Equality, Freedom and Democracy: Tax Law and the Canadian Charter of Rights and Freedoms

The focus of this chapter is the application of (the equality provision) section 15(1) of the Canadian Charter of Rights and Freedoms to income tax legislation. The author considers three cases in which taxpayers argued that they had been discriminated against in contravention of s. 15(1). That section provides that everyone has the right to equal benefit of the law without discrimination based on the list of enumerated grounds or other analogous grounds.

Considerable jurisprudence has developed regarding the application of s. 15(1). In Law v. Canada [1999] 1 S.C.R. 497, the Supreme Court of Canada affirmed the purpose of s. 15(1) is: "to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration."

The author briefly discusses the purpose of the Canadian income tax system, before analyzing three cases which raised s. 15(1) Charter challenges to the Income Tax Act: Symes v. Canada - discrimination on the basis of sex. Thibaudeau v. Canada - discrimination on the basis of family status. Rosenberg v. Canada - discrimination on the basis of sexual orientation.

Finally the author considers two questions: 1. whether something inherent in tax legislation causes judicial reluctance to apply Charter s. 15(1) to the Income Tax Act, and 2. whether courts tend to consider the cost implications of extending a tax subsidy to an individual or group when determining whether the discrimination can stand because it is saved by Charter s.1 which guarantees the rights and freedoms set out in the Charter "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."