Docket No. 27427 Concurrence Arbour J. | Majority Bastarache J. Docket number 27,427 | |
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Citations 2002 SCC 23, [2002] 1 S.C.R. 769 Dissent McLachlin C.J. and L’Heureux‑Dubé J. People also search for Gosselin v Quebec (AG) | ||
Lavoie v Canada, [2002] 1 S.C.R. 769, 2002 SCC 23 is a leading decision of the Supreme Court of Canada on whether preference on basis of citizenship infringed equality guarantee under section 15(1) of the Canadian Charter of Rights and Freedoms. The Court found that the federal Public Service Employment Act (PSEA), which gave preference to citizens when referring to departments, was discriminatory. The violation was saved under section 1 of the Charter as a reasonable limitation on equality rights.
Contents
Background
Several foreign nationals applied to the federal government for employment. Under section s. 16(4)(c) of the PSEA which gave preference to citizens when allocating applicants to different departments. The foreign nationals applied to the Federal Court to strike out the provision. The Federal Court held that the provision violated section 15 but was saved by section 1. The Federal Court of Appeal upheld the decision.
Reasons of the court
Justice Bastarache wrote for the majority in upholding the provision. In his application of the Law test for section 15, he noted that by creating the distinction between citizen and foreign national the legislature was placing an additional burden on already disadvantaged group. He stated that it was well settled that foreign nationals are a group that do suffer from stereotypes, marginalization, and historical disadvantage, but the Act does not attempt to compensate for this.
Bastarache spent some time considering the element of "dignity" introduced in Law v. Canada. Dignity inquiry requires that the subjective view of the claimant be rationally grounded in circumstances that a reasonable would share that experience. He found that denial of professional development impacted a significant element of the fundamental right of choice. On the section 1 analysis Bastarache considered the positive goals of the provision. He saw merit in having a law that encouraged naturalization and increased the value of citizenship. He further observed that the negative impact of the exclusion was sufficiently small to warrant justification by the valuable objective.