A-909-85
Smith Kline & French Laboratories Limited,
Smith Kline & French Canada Ltd., Graham John
Durant, John Colin Emmett and Charon Robin
Ganellin (Appellants) (Plaintiffs)
v.
Attorney General of Canada (Respondent)
(Defendant)
INDEXED AS: SMITH, KLINE & FRENCH LABORATORIES LTD. V.
CANADA (ATTORNEY GENERAL)
Court of Appeal, Heald, Mahoney and Hugessen
JJ.—Ottawa, November 25, 26, 27 and December
9, 1986.
Constitutional law — Charter of Rights — Equality rights
— Patents for medicine — Subject to compulsory licensing
pursuant to s. 41(4) Patent Act — Whether s. 41(4) denying
patentees equality rights under s. 15 Charter — S. 15 pro
scribing discrimination only among those similarly situated —
Permissible grounds for categorisation — Criteria: text of s.
15, rights otherwise guaranteed by Charter and values inherent
to free and democratic society — S. 41(4) categories unrelated
to those enumerated in s. 15 — No suggestion within s. 41(4)
of discrimination, prejudice or stereotype — Economic inter
ests less subject to scrutiny — S. 41(4) direct and specific
expression of parliamentary will requiring Court to exercise
deference and restraint — Discrimination allegation unsub
stantiated — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 7, 8, 9, 11(d), 15, 29 — Patent
Act, R.S.C. 1970, c. P-4, s. 41(4).
Patents — Compulsory licensing — Appeal from Trial
Division decision rejecting argument s. 41(4) ultra vires and
inconsistent with Bill of Rights and Charter ss. 7 and 15 —
Appeal dismissed — Decision focussing on content of s. 15
equality rights — Voluntarily assumed rights and obligations,
as those involving patents, not giving rise to s. 15 guarantee —
Patent Act, R.S.C. 1970, c. P-4. s. 41(4) — Canadian Bill of
Rights, R.S.C. 1970, Appendix III, s. 1(a),(b) — Constitution
Act, 1867, 30 & 31 Vict., c. 3 (U.K.) ZR.S.C. 1970, Appendix
II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 1), s. 92 —
Judges Act, R.S.C. 1970, c. J-1, s. 36.
The individual plaintiffs are the inventors and the corporate
plaintiffs are, respectively, the patentee and licenses of a pre
scription drug known generically as Cimetidine. Since the
patents at issue relate to a medicine, they are subject to the
compulsory licensing provisions of subsection 41(4) of the
Patent Act. By their action, the plaintiffs sought a declaration
that the exclusive rights granted to the patentees may be
enjoyed free of any compulsory licence under subsection 41(4).
Their submission is that subsection 41(4) is ultra vires in that it
is legislation within exclusive provincial jurisdiction, that it is
contrary to paragraphs 1(a) and (b) of the Canadian Bill of
Rights, that it infringes section 7 of the Charter and finally,
that it denies them equality rights guaranteed by subsection
15(1) of the Charter. The Trial Judge dismissed the action. The
Court of Appeal was in complete agreement with the Trial
Judge's conclusions and reasoning in so far as the arguments
based on the distribution of powers, on paragraphs 1(a) and (b)
of the Bill of Rights and on section 7 of the Charter were
concerned. There remained the question of equality rights
under section 15.
Held, the appeal should be dismissed.
The approach to the interpretation of section 15 followed by
the Trial Judge—to view any distinction based upon one of the
enumerated categories in section 15 as prima facie in breach of
the section and therefore requiring justification under section I
to avoid being struck down—had not found favour in the
substantial volume of case law subsequent to November, 1985
when the decision under appeal was written.
Charter section 15 does not come into play when the alleged
"discrimination" results directly from voluntarily assumed
rights and obligations. The law does not require any inventor to
patent his invention. A patent is a bargain voluntarily entered
into by the patentee in which the latter obtains time-limited but
state-supported exclusivity for his invention in return for his
disclosure of it to the public.
As taught in R. v. Oakes, the Court must first determine the
content of the right which is invoked to see if there was a
breach and then, if asked to do so, look to section 1 to see if the
limitation is justifiable. The text of section 15 contains its own
limitations. It proscribes discrimination only among members
of categories which are themselves similar. The issue in each
case will be to know which categories are permissible in deter
mining similarity of situation and which are not. No single test
serves to determine that issue. A range of criteria, drawn from
three sources, might be suggested: the text of section 15 itself;
the other rights, liberties and freedoms enshrined in the Chart
er; and the underlying values inherent in the free and democrat
ic society which is Canada. With respect to the text of section
15, the question to ask is whether there is discrimination in the
pejorative sense and whether the categories are based upon the
grounds enumerated or grounds analogous to them. This inqui
ry concentrates on the personal characteristics of the complai
nants. It involves questions of prejudice, stereotyping, historical
disadvantagement. The second question is whether the catego
ries under examination have any impact upon the rights and
freedoms otherwise guaranteed by the Charter. This inquiry
turns on the interest affected by the alleged inequality and
recognizes that in the context of the Charter some rights are
more important than others. Since the Charter's primary focus
is on personal rights, property and economic rights will be less
subject to scrutiny. Finally, the courts must exercise some
degree of deference and restraint when dealing with a legisla
tive category subject to a section 15 attack. It must be remem
bered that any legislative category results from the actions of a
freely and popularly elected legislature. The degree will be
greatest when the categories are found in the text of the
legislation and will diminish as they become further removed
from the expression of legislative will, either by delegation or
by indirection.
The plaintiffs failed to meet the above-mentioned criteria.
The categories created in subsection 41(4) bear no remote
relation to those enumerated in section 15 and carry within
them no suggestion of discrimination, prejudice or stereotype.
All patentees of a process for the preparation of medicine are
subject to subsection 41(4). The interests allegedly suffered by
the plaintiffs are purely economic and commercial in nature.
Finally, the text of subsection 41(4) is a direct and specific
expression of parliamentary will. It is the result of extensive
consultation and is a deliberate expression of the views of a free
and democratic society.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Oakes, [1986] 1 S.C.R. 103.
REFERRED TO:
MacKay v. The Queen, [1980] 2 S.C.R. 370; Re McDo-
nald and The Queen (1985), 51 O.R. (2d) 745 (C.A.);
Reference re an Act to amend the Education Act (1986),
53 O.R. (2d) 513 (C.A.); Blainey v. Ontario Hockey
Association (1986), 26 D.L.R. (4th) 728 (Ont. C.A.);
Regina v. Hamilton, Regina v. Asselin, Regina v.
McCullagh (1986), 30 C.C.C. (3d) 257; 54 C.R. (3d)
193; 170 A.C. 241 (C.A.); Shewchuk v. Ricard (1986), 4
W.W.R. 289 (B.C.C.A.); Rebic v. Collver (1986), 4
W.W.R. 401 (B.C.C.A.); Andrews v. Law Society of
British Columbia (1986), 4 W.W.R. 242 (B.C.C.A.);
Cromer v. British Columbia Teachers' Federation
(1986), 5 W.W.R. 638 (B.C.C.A.); Re B.C. Motor Vehi
cle Act, [1985] 2 S.C.R. 486.
COUNSEL:
Gordon F. Henderson, Q.C., Robert M.
Nelson and Emma C. Hill for appellants
(plaintiffs).
Derek Aylen, Q.C. and Bruce S. Russell for
respondent (defendant),
SOLICITORS:
Gowling & Henderson, Ottawa, for appellants
(plaintiffs).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal from a judg
ment of Strayer J. in the Trial Division,' dismiss
ing plaintiffs' action for declaratory relief.
The individual plaintiffs are the inventors and
the corporate plaintiffs are respectively the paten-
tee and licensee of inventions described in Canadi-
an patents nos. 1,045,142 and 949,967. Those
patents are in respect of a prescription drug known
generically as Cimetidine, which is widely used in
the treatment of stomach ulcers. Since the patents
relate to a medicine and the processes used in its
preparation or production, they are subject to the
compulsory licensing provisions of subsection
41(4) of the Patent Act (R.S.C. 1970, c. P-4):
41....
(4) Where, in the case of any patent for an invention
intended or capable of being used for medicine or for the
preparation or production of medicine, an application is made
by any person for a licence to do one or more of the following
things as specified in the application, namely:
(a) where the invention is a process, to use the invention for
the preparation or production of medicine, import any medi
cine in the preparation or production of which the invention
has been used or sell any medicine in the preparation or
production of which the invention has been used, or
(b) where the invention is other than a process, to import,
make, use or sell the invention for medicine or for the
preparation or production of medicine,
the Commissioner shall grant to the applicant a licence to do
the things specified in the application except such, if any, of
those things in respect of which he sees good reason not to
grant such a licence; and, in settling the terms of the licence
and fixing the amount of royalty or other consideration pay
able, the Commissioner shall have regard to the desirability of
making the medicine available to the public at the lowest
possible price consistent with giving to the patentee due reward
for the research leading to the invention and for such other
factors as may be prescribed.
Now reported: [1986] 1 F.C. 274.
By their action, plaintiffs seek a declaration that
the exclusive rights granted to the patentees in
question may be enjoyed free of any compulsory
licence under subsection 41(4). They found their
claim that subsection 41(4) is ultra vires, in-opera
tive or invalid, upon five separate grounds, namely:
1. That it is legislation in relation to a matter of
exclusive provincial competence within section 92
of the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)];
2. That it is contrary to the rights declared in
paragraph 1(a) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III]:
1....
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
3. That it is contrary to the rights declared in
paragraph 1(b) of the Canadian Bill of Rights:
1....
(b) the right of the individual to equality before the law and
the protection of the law;
4. That it denies to plaintiffs the rights guaran
teed to them by section 7 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.)]:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
5. That it denies the plaintiffs the equality
which is guaranteed to them by subsection 15(1)
of the Canadian Charter of Rights and Freedoms:
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.
In . a carefully and clearly written decision,
Strayer J. examines and rejects each of plaintiffs'
claims on their merits. 2
In so far as concerns the arguments based upon
the distribution of powers under the Constitution
Act, 1867, the alleged breach of paragraphs 1(a)
and 1(b) of the Canadian Bill of Rights and the
alleged denial of the rights to life, liberty and
security of the person under section 7 of the Chart
er, I am in complete agreement with the Trial
Judge's conclusions and with the reasoning by
which he, arrives at them. If anything, he has given
those arguments a fuller treatment than they
deserve; any additional comments on my part
would be superfluous.
There remains the question of equality rights
under section 15. At the time that the Trial Judge
wrote, in November 1985, that section had only
been in force a few months and he did not have
available to him the substantial volume of appel
late jurisprudence which has since developed.' The
approach which he adopted to the interpretation of
section 15 has not found favour in subsequent
decisions. That approach, stated in the briefest
possible terms, was to view any distinction based
upon one of the enumerated categories in section
15 as being prima facie in breach of the section
and therefore requiring justification under section
2 Any possible problems resulting from the attempt by corpo
rate plaintiffs to assert rights which can only be enjoyed by
individuals are resolved by the Trial Judge's finding, not put in
issue on appeal, that the individual plaintiffs possessed the
necessary standing to assert the claims in their own behalf.
See, in particular: Re McDonald and The Queen (1985), 51
O.R. (2d) 745 (C.A.); Reference re an Act to amend the
Education Act (1986), 53 O.R. (2d) 513 (C.A.); Blainey v.
Ontario Hockey Association (1986), 26 D.L.R. (4th) 728 (Ont.
C.A.); Regina v. Hamilton, Regina v. Asselin, Regina v.
McCullagh (1986), 30 C.C.C. (3d) 257; 54 C.R. (3d) 193; 170
A.C. 241 (C.A.); Shewchuk v. Ricard (1986), 4 W.W.R. 289
(B.C.C.A.); Rebic v. Collver (1986), 4 W.W.R. 401
(B.C.C.A.); Andrews v. Law Society of British Columbia
(1986), 4 W.W.R. 242 (B.C.C.A.); Cromer v. British
Columbia Teachers' Federation (1986), 5 W.W.R. 638
(B.C.C.A.).
1 to avoid being struck down; any distinction based
on any other categories would only be in breach of
the section if it failed to meet the tests of legitima
cy, rationality and proportionality, enunciated by
McIntyre J. in MacKay v. The Queen, [ 1980] 2
S.C.R. 370.
Since my approach to section 15 differs substan
tially from that taken by the Trial Judge, I think it
appropriate that I should set it out in some detail,
even though the result is ultimately the same. In
the first place, and in the particular context of this
action, it must be said that a short answer to the
plaintiffs' section 15 attack is that, when the
alleged "discrimination" results directly from a
voluntarily assumed package of rights and obliga
tions, section 15 simply does not come into play. A
number of simple examples serve to illustrate the
point. Certain offices, professions or callings have,
as a condition of their exercise, a prohibition to
carry out certain other activities open to the citi
zenry at large. Section 36 of the Judges Act
[R.S.C. 1970, c. J-1] is a case in point. Section 15
surely cannot be invoked here for no one is ever
obliged to subject himself to the restraint imposed.
An example from a wholly different field would
be a licence to fish for trout or shoot partridge. An
argument that the holder was, by operation of
section 15, entitled to claim a right to fish for
salmon or shoot big game would properly be
laughed out of Court.
A third example of what I would describe as
"phony" discrimination is the purchase of a lot
zoned for the construction of residential bungalows
only. Section 15 cannot be engaged to support an
argument for the construction of a commercial
highrise on the site.
It is elementary, in my view, that no inventor is
ever obliged by law to patent his invention. He
may keep it to himself and exploit it virtually
forever, provided he is able to keep the secret from
others and provided no other inventor manages to
hit upon it on his own. In the case of a process
patent, the only kind envisioned by subsection
41(4), this is not a merely theoretical possibility
and it is common knowledge that successful
recipes for food and drink (alcoholic and other
wise) are virtually never patented. A patent is,
accordingly, a bargain which, even though its
terms and conditions are set by statute, is volun
tarily entered into by the patentee. He obtains
time-limited but state-supported exclusivity for his
invention in return for his disclosure of it to the
public.
There is, however, a suggestion in the present
case that, as a matter of fact though not of law,
the inventor of a pharmaceutical product is obliged
to patent his process. Without accepting that
suggestion as being either true or relevant to the
issues herein but assuming, for the sake of argu
ment, that it is correct, it is my view that it still
does not serve to bring section 15 into play.
At the most basic level, the equality rights guar
anteed by section 15 can only be the right of those
similarly situated to receive similar treatment. 4
The issue will be to know, in each case, which
categories are permissible in determining similari
ty of situation and which are not. Here, all paten-
tees take subject to the Patent Act. More narrow
ly, all patentees of a process for the preparation or
production of medicine are subject to the compul
sory licensing provisions of subsection 41(4). As
long ago as Aristotle's time, it was accepted that
equality consisted of treating equals equally and
unequals unequally. Herein, in my opinion, lies the
answer to the conundrum, more apparent than
real, of the relationship between sections 15 and 1,
which has already given rise to so much discus
4 I do not overlook the possibility that section 15 may also
include the right of those unequally situated to receive unequal
treatment so as to achieve an equal result, but it is not relevant
to the present case; whatever else they may be, the plaintiffs are
not amongst the handicapped.
sions in the literatures and which has been given
further impetus by the decision of the Supreme
Court in R. v. Oakes, [ 1986] 1 S.C.R. 103. Oakes,
which dealt with legal rights and more particularly
those contained in section 7 and paragraph 11(d)
of the Charter, teaches us that the tests of section
1 are not to be used as a gauge to determine the
extent of Charter-guaranteed rights. In any given
case, the court must first determine the content of
the right which is invoked to see if there was a
breach. Only then, if asked to do so, does the
Court look to the criteria of section 1 to see if the
limitation of the right is justifiable. The difficulty
comes about because many of the rights contained
in the Charter are themselves expressed in value-
laden language similar to that employed in section
1. Obvious examples are sections 8 and 9, with
their guarantees against unreasonable and arbi
trary state action. Clearly there is nothing con
trary to the Oakes teaching in a section 9 case for
the Court's first inquiry to be whether there has, in
fact, been "arbitrary" detention or imprisonment
and it is not inconceivable that a court having so
found might yet go on to determine that such
imprisonment could be justified under section 1
(as, for example, under conditions of war).
Thus too with section 15. The rights which it
guarantees are not based on any concept of strict,
numerical equality amongst all human beings. If
they were, virtually all legislation, whose function
it is, after all, to define, distinguish and make
categories, would be in prima facie breach of
5 See: Hogg, Constitutional Law of Canada, 2nd edition,
Toronto: Carswell, 1985, pp. 799-801; Gold, "A Principled
Approach to Equality Rights: Apreliminary inquiry", (1982) 4
S.C.L.R. 131; Tremblay, "Egalité et clauses anti -dis-
criminatoires", (1984) 18 R.J.T. 329; Tarnopolsky, "Equality
Rights in The Canadian Charter of Rights and Freedoms",
(1983) 61 Can. Bar Rev. 242; Brudner, "What Are Reasonable
Limits to Equality Rights?", (1986) 64 Can. Bar Rev. 469;
Bayefsky and Eberts, Equality Rights and The Canadian
Charter of Rights and Freedoms, Toronto: Carswell, 1985, pp.
69-79; Gibson, The Law of The Charter, Toronto: Carswell,
1986, pp. 135-142.
section 15 and would require justification under
section 1. This would be to turn the exception into
the rule. Since courts would be obliged to look for
and find section 1 justification for most legislation,
the alternative being anarchy, there is a real risk
of paradox: the broader the reach given to section
15 the more likely it is that it will be deprived of
any real content.
The answer, in my view, is that the text of the
section itself contains its own limitations. It only
proscribes discrimination amongst the members of
categories which are themselves similar. Thus the
issue, for each case, will be to know which catego
ries are permissible in determining similarity of
situation and which - are not. It is only in those
cases where the categories themselves are not per
missible, where equals are not treated equally, that
there will be a breach of equality rights.
But how to know who is equal and who is not?
And what are the permissible grounds for categori
sation? In my view, there is no single test that will
serve. Not even a category based upon one of the
enumerated prohibited grounds of discrimination
will necessarily fail: the refusal of a driver's licence
to a child of three does not need to seek its
justification under section 1. We are as yet in the
early stages of the development of our understand
ing of section 15. I do not think it is prudent, or
even possible, to lay down any hard and fast rules.
The most we can do is suggest a range or spectrum
of criteria to determine on which side of the line
any given categorisation must fall. These criteria,
which are, in effect, no more than indicators, may,
as it seems to me, be drawn from three sources.
First, the text of section 15 itself; second, the other
rights, liberties and freedoms enshrined in the
Charter; and, third, the underlying values inherent
in the free and democratic society which is
Canada.
As far as the text of section 15 itself is con
cerned, one may look to whether or not there is
"discrimination", in the pejorative sense of that
word, and as to whether the categories are based
upon the grounds enumerated or grounds analo
gous to them. The inquiry, in effect, concentrates
upon the personal characteristics of those who
claim to have been unequally treated. Questions of
stereotyping, of historical disadvantagement, in a
word, of prejudice, are the focus and there may
even be a recognition that for some people equality
has a different meaning than for others.
In the second area of inquiry, I think we should
look to whether the categories under examination
have any impact upon the rights and freedoms
which the Charter otherwise guarantees. An obvi
ous example, because it is specifically mentioned
in section 2 as well as in section 15, is religious
belief; a category based on this characteristic
which was not otherwise under the saving provi
sion of section 29 would be highly suspect. It is not
difficult to conceive of other legislative categories
impacting indirectly on other fundamental rights
and freedoms. 6 The inquiry here is into the interest
affected by the alleged inequality and recognises
that, in the context of the Charter, some rights are
more important than others. While the generalisa
tion will no doubt require refinement, it would
seem to me that, since the Charter's primary focus
is upon personal rights, liberties and freedoms,
categories whose main impact is elsewhere, such as
on property and economic rights, will be less sub
ject to scrutiny.
The final complex of criteria should, I suggest,
flow from the fact that Canada is a democratic
country and that any legislative category which is
subject to attack under section 15 will have result
ed from the actions of a freely and popularly
elected legislature. Where such a legislature has
clearly and consciously made a deliberate choice,
some degree of judicial deference and restraint is
indicated. That degree will be greatest where the
categories are found in the very text of the legisla-
6 See, for example, the very recent decision of the Ontario
Court of Appeal in Regina v. Hamilton, supra—failure to
proclaim sections of the Criminal Code [R.S.C. I970, c. C-34]
in a province, resulting in residents of that province facing
obligatory prison terms instead of undergoing treatment for
alcoholism, was held to violate section 15. Clearly a liberty
interest was at stake.
tion and will diminish as they, and the alleged
inequalities flowing from them, become further
removed from the expression of legislative will,
either by delegation or by indirection. Even where
the legislative will is clear and direct, room will, of
course, remain for judicial intervention to prevent
the tyranny of the majority,' but the likelihood
will surely be greater where the perceived injustice
is the result of inadvertance, inattention or abuse
by subordinates.
It will be seen from the foregoing that the
approach which I propose for determining the
content of the equality rights in section 15 differs
somewhat from that which has been developed and
elaborated in some detail by different panels of the
British Columbia Court of Appeal in the cases of
Shewchuk, Rebic, Andrews, and Cromer, supra. It
is with some regret that I do so for I find most of
the reasoning attractive and persuasive. The dif
ficulty I have with those decisions, as I understand
them, is that they conclude that the ultimate test
as to whether any given legislative category is in
breach of section 15 is whether it meets the twin
standards of reasonableness and fairness. With
respect, I find this test impossible to reconcile with
the teaching of Oakes, supra. If a category must
be shown to be unreasonable or unfair before it
can be said to give rise to a breach of equality
rights, it is difficult to see how there can ever be
room for application of section 1. In my view,
Oakes requires that any test of the content of
section 15 must be both logically and analytically
distinct from section 1. 8 In the preceding pages, I
have attempted to suggest a possible basis for such
' One would expect, for example, that the Charter would
have been effective to prevent the treatment accorded to Japa-
nese Canadians during the Second World War.
$ I have the same difficulty with the second branch of the
approach taken by the Trial Judge; the application of the tests
enunciated by McIntyre J. in MacKay, supra, seems more
logically relevant to an inquiry under section 1 than to a
determination of the inherent limits to section 15.
a test, founded upon my understanding of the
correct approach to Charter interpretation. 9
It will be noted that I have not set out in any
detail the content of the criteria which I would
apply nor have I attempted to balance their rela
tive importance. The omission is deliberate. The
interpretation of section 15 is fraught with dif
ficulty and prudence dictates a case-by-case
approach. On the facts of the present case, it
seems to me that there is no basis upon which the
application of the suggested criteria could give any
substance to the plaintiffs' claim that their rights
have been breached. The categories created in
subsection 41(4) of the Patent Act bear no remote
relation to those enumerated in section 15 and
carry within them no suggestion of discrimination,
prejudice or stereotype.
The interests in which plaintiffs claim to have
suffered are purely economic and commercial in
nature; no question of liberty, freedom or human
rights is involved. Finally, the text of subsection
41(4) is a direct and specific expression of parlia
mentary will; as pointed out by the Trial Judge, it
was adopted after the existing state of the law had
been reviewed by at least three commissions and a
parliamentary committee; there could hardly be a
more deliberate expression of the views of a free
and democratic society.
I would add that the same result would flow
from the application of the tests proposed in the
British Columbia cases, supra, or indeed of any
other test which has been suggested to set some
limits to the reach of section 15. To succeed,
plaintiffs have to urge, as they do, that section 15
guarantees absolute equality to every individual in
every conceivable circumstance and that every pos
sible distinction that can result in one receiving a
benefit or incurring a disadvantage which is not
enjoyed or suffered by all can only be justified, if
at all, under section 1, which has not been invoked
by the defendant. As I have attempted to indicate,
that view seems to me to be untenable.
9 That approach was most recently summarized in Re B.C.
Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 499-500.
For all these reasons, I would dismiss the appeal
with costs.
HEALD J.: I agree.
MAHONEY J.: I agree.
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.