Immutability Hauntings. Socio-economic Status and Women's Right to Just Conditions of Work under Section 15 of the Charter

AuthorKerri A Froc
ProfessionPhD (Candidate), Faculty of Law, Queen's University, Trudeau and Vanier Scholar
chapter 6
kerri a Froc*
Haunting is one way in wh ich abusive systems of power make them selves
known and their i mpacts felt in everyday l ife, especia lly when they are
supposedly over and done with . . . or when t heir oppressive nature is de-
nied . . . . What’s dist inctive about haunting is th at it is an animated state
in which a repressed or unres olved social violence is maki ng itself known,
sometimes very di rectly, sometimes obliquely. I used the term haunt ing
to describe those si ngular yet repetitive inst ances when . . . the over-and-
done with comes alive, when what ’s been in your blind spot comes into
view . . . . The whole essence, if you ca n use that word, of a ghost is that it
has a real presence a nd demands its due, your attention.1
Canadian feminists have been sensitive to the potential of unrecognized
grounds of discri mination undermining women’s right to equality by shield-
ing government action from searching rev iew, particularly with respect to
sexual orientat ion.2 However, the dwindling recognition of socio- economic
* PhD (Candidate), Facu lty of Law, Queen’s University, Trudeau and Vanier Schola r.
1 Avery Gordon, Ghostly Matt ers: Haunting and the Sociological Imagin ation (Minneapo-
lis: University of M innesota Press, 20 08) at xvi.
2 See, for example, Vriend v Alberta, [1998] 1 SCR 493 [ Vriend]. See al so the Supreme Court
of Canada “Fac tum of the Intervenor Women’s Legal Edu cation and Action Fund,”
online: LEA F s/wp-content/upload s/2011/01/1998-vriend.pd f:
the Women’s Legal Education a nd Action Fund (LEAF) a rgued that the fa ilure of the
Alberta le gislature to include “sexu al orientation” as a prohibit ed ground meant that
188 kerri a froc
status as an a nalogous ground under section 15(1) of the Canadian Charter
of Rights and Freedoms3 seems to have received less sustained a nalysis in
terms of how it might af‌fect women’s rights.4 It is possible that th is rec-
ognition was not regarded as cr itical to women’s success in constitutional
equality litigation, given instances where court s have accepted women’s
economic disparities as i ndicia of their sex ual inequality.5
“some decision-maker s have read out lesbians from t he protective reach of ‘sex,’ or
erased one element of thei r identity and their dis advantage to force-f‌it them into t he
single ground , sexual orientat ion” (ibid at para 30); Mary Eaton, “Pat ently Confused:
Complex Inequal ity and Canada v Mossop” (1994) 1:2 Rev Const Stud 203.
3 Part I of the Constit ution Act, 1982, being Schedu le B to the Canada Act 1982 (UK),
1982, c 11 [Charter]. Section 15(1) read s, “Every individua l is equal before and under t he
law and has the r ight to the equal protec tion and equal benef‌it of the l aw without
discrim ination and, in pa rticular, without d iscriminat ion based on race, nationa l or
ethnic orig in, colour, religion, sex, age or ment al or physical disa bility.”
4 But see Martha Jac kman, “Constitut ional Contact with t he Disparities in t he World:
Poverty as a Proh ibited Ground of Discrim ination under the Can adian Charter and
Human Rig hts Law” (1994) 2:1 Rev Const Stud 76 at 110. Th e author discusses the
lower-court decis ion in Thibaudeau v MNR, [1994] FCJ No 577 (CA), contain ing “the
suggestion th at legislation which adver sely af‌fects the poor ca nnot also be chal lenged
by poor women on sex equal ity grounds unles s they suf‌fer some disti nct gender-based
harm.” Citing Br uce Porter, she observes that t he result is the reach of sex equa lity
under s 15 being circ umscribed “ because of the complex and inter secting nature of
the ir cl aim s”.
5 See, for example, Moge v Moge, [1992] 3 SCR 813: reg arding the need for spous al
support to ta ke into account women’s economic inequalit y and the feminiz ation of
poverty; Pet er v Beblow, [1993] 1 SCR 980 [Peter]; Kerr v Baranow, 2011 SCC 10 [Kerr].
In both Peter and Ker r, the Court recogn ized the non-owning com mon law spouse’s
contribution to fa mily property th rough provision of domestic ser vices because to
do otherwis e “systematically dev alues the contributions wh ich women tend to make
to the famil y economy. It has contributed to the phenomenon of the fe minization
of poverty . . .” (Peter, ibid at 993; Kerr, ibid at pa ra 42). See also Falkiner v Ontario
(Minister of Community and Soc ial Services) (2000), 212 DLR (4th) 633 (Ont CA) [Falkiner],
one of the few Charter ca ses taking an i ntegrated approach to women’s socia l and
economic inequa lity. It concerned the discr iminatory impac t of “spouse in the house”
regulation s on single mothers wherein th e Ontario Court of Appe al recognized “re-
ceipt of social a ssistance” as an a nalogous ground. I n part, the court rec ognized this
analogous g round because “the economic d isadvantage suf‌f ered by social assis tance
recipients is only one fe ature of and may in par t result from their his torical disadva n-
tage and vu lnerability” (ibid at para 88). Re ceipt of social assis tance, sex, and mar ital
status were a ll considered pertinent a xes of discrimi nation for the purposes of t he
Charter ana lysis.
Immutability Hauntings 189
Despite the seeming integration of economic matters i nto analyses of
sex discrimi nation, the success of women’s claims under the Charter to just
working conditions has been mixed. S ome initial positive decisions h ave
been overshadowed by later decisions refusing to recogn ize discri mina-
tion against “women’s work”6 as sex discrim ination. I will argue that Char-
ter cases involving women’s work have been haunted by court f‌indings
that socio-economic statu s is not an analogous g round of discrimi nation
under section 15(1), relying heavily on its purported lack of “ immutability.”7
That is, much like the cour ts’ claim th at living in poverty or receiv ing so-
cial assist ance is not who poor people are but what they do, simi lar analyt ic
separations have been used to deny women’s claims that unjust t reatment
of women’s work constitutes discr imination, despite the explicit proscrip-
tions in section 15(1) and section 28 of the Charter aga inst discrimin ation on
the basis of sex and gender.8
6 Deanne K Hil f‌inger Messias et al , “Def‌ining and Redef‌in ing Work: Implications for
Women’s Health” (1997) 11:3 Gender and So ciety 296. By women’s work, I adopt the
authors’ def‌inition , namely, “domestic work, that i s, paid or unpaid housework , child
care, and elder ca re performed in private home s . . . . Women’s work also commonly
refers to certa in occupations and profession s such as nursing, teach ing, social work,
and clerical work ” marked by gendered occupa tional segregation a nd stratif‌ication,
which are devalue d due to their association w ith women and the related deva luation
of women’s unpaid labour in t he home (at 298, citations omitte d). Women’s work
could also be con sidered as the partic ular way in which women per form paid employ-
ment, in light of thei r role in providing care for ch ildren, spouses, a nd others. That is,
there are gaps in t heir paid employment due to child-b earing and care giving. Women
also have const raints on their abi lities to work during cert ain times durin g the day
and week, and they work p art-time as a result of thes e obligations.
7 The reference t o “immutabilit y” in relation to analogo us grounds origin ally ap-
pears in the f‌i rst s 15 case, Andrews v Law S ociety of British Columbia, [1989] 1 SC R 143
[Andrews]. Justice LaForest , dissenting in par t, agreed that cit izenship quali f‌ied as
an analogou s ground, because it wa s “a personal charact eristic which share s many
simila rities with those enume rated in s. 15. The cha racteristic of cit izenship is one
typical ly not within the control of t he individual and, i n this sense, is im mutable”
(ibid at para 67).
8 Section 28 stat es, “Notwithsta nding anythi ng in this Charter, the rights a nd freedoms
referred to in it are g uaranteed equa lly to male and female p ersons.” Arguably, the ref-
erence to “female p ersons” in s 28 includes their ge nder, and in any event, the Court
on many occas ions appears to use sex and gend er interchangeably when referenc ing
protection af‌forded u nder s 15(1). See, for example, Benner v Canada (Secre tary of State),
[1997] 1 SCR 358; Granovsky v Canada (Minister of Emp loyment and Immigration), 2000
SCC 28 [Granovsky]; Auton (Guardian ad litem o) v B ritish Columbia (AG), 2004 SCC 78;
Sauvé v Canada (Chief Electoral Oc er), 2002 SCC 68 [Sauvé]; Egan v Canada, [1995] 2
SCR 513 [Egan]; Canada (AG) v Hislop, 2007 SCC 10; Gosselin v Quebec ( AG), 2002 SCC

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