The Supreme Court of Canada’s recent decision in Fraser v. Canada (Attorney General) (“Fraser”) illustrates the fissures on the Court in the judges’ approaches to equality undersection 15(1) of the Canadian Charter of Rights and Freedoms. Although there are also other factors explaining the differences in the majority and dissenting opinions, here I discuss three that are somewhat distinct from the facts of the case: the nature of “equality” under section 15(1); the interrelationship between the law and the social and economic context; and the role of the courts.
Madam Justice Abella wrote the majority judgement in Fraser, with Brown and Rowe JJ. writing together in dissent and Côté J., writing her own judgement in dissent.
The three female appellants, Joanne Fraser, Allison Pilgrim and Colleen Fox (“the claimants”), now retired from their positions with the RCMP, had shared jobs and as a result their pension credits had been pro-rated to reflect lower hours of work, without the ability to buy back credits. The job-sharing program was initiated because the circumstances of some members made it difficult to take the unpaid leave that was also an option. (Fraser, para. 128)
The internal complaint process was unsuccessful, despite an External Review Commission’s recommendation to treat job-sharing as other forms of reduced work, because the Acting Commissioner determined that “it was not legally possible for job‑sharing to be defined as a combination of full‑time work and leave without pay” (Fraser, para. 20). All the examples provided in which it was possible to buy back pension credits involved full-time work with periods of not working at all for a variety of reasons: none involved being on the job and not being on the job at the same time (part-time work).
The three women then filed their Charter challenge, claiming that the treatment given to job-sharing constituted a violation of section 15(1) of the Canadian Charter of Rights and Freedoms. They were unsuccessful in the Federal Court, with the application judge finding that they were not disadvantaged because “job-sharing is not disadvantageous when compared to unpaid leave” and in any event, any disadvantage results from their own choice rather than their gender or family status; the Federal Court of Appeal upheld this decision (Fraser, para. 4).
The allegation in Fraser is not that the discrimination resulting from the treatment of job-sharing is intentional or direct, but rather that it is an example of indirect or adverse impact discrimination: an ostensibly neutral law (so that in this case, it applies to both men and women who take advantage of job-sharing) has a disproportionately disparate impact on women or, put another way, is likely to disadvantage women more than men (in this case, because more women take advantage of job-sharing to address combining work and family responsibilities than do men).
As Abella J. points out, “Nearly all of the participants in the job-sharing program are women and most of them reduced their hours of work because of child care” (Fraser, para. 3). Both the Federal Court and the Court of Appeal, although dismissing the claim, acknowledged that this was the case (Fraser, para. 85).
Adverse impact discrimination may be built into the law or may result from a failure to accommodate. This approach to discrimination in human rights legislation and under section 15 of the Charter is now commonplace, accepted as a necessary aspect of anti-discrimination.
(Justice Abella summarizes the development and conceptual understanding of adverse impact discrimination by reference to the literature at paras. 29 to 54 of Fraser). (I wrote about the development of discrimination, including adverse impact discrimination, in the context of recognizing the broader systemic racism and other forms of systemic discrimination in the context of social construction in a previous Slaw post.)
Although all the judges do not dispute that adverse impact is a form of equality protected by section 15, they do not agree on how that plays out in this case.
The majority find that the first stage of the section 15 analysis is made out because women are more likely to be responsible for child care and therefore have a greater need to job share as a way of addressing both outside work and home responsibilities. The pension plan therefore makes an adverse impact distinction on the basis of sex.
Although it is not entirely clear how they get there, given their emphasis on the lack of evidence about who takes what kind of leave, Brown and Rowe JJ. also acknowledge indirect discrimination on the basis of sex: “the comparison between job‑sharers (who do not obtain a full 40 hours of weekly pensionable service) and full‑time members (who do) qualifies at the first step of the s. 15 analysis as a distinction based on sex” (Fraser, paras. 187 and 188).
Justices Brown and Rowe do not agree, however, that the second stage of section 15 is satisfied, since viewed as part of the entire RCMP pension plan, the members who job-share are not disadvantaged (Fraser, paras. 148 and 205). In doing so, they rely on Withler, a decision penned by McLachlin C.J.C. (as she then was) and Abella J. for the Court (Fraser, para. 148, citing Withler, para. 3). They wrote that “the purpose of the impugned provision [had to be considered] in the context of the broader pension scheme”, since “[i]t is in the nature of a pension benefit scheme that it is designed to benefit a number of groups in different circumstances and with different interests”.(Withler, para. 71). (In Wither, this requirement meant that the women making the claim were unsuccessful: the arrangement satisfied their needs and, given the full plan, they were not disadvantaged. (See my consideration of Withler here.)
Justice Côté, however, sees the distinction differently. She states that step1 of the section 15(1) test requires establishing a nexus between the impugned (in this case) RCMP pension program and the disadvantage suffered by those challenging the program: “the question under step one is whether the law, while facially neutral, creates an adverse distinction based on an enumerated or analogous ground” (Fraser, para. 248). Here the actual distinction is responsibility for caregiving, whether children or the elderly or others, which is not limited to women. Caregiving is not an analogous ground (none of the judges are prepared to add “caregiving” as an analogous ground on a “one off” basis). Alternatively, she points out, the majority have not based their decision on the intersecting grounds of sex and responsibility for caregiving. (Fraser, para. 251) As a result, the claim fails to meet even the first stage of section 15 analysis.
She finds that the pension program does not make a distinction on the basis of sex , but rather “a distinction exists not because one is a woman, but because one has caregiving responsibilities”: “One does not job-share because one is a woman; one job-shares because one needs to take care of someone”: (Fraser, paras. 233, 234 and 235). And care-giving can be separated from sex (Fraser, para. 242). From this point of view, the adverse impact on women and their disproportionate relationship to caregiving is lost.
Underlying these different conclusions about whether section 15 has been infringed, is the way the judges view the interrelationship between the law (the job-sharing provision of the pension plan) and the socio-economic factors that define women’s lives (the greater expectation that they will play a greater role in caring for family even when they work outside the home).
Justice Abella plants the issue within a long-time form of discrimination, opening the majority judgement with a reference to the Royal Commission on the Status of Women in Canada Report (“Report”), which stated, 50 years ago that “’ways must be found to provide [part-time] employees with pay and working conditions no less equitable than those provided for the full-time worker’” (Report, para. 367; Fraser, para. 2). This has remained a basic issue of fairness and economic security for women (predominantly) who work part-time as a way of balancing their job responsibilities with the family care for which women remain primarily responsible.
Justice Abella explains that determining whether adverse impact discrimination exists in a given case requires considering the situation of the claimants, including an assessment of the “physical, social, cultural or other barriers” facing the group, and the results of the law, identified through both quantitative and qualitative evidence, although not necessarily both. Importantly, “if claimants successfully demonstrate that a law has a disproportionate impact on members of a protected group, they need not independently prove that the protected characteristic ’caused’ the disproportionate impact” or that it is necessary “to inquire into whether the law itself was responsible for creating the background social or physical barriers which made a particular rule, requirement or criterion disadvantageous for the claimant group”. (Fraser, paras. 70 and 71 [emphasis added]).
Justice Abella also relates the design of the RCMP pension plan to the structural elements of pension plans that disadvantage women, finding that it perpetuates that disadvantage and thus the lives of women in retirement (Fraser, paras. 108-101)
Both dissents reject this approach. Although recognizing the reason for the disadvantage being claimed relates to circumstances facing women more generally in society, they maintain that the entire analysis must take place within the four corners of the case: yes, women face challenges arising from the reality that they are expected to and do assume more caregiving responsibilities than do men, but what does this have to do with the RCMP pension plan and its job-sharing option?
For Brown and Rowe JJ., the job-sharing and the opportunity to take leave for caregiving reasons are a form of accommodation, not a denial of equality (Fraser, para. 142). And taking the pension plan as a whole, because members who job-share would, if the claimants were successful, be able to “buy-back” pension credits as if they worked full-time, while other part-time workers would not be able to do so, they would be in a better position than other members. They are already paying when they are working during the part-time arrangement, which is all they would be entitled to had they been working part-time and took leave without pay. They say, “Our colleague elides this vital point, which underlies our reasoning and undermines hers.”(Fraser, para. 160) In this case, however, the employees — mostly women — who job-shared had been working full-time. Had they decided to take leave without pay, they would be able to buy back credits on the basis of working full-time.
Justice Côté also rejects recourse to the circumstances outside the case. It is not appropriate, she states, to rely on external factors:
Since the inception of our jurisprudence interpreting s. 15(1), this Court has cautioned as follows:
If the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effect which is not proved. We must take care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those social circumstances which exist independently of such a provision. (Fraser, para. 247)
The examples she provides to disprove the appropriateness of the disproportionate impact approach under step 1 of the section 15 test do not satisfy that objective: for example, a law affecting the 1% upper income earners would disproportionately affect men and it would satisfy step 1 of the section 15 analysis, but it would not satisfy step 2 because, given all the relevant factors, it would not constitute discrimination. (Fraser, para. 244)
Both dissents also have no difficulty in relying on the concept of “choice”. Justices Brown and Rowe, despite stating that “in most contexts, choice cannot protect differential treatment from a finding of discrimination”, find that in this case choice is (almost, but not quite) fatal to the section 15 analysis:
if other part‑time members (i.e. those in arrangements other than job‑sharing) are predominantly women (as it has been suggested), they too are entitled to substantive equality relative to full‑time members in matters of compensation. Are all part‑time members therefore entitled to the option of contributing to the Plan as though they were full‑time members? (Fraser, para. 197)
For Côté J., choice plays an even greater role. She emphasizes that the women have made a decision (a “choice”, one may say) to job-share rather than take leave without pay (Fraser, para. 249). This seriously misapprehends the nature of substantive equality, as Abella J. points out (Fraser, paras. 86-92). The concept of a freely-chosen choice relies on seeing people as autonomous, independent beings who are unaffected by the social and other circumstances in which they live. Here the continued differences in societal expectations and realistic assessments about how men and women approach caregiving form a context in which it is more likely that women will “choose” to reduce their working hours. Alternatively, it is more likely that a woman solely responsible for caring for her children may need to work part-time, since it “is a ‘choice’ between either staying above or below the poverty line” (Fraser, para. 91).
The heart of the section 15 analysis is that it guarantees substantive equality, an aspect of which is adverse impact discrimination, and the various factors that are taken into account in any given case (such as the context of the claim and contextual factors relevant to the claimants, intersectionality and more), together have underscored the substantive equality approach that has marked the section 15 jurisprudence since the first Supreme Court of Canada decision under that section in 1989, Andrews v. Law Society of British Columbia (para. ), which rejected the formalistic approach to equality. In Law, Iacobucci J., for the Court, concluded that the way in which McIntyre J. had set out the concept of equality in Andrews meant that “equality in must be viewed as a substantive concept” (Law, p.517)
Yet despite the way substantive equality has been a fundamental aspect of the equality jurisprudence since 1989, Brown and Rowe JJ. are also critical of the use of “substantive equality”, which they consider undefined and “an open‑ended and undisciplined rhetorical device” (Fraser, para. 146)
The role “choice” plays in how people make decisions about their lives is one of the factors underlying the process of determining whether section 15 has been infringed. The denial by both Brown and Rowe JJ. and Côté J. of the artificial nature of “choice” in the context of this case signal significant differences in worldviews about the interrelationship of choice with a range of social-economic factors. On the one hand, if one argues that individuals as autonomous and independent (atomistic) beings capable of making choices, of accepting that this might mean some disadvantage along with the advantage the choice presumably represents, one is less inclined to consider the disadvantage the result of discrimination. It is merely part of the package of individual decision-making and while the individual may not be happy to suffer the disadvantage, they have decided that the price is worth paying.
The other view is that choice is often not real choice or that ostensibly making a choice, deliberately or implicitly, is the consequences of external socio-economic factors. Given that, one must consider whether the consequence of the decision to take one road over another should be accompanied by disadvantages or whether there are times on which disadvantage is acceptable. The crucial point is that it should not be assumed that decisions are made “by choice” without consideration of the contextual factors related to them.
Women’s decision to work part-time, which occurs more often than with men, is often the result of combining work with responsibilities in the family, which they undertake as a result of societal expectation and the fewer hours men spend on similar family duties. Structural conditions lead more women to work part-time. When their pension entitlement is less as a consequence, they will be worse off on retirement. In Fraser, the pension design system that treats the kind of combination of work and non-work in which women participate differently compared to other combinations which combine full-time work with extended periods of non-work, to the disadvantaged of the part-time members, discriminates against women.
(Justice Abella reviews the extensive literature addressing the subtext of “choice”, as well as the judicial considerations, in Fraser at paras. 87ff.)
To the extent the dissents acknowledge discrimination against women, either within the facts of the case or, more broadly, in the world at large, they see a more limited role for the courts than do the majority in addressing it.
Justices Brown and Rowe point out that Parliament was not obliged to implement the job-sharing regime and could repeal it, seemingly intimating that it is therefore immune from Charter challenge. They describe this lack of obligation as “extraordinary” circumstances. (Fraser, para. 144) However, there is nothing extraordinary about them, since it the dominant view is that the Charter does not oblige the legislature to enact legislation, but rather obliges the legislature to ensure that the legislation it does enact is consistent with its guarantees. (The exception is when the legislature can be seen to be complicit in discriminatory actions (see, for example, Dunmore in which the inability of farm workers to unionize could be attributed at least in part to state action; Dunmore is not a section 15 case).
For Brown and Rowe JJ., the “fundamental question” is whether “the Constitution empowers (or even requires) the courts to substitute their views as to how to remedy those [external] disadvantages for those of the legislature and the executive” (Fraser, para. 113). It helps them to answer “no” to this question by exaggerating the majority’s position: “is not the next extension of our colleague’s line of reasoning that governments (federal and provincial) have a positive duty under s. 15(1) to initiate measures that will remove all effects of historic disadvantage, and that they are constitutionally barred from repealing or even amending such measures?” (Fraser, para. 144).
This is not, they say, something courts should do. And they are right: but this is not what the majority says. The majority position is consistent with the accepted view: while courts should not require governments to institute programs or laws, if governments do institute programs or laws, they must do so in a non-discriminatory way: “[section] 15 does require the state to ensure that whatever actions it does take do not have a discriminatory impact” (Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux).
Of particular interest on this point is how strongly worded Côté J.’s concern about sex-based discrimination is: “sex-based discrimination is particularly insidious and I similarly lament society’s continued history of discrimination against women” (Fraser, para. 254). Indeed, she begins her dissent with a broadside against sex discrimination:
Discrimination on the basis of sex is of the most invidious order. Like race, sex is an innate and immutable characteristic, and bears no relevant relationship to capability. Without question, women have faced a prolonged fight for equal treatment under the law, a fight marked by a society where women have historically been disadvantaged and where they continue to be so today…. (Fraser, para. 231)
She also suggests that the RCMP pension plan is irrational: “the question before this Court [is not] whether the impugned legislative provisions are irrational, illogical, or even under-inclusive….” (Fraser, 231). Indeed, she has written a separate dissent, she says, because she wants to
… highlight the under-inclusive nature of the pension plan, which disproportionately affects all those with caregiving responsibilities, including same-sex couples with children and individuals with caregiving responsibilities for their aging partners or parents. It therefore falls to the legislature, not the courts, to remedy any under-inclusiveness in this legislation, which was purportedly meant to assist with caregiving responsibilities in the first place. (Fraser, para. 255)
And: “To be sure, the impugned provisions may very well not be rational — there may indeed be no logical reason to deprive job-sharers of full pension benefits that are guaranteed to full-time members and members on leave without pay.” (Fraser, para. 252)
Yet it is the legislature that should address these concerns, not the courts because the claim here quite simply doesn’t satisfy even step 1 of the section 15 test: “…[I]t is not this Court’s role to constitutionalize normative judgments to this effect; that is the role of the electorate, and in turn, the legislature.” (Fraser, para. 252)
I have been less concerned here with the merits of Fraser and the “right” result than with the factors that help explain how Abella J. and the dissents reached the conclusions they did.
Underlying these reasons are very different approaches to meeting the promise of the Charter‘s equality guarantee. It is not possible to disassociate the guarantee of equality promised by section 15 from the external factors that influence or even govern people’s lives. That is what disparate impact is all about: not merely a statistical question of whether members of one group are more affected by a legislative provision than others, but whether the various strands that characterize people’s lives have a relationship with the issue in the case, that underlie the legal discrimination and that are substantively connected to inequality.
Regardless of the results on the merits, and despite that there have been differences among judges before, the considerable and fundamental divergence in the approaches in Fraser to section 15 analysis, assessing the relationship of law to the reality in which law operates and the role of the courts in holding legislatures to account under the Charter suggest a determined departure from Charter jurisprudence as it has developed until now.