92 [An Act to amend the Income Tax Act, the Canada Pension Plan, the Income Tax Conventions Interpretation Act, the Tax Rebate Discounting Act, the Unemployment Insurance Act and certain related Acts, S.C. 1993, c. 24, s. 52]. Effective for the 1993 tax year, the definitions of spouse and marriage in section 252 of the Act have been amended [as am. idem, s. 140] to include common law spouses. These changes mean that common law spouses will now be eligible for the married tax credit in paragraph 118(1)(a) of the Act, and will no longer be able to claim the equivalent to married tax credit set out in paragraph 118(1)(b), which gave rise to the complaint of unequal treatment in this case.

These recent amendments do not, of course, govern the circumstances of this case, since it is the applicant’s 1989 tax return with which we are concerned. Up until the 1993 tax year, the credits provided for in section 118 of the Act did not take full account of common law or other similar dependent relationships and were not fully harmonized with each other in that regard. As a result, there were situations in which persons living in common law relationships were better off than those who were married, and, similarly, there were situations in which married persons were better off than those living in common law relationships. For instance, a married taxpayer supporting a spouse was able to claim a married status credit under paragraph 118(1)(a) where the spouse earned less than $5,553. In the same circumstances, a taxpayer living in a common law relationship was unable to claim any credit for a dependent partner. In such a situation the married taxpayer received a greater benefit (or lesser burden) under section 118. (See Bailey et al. v. Minister of National Revenue (1990), 1 C.H.R.R. D/193 (C.H.R.T.).)

In contrast, where a married couple had a dependent child, they were precluded from claiming the equivalent to married credit for that child, being limited to the married status credit. On the other hand, where partners in a common law relationship had a dependent child, one of the partners was permitted an equivalent to married credit under paragraph 118(1)(a), as long as the child did not earn income exceeding $5,553. Under those circumstances, taxpayers in a common law relationship received a greater benefit (or lesser burden) under section 118 of the Act than married people. Thus, because the outdated definition of spouse, in some cases married people were better off and, in other cases, unmarried people were.

There are, of course, many other situations which could be compared, but reviewing them would be more confusing than enlightening. Suffice it to say that the system of tax credits in section 118 of the Income Tax Act does not treat uniformly either married taxpayers or unmarried taxpayers. Indeed, this section and other similar sections in previous incarnations of the Income Tax Act, both here and elsewhere, have been the subject of ongoing controversy and litigation. This is highlighted by the fact that this case is brought by a married taxpayer challenging section 118 on constitutional grounds, while, in Bailey v. M.N.R., supra, the predecessor to section 118, was challenged by partners in a common law relationship on similar grounds, under the Canadian Human Rights Act [S.C. 1976-77, c. 33]. For a discussion of these issues generally see Boris Bittker, “A Comprehensive Tax Base’ as a Goal of Income Tax Reform”, (1967), 80 Harv. L. Rev.925; Edward McCaffery “Taxation and the Family: A Fresh Look at Behavioral Gender Biases in the Code” (1993), 40 UCLA L. Rev. 983; and Grace Blumberg “Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers” (1972), 21 Buff. L. Rev. 49. This controversy is likely to continue until a more delicately calibrated test is discovered as a basis for determining the appropriate tax treatment for dependent relationships in these changing times. In the meantime, courts will be faced with the difficult task of sorting through the provisions of the Act to determine which are discriminatory and those which, while less than perfect, will pass muster.

The Facts

In 1989, the applicant earned an income of $12,469.51 primarily in the form of interest. She did not support her husband, Walter Schachtschneider, an engineer. As a result, the applicant was not eligible to claim a married status tax credit under paragraph 118(1)(a) which requires a taxpayer to have supported a spouse. On her 1989 tax return, the applicant claimed an “equivalent to married” tax credit for her dependent child under paragraph 118(1)(b) of the Income Tax Act. This equivalent to married credit enables unmarried taxpayers (or married taxpayers not living with a spouse, who did not support and who were not supported by a spouse) to claim a credit for a dependant, subject to certain qualifications which operate to exclude, among others, common law spouses. Under the Act, therefore, married persons living with their spouses are only eligible for a married status credit under paragraph 118(1)(a) of the Act contingent upon meeting the specific requirements in that paragraph. The applicant did not meet the requirement in paragraph 118(l)(a) that the taxpayer must have supported a spouse. Accordingly, she was said to be unable to claim the married status credit or the equivalent to married credit; she was only entitled to claim, in addition to the single status exemption, the lesser deduction for her child under paragraph 118(1)(d). As a result, the taxpayer paid approximately $1,200 more tax than she would have had to pay if she had not been married and had been allowed to claim an equivalent to married credit for her son.

The applicant maintains that the Income Tax Act violates her freedom of religion under paragraph 2(a) of the Charter in so far as it imposes a substantial financial burden on her for adhering to her religion. The applicant explained that she married her husband, Walter Schachtschneider, rather than just living with him, because the tenets of her religion, the German Church of God, forbade that. Thus, denying her a tax credit on the basis that she was married, was a violation of her freedom of religion. Moreover, the applicant argued that disallowing her the “equivalent to married” tax credit also infringes her right to equality on the basis of her marital status and religion, under subsection 15(1) of the Charter. As the applicant’s claim fails on the merits for the reasons explained below, it will not be necessary for me to address the jurisdictional point, which was argued by counsel. I shall now consider the two constitutional arguments raised on this application.

Freedom of Religion

The guarantee of freedom of religion is set out in paragraph 2(a) of the Charter:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion.

This provision was first considered by the Supreme Court of Canada in R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, where Chief Justice Dickson, writing for the majority, offered the following broad description of freedom of religion [at pages 336-337]:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

With this description as the background, the first question to be asked is whether the purpose of paragraph 118(1)(b) of the Income Tax Act violates paragraph 2(a) of the Charter. In my view, it does not. The Income Tax Act is a secular statute with no religious purpose whatsoever. If we turn our attention to subsection 118(1) of the Act, we find that it too has an exclusively secular purpose. Each of the four different tax credits provided in that subsection serve their own particular objectives, but none of them are directed at curtailing freedom of religion. They are designed to ensure that a taxpayer retains a minimum amount of income on which to live. Clearly, this objective does not run afoul of the guarantee of freedom of religion. If we narrow our focus further to consider the equivalent to married credit in paragraph 118(1)(b), the specific paragraph being challenged, we find that its purpose is also totally secular. This credit, like the others in the subsection, recognizes the reduced ability of taxpayers to pay tax where they assume responsibility for supporting a dependent person. There is no religious purpose in any way associated with the objectives of paragraph 118(1)(b).

This does not conclude the matter, however, because as Chief Justice Dickson explained, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at page 752:

Even if a law has a valid purpose, it is still open to a litigant to argue that it interferes by its effects with a right or freedom guaranteed by the Charter.

Moreover, one must also consider effects that may be not only direct but indirect, not only intentional but unintentional, and not only foreseeable but unforeseeable. This view was plainly articulated in Edwards Books Ltd., supra, at page 759, where Chief Justice Dickson explained:

It matters not, I believe, whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable. All coercive burdens on the exercise of religious beliefs are potentially with the ambit of s. 2(a).

Yet while any law that involves a so-called coercive burden on an individual’s practice of their religion—which really means no more than that the law has some influence on their religious practice—may potentially fall within the ambit of paragraph 2(a), it is clear that not all such laws contravene that paragraph. A trivial or insubstantial interference with religion is insufficient to violate paragraph 2(a). There must be a substantial enough interference that one’s religious practice might reasonably or actually be threatened. The Supreme Court of Canada, in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, through Chief Justice Dickson, at page 759, explained:

Section 2(a) does not require the legislatures to eliminate every minuscule state-imposed cost associated with the practice of religion. Otherwise the Charter would offer protection from innocuous secular legislation such as a taxation act that imposed a modest sales tax extending to all products, including those used in the course of religious worship. In my opinion, it is unnecessary to turn to s. 1 in order to justify legislation of that sort ... The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened ... In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial. [Citation omitted.]

These guidelines were reiterated by Madam Justice Wilson in R. v. Jones, [1986] 2 S.C.R. 284, at page 314:

Legislative or administrative action whose effect on religion is trivial or insubstantial is not, in my view, a breach of freedom of religion.

Thus, more than “minuscule”, “trivial” or “insubstantial” effects are required for a Charter violation.

In my view, applying these principles, this paragraph does not actually threaten nor might it reasonably threaten freedom of religion. Any link to religion in this case is too tenuous and far fetched to merit a constitutional remedy. To hold that the taxpayer’s freedom of religion was violated by denying her a tax credit on the basis that she married her husband because of her religious principles would stretch the scope of the guarantee beyond legitimate bounds. There are many other reasons for couples to marry—love, companionship, tradition, duty, child-bearing, social or family pressure, economic reasons, etc. Even one’s tax position may be an influence on this decision. Religion is just one reason, motivating only some couples. The administration of the tax laws cannot depend on the reasons that people marry. The Tax Court Judge was correct when he stated that he “would be drawing a long bow indeed to equate her inability to claim this additional tax credit as an interference with a fundamental freedom as envisioned by subsection 2(a) of the Charter.”

Any potential effect upon freedom of religion in this case can only be described as “minuscule”, “trivial” or “insubstantial”. This is not because $1200 is a minuscule, trivial or insubstantial amount of money, but because the effect on the taxpayer’s practice of her religion of paying that amount is minuscule, trivial or insubstantial. While a certain amount of tax may have to be paid by this taxpayer because of her marriage, and while she may have entered into her marriage because of her religious principles, this is an effect twice removed from the practice of her religion. The relationship between section 118 of the Income Tax Act and the ability to practice one’s religion is too remote to offend the Charter. The applicant’s challenge to paragraph 118(1)(b) of the Income Tax Act on the basis that denying her the equivalent to married tax credit violates her freedom of religion, is therefore, unsuccessful.

The Right to Equality

Subsection 15(1) of the Charter provides:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The proper approach to subsection 15(1) was summarized by Chief Justice Lamer in R. v. Swain, [1991] 1 S.C.R. 933, at page 992:

The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e., equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in “discrimination”. This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant’s s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the grounds enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15—namely, to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society.

The first stage of the test is not difficult to satisfy and is met on the facts of this case. Paragraph 118(l)(b) of the Income Tax Act draws a distinction between married and unmarried individuals, and its operation provides a greater benefit to the latter group. While the Income Tax Act is not normally perceived as a benefit conferring statute, it is altogether appropriate to consider a tax credit as a benefit within the context of that Act. In any event, for the purposes of the four equalities set out in subsection 15(1), differential treatment regarding the application of the Income Tax Act, and the scheme of tax credits in paragraph 118(l)(b) in particular, constitutes a denial of equal benefit of the law. The first hurdle of the subsection 15(1) test is, therefore, overcome.

A violation of subsection 15(1) will not be found, however, unless the denial of equality is determined to be discriminatory. To assess whether a distinction is discriminatory, it is necessary to consider both the effect of the distinction—does it deny a benefit granted to others or impose a burden not imposed on others?—and the circumstances of the group affected by the distinction—does the group come within an enumerated or analogous ground of discrimination It is important to distinguish here between the ground of discrimination and the group which is discriminated against. While these two concepts are directly related, and are even mutually dependent, they are also distinct in important ways. A ground of discrimination is the basis for discrimination. Sex, race, and age are examples of grounds of discrimination enumerated in subsection 15(1); discrimination on analogous grounds is also prohibited under that subsection. A ground of discrimination does not necessarily refer to a particular group. For instance, discrimination on the ground of race is prohibited, but many different racial groups may suffer discrimination in a variety of different ways; naming race as the prohibited ground offers no indication whether the group enduring discrimination is African-Canadians, Asian-Canadians, European-Canadians, Latino-Canadians or Native-Canadians, etc.. Similarly, where the ground in question is sex, the group affected may be either men or women.

Yet, while a ground of discrimination does not necessarily identify the group discriminated against, a group falling within a ground of discrimination must be capable, directly or indirectly, of being discriminated against on the basis identified by the ground. Women are capable of being discriminated against on the basis of sex, whereas Native-Canadians are not, although Native-Canadian women are certainly capable of suffering discrimination on the basis of sex.

Both the ground of discrimination and the group discriminated against are important under subsection 15(1). It is necessary to identify the ground of discrimination in order to determine whether the claim fits within the ambit of subsection 15(1). It is also necessary to consider the group claiming discrimination since the historical, social and political circumstances of that group influences the determination about whether an adverse distinction is discriminatory.

The ground of discrimination and the group discriminated against are related, a fact which is particularly important for determining whether a basis for distinction is an analogous ground for the purposes of subsection 15(1). This was explained by Madam Justice Wilson in Andrews, supra, at page 152 in the course of describing the proper approach to deciding whether a basis for distinction constitutes an analogous ground:

I emphasize, moreover, that this is a determination which is not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society.

Thus, to ascertain whether a distinction is drawn on an analogous ground, a court should review the particular law to determine the basis for the distinction, but must then consider whether the group characteristic forming the basis for that distinction is one on which political and social prejudice or stereotyping or historical disadvantage has been, is or may be based. To do this, it is necessary to examine the place in society of the groups associated with the ground of discrimination to ascertain whether such groups are historically, socially or politically disadvantaged, or whether they form a “discrete and insular minority”.

Understanding the relationship between the ground of discrimination and the group discriminated against is important, but one must also differentiate between the two. Distinguishing between the ground of discrimination and the group discriminated against permits a court to use one as a reference point to identify the other. Naming the pertinent ground of discrimination provides a useful reference point for identifying the relevant group for purposes of subsection 15(1). Similarly, identifying a group which is distinctly or disproportionately affected by a law will assist in naming the appropriate ground of discrimination. The group which is relevant for subsection 15(1) may be broader or narrower than the class of people classified by the law in question. Under a law excluding a class of people made up of a number of different groups, one of those groups may be excluded as a result of discrimination while others may be legitimately excluded. Where a recognized ground of discrimination—either an enumerated or analogous ground—serves as the reason for the exclusion of the one group, a court may refer to the ground of discrimination in order to identify that group as the relevant one for purposes of subsection 15(1). In that event, the ground of discrimination is of assistance in defining the pertinent group from among the broader class affected by the law. Alternatively, the class of people excluded by a law may be narrower than the group that is relevant for purposes of subsection 15(1). This occurred in Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, where the Supreme Court considered a company benefits plan that discriminated against pregnant women. The company, Canada Safeway Ltd., argued that while the plan discriminated against pregnant women, pregnancy discrimination was not prohibited by the Human Rights Act[S.M. 1974, c. 65]. However, the Supreme Court found that since only women become pregnant, a distinction based on pregnancy differentiates on the basis of the prohibited ground of sex. In Brooks, the Court avoided narrowing the relevant group to include only pregnant women and instead recognized that the pertinent group was women and that the prohibited ground was sex. A similar analysis was employed in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, where the Supreme Court held that sexual harassment is discrimination on the prohibited ground of sex even though the Court held that not all women are subjected to sexual harassment.

Determining the pertinent ground of discrimination and ascertaining the relevant group for the purposes of subsection 15(1) is a difficult task. It may also be the single most important step in the section 15 analysis. Accordingly, rather than defining the pertinent group too narrowly or too broadly in order to avoid a finding of discrimination, a court should normally use the claimed ground of discrimination to identify a group that may be discriminated against on the basis of that enumerated or analogous ground. In other words, a court should apply section 15 so as to promote equality and redress discrimination rather than in such a way as to avoid finding discrimination.

Turning to the facts of this case, the main ground of discrimination urged upon us by counsel for the applicant was marital status. Marital status is not included among the prohibited grounds of discrimination enumerated in subsection 15(1). However, it is now well-established that the enumerated grounds of discrimination are representative rather than exhaustive; subsection 15(1) prohibits discrimination both on the enumerated grounds as well as on grounds which are analogous to those listed in that subsection. Analogous grounds should be treated in the same manner as the enumerated grounds. The grounds of discrimination should be interpreted broadly regardless of whether they are enumerated or are analogous. In so doing, a court may refer to the large body of jurisprudence that has developed under human rights legislation in Canada. However, in Andrews v. Law Society of British Columbia, supra, at page 175, Mr. Justice McIntyre stated that, since the listed grounds of discrimination are exhaustive in the various human rights acts but not in the Charter, we should avoid unnecessarily restricting the ambit of section 15 when relying on human rights jurisprudence. Mr. Justice McIntyre explained:

In general, it may be said that the principles which have been applied under the Human Rights Acts are equally applicable in considering questions of discrimination under s. 15(1). Certain differences arising from the difference between the Charter and the Human Rights Acts must, however, be considered. To begin with, discrimination in s. 15(1) is limited to discrimination caused by the application or operation of law, whereas the Human Rights Acts apply also to private activities. Furthermore, and this is a distinction of more importance, all the Human Rights Acts passed in Canada specifically designate certain limited number of grounds upon which discrimination is forbidden. Section 15(1) of the Charter is not so limited. The enumerated grounds in s. 15(1) are not exclusive and the limits, if any, on grounds for discrimination which may be established in future cases await definition. The enumerated grounds do, however, reflect the most common and probably the most socially destructive and historically practised bases of discrimination and must, in the words of s. 15(1), receive particular attention. Both the enumerated grounds themselves and other possible grounds of discrimination recognized under s. 15(1) must be interpreted in a broad and generous manner, reflecting the fact that they are constitutional provisions not easily repealed or amended but intended to provide a “continuing framework for the legitimate exercise of governmental power” and, at the same time, for “the unremitting protection” of equality rights.

Thus, in determining whether an attribute may be considered an analogous ground for the purposes of subsection 15(1), the Court may refer to human rights legislation in Canada, but should not restrict the possible grounds to those enumerated in that legislation.

Marital status is included as a prohibited ground of discrimination in the human rights legislation in all of the ten provinces and the two territories as well as in the Canadian Human Rights Act [R.S.C., 1985, c. H-6]. In addition, marital status was accepted as an analogous ground in Re MacVicar and Superintendent of Family & Child Services et al. (1986), 34 D.L.R. (4th) 488 (B.C.S.C.), at pages 498-499 where Madam Justice Huddart relied, in part, on the following passage in the report, “Equality for All”, prepared by the Parliamentary Committee on Equality Rights:

We believe that section 15 of the Charter should be read against the historical background of the treatment in law of married women and the recognition nationally and internationally that marital and, in many cases family status deserve protection by the state. Accordingly, while section 15 does not specifically prohibit discrimination on the basis of marital or family status we believe that the ground can be properly read into the open-ended language of the section. In other words, marital or family status is implicitly covered by section 15.

This is a sound conclusion. Discrimination on the basis of marital status, like discrimination on the grounds enumerated in subsection 15(1), is a problem in our society which should be ameliorated by the Charter. Unmarried people have certainly faced disadvantage and discrimination historically because of their marital status. Marital status, therefore, can properly be considered an analogous ground for the purposes of section 15. (See also Weronski (J.H.) v. M.N.R., [1991] 2 C.T.C. 2431 (T.C.C.), at page 2440.)

As I have indicated, the ground of discrimination—marital status—should not be confused with the group claiming discrimination—married people. Thus, while marital status may be accepted as an analogous ground, in order to determine whether there has been discrimination based on that ground, we must examine the particular circumstances of the group of which the claimant is a member. In the case before us, the applicant claims to be discriminated against as a married person; however, it cannot be said that married persons have been socially, politically, or historically disadvantaged in Canada (R. v. Swain, supra, at page 992). Rather, members of our society who are married may well have experienced some privilege and advantage as a result of their status. Married persons are not a discrete and insular minority, nor are they an independently disadvantaged group.

Counsel for the applicant argued that married individuals are commonly disadvantaged by the provisions of the Income Tax Act. (See Morrison and Oderkirk, Married and Unmarried Couples: The Tax Question (1991)). However, the issue at this stage of the analysis is not whether the impugned legislation disadvantages the individual or group in question, but whether the individual or group is independently disadvantaged, so as to fit within the primary purpose of section 15—namely to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society. Married persons do not meet this description, and, hence, cannot be considered discriminated against merely because they are treated differently by paragraph 118(1)(b). (Although counsel for the applicant raised the separate question of whether married women were discriminated against on the basis of sex in this context, no evidence was introduced to address that claim, which might have led to a different analysis.)

Determining that married persons are not a disadvantaged group does not end the matter; it seems that advantaged people may also be discriminated against. In R. v. Turpin, [1989] 1 S.C.R. 1296, at page 1332, Madam Justice Wilson qualified the requirement that claimants must establish that they are independently disadvantaged, leaving open the possibility that a member of an advantaged group might also succeed in a Charter challenge under subsection 15(1). In that case, Madam Justice Wilson, writing for the Court, remarked:

A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged. [Emphasis added.]

Nevertheless, as an advantaged group, it would not be sufficient for a married person to prove simply that the impugned distinction disadvantages them; such a distinction must also directly and clearly show some unfair prejudice against them in order to be found discriminatory, contrary to subsection 15(1). This is consistent with the structure of section 15 which, it must be remembered, includes subsection 15(2). Subsection 15(2) provides that laws, programs, or activities aimed at ameliorating the conditions of disadvantaged individuals or groups do not contravene section 15. Laws falling within subsection 15(2) may disadvantage an advantaged group or individual, yet not violate subsection 15(1) because those laws are not animated by prejudice or stereotyping. As well, in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pages 180-181, Mr. Justice McIntyre explained that:

The words “without discrimination” require more than a mere finding of distinction between the treatment of groups or individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage.

For historically disadvantaged groups, evidence that a law further disadvantages them will normally support a claim almost automatically under subsection 15(1), whereas, for an advantaged group to succeed, a clear indication of prejudice will be necessary. In other words, in order to establish the indicia of discrimination, a member of an advantaged group would have to show direct or immediate prejudice and stereotyping, although not necessarily intentional discrimination. The prejudice or stereotyping against an advantaged group cannot be assumed. Mere disadvantage under the legislation in question is not sufficient for advantaged groups, although it may be for disadvantaged groups.

It might be contended that this creates a double standard as between advantaged and disadvantaged groups and that imposing such a standard is unjust. It does not and is not. The standard remains the same in either case: discrimination against an advantaged group or a disadvantaged group will not be permitted under subsection 15(1). The method of analysis remains the same as well: in order to determine whether a distinction is discriminatory, a court must consider the effect of the distinction on the group in question with an understanding of the social, political and historical circumstances of that group. The analysis under subsection 15(1) does, however, recognize the reality that socially, politically, or historically disadvantaged groups may be more commonly and more easily discriminated against than advantaged groups.

This analysis under subsection 15(1) should not be confused with the American jurisprudence which involves differing levels of scrutiny under the equal protection clause. In the United States, the levels of scrutiny range from strict scrutiny through intermediate scrutiny down to minimum scrutiny. These levels of scrutiny are based upon the ground of discrimination in question. For instance, racial classifications attract strict scrutiny, while a lesser level of scrutiny is applied to gender classifications. As well, classifications affecting white people attract the same strict level of scrutiny as classifications affecting black people. In contrast, the difference in the analysis between advantaged groups and disadvantaged groups under subsection 15(1) is tied to the circumstances of the group in society. The American approach is the result of the historical circumstances surrounding the development of the equal protection clause, whereas the analysis under section 15 is not so much jurisprudential as it is based on a recognition of the factual differences between advantaged and disadvantaged groups. Advantaged groups have more power in our society; accordingly, it is assumed that distinctions that disadvantage them are not discriminatory, unless there is clear evidence of prejudice or stereotyping.

There is no indication of immediate or direct prejudice or stereotyping against married people here. The system of tax credits under the Income Tax Act was not designed to evince stereotyping or prejudice against married persons. Nor is that an indirect effect of the system. In fact, the tax credit scheme in subsection 118(1) of the Act results more from inaccurate perceptions about unmarried partners than from stereotyping of married couples. That subsection is premised on the erroneous view that unmarried partners do not share their resources and contribute to each other’s care, while married couples do. Basing a tax credit on this negative view of unmarried partners, and the concomitant positive view of married couples, cannot be said to amount to unfair stereotyping or prejudice against married people.

Treating both married and unmarried people fairly under the Income Tax Act without discrimination is no easy task. Past efforts to achieve this in the United States have led not to peace but only to an “uneasy truce”. (See Druker v. C.I.R. 697 F.2d 46 (2nd Cir.) 1982; see also Bittker “Federal Income Taxation and the Family” (1975), 27 Stan. L. Rev. 1389.) It is apparently virtually impossible to erect a scheme that is perfectly fair to all. Because of this, some latitude must be accorded to legislatures in setting the terms of that truce. (Ibid., at page 51 per Friendly J.).

The terms of the truce set by Parliament, in rough and simplified terms, are these. Section 118 tries to assist taxpayers who have dependants, granting them a significant additional credit, not given to single taxpayers. A married person supporting a spouse may receive nearly double the single status deduction (see paragraph 118(1)(a)). A taxpayer who does not support a spouse, but has a dependant other than a spouse, is also allowed nearly double the amount of the single status deduction (paragraph 118(1)(b)). In fact, this helps mainly unmarried persons and separated individuals who bear the additional financial burden of supporting a child or other relative on one salary. Parliament did not intend any family to receive more than double the single status exemption, (aside from the smaller dependant deductions) but because of the outdated definition of spouse in the Act, unmarried people were not considered to be a “family”. Thus, unmarried couples, who both work and support a child, may deduct nearly triple the single status exemption, if one of them claims the equivalent to married status and the other claims the single status exemption. If they have two children, each may claim the equivalent to married deduction, giving them a combined deduction of nearly quadruple the single status exemption. This is an unexpected result, an anomaly, which leaves unmarried persons better off than married persons in this narrow situation.

This is said to be discrimination against married persons who, it is contended, should also be able to claim the equivalent to married deductions so as to get a triple or quadruple deduction, just as the unmarried couples do. One can understand that married people would also want the advantage of this lucky lacuna. But this cannot be permitted for, taking section 118 as a whole, no such discrimination against them has occurred. As has been pointed out, if an unmarried couple without children lives in a common law relationship, with one supporting the other, they are not permitted the married status deduction of paragraph 118(1)(a). This disadvantages them. Common law couples without children are worse off than common law couples with children. Married couples with children are worse off than married couples without children.

On balance, therefore, viewing the section in its entirety, I cannot say that its effects are discriminatory against married people. These distinctions are merely distinctions that Parliament is allowed to draw in order to operate an efficient, self-reporting tax system, not requiring undue intrusion on people’s private lives. Sometimes a particular group may get a small advantage; at other times, it may suffer a minor disadvantage. That is the way the tax system works. It cannot be expected to be perfect. Unless there is clear evidence that a provision discriminates against an advantaged group on section 15 grounds, it is something that negatively affected Canadians must tolerate until Parliament sees fit to remedy it. Happily, in this case, Parliament has recently eliminated this anomaly, which should go some way toward removing this minor variation in treatment of married people and those in common law relationships, although one would be unduly optimistic to expect perfection to have been achieved by this amendment.

There is one last point to be addressed. In addition to the claim regarding marital status, the applicant also contended in the brief that paragraph 118(1)(b) of the Income Tax Act discriminates on the ground of religion contrary to section 15 of the Charter. As that point was not pressed before us in oral argument, I shall deal with that claim briefly. In discussing the issue of freedom of religion, I indicated that paragraph 118(1)(b) may have a remote, minor, indirect effect on individuals as a result of their religious beliefs. Unlike the guarantee of freedom of religion in paragraph 2(a) of the Charter, however, the promise of equality in section 15 does not exclude claims on the basis that the violation is minuscule, trivial or insubstantial. Nevertheless, the applicant’s challenge to the tax credit system cannot succeed on the basis of religious discrimination. While religion is an enumerated ground of discrimination, the religious groups which may be adversely affected by paragraph 118(1)(b) are not independently disadvantaged. In fact, the religions affected include all those that assert that people should not cohabit and have children unless they are married. The majority of religions espouse that tenet in varying degrees. Certainly the majority of religions cannot be said to be independently disadvantaged as compared with other religions. There is no evidence that the system of tax credits in subsection 118(1) of the Income Tax Actis based upon or creates invidious stereotyping or prejudice against the majority of religions. That was neither the intention nor is it the effect of the Act. Thus, since there is no indication of prejudice or stereotyping against this group in regard to paragraph 118(1)(b), there is no violation of section 15 of the Charter.

I conclude, therefore, that paragraph 118(1)(b) of the Income Tax Act does not contravene the equality provisions in subsection 15(1) either on the ground of marital status or on the ground of religion. I have also found that the applicant’s freedom of religion under paragraph 2(a) of the Charter has not been violated. Accordingly, there is no need to engage in a section l analysis. Nor, in light of these conclusions, is there any need to consider the jurisdictional issues.

I would, therefore, dismiss this appeal without costs as they were not sought, there being no special circumstances.

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