When the Canadian Charter of Rights and Freedoms was drafted, its text was influenced by social movements mobilizing for expansive human rights protections. One critical example was the inclusion of “equal benefit of the law” in the section 15 [1] equality rights provision. A response to the narrow interpretation of the equality provisions in the Canadian Bill of Rights, equal benefit of the law was designed to ensure that when the state provides benefits to individuals, those state benefits are provided equally. [2]
Though gesturing towards a more positive rights approach, equal benefit of the law only imposes positive obligations on governments if they have enacted specific programs and benefits. It is not a freestanding positive rights provision. Thus, for example, if the government sets up a legislative scheme for unemployment insurance benefits, such benefits must be provided equally and without discrimination. [3] If the state establishes health, educational or other public services, moreover, such services are to be provided equally.
In the pathbreaking Fraser decision, a case about equitable pension benefits for female RCMP officers participating in a job-sharing scheme, Justice Abella writes: “Section 15(1) has always required attention to the systemic disadvantages affecting members of protected groups, even if the state did not create them …”[4]. Responding to group-based needs and differences is a fundamental dimension of substantive equality. Applying such an approach to equal benefit of the law requires governments to consider the diverse needs, realities, and inequalities facing individuals and communities. In doing so, governments may well be required to treat groups differently to accommodate their specific needs – and in this way secure equitable state benefits. Equal benefit of the law requires equitable outcomes in the provision of state benefits, rather than simply formal equal treatment.
The Supreme Court has affirmed this approach to equal benefit of the law. For example, in Eldridge, it concluded that a provincial government was required to fund sign language interpretation for deaf patients to ensure the equitable provision of medical and health services. [5] The state is not responsible for the fact that some individuals are deaf; nevertheless, in providing medical and hospital services, the mandate to secure equal benefit of the law means that governments must provide sign language interpretation.
In the Fraser case, the job-sharing scheme that was set up to accommodate childcare responsibilities negatively affected pension benefits. The justices acknowledged that the government did not create the inequities relating to gender and childcare responsibilities in the family. Nevertheless, the Court held that the government was responsible for ensuring equal benefit of the law with respect to pension benefits. To quote Justice Abella for the majority:
… there is a s. 15(1) breach in this case — not because women continue to have disproportionate responsibility for childcare and less stable working hours than men, but because the pension plan “institutionalize[s] those traits as a basis on which to unequally distribute” pension benefits to jobsharing participants … This is ‘discrimination reinforced by law’, … [6]
Of note is the integral connection between the majority’s conclusions and the constitutional requirement of equal benefit of the law – or equitable pension benefits in this case. The government (here the RCMP) was not obliged to set up a pension plan for its employees; however, having done so, it is obligated to provide equitable pension benefits. In this case, doing so requires attentiveness to the adverse impact of the job-sharing scheme on pension benefits – specifically the effects of denying job-sharers the option of buying back pension benefits.
Dissenting Justices Brown and Rowe critique the majority’s interpretation of equality, which they suggest imposes obligations on governments to redress inequities they have not caused. [7] In their words:
In the case at bar, any disadvantage the appellants face is caused not by the impugned provisions or any government action, but by the unequal division of household and family responsibilities and social circumstances such as the availability of quality childcare. … [8]
In turn, they take the view that s. 15(1) “does not impose upon governments the obligation to take positive actions to remedy the symptoms of systemic inequality.” [9]
The fundamental problem with their conclusions in this regard, is that they read equal benefit of the law out of s. 15(1). They do this by framing the government benefit at issue as the job-sharing scheme rather than the pension benefits. They then proceed to describe the job-sharing program as an ameliorative initiative that the government was under no obligation to introduce. They add that to challenge any inequitable features of the job-sharing initiative would dissuade governments from introducing ameliorative schemes in the first place.
If we return to the Eldridge example, the equivalent would be an ameliorative government program for sign language interpretation provided on a fee-for-service basis.[10] The program would be ameliorative and better than no sign language interpretation, but it would still deny deaf persons the equal benefit of state-provided health and medical services, since they would have to incur additional fees. The point here is that equal benefit of the law applies to the underlying government benefit, not to the ameliorative initiative. And an inequitable ameliorative initiative should not be immune from constitutional scrutiny.
Applying this understanding to Fraser, the inequitable benefit is the pension plan, not the job-sharing scheme. It is the negative effects of the job-sharing initiative on pension benefits that is at the heart of the case. [11] In other words, the job-sharing program – which concretely was exclusively chosen by women – was not in itself inequitable. It was the pension plan’s treatment of the job-sharing program that was inequitable. As Abella J. recognizes:
… the use of an RCMP member’s temporary reduction in working hours as a basis to impose less favourable pension consequences plainly has a disproportionate impact on women.
… the RCMP’s [pension plan] design perpetuates a longstanding source of economic disadvantage for women… [12]
Accordingly, the majority finds that s. 15(1) has been infringed.
In concluding her judgment, Justice Abella laments the dissenting justices’ “insistent attack on the foundational premise of this Court’s s. 15 jurisprudence — substantive equality — in favour of a formalistic approach.” [13] She critiques their approach as one “which evokes the rejected pre-Charter theory whose effect was to deny access to benefits when that access required accommodation based on difference.” [14] Indeed, equal benefit of the law was included in the Charter specifically to preclude the reasoning embedded in the dissenting reasons.
[1] Faculty of Law & Centre for Human Rights and Legal Pluralism, McGill University. Thanks to my colleagues, Johanne Poirier, Vrinda Narain & Mirja Trilsch for their insightful comments on a previous draft of this blog.
[2] See discussion in W.S. Tarnopolsky, “The Equality Rights in the Canadian Charter of Rights and Freedoms,” (1983) 61Can. Bar Rev 242 at 249-50, on the inclusion of equal benefit of the law as a response to the narrow interpretation of the equality protections in the Canadian Bill of Rights. It is interesting to note the clarity of the French version of the Charter, which provides, “tous ont droit … au même bénéfice de la loi.”
[3] Such an approach had been rejected under the Canadian Bill of Rights: see Bliss v. Attorney General of Canada, [1979] 1 SCR 183 [hereafter Bliss].
[4] Fraser v. Canada (Attorney General), 2020 SCC 28 at para 71 [hereafter Fraser].
[5] Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 [hereafter Eldridge].
[6] Fraser, supra note 3 at para 136.
[7] In separate dissenting reasons, Justice Côté rejected the equality claim on the ground that any discrimination was based not on sex, but on caregiving or family status, writing at para 234 that “a distinction exists not because one is a woman, but because one has caregiving responsibilities…”. She went on to reject a finding of sex discrimination on the basis of the disproportionate impact of the provisions of women, and in so doing effectively rejected the Court’s historical recognition of adverse impact discrimination.
[8] Ibid at para 215. This reasoning is reminiscent of Bliss, supra, note 2, where Ritchie J., in denying equal unemployment insurance benefits to pregnant women stated at 190: “Any inequality between the sexes in this area is not created by legislation but by nature.”
[10] This was not put in place; I note it here just as an example of an inadequate ameliorative scheme.
[11] We can see parallels with the pay equity decisions; see Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 SCR 464 & Centrale des syndicats du Québec v. Québec (Attorney General), 2018 SCC 18, [2018] 1 SCR 522. The underlying government benefit in this domain is the provision of human rights protection against discrimination in employment, including wage discrimination. When the Quebec government set up a proactive pay equity implementation scheme, it continued to be obligated to secure the equal benefit of the law regarding non-discrimination in pay. The litigation concerned exemptions and legislated delays regarding pay equity obligations. Compliance with the pay equity legislation exempts employers subject to the pay equity law from equal pay for work of equal value obligations in the Quebec Charter of Human Rights and Freedoms. Pursuant to s. 19 of the Quebec Charter, “Adjustments in compensation and a pay equity plan are deemed not to discriminate on the basis of gender if they are established in accordance with the Pay Equity Act…” This makes sense to the extent that the pay equity legislation provides more effective implementation; however, if it eliminates or unduly delays protection, its fairness may be justifiably challenged.
[12] Fraser, supra, note 3 at para 97 and 113 respectively. xiii Ibid at para 134.
Colleen Sheppard is Professor of Law at the Faculty of Law, McGill University. Her teaching and research focus on systemic discrimination, equality rights, mental health in the workplace, Canadian and comparative constitutional law, and feminist legal theory. Colleen was director of the CHRLP between 2010 and 2015.