Judgments

[1997] 1 F.C. 800

A-455-95

Her Majesty the Queen as represented by the Minister of Transport (Appellant) (Defendant)

v.

Eileen Grace Bahlsen (Respondent) (Plaintiff)

Indexed as: Bahlsen v. Canada (Minister of Transport) (C.A.)

Court of Appeal, Isaac C.J., Pratte and McDonald JJ.A.—Ottawa, March 5 and November 25, 1996.

Constitutional law — Charter of Rights — Equality rights — Appeal from F.C.T.D. judgment declaring Transport Canada’s Personnel Licensing Handbook, s. 3.18 contrary to Charter, s. 15 — S. 3.18 providing persons having diabetes mellitus controllable without drugs assessed as fit — Respondent, insulin-dependent diabetic, denied medical certificate for private pilots’ licence — S. 3.18 offending Charter, s. 15(1) because discriminating on basis of physical disability — Deeming all insulin-dependent diabetics unfit, regardless of individual risk of incapacitation — Individual risk of incapacitation never determined — Respondent excluded from eligibility for medical certificate because of presumed group characteristic, i.e. susceptibility to incapacitation of insulin-dependent diabetics — Impugned provision saved by Charter limitation clause.

Constitutional law — Charter of Rights — Limitation clause — Transport Canada’s Personnel Licensing Handbook, s. 3.18 providing persons having diabetes mellitus controllable without drugs assessed as fit, declared contrary to Charter, s. 15(1) equality rights — Trial Judge holding s. 3.18 not proportional to objective of flight safety as not impairing equality rights of insulin-dependent diabetics “as little as possible” — S.C.C. adopting flexible approach to application of Oakes test for Charter, s. 1 justification — Trial Judge applied rigid formulation of Oakes test — Not reflecting appropriate deference to legislature — Also failed to advert to context of s. 3.18, including Canada’s undertaking to adopt measures similar to those of International Civil Aviation Organization respecting licensing of insulin-dependent diabetics, conflict of medical opinion on licensing insulin-dependent diabetics — Reasonable basis to conclude s. 3.18 respecting Charter rights as much as possible — Pressing and substantial legislative objective (flight safety) not outweighed by minimal impairment of equality rights.

Air law — Transport Canada’s Personnel Licensing Handbook, s. 3.18 providing persons having diabetes mellitus controllable without drugs assessed as fit — Respondent, insulin-dependent diabetic, denied medical certificate for private pilots’ licence — S. 3.18 contrary to Charter, s. 15(1) equality rights, but justified under Charter, s. 1 — Context of impugned provision: as signatory to International Convention on Air Safety, Canada undertaking to adopt rules re: licensing diabetics similar to those of ICAO — No other state licensing IDDM diabetics for solo flight — No consensus of medical opinion on safety of solo flight by insulin-dependent pilots — Flight safety pressing and substantial objective — S. 3.18 respecting Charter rights as much as possible.

This was an appeal from a Trial Division judgment which declared section 3.18 of Transport Canada’s Personnel Licensing Handbook to be contrary to Charter, section 15. Section 3.18 provides that persons with diabetes mellitus controllable without the use of anti-diabetic drugs shall be assessed as fit. The respondent has insulin dependent diabetes mellitus (IDDM), and self-injects insulin three times daily. In 1991, and again in 1992, the respondent was refused a medical certificate for a Category 3 private pilots’ licence on the basis of sections 3.18 and 4.17 of the Personnel Licensing Handbook. The Trial Judge found that section 3.18 discriminated against a particular class of individuals, i.e insulin-dependent diabetics. He further found that IDDM was a form of physical disability. Since section 3.18 discriminated against all insulin-dependent diabetics, not on the basis of “an individual’s merits and capabilities”, but because of “personal characteristics attributed to an individual solely on the basis of association with a group”, he concluded that the section was inconsistent with subsection 15(1) of the Charter. He held that section 3.18 was not a reasonable limit prescribed by law within the meaning of Charter, section 1 because it was not proportional to the objective of flight safety as it does not impair the respondent’s equality rights “as little as possible”. Section 3.18 was an absolute, blanket prohibition, whereas the evidence did not demonstrate that individual testing of members of the class discriminated against was impossible or impracticable.

The issues were: (1) whether section 3.18 discriminates against the respondent because of her physical disability within the meaning of Charter, subsection 15(1); and (2) whether section 3.18 constitutes a minimal impairment of the subsection 15(1) equality right.

Held, the appeal should be allowed.

(1) Section 3.18 offends Charter, subsection 15(1) because it discriminates against the respondent on the basis of her physical disability. Section 3.18 deems insulin-dependent diabetics medically unfit for private pilots’ licences because, by definition, that class of diabetes is not controllable without the use of an anti-diabetic drug. The underlying premise of the section is that regardless of the individual characteristics or circumstances of a particular insulin-dependent diabetic, he or she is at risk of an incapacitating incident during flight. Consequently, that person, regardless of his or her individual risk of incapacitation, is deemed unfit. Section 3.18 focuses on physical disability—IDDM diabetes—and makes a distinction based on it. The respondent’s individual risk of incapacitation was never determined because section 3.18 did not allow her to demonstrate her medical fitness. Instead, the section excluded her from eligibility for a Category 3 medical certificate because of a presumed group characteristic, namely susceptibility to incapacitation, of IDDM diabetics.

(2) The Minister had a reasonable basis, on the facts, to conclude that section 3.18 impaired the equality rights of insulin-dependent diabetics as little as possible. The Charter decisions of the Supreme Court since The Queen v. Oakes demonstrate a considerably more flexible application of the Oakes test than that applied by the Trial Judge herein. In adopting legislation to meet a pressing and substantial objective, Parliament is not obliged under section 1 to select the absolutely least impairing method of achieving its objective. What will be “as little as possible” will vary depending on the government objective and on the means available to achieve it. Where the legislature is required to assess conflicting social or scientific evidence, the courts must afford the government some leeway in striking the balance. The Trial Judge imposed a rigid formulation of the Oakes proportionality test which did not reflect the appropriate deference to the legislature. When regulating safety in the operation of an aircraft, the government seeks to balance the public interest in flight safety against the individual interest of diabetic pilots in access to all types of flight licence. The scientific evidence as to whether insulin-dependent diabetics can safely fly alone is conflicting. In these circumstances, the government must be allowed some leeway in striking a balance between individual rights and public safety, and in adopting licensing standards which take into account the conflicts of medical opinion.

The Trial Judge also failed to advert to the context of the impugned section. Canada, as a signatory to the International Convention on Air Safety has undertaken to adopt measures similar to those of the International Civil Aviation Organization respecting the licensing of IDDM diabetics to fly aircraft, or, at least, to advise that organization of any deviation from its standards. No other state had authorized the licensing of IDDM diabetics to engage in solo flying for the distance and duration that the respondent was required to complete. The impugned medical standards were developed on the basis of the judgment of experts in endocrinology and aviation medicine. There was evidence that, where the experts agreed that safety would not be compromised, medical standards were relaxed. But the experts were unable to reach a consensus with respect to whether insulin-dependent diabetics could safely be permitted to fly alone. They did agree that it is impossible to predict with certainty whether a particular IDDM diabetic will suffer an incapacitating reaction.

As to the final element of the proportionality test, since the impairment of the respondent’s equality rights was minimal, the pressing and substantial legislative objective was not outweighed by it.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Aeronautics Act, R.S.C., 1985, c. A-2, s. 4.9 (as enacted by R.S.C., 1985 (1st Supp.), c. 33, s. 1; S.C. 1992, c. 4, s. 7).

Air Regulations, C.R.C., c. 2, s. 403(1)(d) (as am. by SOR/82-1036, s. 2).

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(1).

CASES JUDICIALLY CONSIDERED

APPLIED:

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; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; (1995), 127 D.L.R. (4th) 1; 100 C.C.C. (3d) 449; 62 C.P.R. (3d) 41; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.

CONSIDERED:

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; R. v. 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; Hines v. Registrar of Motor Vehicles (N.S.) et al. (1990), 99 N.S.R. (2d) 167; 73 D.L.R. (4th) 491; 270 A.P.R. 167; 13 C.H.R.R. D/154; 3 C.R.R. (2d) 86 (S.C.); The Queen 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; 65 N.R. 87; 14 O.A.C. 335.

REFERRED TO:

McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1.

AUTHORS CITED

Transport Canada. Aviation. Personnel Licensing Handbook: Vol. 3: Medical Requirements, 2nd ed. Ottawa: Supply and Services Canada, 1990.

United States. Department of Transportation. Federal Aviation Administration. Risk Analysis of Certifying Insulin-Taking Diabetic Private Pilots.

APPEAL from Trial Division judgment (Bahlsen v. Canada (Minister of Transport) (1995), 97 F.T.R. 81 (F.C.T.D.)), declaring that section 3.18 of Transport Canada’s Personnel Licensing Handbook was contrary to Charter, section 15, and not reasonably justified in a free and democratic society. Appeal allowed.

COUNSEL:

James N. Shaw for appellant.

David J. Corry for respondent.

SOLICITORS:

Deputy Attorney General of Canada for appellant.

Bennett Jones Verchere, Calgary, for respondent.

The following are the reasons for judgment rendered in English by

Isaac C.J.: This is an appeal from a judgment of the Trial Division, pronounced on 30 June 1995 [(1995), 97 F.T.R. 81], which declared section 3.18 of the Personnel Licensing Handbook (2nd ed.), Vol. 3: Medical Requirements published by Transport Canada, as amended, to be contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) and therefore of no force or effect. The Trial Judge suspended his declaration of invalidity for 90 days after the date of judgment in order to provide an opportunity for Transport Canada to amend the section to conform to his reasons for decision.

The appeal arose because the respondent had been refused a private pilot’s licence on the authority of section 3.18 of the Personnel Licensing Handbook.

THE EVIDENTIARY BACKGROUND

At the time of trial the respondent was 31 years old. In November 1987, during her first pregnancy, she was diagnosed with diabetes. After the pregnancy, the respondent’s condition normalized, but the diabetes recurred in April 1988. She consulted her endocrinologist, Dr. Stuart Ross, who diagnosed Type I or insulin dependent diabetes mellitus (IDDM).

After the second diagnosis, the respondent entered the diabetes day care programme at the Foothills Hospital in Calgary, where she learned of the symptoms of diabetes and the methods by which they could be self-managed under the supervision of an endocrinologist. Consequently, the respondent embarked on a programme of self-management under the supervision of Dr. Ross. She is in frequent contact with him by telephone or facsimile and she visits him every six months.

The respondent’s self-management consists, in the main, of monitoring blood-sugar levels an average of five times daily, maintaining a particular dietary regime, and self-administering insulin three times daily. Even during strenuous physical activity, such as playing hockey, she is able to monitor and, if necessary, correct her blood-sugar levels by self-administering fruit juice or insulin.

Diabetes results from a failure of the pancreas to produce any or sufficient insulin. Because of the lack of insulin, the diabetic is unable to assimilate essential blood sugar, resulting in elevated blood-sugar levels. Diabetes is classified into two types, Type I and Type II. In Type II diabetes, which is more common and less serious, the diabetic is usually non-insulin-dependent and is able to control the disease through diet or oral hypoglycaemic medication. Type I diabetes is more severe. Type I diabetics, such as the respondent, produce little insulin or none at all and that they must depend upon daily insulin injections for their survival. They are susceptible to hypoglycaemic reactions when their blood-sugar level drops too low. Symptoms of hypoglycaemia range from feelings of hunger, palpitations of the heart, shaking of the hands (mild), through dizziness, blurred vision and weakness (moderate), to disorientation, loss of co-ordination, lack of judgment, loss of consciousness and death (severe). A severe reaction can affect the central nervous system and usually requires the intervention of another person.

A mild reaction, if not managed promptly, can quickly become severe; a severe hypoglycaemic reaction is normally, but not invariably, preceded by a mild one. For this reason, Type I diabetics usually carry candy or other foods high in sugar content to ingest at the onset of a mild hypoglycaemic reaction. By eating the sugar-rich snack, the diabetic seeks to restore quickly, where possible, the equilibrium between the levels of insulin and blood sugar. A Type I diabetic may reduce the risk of hypoglycaemic reactions, but cannot completely eliminate it.

According to her testimony, the respondent suffers mild hypoglycaemic reactions, on average two or three times weekly, but is always able to take immediate remedial action by careful self-management as recommended by her endocrinologist. She has available at all times some form of confectionery, such as Life Savers or Mars bars. The respondent testified that she has never suffered a moderate or severe hypoglycaemic reaction and has never suffered a reaction which required the assistance of another person.

The respondent acknowledged in cross-examination that a mild hypoglycaemic reaction could impair judgment, and that if a mild reaction was left untreated it would progress to a moderate, then to a severe one. The respondent was careful to say that she would not allow such a situation to develop in her own case.

The respondent testified that in the day-to-day management of her condition, she aims for blood-sugar values in what is classified as the normal range of 4 to 7 millimoles per litre. But she also testified that the values she had recorded in her log ranged from 3 millimoles per litre (low) upwards of 20 millimoles per litre (high). A low blood-sugar value would indicate that the respondent had injected too much insulin, had exercised excessively or had not eaten sufficient food. At trial, the respondent tested her blood-sugar level and reported that it was elevated to 13 millimoles per litre as a result of stress.

The respondent has driven automobiles by herself for long distances and has flown small aircraft accompanied by a co-pilot, all without incident. She has flown, by her own estimate, more than 500 hours in all types of small aircraft. She has never flown solo. She flies, on average, once or twice weekly and has never experienced a hypoglycaemic reaction during flight. She always has candy or fruit juice available to her during flight. She conducts blood sugar testing during flight without difficulty. She has never, however, tested her blood sugar levels while in control of an aircraft, even if she was accompanied by another pilot.

The Category 3 pilot’s licence sought by the appellant authorizes the holder to fly a single engine airplane by day only in controlled airspace, i.e., airspace under the control of an air traffic controller. One of the conditions precedent to obtaining a Category 3 licence is the successful completion of twelve hours of solo flight, including a five-hour cross-country flight of a minimum of 150 miles with two points of landing other than the point of departure.[1]

In April 1991, the respondent applied to the Department of Transport for a medical certificate for the Category 3 licence. In her application, she indicated her history of diabetes and the treatment she was then receiving.[2] On June 10, 1991, the Regional Aviation Medical Officer refused the application on the basis of sections 3.18 and 4.17 of the Personnel Licensing Handbook, which deemed insulin-dependent diabetics medically unfit for licensing. The Regional Director Aviation Licensing confirmed the refusal by letter dated June 12, 1991.[3] On November 1, 1991, the respondent delivered the statement of claim to initiate the proceedings which have resulted in this appeal.

Through the Canadian Owners and Pilots Association, the respondent requested that the Director of Civil Aviation Medicine grant her a waiver of and exemption from section 3.18.[4] By letter dated November 12, 1991, the Director refused the waiver and advised the respondent to postpone her court challenge until the Ministry’s diabetes licensing policies were reviewed at a Health and Welfare Canada conference in April 1992.

In April 1992, the Health and Welfare Canada conference took place as scheduled, but the conference concluded that it could not at that time recommend the medical fitness of insulin-dependent diabetics except for Category 4 and Air Traffic Control licences.

On May 22, 1992, the respondent made a second application, which was rejected for the same reason as the first one.[5]

At trial, each party called expert testimony. All of the medical experts called by the parties had attended the April 1992 Health and Welfare Canada conference. The respondent relied upon the expert testimony of Dr. Stuart Ross, an endocrinologist and professor of medicine at the University of Calgary who specializes in the treatment and study of diabetics. The respondent has been one of his patients since 1987.

In his affidavit, Dr. Ross deposed that it is both possible and appropriate to assess insulin-dependent diabetics individually for fitness to fly or drive. Such evaluation should be conducted based on the Canadian Diabetes Association questionnaire for commercial motor vehicle drivers with Type I diabetes. Dr. Ross is of the opinion, based on these criteria, that the respondent is at low risk for hypoglycaemia and therefore that she is medically fit to pilot an aircraft safely. Dr. Ross also deposed that most diabetics are able to deal with hypoglycaemic episodes before the hypoglycaemia becomes disabling, but he acknowledged that cognitive deficiency caused by hypoglycaemia could render a diabetic unable to detect the onset of a hypoglycaemic reaction.[6] He also conceded in cross-examination that the fact that the respondent receives insulin-intensive therapy places her in “a heightened risk group to suffer hypoglycaemia”.

Dr. Ross acknowledged that the endocrinologists at the April 1992 Health and Welfare Canada conference did not unanimously share his opinion that an insulin-dependent diabetic could fly alone safely.

The appellant called two experts: Dr. John Dupré, an endocrinologist and professor of medicine at the University of Western Ontario, who specializes in the treatment and study of diabetes, and Dr. Jennifer Gegg, a medical doctor, private pilot and expert in aviation medicine at Health and Welfare Canada. As Regional Aviation Medical Officer for the Western Region, it was she who refused the respondent’s applications for a Category 3 licence in 1991 and 1992.

Dr. Dupré deposed in his affidavit that diabetics at a later stage in the development of diabetes and its complications experience endocrinal changes that impair both spontaneous recovery from hypoglycaemia and their ability to detect its onset, leading to a condition known as “hypoglycaemia unawareness”. This condition cannot be detected in the individual by any medical test. Moreover, Dr. Dupré testified that a person’s usual level of competence, equanimity and knowledge of his or her illness could not serve to predict his or her behaviour in a moderate hypoglycaemic state.

In Dr. Dupré’s opinion, although proper precautions could reduce the risk of hypoglycaemia in persons with IDDM, they could not eliminate it. In his opinion, it is impossible to identify insulin-dependent persons who are without risk of hypoglycaemia. Because all persons with IDDM face this risk, it was his opinion that it is not “acceptably safe” for a person with IDDM to fly alone. The respondent’s insulin-intensive form of treatment approximately doubles her risk of severe hypoglycaemia over that of a patient receiving non-intensive insulin therapy. He testified, however, that some diabetics could fly safely if accompanied by another pilot who was able to take over in case of a hypoglycaemic reaction, and that he had two patients who were Type I diabetics but were licensed to fly with a co-pilot.

Like Dr. Ross and Dr. Gegg, Dr. Dupré attended the Ottawa conference in April 1992. In his opinion, the purpose of the conference was to see if there was agreement among the experts respecting the identification and definition of conditions under which people with IDDM could safely be licensed to fly an aircraft. Like Dr. Ross, he observed that although the participants did not reach a consensus, they did make some modest advances. He stated that the endocrinologists were not able to reach a consensus because, at the time, the implications of insulin-intensive therapy for a patient’s risk of hypoglycaemic reaction were not fully understood.

Dr. Gegg’s area of expertise, aviation medicine, is the study of human physiology and medicine as it relates to the aviation environment, with particular reference to high altitude physiology. Aviation medicine encompasses the study of the effects of disease in this environment and the effects that a particular disease has on the safe performance of tasks.

In her affidavit, Dr. Gegg observed that Canada is a signatory to the International Civil Aviation Organization (ICAO), which publishes a manual of Civil Aviation Medicine. This manual recommends that, because of the quick onset and considerable severity of symptoms of hypoglycaemia, insulin dependence is incompatible with flight safety.

Dr. Gegg testified that flight safety is the paramount consideration in the development of medical flight standards. She observed that, in order to achieve flexibility and fairness and to avoid the arbitrariness inherent in blanket exclusions, Health and Welfare Canada established the level of acceptable risk of incapacitation for Category 3 (commercial) pilots at 2% per year, a level which she noted was more generous than the 1% per year standard in Europe.

Dr. Gegg deposed that, since the lifetime risk of hypoglycaemia for an insulin-dependent diabetic is about 50%, and because ability to detect hypoglycaemia deteriorates over time, the risk of hypoglycaemia would be more than 2% per year and would not be acceptable for a Category 3 licence.

Dr. Gegg observed that although one Category 1 licence-holder in Canada is an insulin-dependent diabetic, he developed diabetes after obtaining his Category 1 licence, and his licence is now restricted to flying with or as a co-pilot.

In cross-examination, Dr. Gegg acknowledged that in Australia, a licensing procedure has been adopted which allows a private pilot to fly solo, but only for a period of 45 minutes at a time. Such a procedure was not appropriate in Canada, she testified, because a private pilot is required to complete cross-country solo flights which must last a minimum of 2 hours.

The appellant’s final witness was Lawrence Cundy, the Chief of Licensing Standards in the Flight Standards Branch of Transport Canada. Mr. Cundy is responsible for the development, promulgation and amendment of licensing standards and for the issue of licensing documents, including, among other matters, pilot licences required for flight crew in Canada.

Mr. Cundy has been a pilot since 1971 and has licences for air transport, commercial airlines and helicopters. He is familiar with the Personnel Licensing Handbook. He said that the Canadian standards accurately reflect the minimum international standards set by the ICAO for member states. He testified that Canada considers the ICAO standards to be the source document for any changes or amendments to Canadian standards.

Mr. Cundy testified that the objective of the solo flight requirement for a Category 3 licence is to give the individual student pilot the opportunity to develop necessary decision-making skills without any assistance during flight.

He testified further that during flight in smooth air, a pilot can keep the aircraft under control quite effectively without manual handling of the control column, if properly trimmed. However, if the aircraft hits light to moderate turbulence, the pilot is required to keep his or her hands on the control column for almost all the time. In those circumstances, if the pilot’s hands are off the control column and the aircraft hits a bump, the equilibrium of the aircraft will be disturbed, but the degree of disturbance will vary with the type of aircraft.

REASONS OF THE TRIAL JUDGE

The learned Trial Judge commenced his analysis with a review of Andrews v. Law Society of British Columbia[7] and a consideration of its analysis of subsection 15(1) and section 1 of the Charter. At footnote 8 he made the following statement:[8]

I have reviewed the recent decisions of the Supreme Court in Thibaudeau v. Minister of National Revenue (1995), 182 N.R. 1 (S.C.C.), Egan and Nesbit v. Canada, (1995), 182 N.R. 161 (S.C.C.) and Miron and Vallière v. Trudel et al. (1995), 181 N.R. 253; 81 O.A.C. 253 (S.C.C.), all dated May 25, 1995. All three decisions reflect on the s. 15(1) and s. 1 Charter analysis in Andrews. I am not satisfied that they require me to vary my application of the Charter analysis in Andrews on the facts of this matter.

Applying the jurisprudence developed in Andrews, the Trial Judge found that section 3.18 discriminated against a particular class of individuals, namely, insulin-dependent diabetics. He found further that IDDM was a form of physical disability. Since section 3.18 discriminated against all insulin-dependent diabetics, not on the basis of “an individual’s merits and capabilities”, but because of “personal characteristics attributed to an individual solely on the basis of association with a group”, he concluded that the section was inconsistent with subsection 15(1) of the Charter.

The Trial Judge then examined the issue as to whether the infringement was justified under section 1 of the Charter. He noted that the onus of justification rested on the appellant and that it was a heavy one.

He found the objective of section 3.18 to be flight safety, which he defined as being [at page 93] “not merely the safety of the individual attempting to obtain a medical certificate that will allow her or him entry to the process for obtaining a pilot licence, but also that safety of all members of the public who conceivably might be affected by the individual’s obtaining a pilot licence”.

The Trial Judge concluded that the objective so defined was [at pages 93-94] “pressing and substantial in a free and democratic society”. Having reached that conclusion, he proceeded to apply the “proportionality test” taken from the following passage of the Chief Justice of Canada in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at page 768:

The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and 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.

The Trial Judge found that section 3.18 failed that test. These are his reasons:[9]

On this aspect of the test, I conclude that the impugned provision fails. As indicated earlier, the provision represents an absolute, blanket prohibition. The evidence adduced before me did not demonstrate that individual testing of members of the class discriminated against was impossible or impracticable. The results of such individual testing might be that very few, and perhaps none, of the members of the class discriminated against would succeed in demonstrating a risk factor low enough to justify granting of a medical certificate to them. But that is not the issue. Against the test as stated by the Chief Justice in Edwards Books, the impugned provision was not carefully designed. While it is rationally connected to the objective of aircraft safety, it does not impair the right as little as possible. Only individualized testing or some other more sensitive mechanism would meet this last element of the proportionality test.

For those reasons, he found that the appellant had failed to discharge the heavy onus of showing that section was a reasonable limit prescribed by law within the meaning of section 1 of the Charter.

The Trial Judge relied upon the decision of a single judge of the Nova Scotia Supreme Court Trial Division in Hines v. Registrar of Motor Vehicles (N.S.) et al. (1990), 99 N.S.R. (2d) 167, in which the Court invalidated a Nova Scotia law imposing a blanket prohibition against the acquisition of a commercial truck driver’s licence on the basis that it failed the proportionality because it was arbitrary and overreaching.

As a result, the Trial Judge declared section 3.18 of the Personnel Licensing Handbook to be contrary to subsection 15(1) of the Charter and therefore of no force and effect.

ISSUES

The appellant objects to the trial judgment on two grounds: first, the Trial Judge erred in law in concluding that the medical standard provided in section 3.18 of the Personnel Licensing Handbook discriminates against the respondent because of her physical disability within the meaning of subsection 15(1) of the Charter; and second, having concluded that section 3.18 was offensive to subsection 15(1) of the Charter, he erred in law in concluding that that section was not, in the circumstances of this case, a reasonable limit demonstrably justified in a free and democratic society within the meaning of section 1 of the Charter. I will deal with each issue in turn.

(a) Whether the medical standard provided in section 3.18 of the Personnel Licensing Handbook discriminates against the respondent because of her physical disability within the meaning of subsection 15(1) of the Charter.

On this issue, the appellant acknowledges that section 3.18 makes a distinction between IDDM diabetics and others. But he argues that this distinction is not based upon a stereotypical application of a presumed group characteristic, but rather upon medical evidence which shows that a person suffering from IDDM presents an unacceptable risk of an incapacitating incident while flying aircraft. He argues further that the evidence is clear that the risk of incapacitating hypoglycaemia is common to all persons suffering from IDDM and is unpredictable. For that reason and contrary to the finding of the Trial Judge, the appellant contends that individual testing would serve no useful purpose, since it cannot discover whether or when the respondent or any other person suffering from IDDM might suffer an incident of incapacitating hypoglycaemia. The appellant therefore contends that section 3.18 does not infringe the respondent’s equality rights provided in subsection 15(1) of the Charter.

Counsel for the respondent, on the other hand, supports the conclusion of the Trial Judge that section 3.18 of the Personnel Licensing Handbook discriminates against the respondent on the basis of physical disability within the meaning of subsection 15(1) of the Charter, because it is based upon the presumed group characteristic that, as a person suffering from IDDM, the respondent is liable to have an incapacitating hypoglycaemic reaction without warning while flying an aircraft. In imposing a blanket prohibition against the issue of a Class 3 pilot’s licence to all individuals suffering from IDDM, she contends that section 3.18 judges her, not on the basis of her true capabilities or circumstances, but rather solely on the basis of her association with a group. For this reason, the respondent contends that section 3.18 is discriminatory within the meaning of subsection 15(1) of the Charter.

I am in respectful agreement with the Trial Judge that section 3.18 of the Personnel Licensing Handbook is offensive to subsection 15(1) of the Charter because it discriminates against the respondent on the basis of her physical disability.

The medical standards for Canadian civil aviation in the Personnel Licensing Handbook are prescribed pursuant to paragraph 403(1)(d) of the Air Regulations,[10] which, in turn, are authorized by section 4.9 of the Aeronautics Act.[11]

In his foreword to Volume 3 of the second edition, published in April 1990, the Director General, Aviation Regulations, wrote:[12]

The Medical Standards for Canadian Civil Aviation Personnel Licensing are prescribed pursuant to subsection (d) of section 403 of the Air Regulations. This edition of the standards was developed in close conformity to the International Civil Aviation Organization Standards for personnel licensing and is considered to be commensurate with the safe performance of the privileges of respective licences and permits issued or revalidated in accordance with Part IV of the Regulations. It is to be understood, however, that amendment of this document may be necessary from time to time to ensure its continued conformance to current Civil Aviation safety standards and practices.

The medical standards for civil aviation personnel licensing were developed for Transport Canada by the Civil Aviation Medicine Division of Health and Welfare Canada pursuant to a memorandum of understanding between the two departments dated January 17, 1990.[13]

For the purpose of assessment of the fitness of an applicant for a licence, the applications have been divided into four categories. Applicants for private pilots’ licences are required to meet the medical standards set out in Medical Category 3.[14] At the relevant times, sections 3.18 and 4.17 set the applicable standards for Category 3 applicants. The sections read:[15]

3.18 Proven cases of diabetes mellitus shown to be controllable, without the use of any anti-diabetic drug shall be assessed as fit.

…

4.17 An applicant shall not suffer from any unstable metabolic disorder likely to interfere with the safe operation of an ultra-light aeroplane or glider.

Section 3.18, then, deems insulin-dependent diabetics medically unfit for private pilots’ licences because, by definition, that class of diabetes is not controllable without the use of an anti-diabetic drug. The underlying premise of the section is that regardless of the individual characteristics or circumstances of a particular insulin-dependent diabetic, he or she is at risk of an incapacitating incident during flight. Consequently, that person, regardless of his or her individual risk of incapacitation, is deemed unfit.

Section 3.18 focuses on physical disability” IDDM diabetes—and thus makes a distinction based on it. But, as the Trial Judge has pointed out, correctly in my respectful view, the respondent’s individual risk of incapacitation was never determined because section 3.18 did not allow her to demonstrate her medical fitness. Instead, the section excluded her from eligibility for a Category 3 medical certificate because of a presumed group characteristic, that is, susceptibility to incapacitation, of IDDM diabetics.

Indeed, in her cross-examination, Dr. Gegg was candid enough to acknowledge that her assessment of the respondent’s application was based not upon the respondent’s capabilities and circumstances, but rather upon the known characteristics of the sub-group of which she, as an IDDM diabetic, was part. The group-based decision making mandated by section 3.18 thus offends subsection 15(1) of the Charter.

(b) Whether section 3.18 of the Personnel Licensing Handbook is a reasonable limit prescribed by law on the respondent’s subsection 15(1) equality rights that is demonstrably justified in a free and democratic society.

There was no issue before the Trial Judge and there is none before us as to whether section 3.18 is a limit prescribed by law. As noticed earlier it was promulgated by ministerial authority, grounded in the Air Regulations and the Aeronautics Act.

The Trial Judge characterized the section as a measure designed to promote public safety in the operation of aircraft. He concluded that the objective of the section was “pressing and substantial in a free and democratic society”, and the parties to this appeal agree that this objective is correctly formulated and is pressing and substantial.

The Trial Judge, however, purported to apply the proportionality test laid down by the Chief Justice of Canada in Edwards Books,[16] and concluded that the measure was not proportional to the objective because it does not impair the respondent’s equality rights “as little as possible”, even though it was rationally connected to the objective. Consequently, he declared section 3.18 to be of no force and effect. The issue with regard to section 1 justification, then, is whether section 3.18 constitutes a minimal impairment of the subsection 15(1) equality right.

Before us, the appellant contended that the Trial Judge misapplied the proportionality test in concluding that the legislative objective could have been obtained by the less intrusive means of individual testing. Individual testing, it asserted, could not address the public safety objective of the section since, given the present state of medical knowledge, no amount of individual testing could discover whether or when an IDDM diabetic would fall within the regime of unacceptable risk i.e., that he or she had less than a 2% chance per annum of the occurrence of an incapacitating incident while flying an aircraft.

The respondent, on the other hand, supports the Trial Judge’s finding that the appellant has not satisfied the onus of showing that the section impairs the respondent’s equality rights as little as possible. She asserts that the blanket prohibition in section 3.18 does not minimally impair the rights of individuals, since the evidence established that individual assessment could identify those IDDM diabetics who are at greater risk of severe hypoglycaemic reaction. Those persons, she said, could be excluded from holding licences while others, at lesser risk of incapacitation, could be found medically fit.

The respondent asserted that the appellant was applying the section unfairly, because he had made exceptions for two Category 1 applicants on the basis that their IDDM diabetes had been diagnosed after the licence had been issued to them. She contended that distinctions should not be made between applicants on the basis of the temporal diagnoses of the disease i.e., whether before or after the licence is issued.

The respondent, like the Trial Judge, also relies on the decision of a single judge of the Supreme Court of Nova Scotia in Hines v. Registrar of Motor Vehicles (N.S.) et al., supra. The respondent contends, finally, that the Trial Judge was right in reaching the conclusion that he did on this issue.

For the reasons that follow, I am unable to accept the respondent’s contentions, and I am of the view that the Trial Judge erred in law in concluding that section 3.18 failed the proportionality test laid down in Edwards.

As noticed earlier, the Trial Judge took the view, at footnote 8 of his reasons, that in substance approaches to Charter analysis respecting subsection 15(1) and its relationship to section 1 of the Charter had not evolved so as to require him to depart from the analysis in Andrews. Consequently, his section 1 analysis was based upon the reasons in that case. In my respectful view, he erred in law in doing so.

I acknowledge readily that it is not always easy to discern with certainty the various nuances of section 1 Charter analysis that appear in the several Supreme Court judgments on this issue. Nonetheless, the Charter decisions of the Supreme Court since The Queen v. Oakes, [1986] 1 S.C.R. 103 demonstrate a considerably more flexible application of the Oakes test than the Trial Judge applied in this case. Indeed, in Edwards, upon which the Trial Judge relied, Dickson C.J., the author of Oakes, stated, at pages 768-769, the following in the very next sentence of the passage from which the Trial Judge quoted in his reasons:

The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

In adopting legislation to meet a pressing and substantial objective, Parliament is not obliged under section 1 to select the absolutely least impairing method of achieving its objective. Rather, “What will be ‘as little as possible’ will of course vary depending on the government objective and on the means available to achieve it.” (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at page 993.) McLachlin J. observed, in RJR-MacDonald v. Canada (Attorney General), [1995] 3 S.C.R. 199, at page 342:

The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement ….

McLachlin J. also observed, in RJR-MacDonald, at page 331: “greater deference to Parliament or the Legislature may be appropriate if the law is concerned with the competing rights between different sectors of society than if it is a contest between individuals and the state.”

Where the legislature, in enacting an impugned provision, must mediate between claims of competing groups, or where it seeks to protect vulnerable, disadvantaged groups, it is often required to assess conflicting social or scientific evidence. In such circumstances, the courts must afford the government some leeway in striking the balance. In Irwin Toy, the majority defined the appropriate standard for review for minimal impairment (at page 994) thus:

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.[17]

The teaching of these cases is that courts should adopt a flexible, rather than a formalistic approach to the application of the Oakes test for justification under section 1 of the Charter: McKinney v. University of Guelph, supra; RJR-MacDonald Inc. v. Canada (Attorney General), supra; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, where La Forest J., for a unanimous Court, observed at page 872:

… the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. This involves a close attention to context.

In this case, the Trial Judge failed to advert to the context of the impugned section. He also imposed a rigid formulation of the Oakes test which did not reflect the deference to the legislature that would be appropriate in the context of this case. The Trial Judge found that the evidence did not demonstrate that testing of individuals was “impossible or impracticable”, and concluded that section 3.18 had failed the proportionality test as set out in Edwards, as he understood it, because the section “does not impair the right as little as possible”. Only individualized testing, he said, or “some other more sensitive mechanism would meet this last element of the proportionality test.”[18]

The context in which section 3.18 was adopted is as follows. First, Canada, as a signatory to the International Convention on Air Safety, has undertaken the obligation to adopt measures similar to those of the ICAO respecting the licensing of IDDM diabetics to fly aircraft, or, at least, to advise that organization of any deviation from its standards. The evidence of expert witness Mr. Cundy was that Canada considered the ICAO standard as its source for air safety regulations. Furthermore, no other state had authorized the licensing of IDDM diabetics to engage in solo flying for the distance and duration that the respondent was required to complete.

Secondly, the impugned medical standards were developed by Health Canada for Transport Canada on the basis of the judgment of experts in endocrinology and aviation medicine. There was evidence at trial that, where the experts agreed that safety would not be compromised, medical standards were relaxed. For example, since the experts at the April 1992 Health and Welfare Canada conference reached a consensus that insulin-dependent diabetics could safely be permitted to fly Category 4 aircraft, the medical standards for this category of licence were changed accordingly. The experts at the conference, however, were unable to reach a consensus with respect to whether insulin-dependent diabetics could safely be permitted to fly alone. Indeed, the experts at trial did agree that it is impossible to predict with certainty whether a particular IDDM diabetic will suffer an incapacitating reaction. Since the safety of issuing Category 3 licences to insulin-dependent diabetics was a matter of scientific controversy, Health and Welfare Canada decided not to change the prohibition. It was entitled to make this choice.

Section 3.18 cannot be said to fail the minimal impairment branch of the proportionality test for justification under section 1. When regulating safety in the operation of an aircraft, the government seeks to balance the public interest in flight safety against the individual interest of diabetic pilots in access to all types of flight licence. The scientific evidence as to whether insulin-dependent diabetics can safely fly alone is conflicting. In these circumstances, the government must be allowed some leeway in striking a balance between individual rights and public safety, and in adopting licensing standards which take account of conflicts in the medical evidence. If the pilot suffered a moderate or severe hypoglycaemic reaction during flight while in control of an aircraft, public safety could be jeopardized. Even if the Trial Judge could think of a different point at which the government could have struck the balance, a standard of perfection should not be imposed on the legislature. The appellant had a reasonable basis, on the facts of this case, to conclude that section 3.18 impaired the equality rights of insulin-dependent diabetics as little as possible.

For these reasons, I am of the view that the Trial Judge was wrong to conclude that section 3.18 was not carefully designed and did not impair the respondent’s subsection 15(1) equality rights as little as possible.

The Trial Judge relied upon the decision of the Nova Scotia Supreme Court in Hines. I have considered that case, but do not find it persuasive. Furthermore, there was documentary evidence before the Trial Judge which indicates that it is unreasonable to draw inferences about the safety of pilots from research respecting the operation of automobiles. In a paper entitled, Risk Analysis of Certifying Insulin-Taking Diabetic Private Pilots, published by the Federal Aviation Administration of the United States Department of Transportation, the authors state:[19]

While some studies suggest no significant differences between diabetic and non-diabetic drivers, other studies (e.g., Crancer and McMurray, 1968, and Waller, 1965) show that diabetic drivers have significantly more accidents than do their cohorts. It is difficult to apply the results of these driving studies to hypotheses about flying proficiency for several reasons. First, the tasks of driving and flying are very different; flying is much more demanding and complex than driving. Second, the auto studies were based on diabetics with medically restricted licenses. This limited sample constitutes only a small percentage of all diabetics with driver’s licenses; it includes only a small percentage of insulin-taking diabetics; and on average, those studied were older and more infirm than prospective diabetic pilots.

Based on auto research done to date, it is not reasonable [to] make inferences about the relative safety of pilots (from auto accident rates).

The Trial Judge did not deal with the final element of the proportionality test since, in light of his findings, it was not necessary for him to do so. In view of my conclusion that section 3.18 does pass the minimal impairment test, I must now consider whether the effects of section 3.18 impacts on the respondent’s equality rights so severely, that its objective, although pressing and substantial, is nonetheless outweighed by the abridgment of those rights. Since the impairment of the respondent’s equality rights is a minimal one, the pressing and substantial legislative objective is not outweighed by it.

In this case, the government has, in the interest of general public safety, promulgated a rule which imposes a burden or disadvantage on the respondent and persons like her who suffer from IDDM diabetes. The rule is a reasonable one and is based on the state of current medical knowledge and respects Charter rights as much as possible. For all of these reasons, I would allow the appeal with costs and set aside the judgment of the Trial Division.

Pratte J.A.: I agree.

McDonald J.A.: I agree.

---