Thinking about Fraser v. Canada (Attorney General), 2020 SCC 28

by Sonia Lawrence

Many thanks to Hengameh for inviting these posts!  Unlike Mary Jane’s rich, focused and scholarly contributions, mine will be let us say, light (“lite”?) and the four of them will hopscotch around from Supreme Court cases, to teaching from home, to whatever comes up, to what happens after that.  They might have lots of links but definitely will not be ready for peer review.  Still, I hope that they resonate with some of you in these strange times, and I’m grateful for anything that might keep me off twitter.

We’re about 245 days into pandemic life here in Ontario, and while I completely appreciate how sick of zoom we all are, it’s pretty much the social life I have other than standing on my back porch, masked, freezing, talking to masked family members sitting in their cars,.  So doing a webinar on Fraser last Friday with a group of other folks immersed in constitutional equality was even more uplifting than it ordinarily would have been.  Convened by Prof Debra Parkes who Chairs the Centre for Feminist Legal Studies at Allard Law (UBC),  the participants are all listed here – we were a big group.  I know I cannot do their work justice in any precis I attempt, so I will just say that you should watch the Centre for Feminist Legal Studies space as the plan is definitely to post the tape.

Fraser was brought by three women, members of the RCMP who took up job sharing arrangements after 1997 when the RCMP began to offer this option.  To over-simplify, their requests to “buy” (pay into the pension fund) themselves back into the pension position they would have been in as full-time workers for that period of job sharing were repeatedly denied by their employer.  The Federal Court of Appeal (Gauthier, Gleason and Woods JJ.A.), 2018 FCA 223 had dismissed their appeal from the decision of  Kane J., 2017 FC 557, both decisions

relying heavily on the basis that the women chose to engage in job sharing.  At the Supreme Court, Justice Rosalie Abella wrote the majority  reasons joined by the Chief Justice, Moldaver, Karakatsanis, Martin & Kasirer JJ,  for a 6:3 decision in favour of the claimants.  Justices Brown and Rowe wrote one set of dissenting reasons, finding no violation of section 15, and Justice Côté another set, again finding no violation of section 15.

You will be able to find quite a bit online already about Fraser.  Before the decision came out, consider this piece at Osgoode’s heCourt.ca written by law student Ramna Safeer and this piece at ABLAWG by the doctrinal experts in this area, Calgary Profs Jonnette Watson Hamilton and Jennifer Koshan.  Following the SCC decision, you can look  here at Ipolitics, read Sean Fine for the Globe and Mail here,  find a nice explainer here  in The Tyee by Paula Ethans, take a peek in Canadian Lawyer magazine, and see a celebratory press release from the Women’s Legal Education and Action Fund (LEAF), intervenors in the case here. No doubt more will soon pop up.  I’m just going to make a few very very brief points for folks who actually do not follow this area of law, rather than for the large group of section 15 followers who are going to have to wait for all the detailed analysis that I’m sure many are preparing right now.

First, it may surprise many to know that in fact that women as a group  have been very unsuccessful in section 15 claims to the Supreme Court of Canada on the basis of sex, simpliciter.  The first fully successful decision was Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 in 2018 (see J. Watson Hamilton and J. Koshan Equality Rights and Pay Equity: Déjá Vu in the Supreme Court of Canada 15 Journal of Law and Equality 1, at 2).

Second, the majority here goes hard and, I felt, throws everything at the wall for a particular vision of section 15 – a vision I would characterise as broad and substantive, a vision which is not centred around.   As Watson Hamilton and Koshan described it, Justice Abella tries to do a lot of “brush clearing,” working to clarify how section 15 is to be understood and applied.  This area of law has been notorious for complex tests in which outcomes are all but impossible to predict (I should say this kind of thing is certainly not unknown in constitutional law more broadly!).   All the work is in part necessary because the case was argued and decided as a case of “adverse effects” discrimination, discrimination which does not appear on the face of the law, but which has a disproportionate impact on a particular already marginalized group.  Most of the previous leading cases were cases involving direct discrimination, where the differentiation is visible on the face of the legislation.  This focus on adverse effect discrimination is certainly one of the most important and interesting things about Fraser and how it will play out going forward.

Therefore, what is also of interest to me is the tone of the disagreement – particularly from the dissenting judges.  While disagreement is to be expected on the Supreme Court (and after what is broadly understood to have been the Chief Justice’s focus on consensus on the McLachlin court, dissents have certainly been on the rise since late in her term as Chief), there may be some particular sharpness in this one that bears looking at:

Abella J at para 133:

“…my colleagues… tug at the strands of a prior decision they disagree with in search of the occasional phrase or paragraph by which they can unravel the precedent. Their arguments are based on conjecture not reality, calling to mind one writer’s wry observation that “setting straw men on fire is not what we mean by illumination”. (citation to Adam Gopnik omitted)”

The response of Brown and Rowe JJ is rather longer and I think needs to be read in it’s entirety to pick up the tone,  but here is some flavour from para 227:

[227]                     Indeed, more telling than what our colleague does say in response is what she does not say. Notably, she does not explain what “substantive equality” means (save by reference to what it is not — “formal equality”). She fails to define “substantive equality” in terms that allow its meaning to be understood so that the requirements of s. 15  can be practically knowable and reasonably predictable in advance. Thus loosely defined, substantive equality is almost infinitely malleable, allowing judges to invoke it as rhetorical cover for their own policy preferences in deciding a given case. Such vast and little‑bounded discretion does not accord with, but rather departs from, the rule of law.

What is going on? Maybe nothing. Maybe this is just the way we talk now, and it’s just a little spikier than saying sorry all the time as Canadians are supposedly wont to do, these are judges after all.  I do not read SCC decisions very broadly, concentrating on those in the constitutional/public law zones – perhaps this kind of talk is more normal than I realise.

But would it interest you to be reminded that Justice Abella will hit her 75th birthday on July 1, 2021?  She will have to retire on or before that date.  What then would you make of the language in this 6:3 decision? How would you think about strategizing for section 15 adverse effects discrimination cases going forward?

Here’s the other, related, thing that I’ve been thinking about for a while, and touched on in my contribution to the Oxford Handbook of the Canadian Constitution – section 1.  While we in Canada are habituated to freedom of speech jurisprudence which applies a very broad scope to the right at section 2b and then subjects all violations to more or less deferential tests under section 1, for perhaps too long we have understood that section 15 violations will rarely be considered “saved” by section 1.  What will it look like if this changes?  In a 2001 Canadian Bar Review paper, then Professor Sheilah Martin (now of course a Judge of the Supreme Court) considered the relationship between these two analyses in “Balancing Individual Rights to Equality and Social Goals” 80 Can Bar Rev 299.    I tried, in my 2018 Oxford Handbook contribution, to update some of the work she did in that article, looking in particular at the section 15 cases in which a violation of the equality right was found to be “saved” by section 1.  There were, at that time, three:  Lavoie v. Canada, [2002] 1 S.C.R. 769, 2002 SCC 23, Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381, 2004 SCC 66 and Quebec v A 2013 SCC 5. Naturally, immediately after I finally finished up, the decision in Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 was released, In Centrale, the then Chief Justice, along with Abella, Moldaver, Karakatsanis and Gascon JJ. found a violation of section 15 – but only the Chief Justice thought that section 1 did not apply.

One of the things that comes out of looking at the history between the two sections is a long recognition of their relationship. First, especially before the section’s first SCC outing in Andrews (1989) many wondered about whether section 15 would pose a high barrier (leaving little work for section 1) or a low barrier, with most of the work being done at section 1.  Dean (then Professor) Peter Hogg was one who wrote suggested the latter in Constitutional Law of Canada (2nd ed. 1985) pp800-801. Differentiation alone would meet the requirement under section 15.  Everything else could be dealt with under s.1.   There were lots of concerns about this.  Considering the possibility of effects based discrimination, rather than direct discrimination, Prof. Dick Moon wrote in the late 1980’s:

If the Canadian  courts do adopt the view that section 15 of the charter includes a prohibition of effect discrimination, they will have a difficult time defining the scope of the right and enforcing it in a way that does not undermine their institutional legitimacy. ( “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26 Osgoode Hall Law Journal 673 at 679.

As we know, the Court in Andrews chose a substantive test in which a contextual understanding of discrimination would be applied.  Mere “differentiation” would not do the trick and as a result, for years, we saw very little action at section 1 in the section 15 cases.  Yet sometimes forgotten is the fact that in Andrews, Justice McIntyre followed up his still influential section 15 analysis with a section 1 argument which failed to carry the day.  Justice McIntyre cited Justice Hugessen of the Federal Court of Appeal at length. If we do not limit the scope of section 15, he warned:

virtually all legislation, whose function it is, after all, to define, distinguish and make categories, would be in prima facie breach of section 15  and would require justification under section 1 .  This would be to turn the exception into the rule.  Since courts would be obliged to look for and find section 1  justification for most legislation, the alternative being anarchy, there is a real risk of paradox:  the broader the reach given to section 15  the more likely it is that it will be deprived of any real content.

Post Andrews, courts and scholars have frequently argued about whether or not a particular analysis “belongs” in section 15.  The long wrangling over the idea of “relevance” or the   “correspondence factor” are illustrative. But to understand these arguments, we need to set them alongside others about how section 1 is to be applied in section 15 cases.  For many – and I include myself here -  there was a sense in which pushing an argument from section 15 to section 1 meant, essentially, getting rid of that argument.   I say this because many of these scholars did not, I think, intend their work to be read as saying that the same issue they fought to evict from section 15 could definitely, easily, be a winner for the government at section 1.  We rarely wrote about section 1 at all because so few of the claims were succeeding, we never got to section 1.

If we are finally moving to a place where we will consider more adverse effects claims, through statistical evidence, then I think it is fair to assume that there will be a greater role for section 1, if only because Justices Brown, Rowe and Cote seem likely to push that argument. And in that light, the point I’ve been working up to is this:  Fraser is the kind of case in which the Canadian Supreme Court has typically not offered that much deference to government at section 1. So it was a relatively easy section 1 case to make.

  • It is not a case in which significant amounts of public funds are at stake.
  • It is not one of those cases where the court is likely to think it is about “distribution of scarce resources”.
  • It is not, in fact, a case where equality-as-redistribution is was a significant part of the context in which the case was argued or the way the court saw the case. The women were asking for the right use their own money to buy-back into a pension fund.

Therefore, when we try to think about how Fraser might be mobilized in future cases, how we might use it to rectify some of the more brutal instances of indirect and systemic discrimination visible in Canada, in particular those organized around racialization, in criminal justice and involving those living in poverty, we need to think about a variety of things including section 1.  We could think about these cases in terms of how they will get to the court.  The RCMP job share program began in 1997.  It is now more than twenty years later and some of these claimants are already retired.  They have been fighting for this right the entire time.

And yet these women are relatively privileged compared to so many Canadians, including many working Canadians.  They are now in a unionized environment (although, as LEAF co-counsel Danielle Bisnar reminded us during the session on Friday, these women were not in fact supported by their peers for most of the fight, although the National Police Federation did intervene on the side of the Claimants at the SCC, as did the Public Service Alliance (lovely to see that one of my very first students argued this case for the PSA).  They are pensioned employees in an era of precarious work.   They worked as part of the criminal justice apparatus of the state.

We have to – even as we celebrate the victory, the 6:3, the strong language about equality – see how narrow the “equality” offered in this case might be. It is equality between workers who are primary caregivers, largely female, and “male pattern workers” in the same role, largely male, in one particular workplace.  Outside that narrow frame, what the victory  probably works is a further increase in the gap between the haves and have nots.  This is not a flaw in this case, or something that these claimants should bear. But it is something that we have to think about when we think about pursuit of equality via litigation. We should be thinking about that gap, which has been on the rise since 1989, when the first Charter equality case was decided by the Supreme Court of Canada.  When we think about our hopes for equality and for Charter equality, we should keep some of these caveats at the forefront.

 

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