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“The Shield Becomes the Sword: The Expansion of the Ameliorative Program Defence to Programs that Support Persons with Disabilities”
Tess Sheldon for ARCH Disability Law Centre
In Canada, governments may enact ameliorative programs aimed at redressing institutionalized, systemic or historic discrimination. The 2008 Supreme Court of Canada case of R. v. Kapp established that if a government could show that the government program at issue was ameliorative under section 15(2) of the Charter, the program may not be subject to the equality analysis in section 15(1). In this paper, the author argues that governments are increasingly relying on the “ameliorative defence” to defend against claims brought by persons with disabilities under both the Charter and the Ontario Human Rights Code. This increasing reliance on the “ameliorative defence” particularly threatens the equality claims of persons with disabilities because of their heavy reliance on government programs. This increasing reliance also transforms the “ameliorative defence” from a shield to a sword and disadvantages persons with disabilities who are pursuing equality claims in relation to under inclusive programs and programs that exclude them altogether. Further, it may act as an incentive for governments to develop programs and narrowly construct the program’s purpose to restrict membership in order to mitigate against equality claims by other members within those disadvantaged groups.
After a thorough review of the legislation and case law in this area, the author advocates for an interpretation of Kapp that restricts its application to claims made of “reverse discrimination” by privileged groups or individuals. The author argues that claims made by persons with disabilities or members of other disadvantaged groups should not be governed by the approach in Kapp since those claims can be distinguished on the basis that they relate to under inclusion or exclusion. Rather than taking a restrictive approach to ameliorative programs, the author advocates for a proactive, positive obligation on the state to remedy disadvantage and for principles of universal design to be engaged in redressing systemic discrimination. Finally, the author provides some practical guidance to persons with disabilities to defend against the ameliorative defence if it is raised against their equality claims under the Charter or Code.