Judgments

lavoie v. canada

T-1686-90

Elisabeth Lavoie, Jeanne To Thanh Hien (Plaintiffs)

v.

Her Majesty the Queen in Right of Canada and the Public Service Commission (Defendants)

T-2479-90

Janine Bailey (Plaintiff)

v.

Her Majesty the Queen in Right of Canada as represented by the Minister of Employment and Immigration, the Deputy Attorney General of Canada and the Public Service Commission (Defendants)

Indexed as: Lavoie v. Canada (T.D.)

Trial Division, Wetston J."Ottawa, October 3, 1994 and April 21, 1995.

Public Service — Selection process — Competitions — Actions for declaratory relief, damages re: application of PSEA, s. 16(4)(c) — Plaintiffs, permanent residents of Canada, challenging as unconstitutional citizensip preference in Public Service open competitions — PSC excluding non-citizens from referral in open competitions where sufficient qualified citizens — S. 16(4)(c) affecting Public Service employment opportunities of permanent residents — Infringing equality rights but saved by Charter, s. 1.

Constitutional law " Charter of Rights " Equality rights " Whether citizenship preference in PSEA, s. 16(4)(c) contravenes Charter, s. 15 " Plaintiffs alleging Public Service open competitions discriminating on basis of nationality, ethnic origin " S. 16(4)(c) creating inequality between permanent residents, Canadian citizens " American, Canadian constitutional law distinguished " Enhancement of meaning, value of Canadian citizenship, encouragement of permanent residents to naturalize pressing and substantial objectives " Reasonable balance between legislative objective, means chosen to achieve it " Objectives of impugned legislation outweighing infringement of plaintiffs' Charter, s. 15 equality rights " PSEA, s. 16(4)(c) justified as reasonable limit under Charter, s. 1.

Citizenship and Immigration " Status in Canada " Citizens " Plaintiffs complaining of citizenship preference in Public Service open competitions " PSEA, s. 16(4)(c) limiting access by permanent residents to Public Service " Legislative history of citizenship preference " Purposes to enhance value of citizenship, provide incentive for permanent residents to naturalize " Infringement of plaintiffs' equality rights justified as reasonable limit under Charter, s. 1.

These were actions for declaratory relief and damages, on constitutional grounds, in respect of the application of paragraph 16(4)(c) of the Public Service Employment Act (PSEA). The plaintiffs, who were permanent residents of Canada at the relevant times, complained of the preference accorded to Canadian citizens in the Public Service open competitions. They alleged that they have been discriminated against by virtue of their nationality or ethnic origin. The citizenship preference applies at two stages of an open competition, the candidate referral stage and the eligibility list stage. It is the usual practice of the Public Service of Canada (PSC) to exclude non-citizens from referral in open competitions where it is of the opinion that there are sufficient qualified citizens. Where there are insufficient qualified candidates for referral, or where there are no qualified citizens, the PSC will refer qualified non-Canadian candidates, either alone or together with Canadian candidates, as it did in the case of two of the plaintiffs. Three issues were raised herein: 1) whether paragraph 16(4)(c) of the PSEA violates subsection 15(1) of the Charter; 2) if so, whether that paragraph is justified as a reasonable limit under section 1 of the Charter and 3) if that paragraph is unconstitutional, to what remedy are the plaintiffs entitled?

Held, the actions should be dismissed.

1) Significant differences exist between American and Canadian constitutional law. For example, American law contains no limiting provision similar to section 1 of the Charter. That is why the application of American constitutional equality law is problematic in the Canadian context. It would be inappropriate to examine the purpose, content and impact of the PSEA as well as the context in which that law operates as part of the section 15 analysis. Paragraph 16(4)(c) of the Act burdens permanent residents since its intention is to affect and inhibit their employment opportunities within the Public Service. This is not an adverse impact case. That provision was intended to create an inequality as it contains a distinction based on a personal characteristic that treats persons differently. All three plaintiffs were in one way or another disadvantaged or burdened by the citizenship preference. The application of paragraph 16(4)(c) virtually precludes referral to open competitions whether the permanent resident is in or outside the Public Service. The difference in treatment is closely related to a personal characteristic of the person or group of persons, namely citizenship. Paragraph 16(4)(c) of the PSEA infringes the right to equality guaranteed in subsection 15(1) of the Charter.

2) The onus under section 1 of the Charter was on the defendant to demonstrate that an infringement of the Charter right is demonstrably justified in a free and democratic society. The first branch of the test under section 1 considers the validity of the legislative objective, while the second branch considers the validity of the means chosen to achieve that objective. First, the objective must relate to concerns which are pressing and substantial in a free and democratic society. The defendants have demonstrated that the overriding objective of paragraph 16(4)(c) of the PSEA is twofold: first, to enhance the meaning, value and importance of citizenship by granting citizens preferential access to public service employment as an entitlement of the status of citizen, and second, to provide an incentive to permanent residents to naturalize. A free and democratic society like Canada is uncomfortable with highlighting differences among its people. However, no citizenship law is capable of escaping the drawing of some distinctions between people within a nation-state, and while it will never resolve the fundamental social or political problems within a country, its necessity is unquestioned. Virtually all liberal democratic societies impose citizenship-based restrictions in one form or another on access to employment in their national public services. The defendants have justified that the objectives sought to be achieved by the legislation are important, in that they are pressing and substantial in Canada.

The second branch of the test under section 1, which consists in determining whether a reasonable balance has been struck between the legislative objective and the means chosen to achieve that objective, comprises three different parts. First, the means chosen to achieve the objective must be carefully designed to meet it. While there was no conclusive proof of a connection between the citizenship preference and the twofold objective of the defendants, there was no reason to suggest that the legislature could not reasonably determine that such a connection might exist. On several occasions Parliament had an opportunity to amend paragraph 16(4)(c) of the PSEA but chose not to. The issue was not whether Parliament was right or wrong, but whether the means chosen were rationally connected to the objective. A rational connection did exist between the legislative objective and the means chosen to achieve it, that is, the citizenship preference. Second, the provision must be carefully designed to impair the equality rights of the plaintiffs as little as reasonably possible. The minimal impairment element must be assessed by determining whether the Government had a reasonable basis for concluding that the impugned law impaired the relevant Charter right as little as possible. This involves a determination as to whether or not alternative means of achieving the objective were available to Parliament. In matching means to ends, Parliament had to strike a balance between the individual interests of the permanent residents and the collective interests of the state in citizenship. The Court was in no better position than Parliament to decide whether the right balance has been struck or the right means chosen to accord a preference to Canadian citizens with respect to public service employment as an entitlement of citizenship and an enhancement towards naturalization. The Government had a reasonable basis for the choice it has made and that choice impaired constitutionally protected rights as little as possible. The final step requires an assessment of the proportionality between effects and objectives, that is a balancing of the objectives sought by the law against the infringement occasioned by the law. The infringement of the plaintiffs' equality rights was not of a serious nature. The preference applied to less than half of the public service of Canada. There are numerous positions that permanent residents are not excluded from by reason of their non-citizenship status. While the restriction did exist and did disadvantage the plaintiffs, it was moderate and could be temporary. The value and goals of citizenship and the desire on the part of the Government to encourage permanent residents to naturalize outweigh the abridgment of the rights at issue herein. The objectives of the legislation outweigh the infringement on the constitutional guarantee of equality affected by paragraph 16(4)(c) of the PSEA. While the latter infringes section 15 of the Charter, it constitutes a reasonable limit and is saved by virtue of the provisions of section 1 of the Charter.

3) In constitutional cases declaratory relief is common but damage awards for Charter violations are rare. In this case, the damages were clearly ascertainable and facts specific. On at least two occasions, it has been recommended that the preference be repealed. If at some future date it is determined that paragraph 16(4)(c) is not saved by section 1 of the Charter, compensatory damages would be appropriate herein. This was not a case in which it would be appropriate to award punitive or exemplary damages.

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. 1, 15.

Citizenship Act, S.C. 1974-75-76, c. 108.

Civil Service Act, R.S.C. 1927, c. 22, s. 33(1) (as am. by S.C. 1932, c. 40, s. 6).

Civil Service Act, S.C. 1960-61, c. 57, s. 40(1).

Federal Court Rules, C.R.C., c. 663, R. 500.

Public Service Employment Act, S.C. 1966-67, c. 71.

Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 16(4)(c), 17(4)(c).

Public Service Reform Act, S.C. 1992, c. 54.

The Canadian Citizenship Act, S.C. 1946, c. 15.

The Civil Service Act, 1918, S.C. 1918, c. 12, ss. 38, 41(1).

The Civil Service Amendment Act, 1908, S.C. 1908, c. 15, s. 14.

The Naturalization Act, Canada, 1881, S.C. 1881, c. 13, s. 10.

Treaty establishing the European Economic Community (March 25, 1957), art. 48(4).

cases judicially considered

applied:

R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335; Schachter v. Canada, [1992] 2 S.C.R. 679; (1992), 93 D.L.R. (4th) 1; 92 CLLC 14,036; 10 C.R.R. (2d) 1; 139 N.R. 1; R. v. Laba, [1994] 3 S.C.R. 965.

distinguished:

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; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.

considered:

Sugarman v. Dougall, 413 U.S. 634 (1973); R. v. Butler, [1992] 1 S.C.R. 452; (1992), 89 D.L.R. (4th) 449; [1992] 2 W.W.R. 577; 16 W.A.C. 1; 78 Man. R. (2d) 1; 70 C.C.C. (3d) 129; 8 C.R.R. (2d) 1; 134 N.R. 81; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; (1991), 3 O.R. (3d) 511; 81 D.L.R. (4th) 545; 91 CLLC 14,029; 4 C.R.R. (2d) 193; 126 N.R. 161; 48 O.A.C. 241; R. v. Keegstra, [1990] 3 S.C.R. 697; (1990), 114 A.R. 81; [1991] 2 W.W.R. 1; 77 Alta. L.R. (2d) 193; 61 C.C.C. (3d) 1; 3 C.P.R. (2d) 193; 1 C.R. (4th) 129; 117 N.R. 284.

referred to:

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; 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; Graham v. Richardson, 403 U.S. 365 (1971); Mathews v. Diaz, 426 U.S. 67 (1976); Mow Sun Wong v. Hampton, 435 F.Supp. 37 (Dist. Ct. Cal. 1977); 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. 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; Winner v. S.M.T., [1951] S.C.R. 887; [1951] 4 D.L.R. 529; Foley v. Connelie, 435 U.S. 291 (1978); Ambach v. Norwick, 441 U.S. 68 (1979); Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Austin v. British Columbia (Ministry of Municipal Affairs, Recreation & Culture) (1990), 66 D.L.R. (4th) 33; 42 B.C.L.R. (2d) 288 (S.C.); Re Public Employees: E.C. Commission v. Belgium (Case 149/79), [1981] 2 C.M.L.R. 413 (E.C.J.); Re Public Employees (No. 2): E.C. Commission v. Belgium (Case 149/79), [1982] 3 C.M.L.R. 539 (E.C.J.).

authors cited

Canada. Department of Justice. Equality Issues in Federal Law: A Discussion Paper, Ottawa: Supply and Services Canada, 1985.

Canada. Department of Justice. Toward Equality: The Response to the Report of the Parliamentary Committee on Equality Rights, Ottawa: Supply & Services, 1986.

Canada. House of Commons Debates, Vol. LXXXVII, 4th Sess., 10th Parl., 7-8 Edw. VII, 1908.

Canada. House of Commons Debates, Vol. VIII, 1st Sess., 33rd Parl., 35 Eliz. II, 1986.

Canada. House of Commons Debates, Vol. II, 2nd Sess., 17th Parl., 21-22 Geo. V, 1931.

Canada. House of Commons. Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence of the Sub-committee on Equality Rights, Issue N^o 29 (October 25, 1985), at page 66.

Orkin, Mark M. The Law of Costs, 2nd ed., Aurora, Ontario: Canada Law Book Inc., 1994.

Report of the Special Committee on the Review of Personnel Management and the Merit Principle, Ottawa: Supply and Services Canada, 1979 (Chairman: Guy R. D'Avignon).

ACTIONS for declaratory relief and damages, on constitutional grounds, in respect of the application of paragraph 16(4)(c) of the Public Service Employment Act. Actions dismissed.

counsel:

Andrew J. Raven and David Yazbeck for plaintiff Janine Bailey.

David J. Jewitt for plaintiffs Elisabeth Lavoie and Jeanne To Thanh Hien.

Edward R. Sojonky, Q.C., and Yvonne E. Milosevic for defendants.

solicitors:

Raven, Jewitt & Allen, Ottawa, for plaintiffs.

Deputy Attorney General of Canada for defendants.

The following are the reasons for judgment rendered in English by

Wetston J.: The plaintiffs, in both actions, seek declaratory relief and damages, on constitutional grounds, in respect of the application of paragraph 16(4)(c) of the Public Service Employment Act, R.S.C., 1985, c. P-33 (the PSEA).

THE INDIVIDUAL CLAIMS

Elisabeth Lavoie

Elisabeth Lavoie, an Austrian citizen, was admitted to Canada as a permanent resident in June 1988. Although she became eligible to obtain Canadian citizenship in June 1991, Ms. Lavoie decided not to relinquish her Austrian citizenship. Because Austrian law does not allow dual citizenship, obtaining foreign citizenship results in the automatic loss of Austrian citizenship. Ms. Lavoie did not wish to become "a foreigner in [her] own country". Ms. Lavoie also expressed concern that the loss of her Austrian citizenship might limit any future employment opportunities in Austria.

Upon arrival in Canada, Ms. Lavoie, an executive secretary, was hired by a personnel agency and through a series of short term contracts worked for the Department of Supply and Services (DSS) for a total of 22 weeks between June 1988 and November 1988.

During that period, DSS submitted a request to the Public Service Commission (the PSC) to staff a term position at the ST-SCY-03 level.

Prior to August 31, 1988, Ms. Lavoie submitted an application for employment to the PSC. She received a letter from the PSC, dated August 31, 1988, informing her that, under the PSEA, "preference of appointment is given to Canadian citizens". Nevertheless, DSS requested that the PSC refer Ms. Lavoie as a candidate for the position. In October 1988, the PSC refused the DSS "named referral request" and referred a Canadian citizen who was subsequently appointed to the position, on a "term" basis, effective November 28, 1988. Thereafter, Ms. Lavoie sought employment outside the federal public service.

Jeanne To Thanh Hien

Jeanne To Thanh Hien, a French citizen born in Vietnam, was admitted to Canada as a permanent resident in September 1987. She subsequently acquired Canadian citizenship in 1991. French law does not prohibit dual citizenship. Ms. To Thanh Hien now holds dual French/Canadian citizenship.

Ms. To Thanh Hien is a French language editor. Prior to her arrival in Canada in 1987, she applied to the PSC for employment with the public service of Canada and was placed in the PSC's national inventory. She was also referred to the PSC's Employment Services for Visible Minorities Program, National Capital Region.

Upon arrival in Canada, Ms. To Thanh Hien, having heard nothing from the PSC, applied directly to various federal government departments, as well as to the House of Commons, for a position. She was referred by a personnel agency to a number of temporary positions in the federal government from September 1987 to March 1989. By direct application, Ms. To Thanh Hien managed to secure part time work for the House of Commons as a French language editor.

In November 1987, Ms. To Thanh Hien learned of the citizenship preference. She was advised of the preference, in writing, in December 1987. From December 15, 1987 to June 10, 1988, Ms. To Thanh Hien provided secretarial and clerical services to Agriculture Canada. In April 1988, she became aware of a term position, IS-03, as a French language editor, with Agriculture Canada. The Chief of Editorial Services considered Ms. To Thanh Hien for the term position, however, he was advised not to seek a "name referral request" for the plaintiff because she was not a Canadian citizen. There is no evidence that a "named referral" was ever made by Agriculture Canada to the PSC. In May 1988, Agriculture Canada commenced the staffing of this position on a term basis by way of open competition. The PSC referred 11 candidates but the plaintiff was not one of them. Ms. To Thanh Hien believed she was not referred because she was not, at the time, a Canadian citizen.

On March 7, 1989, the plaintiff was appointed by open competition to a term position as a secretary (ST-SCY-02) in the Department of the Secretary of State. Prior to the expiry of that term, from April 12, 1989 to July 28, 1989, she was redeployed to the Translation Secretariat of the Department of the Secretary of State. She was again to be redeployed, to another branch of the Department of the Secretary of State, from May 23, 1989 to November 3, 1989. However, effective May 15, 1989, Ms. To Thanh Hien was appointed to a second ST-SCY-02 term position in the same department. The specified period of appointment was from May 15, 1989 to March 30, 1990. Although she accepted the offer of appointment in writing on June 20, 1989, she testified that she did not understand she was being appointed to another position, for a ten month period, rather than simply being redeployed.

Ms. To Thanh Hien left the Public Service in September 1989. She felt that she was being treated unfairly. She also felt humiliated and somewhat degraded because of the duties she was asked to perform, for example, on the one hand, she was asked to pick up mail with a cart, while, on the other hand, being required to work at a higher level than for which she was being paid.

On September 19, 1989, Ms. To Thanh Hien filed a complaint with the Canadian Human Rights Commission (the CHRC), alleging that she had been discriminated against, by virtue of her nationality or ethnic origin. The complaint was investigated by the CHRC and a recommendation was made that a tribunal be appointed to conduct an inquiry. However, that inquiry is awaiting the outcome of this trial.

Janine Bailey

Janine Bailey, a Dutch citizen, was admitted to Canada as a permanent resident in November 1986. She became eligible to obtain Canadian citizenship in November 1989, but did not take any steps towards acquiring Canadian citizenship until September 1993. Ms. Bailey has, however, decided against proceeding to obtain Canadian citizenship if she must relinquish her Dutch citizenship. She expressed concerns regarding the possible need to return to Holland to care for her aging parents.

Ms. Bailey holds a Dutch law degree. In June 1987, she was appointed, by open competition, to a three month "term" position, which was subsequently extended, at the Canada Employment and Immigration Commission (the CEIC). In March and November 1988, Ms. Bailey applied for and was screened out of two closed competitions.

In December 1988, CEIC initiated an open competition to fill anticipated vacancies at the PM-02 level, for Immigration Counsellors. The PSC was formally requested to refer candidates for the position from its National Applicant Inventory System. Written notice of the competition was provided to CEIC staff in both Toronto and Mississauga. Interested employees were directed to apply to the PSC. In early 1989, Ms. Bailey applied to compete for the PM-02 level Immigration Counsellor positions. Ms. Bailey was not referred to the open competition by the PSC, however, 144 other candidates were. In April, Ms. Bailey was advised that she had not been referred to the PM-02 open competition because she was not a Canadian citizen.

Simultaneously with the open competition, a closed competition was conducted for the same positions and level. Ms. Bailey, while eligible to compete in this competition did not apply. Candidates in the open competition required a post-secondary degree but no experience; candidates in the closed competition required only a secondary school education, but experience was a requirement.

In June 1989, Ms Bailey registered a complaint with the PSC in respect of the PM-02 open competition. She alleged that paragraph 16(4)(c) of the PSEA contravened her rights under section 15 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The investigation concluded that the PSC was acting consistently, in accordance with the law, and that any Charter violations would have to be determined by the courts.

In early 1989, Ms. Bailey occupied a term PM-02 position. In September 1989 she was appointed to an indeterminate PM-01 position as an Immigration Examining Officer, a position she obtained by closed competition.

In February 1990, the plaintiff applied for a PM-03 position in an open competition. Forty applicants, all of whom were Canadian citizens, were referred by the PSC, the plaintiff was not. Once again, the reason was her citizenship status. The plaintiff filed a second complaint with the PSC and received the same reply as above. She was not a Canadian citizen.

In late 1990, Ms. Bailey qualified for a PM-02 position. By closed competition, she ranked 13 of 28 candidates on the eligibility list. However, the competition was successfully appealed and, consequently, no appointments were made from the eligibility list.

In February 1991, Ms. Bailey was referred as a candidate for a PM-03 position, this time in an open competition. She was referred only after the PSC determined that the number of Canadian applicants would not be sufficient to establish an eligibility list. Subsequently, the plaintiff was determined not to meet the rated requirements for the position.

In August 1990, the plaintiff qualified for a closed PM-03 competition. However, she was not appointed to the position on an indeterminate basis. Meanwhile, in April 1991, Ms. Bailey accepted an acting position at the PM-03 level. Ms. Bailey performed the duties of the PM-03 position until March 31, 1992.

ISSUES

1. Does paragraph 16(4)(c) of the PSEA violate subsection 15(1) of the Canadian Charter of Rights and Freedoms (the Charter)?

2. If so, is paragraph 16(4)(c) of the PSEA justified as a reasonable limit under section 1 of the Charter?

3. If paragraph 16(4)(c) of the PSEA is unconstitutional, to what remedy are the plaintiffs entitled?

ANALYSIS

Legislative History of the Citizenship Preference

A nationality-based requirement for admission to what was the Civil Service of Canada first appeared in The Civil Service Amendment Act, 1908, S.C. 1908, c. 15. At the same time, the principle of open competitive examination for entry into the Civil Service was introduced as a means of achieving merit-based selection. The Act, section 14, prohibited admission of any person to examination for entry into the Civil Service unless he was a "natural-born or nationalized British subject, and has been a resident of Canada for at least three years". The three-year residency requirement, in The Civil Service Amendment Act, 1908, corresponded with the three-year residency requirement under The Naturalization Act, Canada 1881, S.C. 1881, c. 13, section 10. The Civil Service Act, 1918, S.C. 1918, c. 12, section 38 and subsection 41(1), provided an exemption whereby the Governor in Council could authorize the admission of persons to the Civil Service who did not meet the nationality or residency requirement. Moreover, the 1918 Act enacted special preferences for veterans and their widows, local residents and existing civil servants. The Civil Service Act, R.S.C. 1927, c. 22, was again amended in 1932. Subsection 33(1) was amended [S.C. 1932, c. 40, s. 6] to increase the residency requirement for admission to the civil service of Canada from three years to five years to correspond with the Naturalization Act which had also been amended increasing the residency requirement for naturalization to five years from three.

In 1947, the concept of Canadian citizenship was brought into existence with the enactment of the first Citizenship Act [The Canadian Citizenship Act], S.C. 1946, c. 15. The nationality and residency requirements for civil service entry were not changed at that time.

The citizenship preference, in virtually its present form, paragraph 16(4)(c) of the current PSEA, was introduced in 1961 [Civil Service Act, S.C. 1960-61, c. 57]. The previous nationality/residency requirement was replaced with a scheme of preferences: first to war service pensioners (disabled veterans), then to veterans not in receipt of a pension (able-bodied veterans) and widows of veterans, and thirdly, to Canadian citizens. These preferences applied on a mandatory basis to the listing of candidates on eligibility lists in the case of open competitions (subsection 40(1)). With the enactment of the Public Service Employment Act, S.C. 1966-67, c. 71, the veterans' and citizenship preferences were made applicable only to open competitions. There has been no meaningful change to the citizenship preference since 1967.

Section 16 of the Public Service Employment Act, R.S.C., 1985, c. P-33, provides as follows:

16. (1) The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, interviews and investigations as it considers necessary or desirable, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted.

. . .

(4) Where, in the case of an open competition, the Commission is of the opinion that there are sufficient qualified applicants who are

(a) persons in receipt of a pension by reason of war service as defined in Schedule II,

(b) persons who are veterans as defined in Schedule II and who do not come within paragraph (a), or persons who are widows of veterans as defined in Schedule II, or

(c) persons who are Canadian citizens who do not come within paragraph (a) or (b),

to enable the Commission to establish an eligibility list in accordance with this Act, the Commission may confine its selection of qualified candidates under subsection (1) to the applicants who come within paragraph (a), paragraphs (a) and (b) or paragraphs (a), (b) and (c). [Own emphasis.]

Removal of the citizenship preference was recommended by parliamentary committees in 1979 and in 1985, but such recommendations were rejected. The PSEA was amended in 1992 [Public Service Reform Act, S.C. 1992, c. 54] but no changes were made to the citizenship preference.

The Citizenship Preference

The open competition staffing actions that are the subject matter of the present actions are governed by the 1985 PSEA. The PSEA applies only to a portion of the Public Service described herein as the "PSEA universe". As of December 31, 1989, the total population of the PSEA universe was 227,545 and comprised 42.6% of the full Public Service of 534,343. The PSEA universe includes only civilian positions ranging from the clerical to the assistant deputy minister level and includes a broad range of occupational categories.

The citizenship preference applies at two stages of an open competition, the candidate referral stage (paragraph 16(4)(c)) and the eligibility list stage (paragraph 17(4)(c)). At the referral stage, the application of the preference is discretionary; however, at the eligibility list stage, the application of the preference is mandatory. In this case, the plaintiffs were only affected by the operation of paragraph 16(4)(c) of the PSEA at the referral stage. The constitutionality of paragraph 17(4)(c) of the PSEA is not at issue in these actions.

With respect to the open competitions at issue, the PSC was responsible both for the referral of qualified candidates and for the application of paragraph 16(4)(c). During the relevant period of 1988 to 1990, policy guidelines were in effect concerning the application of paragraph 16(4)(c) of the PSEA. The guidelines note that the citizenship preference does not exclude non-citizens from competing in open competitions or from being accepted into candidate inventories. The guidelines require that non-citizens not be referred until the inventory of qualified persons who are citizens is exhausted. The referral of non-Canadians can only take place when it is determined that there are insufficient Canadian citizens to fill the available positions. In accordance with this policy, it is the usual practice of the PSC to exclude non-citizens from referral in open competitions where it is of the opinion that there are sufficient qualified citizens for referral. The defendants submit that non-Canadians have been referred with Canadian citizens only in rare cases. Where there are insufficient qualified candidates for referral, or where there are no qualified citizens, the PSC will refer qualified non-Canadian candidates, either alone or together with Canadian candidates, as it did in the case of the plaintiffs, Ms. Bailey and Ms. To Thanh Hien. For closed competitions, permanent residents are immediately eligible to compete for other positions without regard to their citizenship status. However, they remain subject to the citizenship preference when applying for positions by way of open competition. While no statistics are kept, it is clear that the number of non-Canadians referred to open competition is small.

As indicated previously, the legal status of Canadian citizenship was created in 1947 with the enactment of The Canadian Citizenship Act. Prior to that time, Canadian nationals were considered British subjects. The Act did retain the status of British subject in addition to that of citizen and accorded preferential treatment to British subjects. This included access by British subjects to civil service employment. In 1977, a new Citizenship Act, S.C. 1974-75-76, c. 108, was enacted. This Act reduced the residency requirement for citizenship to three years and removed all preferential treatment for British subjects.

In 1991, the population of Canada was approximately 27 million people. Of this number, about 1.5 million were non-citizens. Of that number, approximately 1.25 million were permanent residents. At that time, approximately 711,000 permanent residents were eligible to apply for Canadian citizenship, having fulfilled the three-year residency requirement. The defendants indicated that approximately 100,000 applications for citizenship status had been filed at that time, leaving about 611,000 permanent residents who, though eligible for citizenship, had taken no steps to naturalize.

Section 15 of the Charter, Equality Rights

In Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, a case involving the constitutionality of section 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, which made Canadian citizenship a prerequisite to practice law in British Columbia, the Supreme Court of Canada first outlined the subsection 15(1) method of analysis. In that case, the respondent, a non-citizen, who otherwise met the requirements to practice law in British Columbia, alleged that his right to equality guaranteed by section 15 of the Charter was infringed by the citizenship requirement. The Court undertook the following method of analysis, as succinctly stated by Chief Justice Lamer, adopting Andrews, supra, 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. [Own emphasis.]

In Andrews, supra, the Court emphasized that denying the respondent therein access to the legal profession because he was not a citizen, constituted discrimination under subsection 15(1) of the Charter. The Court was of the opinion that the legislature in British Columbia had excluded the members of a group on the basis of a "characteristic analogous to the grounds" in subsection 15(1) and without regard to the qualifications or the merits of the members who constitute the group. In Andrews, supra, at page 152, Madam Justice Wilson emphasized that non-citizens were a disadvantaged group who lacked political power and were accordingly vulnerable to having their interests overlooked in Canadian society. In that decision, Mr. Justice La Forest, at page 196, accepted that:

. . . citizenship is a very special status that not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity.

However, he thought it irrelevant as a qualification for most functions (at pages 196-197):

By and large, the use in legislation of citizenship as a basis of distinguishing between persons, here for the purpose of conditioning access to the practice of a profession, harbours the potential for undermining the essential or underlying values of a free and democratic society that are embodied in s. 15. Our nation has throughout its history drawn strength from the flow of people to our shores.

As a result of the decision in Andrews, supra, it would appear, at first blush, that section 15 of the Charter significantly constrains a government's capacity to provide benefits or to impose constraints on the basis of citizenship. However, in the case at bar, the defendants argue that while there are similarities between this case and Andrews, supra, there are also key differences. Moreover, the defendants argue that the appropriate method of analysis in this case would be to assess, as part of the section 15 analysis, the purpose, content, and impact of the impugned law as well as the larger social, political, and legal context in which the impugned law operates and the alleged Charter violation occurs: R. v. Turpin, [1989] 1 S.C.R. 1296, at pages 1331-1332, and Andrews, supra, at page 168.

With respect to the approach in this case, the Court is of the opinion that it would be inappropriate to examine the purpose, content, and impact of the impugned law as well as the context in which that law operates as part of the section 15 analysis. While there may be cases in which such an examination is appropriate, it is the Court's view that this is not one of them. The defendants argue that the purpose of the citizenship preference in the PSEA is not manifest on its face. It argues that there is, however, a consistent dual purpose: 1) to enhance the meaning, value and importance of Canadian citizenship by according citizens preferential access to public service employment as an entitlement of the status of citizens; and 2) to provide an incentive to permanent residents to naturalize. It is clear that the defendants recognize that paragraph 16(4)(c) burdens permanent residents. In this regard, its intention, while not absolute, in order to achieve its objective, is to affect and inhibit the employment opportunities of permanent residents within the Public Service. This is not an adverse impact case. If it was, then the purpose of the legislation as well as the context in which that legislation operates, would have to be examined. In other words, one would have to examine the backdrop of the discrimination that is taking place. In this case paragraph 16(4)(c) creates, on its face, the inequality. The purpose and context must be considered by the Court, not within subsection 15(1), but rather in the context of whether the infringement can be justified as a reasonable limit under section 1 of the Charter. As La Forest J. stated in Andrews, supra, at page 196:

There is no question that citizenship may, in some circumstances, be properly used as a defining characteristic for certain types of legitimate governmental objectives.

and, at page 197:

That is not to say that no legislative conditioning of benefits (for example) on the basis of citizenship is acceptable in the free and democratic society that is Canada, merely that legislation purporting to do so ought to be measured against the touchstone of our Constitution. It requires justification.

The defendants argue that despite the similarity, the issues in the present case have not been decided by Andrews, supra. They argue that this case is different from Andrews, supra, in four fundamental ways. First, the challenged law in this case is federal and not provincial. As such, it engages the concept of citizenship in a way that provincial law cannot, since citizenship is a matter within federal legislative competence. Secondly, the purposes of the impugned laws in the two cases differ. The provincial law in Andrews, supra, did not purport to make the right to practice law in British Columbia an attribute of Canadian citizenship or to offer it as an incentive to permanent residents to naturalize. Rather, the provincial law sought to make citizenship status a qualification for entering into the practice of law in British Columbia. Thirdly, in Andrews, supra, the dispute centred on the question of the importance of the legal profession in the government of the country. In this case, the essential difference between the parties centres on the question of the nature and importance of citizenship and the distinctions that are fundamental to it. And fourthly, the impact of the laws in the two cases differs. The impugned law in Andrews, supra, barred otherwise qualified permanent residents from employment in their professional field. The impugned law in the present case limits, but does not bar, access by permanent residents to the Public Service and it does not deny their right to pursue their calling.

The defendants contend that, because this case is concerned with a law that relates to the very nature and attributes of citizenship, and not simply one that draws a distinction based on citizenship status, the Court should carry its analysis further than in Andrews, supra, and examine the relationship between equality and citizenship. The defendants argue that because citizenship is a distinctive concept, it is impossible to achieve complete equality between citizens and non-citizens without abolishing the concepts that distinguish citizenship. Therefore, for citizenship to remain a viable concept, some distinctions between citizens and non-citizens must be recognized as compatible with the equality principle and reconcilable with subsection 15(1) of the Charter and within the framework established in Andrews, supra. In this regard, the defendants argue that in Andrews, supra, the Court's interpretation of subsection 15(1) is that where a law classifies on the basis of a personal characteristic, it is necessary to consider the relevance of the classification to the legitimate purpose of the law as part of the overall assessment of whether the classification infringes subsection 15(1). They contend that the Court in Andrews, supra, did not consider citizenship to be a relevant ground for determining qualification for the practice of law. That does not mean, however, that citizenship will be an irrelevant ground of distinction in every case.

American Law

The defendants called Professor Peter H. Schuck of Yale Law School who, among other things, is an expert on American citizenship law. Professor Schuck's extensive report addressed a variety of areas dealing with citizenship law and policy including the American restriction on the employment of non-citizens in the federal public service. Professor Schuck notes as follows:

Citizenship is a juristic and political status in which an individual enjoys full, legally sanctioned membership in a state and owes full allegiance to it. All free and democratic states at all times have established a unique status of this kind and all such states have always accorded some special rights and privileges to their citizens. In all free and democratic states of which I am aware, citizens enjoy certain exclusive rights and privileges; these include the right to vote in national elections, the right to enter and reside at will, and preferential treatment in access to employment in the federal public service. Other rights and obligations that are commonly but perhaps not universally tied to citizenship concern jury service, military service, treatment under the tax laws, travel documents and procedures, access to public services, and immigration privileges for family members. [Own emphasis.]

Professor Schuck also was of the opinion that the creation of citizenship status is thought to serve certain social purposes and to bear certain social meanings. These purposes and meanings are political, emotional, and motivational.

The United States restricts access by non-citizens to employment in the federal public service. That restriction has remained in effect for over 110 years. Moreover, every federal alienage classification has survived equal protection challenge in the U.S. Supreme Court. However, this has not been the case for alienage classifications at the state level. The only state alienage classifications that have survived a constitutional challenge are those that bar non- citizens from state government jobs that involve a "political function""a narrow exception to the rule invalidating state alienage restrictions.

The plaintiffs called Professor Jamie Cameron of Osgoode Hall Law School. She addressed the relevance of American constitutional jurisprudence in determining whether paragraph 16(4)(c) of the PSEA is constitutional. The evidence of Ms. Cameron was restricted to her views regarding American constitutional law, i.e. foreign law. In examining the application of American constitutional law to the Canadian context, I am mindful that significant differences exist between American and Canadian constitutional law. Moreover, American law contains no limiting provision similar to section 1 of the Charter.

There is a difference in treatment between federal and state citizenship-based distinctions in American equal protection jurisprudence. Both the federal and state levels of government in the U.S. are bound by the constitutional guarantee of equal protection of the laws. The protection at the state level is found in the 14th amendment whereas the protection at the federal level derives from the due process clause of the 5th amendment. The U.S. Constitution contains no equivalent to section 1 of the Charter. However, both the United States Supreme Court and the Supreme Court of Canada have characterized non-citizens as a "discrete and insular minority": Andrews, supra, at page 183, and Graham v. Richardson, 403 U.S. 365 (1971).

According to Professor Schuck, American law has approached the relationship between citizenship and equality by requiring the government to justify any legally imposed disadvantages. The extent of the justification is conducted in relation to the nature of the disadvantaged group (in this case non-citizens) and whether the classification of the group is federal or state. In this regard, American constitutional law is driven by, at least in the equality protection area, notions of the classification of the group and whether it is suspect or not and, accordingly, the degree of scrutiny that may be appropriate. The equality provisions of the Canadian Charter of Rights and Freedoms has not been subjected to this same type of interpretative paradigm. The defendants argue that central to the American approach is that alienage, i.e., immigration and naturalization, is a federal, not a state legislative concern. That argument is carried over into the Canadian context as one of the reasons why Andrews, supra, differs from this case from the perspective of legislative authority. In the U.S., federal classifications are subjected to a much less rigorous standard of review than state classifications. Mathews v. Diaz, 426 U.S. 67 (1976), at pages 78-80; Mow Sun Wong v. Hampton, 435 F.Supp. 37 (Dist. Ct. Cal. 1977), at pages 42-44. Professor Schuck notes that the Supreme Court of the U.S. is more deferential to federal policy makers in the area of alienage than any other area of constitutional jurisprudence.

Ms. Cameron characterized this narrow standard of review as the plenary powers doctrine which recognizes that there are certain areas of authority that are committed to the political branches of government that must not be interfered with by other branches of government or by the courts. In Mathews v. Diaz, supra, at pages 81-82, the Supreme Court stated:

The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.

According to Ms. Cameron, this is because of the fundamental separation of powers on which the U.S. Constitution is based and the fact that no branch of government is entitled to encroach on any other branch. Given that alienage is a subject matter committed to the political branch, the separation of powers doctrine precludes the Court from exercising anything other than a narrow standard of review where alienage classifications are at issue.

The plaintiffs urged the Court to follow the rationale in Sugarman v. Dougall, 413 U.S. 634 (1973), which found that state alienage classifications are regarded as inherently suspect and presumed not to be a relevant ground of distinction under the 14th amendment and therefore subject to strict scrutiny by the courts. Indeed, few state alienage classifications have survived such scrutiny with the exception of those falling under the "political function exception", in which the U.S. Supreme Court has stepped back from the position that all state alienage classifications are inherently suspect. In Sugarman, supra, at page 647, the U.S. Supreme Court determined that political function prevailed where a state could "in an appropriately defined class of positions, require citizenship as a qualification for office". Otherwise, the U.S. Supreme Court struck down a flat ban on employment of aliens in the New York state civil service.

The defendants also argue that the American jurisprudence is highly instructive in that it recognizes that the equal protection guarantee cannot be interpreted so as to obliterate fundamental statutory distinctions between citizens and aliens. They contend that the federal government has legitimate interests with respect to citizens and aliens and that the states do not. In Canada, citizenship may be a relevant and constitutionally permissible ground of distinction for federal purposes even though it is not for provincial purposes. Professor Schuck described the relationship between citizenship and equality as a characteristically pragmatic but theoretically complex relationship. Stripped to its bare bones, the fundamental difference appears to be that under federal state alienage classifications the plenary power doctrine applies whereas at the state level a more traditional equality approach is applicable. This has resulted in state alienage classifications being regarded as inherently suspect and subject to strict scrutiny with the exception of those that fit the "political function" exception. According to Professor Cameron, alienage is one subject which, in the view of the U.S. Supreme Court, is committed to the legislative and executive branches of government: Mathews v. Diaz, supra, at pages 81-82. The anomalous result is that aliens in the United States are a "discrete and insular minority" when the state disadvantages them but are not when the federal government disadvantages them.

It is clear that the application of U.S. constitutional equality law is problematic in the Canadian context. Federalism has a different impact on the enforcement of Charter rights in Canada than in the United States. In Canada, similar standards of constitutional doctrine apply to both federal and provincial legislation under the Canadian Charter of Rights and Freedoms, whereas in the U.S. with respect to alienage, the Supreme Court has applied different standards of review to federal and state legislation. Accordingly, while the constitutional review of state alienage restrictions may be closer to the Canadian model from the perspective of the role of the courts and the legislature, important differences in the equality jurisprudence between Canada and the U.S. results in the U.S. jurisprudence not being particularly persuasive in the application of subsection 15(1) of the Charter to issues in this case. The Charter supersedes the political limitations of federalism and legislative sovereignty by capturing principles associated with the respect for human dignity.

1. IS PARAGRAPH 16(4)(c) DISCRIMINATORY?

Paragraph 16(4)(c) of the PSEA was intended to create an inequality and the paragraph contains a distinction based on a personal characteristic that treats persons differently. It is argued that a personal characteristic may be a relevant ground of distinction for some legislative purposes but not for others. Stated somewhat differently, it is submitted that where a law classifies on the basis of a personal characteristic, in this case citizenship, it is necessary to consider the relevance of the classification to the legitimate purpose of the law. The Court in Andrews, supra, did not consider citizenship to be a relevant ground for determining qualification for the practice of law but it is argued by the defendants that it cannot be an irrelevant ground of distinction in every case or in this case.

To determine whether the inequality created by paragraph 16(4)(c) of the PSEA is discriminatory, it must first be determined whether the effect of that provision is to impose on certain persons or groups of persons a disadvantage or burden or to deprive them of an advantage or benefit. It must then be determined whether that deprivation is imposed by the effect of a personal characteristic listed in subsection 15(1) of the Charter or a similar characteristic. In Andrews, supra, at page 183, McIntyre J. stated in very clear terms that non-citizens, lawfully permanent residents of Canada, are a good example of "discrete and insular minority" who come within the protection of subsection 15(1). There is also little doubt that on the facts of this case all three plaintiffs were in one way or another disadvantaged or burdened by the citizenship preference. Paragraph 16(4)(c) does not have to be an absolute bar to disadvantage or burden permanent residents. It nevertheless operates as a disadvantage for a minimum of about four years (3 years waiting period plus a 1 year administrative delay) before citizenship is obtained. The application of paragraph 16(4)(c) virtually precludes referral to open competitions whether the permanent resident is in or outside the Public Service. Clearly, the difference in treatment is closely related to the personal characteristic of the person or group of persons, i.e. citizenship. It is only on account of the plaintiffs lack of citizenship that the disadvantages or burdens have been imposed. The distinction, therefore, in the Court's view, is unquestionably based on this personal characteristic and is a characteristic covered by subsection 15(1) of the Charter. Accordingly, it is the Court's view that paragraph 16(4)(c) of the PSEA infringes the right to equality guaranteed in subsection 15(1) of the Charter. I now turn to whether it is justified as a reasonable limit under section 1 of the Charter.

2. IS PARAGRAPH 16(4)(c) A REASONABLE LIMIT UNDER SECTION 1?

Having found that paragraph 16(4)(c) of the PSEA infringes section 15 of the Charter, it is now necessary to determine if this infringement may be justified under section 1. The onus under section 1 of the Charter is on the defendants to demonstrate that an infringement of the Charter right is demonstrably justified in a free and democratic society. The standard that the state must satisfy under section 1 is now well established and consists of the two branches outlined in R. v. Oakes, [1986] 1 S.C.R. 103. The first branch of the test considers the validity of the legislative objective, while the second branch considers the validity of the means chosen to achieve that objective. The burden of proof is the civil standard, namely proof by a preponderance of probability. In Oakes, supra, at page 136, the Court also emphasized that rigorous scrutiny of the legislative objective is required: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R 713. All of the findings of fact herein are made in relation to that burden of proof.

The defendants propose, and the Court accepts, that the general approach to be followed under section 1 is:

1. The objective of the impugned provision must be of sufficient importance to warrant overriding the Charter; that is, it is necessary, at a minimum, that the objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

2. Once a sufficiently important objective is recognized then the defendants must show that the means chosen are reasonable and demonstrably justified. The means chosen to achieve the objective must then be subjected to a three-part proportionality test to determine if they are appropriate and proportional to the objective:

a) the means chosen must be rationally connected to the objective;

b) even if rationally connected to the objective the means must impair the right in question as little as possible; and

c) there must be a proper balance between the effect of the limitation and the legislative objective which has been identified as of sufficient importance: R. v. Oakes, supra, at pages 138-139 and recently in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.

A. Pressing and Substantial Objective

The defendants argue that the purpose or objective of the impugned provision is twofold: first, to enhance the meaning, value, and importance of Canadian citizenship by granting citizens preferential access to public service employment as an entitlement of the status of citizen; and two, to provide an incentive to permanent residents to naturalize.

The plaintiffs argue that the evidence is insufficient to establish the alleged objective and that even if the objective is of sufficient importance, the objective does not relate to concerns that are pressing and substantial in Canada. Moreover, the plaintiffs contend that not only does the evidence not establish the alleged objective, but rather it demonstrates that the actual objective is commitment and loyalty from which the plaintiffs disassociate themselves as a basis for upholding the impugned provision.

The formulation of the objective is critical because the manner in which the objective is formulated can directly affect the assessment of proportionality under the second branch of the section 1 analysis.

a) Identification of the Objective

In R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R. 295, at page 335, Dickson C.J. noted that the "[p]urpose [of the legislation] is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable". The defendants argue that the purpose of the citizenship preference is not facially manifest. However, they contend that a review of the legislative history of the provision reveals the consistent dual purpose.

As indicated previously, a nationally based requirement for admission to what was then called the Civil Service appeared in The Civil Service Amendment Act, 1908. The Civil Service Act, 1918, added an exemption under which the Governor in Council could authorize the admission of persons to the Civil Service who otherwise did not meet the nationality or residency requirement. The new provision read as follows:

41. (1) No person shall, without the authority of the Governor in Council, be admitted to any examination unless he is a natural born or naturalized British subject, and also has been a resident of Canada for at least three years.

In 1908, the Honourable Sydney Fisher on second reading of the Civil Service Amendment Bill stated as follows (House of Commons Debates, 4th Sess., 10th Parl., June 25, 1908, at page 11397):

The intention was to take real residents of Canada into the service. But for this provision, a person might come here "on spec," just to go up for the examination.

The defendants argue that it is significant that the three-year residency requirement in The Civil Service Amendment Act, 1908 corresponded with the three-year residency requirement for naturalization in The Naturalization Act, Canada, 1881. They contend that the link was deliberate and that the reasons were obvious for harmonizing the residency requirements for civil service and naturalization purposes. They were to encourage aliens to naturalize and to equalize access to the Civil Service for both aliens who had to naturalize and foreign born British subjects.

In the 1932 amendment to The Civil Service Act, 1918, the Honourable Mr. O. L. Boulanger stated in the House of Commons, in moving second reading of the amendment bill, as follows (House of Commons Debates, 2nd Sess., 17th Parl., May 1, 1931, at page 1197):

The amendment proposed by the bill is to change the term of three years residence to a term of five years. I believe this change would be in accordance with our whole system of granting Canadian citizenship to aliens. . . . I respectfully submit that the same requirements should apply when application is made for a position in the Canadian civil service. If it is proper to stipulate a period of five years before a vote is allowed, if it is right that five years' residence must be established before a person may become a citizen of this country, then a similar period should be necessary before a person obtains a position in the public service. That is the purpose of the second amendment.

In summarizing the objectives of the amendment bill as a whole, Mr. Boulanger further stated (ibid, at page 1198):

I believe the spirit of the bill is in accordance with the Canada first policy of the present government, and I am sure the government will approve the bill and support it. I trust therefore that the Civil Service Act will be amended as the proposed measure suggests. Not only are we for the Canada first policy but we are also for Canadians first and especially should that policy apply in the matter of the filling of civil service positions. Certainly that is one place where Canadians should be first. [Own emphasis.]

It is apparent that Parliament connected the nationality and residency requirements to federal civil service positions and that this was related to the Canada first policy. The defendants contend that through this Canada first policy the Government clearly thought to give meaning and value to this emerging concept of Canadian citizenship although the formal juristic status of Canadian citizen did not exist at that time. Parliament appeared to associate civil service employment along with the right to vote and the right to remain in and leave Canada as proper incidents of Canadian citizenship.

In 1979, a Report of the Special Committee on the Review of Personnel Management and the Merit Principle, otherwise known as the D'Avignon Report, explicitly looked at the citizenship preference and recommended that it be abolished and employment in the Public Service extended to all permanent residents. The Government did not act on the recommendation.

In 1985, the Minister of Justice circulated a discussion paper on Equality Issues in Federal Law. In this document there was some discussion of citizenship as well as its consequences. The Minister noted that few would question the need to create distinctions between citizens, permanent residents and aliens. He indicated that the state must be able to define its membership, particularly in relation to participation in the political process, perhaps the most important feature of citizenship. The Minister noted that permanent residents may warrant more protection than aliens in that the status of a permanent resident may be seen as an intermediate one between a total alien and a Canadian citizen. He also noted that a range of federal and provincial statutes use citizenship as a condition of eligibility for some status or benefit. The Report notes [at page 49]:

The right to vote and to hold public office are reasonable concomitants of citizenship. It may also be reasonable to require the allegiance witnessed by citizenship in certain sensitive positions in law enforcement or in the Public Service. A degree of latitude may also be appropriate in requiring citizenship simply to encourage residents of Canada to acquire citizenship and participate more fully in our political process.

Later in the Report there is a discussion of public service employment [at pages 49-50]:

The rationale [for the citizenship preference] is threefold. First is the argument that one of the benefits of Canadian citizenship is the right to seek and receive employment in the federal Public Service. While this preference is subject to certain obligations, it remains one of the advantages of Canadian citizenship.

Secondly, employees must recognize the authority of and faithfully serve the employer. In the Public Service, the Crown is the employer. Citizenship implies loyalty to the Crown, but non-Canadians, even if permanently resident in this country, owe loyalty to another state.

This rationale, however, raises questions because non-citizens can be granted Public Service positions. This preference for citizens does not, therefore, imply a want of recognition of service, loyalty or reliability on the part of the non-citizen. The citizenship requirement is merely a preference, although its effect is that very few positions in the federal Public Service are held by non-citizens. The same question applies to the third rationale which is a concern for national security of non-Canadians are employed.

The fundamental issue here is whether offering citizens a preference for positions in the federal Public Service should be considered an acceptable privilege that goes along with the acquisition of citizenship. Since citizenship must have some privileges, the concern is to delineate what privileges are justified.

The Standing Committee on Justice and Legal Affairs responded to the Equality Report of the Minister of Justice [Minutes of Proceedings and Evidence of the Sub-Committee on Equality Rights, Issue N^o 29, at page 66]:

In any open competition for public service positions pursuant to the Public Service Employment Act, preference must be given first to war veterans and second to Canadian citizens. In the result, permanent residents do not enjoy the same opportunities as Canadian citizens to obtain public service appointments.

We believe that this represents a form of discrimination . . . . However, the failure to become a Canadian citizen should not be taken as a mark of lack of commitment to this country . . . . We believe it is unfair to favour Canadian citizens over permanent residents who are eligible for Canadian citizenship but have not yet taken that step.

Therefore the citizenship factor cannot be a bona fide occupational qualification in the sense of the Canadian Human Rights Act. Nor do we believe that it can be demonstrably justified as a reasonable limit, in the sense of section 1 of the Charter, on freedom from discrimination . . . .

Accordingly, the Standing Committee recommended that the provision in the Public Service Employment Act be eliminated.

The response: Toward Equality: The Response to the Report of the Parliamentary Committee on Equality Rights by the Minister of Justice was as follows [at page 31]:

The Government does not agree with this recommendation. It takes the view that the current preference granted to citizens is a reasonable and justified limitation, permitted by the Charter and the International Covenant on Civil and Political Rights.

This view is based on considerations of the nature of citizenship and its relation to the role of the Public Service. In their work, public servants serve and represent the Canadian community by guaranteeing its security, ensuring its safety, advancing its physical and economic welfare and representing its interests, in Canada and abroad.

Citizenship carries with it both privileges and responsibilities. the privileges include the right to vote; one responsibility is to promote the security and welfare of the country and protect the country's way of life. The Government is of the opinion that one of the legitimate benefits of Canadian citizenship should be the right to seek and receive employment in the federal Public Service on a preferential basis. This right is subject to certain obligations, such as the limitations on political activity, but it remains one of the advantages of citizenship and a recognition of the value placed on citizenship by Canadian society.

It is to be noted that this view seems to prevail in other Western democracies, some of which (e.g., United States, France, Great Britain, Australia) go farther than Canada in making citizenship a requirement for entry to the civil service, rather than a preference.

Under the current system, non-Canadians can be employed in public service jobs for which no qualified Canadian citizens are found.

It is evident that there is some emphasis on the value of Canadian citizenship as well as the benefit of Canadian citizenship. However, there are no comments with respect to how the citizenship preference encourages naturalization in Canada on the part of permanent residents.

The Report of the Standing Committee was debated in the House of Commons in March 1986. A motion that the Report be concurred with by the House failed to win the necessary support. On the issue of the citizenship preference, the Honourable Pierre H. Cadieux (Minister of Labour) stated (House of Commons Debates, 1st Sess., 33rd Parl., March 26, 1986, at page 11916):

. . . the Government has clearly indicated that it felt that the preference now granted to Canadian citizens is a reasonable and justified restriction under the Charter and the International Agreement on Civil and Political Rights.

The main purpose of this step is to recognize that all of us, you and I and every other Canadian, cherish and appreciate our citizenship which involves some duties such as the promotion of welfare within the community. It also includes a number of rights, including the right to vote, Mr. Speaker. And one of the legitimate benefits of Canadian citizenship must be the right of priority access to jobs within the federal Civil Service. It is only reasonable that we should thus recognize the value and particular importance of Canadian citizenship.

If permanent residents wish to acquire the same rights and duties, they have the possibility to do so by applying for Canadian citizenship. After all, we only ask them to wait three years before they can say they are Canadians and proud of it. Any Canadian citizen has the right to claim certain benefits resulting from Canadian citizenship due to the status which Canadian citizenship confers to citizens. Moreover, Canada is not the only country which feels that its Civil Service should be made up entirely of its own citizens. As a matter of fact, countries such as the United States, France, Great Britain and Australia go even further than Canada, making citizenship a sine qua non condition for joining their Civil Services and not merely a criteria for preference as in this country. I should emphasize that, through an international agreement, whoever serves in the foreign service or diplomatic corps of a country must be a citizen of that country.

The plaintiffs argue that the evidence does not support the submission of the defendants regarding the dual objective of the impugned provision. They argue its purpose is to ensure that individuals that perform duties for the Government of Canada are committed and loyal. The defendants called Mr. Peter Stewart of the Public Service Commission. He disavowed any relationship between the citizenship preference which is administered by the PSC and any concerns with respect to commitment and loyalty on the part of non-citizens. He testified that the preference serves the wider citizenship objective of the Government.

The defendants also called Mr. John Carson who had been the Chairman of the Public Service Commission between 1965 and 1976. Mr. Carson was the Chairman of the Public Service Commission when the Civil Service Act was re-examined and renamed the PSEA in 1967. In 1974, he appeared before a Special Joint Committee of the Senate and House of Commons on employer/employee relations wherein he recommended that the citizenship preference be retained in the legislation. Mr. Carson's reasons for this were somewhat ambiguous. On the one hand he believed that persons entering the Public Service, who are not Canadian citizens, should first be considering citizenship. He indicated that taking steps to secure citizenship would provide evidence of good faith and willingness to partner in the venture of the public service of Canada. Moreover, evidence of commitment and a desire to be fully involved is usually an indication of one's motivation in a particular job. However, Mr. Carson also testified that the reason why he felt the preference should have been maintained was commitment and loyalty to the federal government as an employer. Thus, the plaintiffs argue that the evidence supports their view of the objective.

It is clear that this opinion of Mr. Carson is not consistent with the defendants' position. Indeed, this opinion, as to the purpose of the preference, is inconsistent with the documentary evidence as well as the evidence of Mr. Stewart. The Court must assess Mr. Carson's testimony in the context of the totality of the evidence. Mr. Carson was clearly expressing a personal opinion and was not expressing an opinion on behalf of the Government of Canada in discussing the reason why he felt it should be maintained. Moreover, the Minister of Justice, in his report on Equality Issues in Federal Law, specifically rejects this rationale.

What then is the overriding objective of paragraph 16(4)(c) of the PSEA and is it pressing and substantial? The Court is not limited to a 1908 or 1931 perspective in its determination of this matter: R. v. Butler, [1992] 1 S.C.R. 452, at page 495. As noted in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at page 984:

In showing that the legislation pursues a pressing and substantial objective, it is not open to the government to assert post facto a purpose which did not animate the legislation in the first place . . . . However, in proving that the original objective remains pressing and substantial, the government surely can and should draw upon the best evidence currently available. The same is true as regards proof that the measure is proportional to its objective . . . .

Professor Schuck, on behalf of the defendants, provided an extensive assessment regarding the objective of the citizenship preference. A contradictory opinion was provided by Professor Joseph Carens, a professor of political science at the University of Toronto.

The Court is of the opinion that the defendants have demonstrated that the objective is twofold. Firstly, to enhance the meaning, value and importance of citizenship and, secondly, to provide an incentive to naturalize. What is clear from my review of the evidence, particularly in the comparative context with European nations including Germany, France, and the United Kingdom, is that in an immigration country like Canada citizenship has always been relatively easy to obtain. The evidence of Professors Schuck and Carens amply demonstrates that citizenship is an inherently political and social status which clearly is matter of important public policy. It is also a matter of growing debate, particularly in a global economy. It is more than simply a question of the right to vote or the right to carry a Canadian passport, or to be appointed or elected to certain positions. It is more a question of defining who we are both individually and as a nation. A free and democratic society like Canada is invariably uncomfortable with highlighting differences among its people. However, no citizenship law is capable of escaping the drawing of some distinctions between people within a nation-state, and while it will never resolve the fundamental social or political problems within a country, its necessity is unquestioned.

A nation-state clearly has the right, as part of its domestic law, to determine who is a citizen and what rights and obligations may flow from that status: Winner v. S.M.T., [1951] S.C.R. 887, at pages 918-919. While obtaining citizenship through naturalization does not ensure or even enhance full participation in the nation-state, not obtaining citizenship is no answer to the possibility of achieving that status. Indeed, as stated previously, once permanent residence status is obtained, citizenship in Canada is relatively easy to achieve. Permanent residents in Canada virtually have a right to citizenship when the legislative requirements are met. At times, as in this case, the decision may not be an easy one. However, the decision to naturalize becomes a matter of individual choice, a matter of personal preference, a matter of self-determination and therefore a matter of one's own responsibility. It is the Court's view that if the differences between citizenship and permanent resident status disappear or are rendered virtually meaningless, then citizenship could suffer the same result. This view is somewhat dependant upon the historical fact that, once admitted as a permanent resident, citizenship is not difficult to obtain in Canada. Once obtained it is seen as valuable and provides the opportunity for full participation, both politically and socially, in Canada.

In April 1994, the Standing Committee on Citizenship and Immigration tabled a report before Parliament, after broad consultation with Canadians, and recommended that greater value and importance be attached to Canadian citizenship. While there may be a number of objectives associated with citizenship law in Canada, the evidence demonstrates that the promotion and enhancement of the meaning and value of Canadian citizenship as well as the encouragement of permanent residents to naturalize, have been important objectives of the Government of Canada. As indicated previously, in 1991 approximately 711,000 permanent residents were eligible to apply for Canadian citizenship, having fulfilled the three-year residency requirement. With approximately 100,000 applications in process, there remains a residue of approximately 611,000 permanent residents who, though eligible for citizenship, have taken no steps to naturalize, Ms. Bailey and Ms. La- voie for instance.

b) Pressing and Substantial

Does the twofold objective of the defendants constitute a sufficiently pressing and substantial concern to warrant a restriction on the equality rights of the plaintiffs under section 15 of the Charter? In reaching the conclusion that the citizenship preference underpins an objective which justifies some encroachment on the equality rights of the plaintiffs, I am persuaded, in part, that such legislation may be found in most free and democratic societies.

The defendants argue that the objective of the impugned provision is pressing and substantial in any free and democratic society but especially in a multicultural society like Canada. They rely on the evidence of Professor Schuck who describes citizenship as serving three important purposes: political, emotional, and motivational. Professor Schuck notes that full membership in a political community entails both rights and responsibilities and is important for those who wish to enjoy the rights to be encouraged to share the responsibilities as well. It is also argued that for citizenship to achieve its purposes there must be differences between citizens and non-citizens that are significant enough to give special meaning, value, and importance to citizenship. Professor Schuck does theorize that the greater the difference between citizenship and non-citizenship the greater the value of citizenship; and the greater the value of citizenship, the greater the incentive to naturalize.

Fundamentally, Professor Carens disagrees. He notes that the fewer the differences between citizens and non-citizens, the greater the value in citizenship and the greater the incentive to naturalize. Professor Carens focuses on what he describes as one of the deepest impulses of liberal democratic theory, that is, putting the claims of the individual at the centre. In general, he argues that the Canadian Charter is based on the fundamental respect of the individual. He criticizes Professor Schuck's utilitarian calculus and the subordination of individual rights to that calculus. Professor Carens recognizes that citizenship is an important concept and that some distinctions between citizens and non-citizens must exist. However, he asserts that the act of denying members of the Canadian community the opportunity to compete for certain jobs because they are different from the majority of the population, does nothing to promote the values of equality and fairness upon which the Canadian legal system is based.

The defendants argue that some differences must exist, but there are limits on how great the difference should be. This is particularly so where equal, early and easy access to citizenship is available in order to erode the temporary differences between citizens and non-citizens in Canada. Where the differences between citizens and non-citizens are few, and naturalization requirements are among the most lenient in the world, the goal of preserving the existing benefits of citizenship and offering them as incentives to permanent residents to naturalize is perfectly valid.

The defendants further submit that similar goals have been recognized in both the U.S. and Australia, societies closely comparable to Canada, as valid and important objectives of citizenship based restrictions on federal public service employment. The U.S. Supreme Court, in Mow Sun Wong, supra, upheld the citizenship restriction on federal service employment, accepting as completely valid its stated purpose in encouraging aliens to naturalize. Professor Schuck describes this purpose to be the same in Canada and most important since it encourages non-citizens to enter the mainstream of Canadian life. Moreover, he notes that the citizenship preference in the PSEA is more generous to non-citizens than the comparable U.S. restriction. The U.S. has maintained an American only system with some exceptions, Canada has adopted a Canada first system in which all non-citizens with the right to work in Canada are eligible for federal employment, as long as qualified Canadians are lacking.

Moreover, in Australia, the government's express reasons for changing the nationality requirements in the Public Service Act was to recognize the value placed on Australian citizenship, to encourage non-citizens to naturalize and to enhance the significance of citizenship as a unifying factor in a multicultural society. It is clear that the evidence demonstrates that with the exception of Sweden and New Zealand, virtually all liberal democratic societies impose citizenship-based restrictions in one form or another on access to employment in their national public services.

The plaintiffs argue that there is no evidence that Canada's naturalization rate is a pressing and substantial concern. It is the Court's view that this is not a matter that can be examined simply from a numerical or statistical perspective: R. v. Butler, supra, at pages 497, 501 and 504. The issue is not the naturalization rate but the incentive to naturalize from the perspective of the government's policy to enhance the value and meaning of Canadian citizenship. The plaintiffs also rely upon Andrews, supra, and, in particular, the reasons of Mr. Justice La Forest as follows, at pages 196-197:

There is no question that citizenship may, in some circumstances, be properly used as a defining characteristic for certain types of legitimate governmental objectives. I am sensitive to the fact that citizenship is a very special status that not only incorporates rights and duties but serves a highly important symbolic function as a badge identifying people as members of the Canadian polity. Nonetheless, it is, in general, irrelevant to the legitimate work of government in all but a limited number of areas. By and large, the use in legislation of citizenship as a basis for distinguishing between persons, here for the purpose of conditioning access to the practice of a profession, harbours the potential for undermining the essential or underlying values of a free and democratic society that are embodied in s. 15. Our nation has throughout its history drawn strength from the flow of people to our shores. Decisions unfairly premised on citizenship would be likely to "inhibit the sense of those who are discriminated against that Canadian society is not free or democratic as far as they are concerned and . . . such persons are likely not to have faith in social and political institutions which enhance the participation of individuals and groups in society, or to have confidence that they can freely and without obstruction by the state pursue their and their families' hopes and expectations of vocational and personal development". . . .

As mentioned previously, Mr. Justice La Forest does go on to state at page 197:

That is not to say that no legislative conditioning of benefits (for example) on the basis of citizenship is acceptable in the free and democratic society that is Canada, merely that legislation purporting to do so ought to be measured against the touchstone of our Constitution. It requires justification.

It is the Court's opinion that the defendants have justified that the objectives sought to be achieved by the legislation are important, in that they are pressing and substantial in Canada. What remains to be determined is whether Parliament is justified in distinguishing between citizens and non-citizens in the manner so chosen. This is a question of proportionality.

B. Proportionality

The second branch of the test under section 1 considers whether a reasonable balance has been struck between the legislative objective and the means chosen to achieve that objective. There are three different parts to this inquiry. The first part requires that the means chosen to achieve the objective are rational, fair, and not arbitrary. The second component requires that the means impair as minimally as is reasonably possible the right in question. Finally, the third part requires the assessment of whether the infringement of the right is sufficiently proportional to the importance of the objective sought to be achieved. This third part has been modified somewhat by the recent decision of Dagenais, supra, which will be discussed later in these reasons. Only if the legislation survives each of these parts can the limitation of the Charter right or freedom be justifiable under section 1: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at page 561.

a) The Rational Connection

The first component of the proportionality test requires that the means chosen to fulfil the legislative objective be carefully designed to meet that objective. The defendants argue that the requirement that the means not be arbitrary, unfair or based on irrational considerations has been relaxed somewhat by the Supreme Court. They contend that in more recent decisions the Court has found a rational connection where it has been satisfied that Parliament had a reasonable basis for assuming that the chosen means would achieve the desired objective: R. v. Butler, supra, at pages 502-503. It is not clear what is the preferred approach of the Supreme Court. In Rodriguez, supra, at page 561, the Chief Justice examines the objective as being rational, fair and not arbitrary. In essence, what one is looking at in these types of cases is whether the means fit the ends. Another version of the rational connection test was discussed in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, where at page 291, Madam Justice Wilson noted that:

The Oakes inquiry into "rational connection" between objectives and means to attain them requires nothing more than a showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt.

It would appear that the approach that is required by the Court herein is similar to the approach taken by the Supreme Court in R. v. Butler, supra. The notion as to whether the citizenship preference actually achieves its objectives is not obvious. The defendants note that the success of the measure has not been ascertained and is probably unascertainable given the abstract nature of its goals and the complex factors that influence permanent residents' decisions to naturalize. Indeed, Professor Carens relies on a U.S. study that provided an analysis of the factors that influence the failure to naturalize. He relies on this to demonstrate that Professor Schuck's incentive theory of naturalizing, upon which the defendants in part rely, is not sound. However, the defendants argue that there remains a rational connection between the citizenship preference and its objectives. It is contended that in light of international practice alone, Parliament had a reasonable basis for assuming that the means chosen would achieve the desired ends. In R. v. Butler, supra, at pages 502-503, Sopinka J. notes as follows:

In the face of inconclusive social science evidence, the approach adopted by our Court in Irwin Toy is instructive. . . . The Court made it clear, at p. 994, that in choosing its mode of intervention, it is sufficient that Parliament had a reasonable basis:

In the instant case, the Court is called upon to assess competing social science evidence respecting the appropriate means for addressing the problem of children's advertising. The question is whether the government had a reasonable basis, on the evidence tendered, for concluding that the ban on all advertising directed at children impaired freedom of expression as little as possible given the government's pressing and substantial objective.

And at p. 990:

. . . the Court also recognized that the government was afforded a margin of appreciation to form legitimate objectives based on somewhat inconclusive social science evidence.

The defendants contended that it is not necessary that a direct causal link between means and ends be established. It is sufficient that Parliament had a reasonable basis for believing that a causal link did or might exist: R. v. Butler, supra, at page 503.

It is the opinion of the Court that, while there is no conclusive proof of a connection between the citizenship preference and the twofold objective of the defendants, there is no reason to suggest that the legislature could not reasonably determine that such a connection might exist. On several occasions Parliament had an opportunity to amend paragraph 16(4)(c) of the PSEA. They chose not to for the reasons outlined previously in this decision. The issue at this stage is not whether or not Parliament is right or wrong, but whether or not the choice of means is rationally connected to the objective. Democratic institutions must make difficult choices among often conflicting values and interests. In this regard, the Court must be mindful of Parliament's representative function in that regard. Accordingly, I am of the opinion that a rational connection does exist between the legislative objective and the means chosen to achieve it, that is, the citizenship preference.

b) Minimal Impairment

Under the second part of the proportionality test, the question that must be answered is whether the provision in question was carefully designed to impair the equality rights of the plaintiffs as little as reasonably possible: Rodriguez, supra, at page 563.

There appears to have been some modification recently of the minimal impairment test. In Rodriguez, supra, at page 563, the Chief Justice, relying upon Irwin Toy, supra, at page 994, distinguishes between circumstances where the state performs the role of the "singular antagonist" such as in the prosecution of crime and circumstances where the state performs the role of the "reconciliation of claims of competing individuals or groups". In Irwin Toy, supra, it was found that greater flexibility under section 1 should be accorded legislation where there is the need to balance competing interests than where the legislation is primarily prosecutorial.

The Court is of the opinion that, in this case, the minimal impairment element must be assessed by determining whether the Government had a reasonable basis for concluding that the impugned law impaired the relevant Charter right as little as possible: Irwin Toy, supra, at pages 993-994.

In determining whether less intrusive legislation may be imagined, the Supreme Court has affirmed that it is not necessary that the legislative scheme be a perfect scheme but that it be appropriately tailored in the context of the infringed right. Moreover, it is sufficient for Parliament to have a reasonable basis for concluding that the objective would be achieved without requiring actual proof. In Rodriguez, supra, at page 564, the Chief Justice notes as follows:

In R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1343, I stated that "Parliament may not have chosen the absolutely least intrusive means of meeting its objective, but it has chosen from a range of means which impairs s. 11(d) as little as is reasonably possible. Within this range of means it is virtually impossible to know, let alone be sure, which means violate Charter rights the least". (Emphasis in original.) Similarly, the question to be answered in this case is whether the equality rights of the appellant have been impaired as little as reasonably possible. In so doing, the concern for the intricate and delicate function of Parliament to choose between differing reasonable policy options, some of which may impair a particular individual or group's rights more than others, should not be misconstrued as providing Parliament with a license for indifference to whatever Charter rights it deems necessary . . . .

The defendants contend that the citizenship preference has been refined to remove the former nationality requirement, replacing it with a preference only. In this regard, Parliament clearly sought, it is argued, to employ more subtle means of achieving its objectives that would impair the rights of permanent residents as little as possible.

The defendants argue that compared with the restrictions in other free and democratic societies, the Canadian citizenship preference is one of the least restrictive and onerous. It is not an absolute bar to permanent residents gaining access to public service employment. As indicated previously, at the federal level in the United States, the Supreme Court has upheld a complete bar, with few exceptions, to employment in the federal public service. Australia permits probationary employment of permanent residents on condition that they naturalize within two years after they are eligible to do so. The Canadian provision is completely non-coercive. In other countries, such as Germany, France and Switzerland, which are not immigration welcoming countries, broader based restrictions exist in conjunction with more stringent naturalization laws. The defendants argue, therefore, that the citizenship preference is one of the least intrusive means available for achieving Parliament's objectives in enhancing the value of citizenship and providing an incentive to naturalize.

The plaintiffs contend that while paragraph 16(4)(c) is characterized as a citizenship preference, it actually functions as a bar to employment in the federal public service. Firstly, for non-citizens who have an interest in working for the federal government, it operates as a barrier for at least four years. This consists of a minimum of three years for the citizenship residency period and approximately one year for citizenship to be actually obtained. Moreover, Mr. Stewart, on behalf of the defendants, indicated that only a fraction of a percent of non-citizens are referred in open competitions annually. This is because it is only infrequently that job vacancies require qualifications that Canadian citizens cannot meet. In 1989, there were approximately 227,545 members of the public service universe to which the PSEA applies. This is approximately 42.6% of the entire public service of Canada. Mr. Stewart indicated that 20 to 25% of the appointments to the Public Service during a calendar year would be by means of open competition. In 1989, there were 9,963 appointments to the Public Service. Within Mr. Stewart's area of responsibility, the National Capital Region, in 1992-93, Mr. Stewart indicated that about 12 non-citizens were referred in open competitions.

The plaintiffs argue that there are alternate measures to encourage naturalization that do not intrude upon the rights of non-citizens of this country. Indeed, they argue that, according to Professor Carens, the biggest incentive for people wanting to become a citizen is that they feel part of the community, i.e., they feel part of Canada. It is also contended by the plaintiffs that it is a quantum leap to suggest there are Canadian citizens today that made the decision to naturalize because they could compete in open competitions for positions in the federal public service.

It is the opinion of the Court that it is unnecessary for Parliament to adopt the absolutely least intrusive means of achieving its objective. However, any less intrusive means must be examined to determine whether or not Parliament could choose from a range of means that would impair the right as little as reasonably possible.

The plaintiffs contend that a more appropriate and less intrusive means of achieving Parliament's ends would be to adopt the "political function" test employed in American equal protection law and in the European Community. Generally, as indicated previously, the political function test has been described as a device employed by the U.S. Supreme Court in state equal protection jurisprudence and more recently by the European Court of Justice in interpreting European Community law.

The defendants argue that the political function test in American equality law was created as an exception to the general rule that state governments cannot classify on the basis of alienage and that state alienage classifications are therefore suspect and subject to strict scrutiny. The test does not apply to federal alienage classifications. This test originated in Sugarman v. Dougall, supra, at page 647. In three subsequent cases the Court applied the political function exception to uphold state laws that restricted aliens from employment in specified state government positions: Foley v. Connelie, 435 U.S. 291 (1978) (Police Officers); Ambach v. Norwick, 441 U.S. 68 (1979) (Public School Teachers); and Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (Probation Officers). The defendants argue that the political function exception operates solely in the state context to carve out a narrow class of positions considered to be intrinsically governmental. In this respect, the state may legitimately prescribe citizenship as a qualification without offending the equal protection guarantee. As a qualification for employment, the defendants argue it has no application in the present case.

The defendants further argue that while the political function test might be appropriate in the context of a provincial case like Andrews, supra, or Austin v. British Columbia (Ministry of Municipal Affairs, Recreation & Culture) (1990), 66 D.L.R. (4th) 33 (B.C.S.C.), it would be inappropriate in the present case. Firstly, citizenship is not being used as a qualification for employment in this case. Secondly, the federal government and not the provinces has the power to legislate for citizenship purposes, so it is unnecessary to create an exception to permit it. Thirdly, to apply the test would restrict the Government's legitimate authority to legislate for citizenship ends. Finally, it is argued that the U.S. experience demonstrates that the test creates administrative difficulties in determining which positions are intrinsically governmental and which are not.

The European Court of Justice has also adopted a form of political function test in interpreting Article 48(4) of the Treaty of Rome [Treaty establishing the European Economic Community (March 25, 1957)]. This article provides generally for the free movement of workers without discrimination based on nationality within the European community, except for public service employment. With respect to its application, the European Court of Justice has defined public service narrowly: see Re Public Employees: E.C. Commission v. Belgium (Case 149/79), [1981] 2 C.M.L.R. 413 (E.C.J.), at pages 433-434; and Re Public Employees (No. 2): E.C. Commission v. Belgium (Case 149/79), [1982] 3 C.M.L.R. 539 (E.C.J.), at page 545. It appears that a narrow definition of public service has been adopted to ensure the principal of free movement of workers within the community so as to foster community integration. However, it has not expanded public service employment opportunities for permanent residents of those countries. The defendants argue that the goal is to promote and enhance the value and importance of community citizenship as part of community integration. This, nevertheless, results in the exclusion of those persons who are not citizens of European Community member countries from access to public service employment. The defendants argue that in the European context the political function test serves the same citizenship enhancing goals as the Canadian citizenship preference. The defendants contend that if applied in the Canadian context the political function test would defeat those goals and in effect would devalue Canadian citizenship without any consequent benefit.

The defendants also contend that another option for achieving Parliament's objectives would be to follow the Australian model of permitting permanent residents to be appointed to the public service on condition that they naturalize as soon as eligible. It is argued that this is heavier handed and administratively inconvenient. The Court in the Mow Sun Wong, supra, at page 45, noted, in considering a similar option:

. . . a rule which allowed noncitizens to become employed by the federal government pending completion of the residency requirement would doubtless be an even stronger incentive towards citizenship than the present Executive Order, inasmuch as many noncitizens would be impelled to become naturalized in order to continue their federal employment once they became eligible for citizenship.

The Court concluded, however, that adopting such a scheme (at pages 45-46):

. . . would be excessively disruptive to the service, in that significant numbers of alien employees would automatically be terminated upon their failure, for one reason or another, to become naturalized. The government's interest in a stable federal work force is thus substantially furthered by its uniform rule of citizenship.

On the other side of the coin, apparently New Zealand only restricts employment in the public service to areas of national security. The defence force (military) is not part of the public service in New Zealand. The defendants contend that New Zealand is not an immigration receiving or a multicultural society and has no need to promote or enhance citizenship or to offer incentives to non-citizens to naturalize. It is contended that its restriction is tailored to a narrower legislative purpose which would not serve the broader citizenship objectives of the Canadian Parliament.

It is apparent that the Court must determine whether the provision impairs constitutionally protected rights or freedoms as little as possible. This involves a determination as to whether or not alternative means of achieving the objective were available to Parliament. As stated in R. v. Laba, [1994] 3 S.C.R. 965, by Mr. Justice Sopinka, at page 1009:

The legislature is entitled to some deference in choosing the means of attaining a given objective. As Lamer C.J. stated in R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1341, "Parliament is not required to search out and to adopt the absolutely least intrusive means of attaining its objective" (emphasis in original). However, it is also important to remember that this is not a case in which the legislature has attempted to strike a balance between the interests of competing individuals or groups. Rather it is a case in which the government (as opposed to other individuals or groups) can be characterized as the singular antagonist of an individual attempting to assert a legal right which is fundamental to our system of criminal justice. As the majority wrote in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (at p. 994), in such circumstances the courts are in as good a position as the legislature to assess whether the least drastic means of achieving the governmental purpose have been chosen, especially given the inherently legal nature of the rights in question and the courts' accumulated experience in dealing with such matters.

In the case at bar we are not dealing with a conflict wherein the Crown is the singular antagonist as might be the case in a criminal matter. In this situation, the question is whether the Government had a reasonable basis on the evidence tendered for concluding that the citizenship preference impaired the section 15 equality rights as little as possible given the Government's pressing and substantial objective: Irwin Toy, supra, at page 994.

In matching means to ends, it is clear that Parliament had to strike a balance between the individual interests of the permanent residents and the collective interests of the state in citizenship. In my opinion, the Court is in no better position than Parliament to decide whether the right balance has been struck or the right means has been chosen to accord a preference to Canadian citizens with respect to public service employment as an entitlement of citizenship and an enhancement towards naturalization. In this regard, the Court considers that the Government had a reasonable basis for the choice that it has made and that the choice impairs constitutionally protected rights as little as possible.

(c) Proportionality

The final step requires an assessment of the proportionality between effects and objectives. Does the citizenship preference severely trench on the equality rights of the plaintiffs so as to outweigh Parliament's pressing and substantial objectives in enacting it? As indicated above, the third part of the second branch of the Oakes test has recently been reconsidered in Dagenais, supra, and Laba, supra. In Oakes, supra, at page 139, Chief Justice Dickson, stated that the third part required:

. . . a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

In R. v. Edwards Books and Art Ltd., supra, at page 768, Chief Justice Dickson restated the requirement as follows:

. . . their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.

In other words, this step requires a balancing of the objectives sought by the law against the infringement occasioned by the law.

In Dagenais, supra, at page 889, the Chief Justice restated the third part as follows:

. . . there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.

The parties in this litigation agree that the modification of the third part of the Oakes test does not apply in all cases: Dagenais, supra, at pages 887-888. The question for the Court is, therefore, whether it applies herein.

The plaintiffs argue that the reformulation of the third part of the Oakes test is appropriate in the context of this case and, not surprisingly, the defendants disagree. The defendants contend that little guidance is provided by the Supreme Court as to when the modification is applicable. At page 887 of Dagenais, supra, the Chief Justice stated that where a measure results in the full or nearly full realization of its legislative object, the conventional Oakes analysis will be appropriate. However, where a measure only partially achieves its objective, it will be necessary to show that both the objective of the measure and the salutary effects are proportional to the deleterious effects the measure has on the fundamental right or freedom in question. What is unclear is how is it to be determined whether a measure fully, or only partially achieves its objective. The defendants contend that the proof of the extent to which the measure achieves its objective may be difficult, and in some cases, virtually impossible. They argue that the Supreme Court has acknowledged this and has previously held that the absence of proof that an impugned provision achieves its objective is not a determinative factor in assessing the constitutionality of a provision: Butler, supra, at pages 501 and 504; and R. v. Keegstra, [1990] 3 S.C.R. 697, at page 857.

In this case, the actual salutary effects of the impugned provision are unascertainable. As indicated previously, the Supreme Court has upheld legislation under section 1 without evidence as to its actual salutary effects and in the face of inconclusive social science evidence: Irwin Toy, supra, at page 990 and 1000 and Butler, supra, at pages 502-503.

The defendants also argue that, on the basis of Dagenais, supra, and Laba, supra, the Court's concern in imposing the requirement to weigh deleterious effects against salutary effects occurs when the impugned provision constitutes a serious or severe infringement of the right or freedom in question. Lamer C.J. suggested that because of the severity of its deleterious effects, an impugned measure might not be justified even though it satisfies all other elements of the section 1 test: Dagenais, supra, at page 887. Similarly, in Laba, supra, at page 1011, Sopinka J. suggested that the proportionality requirement may not be met where there is a serious violation, a significant infringement or an excessive invasion of a right or freedom. Sopinka J. in Laba, supra, at page 1006, endorsed the modifications suggested by Lamer C.J. in Dagenais, supra, at page 889, but restated it as follows:

The means chosen to achieve the legislative objective must pass a three-part proportionality test which requires that they . . . (c) have deleterious effects which are proportional to both their salutary effects and the importance of the objective which has been identified as being of "sufficient importance".

The defendants argue that the Supreme Court appears to be introducing differing levels of inquiry at this third stage of the proportionality test. Where an impugned measure fully, or nearly fully, realizes its objective and does not constitute a severe infringement of a Charter right or freedom, it may be justified on the conventional Oakes test. However, it is contended that where the measure only partially achieves its objectives and its deleterious effects on a right or freedom are severe, a more stringent test, involving the weighing of the measures' deleterious effects against its salutary effects must be met.

Dagenais, supra, is a case dealing with competing Charter rights: the right to a fair trial versus the right to freedom of expression. I am not by this statement adopting the "clash model" which has been rejected by the Supreme Court in Dagenais, supra, at page 882. Laba, supra, is a case where the Government may be characterized as the singular antagonist of an individual attempting to assert a legal right which is fundamental to our system of criminal justice. The case before the Court does not entirely fit either characterization. This case deals with Parliament attempting to strike a balance between the interests of competing individuals or groups: R. v. Butler, supra. As such, the Court is of the opinion that the modification of the third part of the second branch of the Oakes test does not apply in these circumstances. While proportionality must be assessed, it ought to be assessed in the context of the conventional formulation of the Oakes test.

It is further contended by the defendants that the citizenship preference cannot be said to trench so severely on the equality rights of permanent residents as to constitute a restriction of "the most serious kind": Keegstra, supra, at page 787. The defendants argue that the evidence establishes that the preference applies to less than half of the full Public Service. It does not operate as an absolute bar to public service employment and it does not preclude permanent residents from pursuing their professional calling as was the case in Andrews, supra. It is contended that the citizenship preference is a moderate restriction and for those permanent residents who choose to naturalize it is but a temporary restriction. That being the case, it is contended that it is not the kind of excessively invasive infringement that calls for the strictest justification.

The plaintiffs argue, however, that the preference denies the Canadian government of the best people to work in its government. Moreover, if one takes into account the insignificant percentage of the people who are affected, given the federal public service as a whole, and the number of open competitions annually, the plaintiffs contend that the balance against the intrusive nature of the equality violation favours the plaintiffs. The plaintiffs also argue that while citizenship can be taken out, there is approximately, as indicated previously, at least a four-year delay.

The defendants contend that it cannot be conclusively established whether and to what extent the impugned measure actually achieves its objective. On the other hand, it is argued that it cannot be conclusively established that it does not. Given that proof of either the efficacy or inefficacy of the preference is impossible, the question becomes whether there is a reasonable basis for presuming that the preference is actually achieving its objective. The defendants argue that the evidence, in particular the evidence of Professor Schuck, supports such a presumption.

Professor Schuck stated that the greater difference between citizenship and non-citizenship the greater the value of citizenship; and the greater the value of citizenship, the greater the incentive to naturalize. It is his view that rhetoric alone cannot make citizenship important and valuable. Citizenship will be perceived as important only to the extent that it is important and it will in fact be so if tangible benefits or entitlements attach to it. In his opinion, it is reasonable to assume that by according a benefit to Canadians as an entitlement of their citizenship status, the preference enhances the value and importance of Canadian citizenship and makes it more attractive to non-citizens as an incentive to acquire it. In this regard, the defendants argue that the dual objective of the preference are presumptively met and not only is the traditional statement of proportionality in Oakes met but there is also no need to address the requirements in Dagenais, supra.

The plaintiffs, relying primarily on the opinion of Professor Carens, argued that giving preferential treatment to citizens at the expense of non-citizens only serves to exacerbate the historical disadvantage suffered by non-citizens and further alienates them from Canadian society thereby discouraging naturalization. Moreover, Professor Carens contends that western liberal democracies are moving towards decreasing the distinctions between the rights and privileges of citizens and non-citizens. He is also concerned that such a distinction promotes divisiveness and antagonism and creates unnecessary and inappropriate divisions among people who live and work together. In essence, he contends that the reason that people will naturalize is dependent upon their feeling at home and accepted in what is usually a new environment with new institutions.

In Keegstra, supra, Madam Justice McLachlin stated at page 845:

The task which judges are required to perform under s. 1 is essentially one of balancing. On the one hand lies a violation or limitation of a fundamental right or freedom. On the other lies a conflicting objective which the state asserts if of greater importance than the full exercise of the right or freedom, of sufficient importance that it is reasonable and "demonstrably justified" that the limitation should be imposed. The exercise is one of great difficulty, requiring the judge to make value judgments. In this task logic and precedent are but of limited assistance. What must be determinative in the end is the court's judgment, based on an understanding of the values our society is built on and the interests at stake in the particular case. As Wilson J. has pointed out in Edmonton Journal, supra, this judgment cannot be made in the abstract. Rather than speak of values as though they were Platonic ideals, the judge must situate the analysis in the facts of the particular case, weighing the different values represented in that context. Thus it cannot be said that freedom of expression will always prevail over the objective of individual dignity and social harmony, or vice versa. The result in a particular case will depend on weighing the significance of the infringement on freedom of expression represented by the law in question, against the importance of the countervailing objectives, the likelihood the law will achieve those objectives, and the proportionality of the scope of the law to those objectives.

In weighing the balance between the severity of the deleterious effects of the impugned provision on the plaintiffs versus its justification as a result of the objectives it intends to serve, the Court notes that the weighing of these countervailing considerations must be performed in the context of the burden being on the defendants to establish that the limit on the constitutionally guaranteed right is reasonable and justified in a free and democratic society.

I have found under the section 15 analysis that the plaintiffs' section 15 rights have been violated as a result of the citizenship preference in this case. However, I do not consider that the infringement of the guarantee of equality in this case is of a serious nature. As indicated previously, the preference applies to less than half of the public service of Canada. There are numerous positions that permanent residents are not excluded from by reason of their non-citizenship status. The plaintiff, Ms. Bailey, and the plaintiff, To Thanh Hien, were able to obtain employment in the Public Service notwithstanding their non-citizenship status at the time. Ms. Lavoie was able to work for the Government on contract as well. In Andrews, supra, the Court noted that Mr. Andrews was unable to pursue his profession or calling. That is not the case herein. While the restriction does exist and it does disadvantage the plaintiffs, it is moderate and it can be temporary. It is not the type of infringement of the guarantee of a Charter right that is of the most serious nature.

Despite this finding, I must consider whether the benefit to be gained by the continuation of the limitation on the right affected by the citizenship preference is beneficial. It is the opinion of Court that the objectives which underlie this preference are important. It is unfortunate that the benefits to be achieved must be achieved at the cost of some infringement of the plaintiffs' Charter rights. While a complete discrimination free society may be our collective ideal, the weighing of the different values at stake in this trial requires the Court to conclude that the infringement is not of a most serious nature. I accept that Professor Carens has reflected many important goals of our society, including individual dignity and social cohesion, but I nevertheless find that the value and goals of citizenship and the desire on the part of the Government to encourage permanent residents to naturalize, particularly in a multicultural society such as Canada, outweighs the abridgement of the rights at issue in this case. Canada, as a nation-state, is more than just a political system.

In my opinion, the objectives of the legislation outweigh the infringement on the constitutional guarantee of equality affected by paragraph 16(4)(c) of the PSEA.

3. REMEDY

In addition to declaratory relief, the plaintiffs also seek damages in these actions. In constitutional cases of this sort declaratory relief is common but damage awards for Charter violations are rare. As stated in Schachter v. Canada, [1992] 2 S.C.R. 679, at page 720:

An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982.

While such relief is rare, the Supreme Court has not excluded the possibility. In this case, the damages are clearly ascertainable and facts specific. On at least two occasions it has been recommended that the preference be repealed. It is also clear that the Government was at all times aware of the burden of paragraph 16(4)(c) of the PSEA. As such, it is the Court's opinion that, if at some future date it is determined that paragraph 16(4)(c) is not saved by section 1 of the Charter, I am of the view that compensatory damages are appropriate in this case. However, I am also of the opinion that punitive or exemplary damages are wholly inappropriate in this matter.

I decline, at this stage, to assess the quantum of damages. The evidence before the Court on damages is inadequate. Should it be necessary to do so at some future date, a reference, pursuant to Rule 500 [Federal Court Rules, C.R.C., c. 663] may be ordered at that time.

COSTS

As to costs, the general rule is that they follow the result. In this case, while I have upheld the legislation under section 1 of the Charter, I have also found that section 15 has been violated. It is the Court's opinion that litigation involving the Charter should not be beyond the reach of individuals of ordinary means. A bona fide Charter challenge is not to be discouraged by the necessity for the plaintiffs to bear the entire burden: Orkin, M. The Law of Costs, Canada Law Book Inc., 1994, at page 2-133. Therefore, I have decided to depart from the general rule and make no order as to costs in this matter.

CONCLUSION

Is the limit on section 15 of the Charter affected by paragraph 16(4)(c) of the PSEA reasonable and demonstrably justified in a free and democratic society? I conclude that while paragraph 16(4)(c) of the PSEA infringes section 15 of the Charter, it constitutes a reasonable limit and is saved by virtue of the provisions of section 1 of the Charter. Accordingly, the actions are dismissed.