We are delighted to have had the opportunity to prepare this Case Study Paper that considers the questions raised by Section 5 (“Equality”) of the LCO’s Call for Papers: The Law as it Affects Persons with Disabilities. Here, we offer a critical analysis of the application of the ameliorative defence to programs that support persons with disabilities. The research advances our understanding of the principles identified by the Law Commission’s Background Paper. It adds further context to an understanding of the barriers to equality and non-discrimination experienced by persons with disabilities. It builds on the Background Paper’s review of conceptual approaches to disability.
A. About ARCH Disability Law Centre
ARCH Disability Law Centre (ARCH) is a community legal clinic dedicated to advancing the equality rights of persons with disabilities. ARCH provides free and confidential legal advice and information to persons with disabilities in Ontario. ARCH provides services to Ontarians with disabilities in many ways, through law reform and policy initiatives, community development, legal advice and referrals, public legal education, and litigation.
This work uses the terms “special program” and “ameliorative program” interchangeably. The term “special program” is more often used in the context of statutory human rights instruments. The term “ameliorative program” is more often used in the context of Charter jurisprudence. Section 13 of the Yukon Human Rights Act distinguishes between “special programs” and “affirmative action” programs in the following way:
13(2). Special programs are programs designed to prevent disadvantages that are likely to be suffered by any group identified by reference to a prohibited ground of discrimination.
13(3). Affirmative action programs are programs designed to reduce disadvantages resulting from discrimination suffered by a group identified by reference to a prohibited ground of discrimination.
In her 1984 report, The Report of the Royal Commission on Equality in Employment, Justice Abella considered and rejected the use of the term “affirmative action”. She made the following comment about “intellectual resistance” to the use of particular language:
The Commission was told again and again that the phrase “affirmative action” was ambiguous and confusing. Not surprisingly, those who favoured government intervention to create more equitably distributed employment opportunities had less objection to the term, even if they were unclear as to its precise meaning. On the other hand, those who rejected intervention opposed the term, no matter how it was defined. People generally have a sense that “affirmative action” refers to interventionist government policies, and that is enough to prompt a negative reaction from many…..In other words, there may be a willingness to discuss eliminating discriminatory employment barriers but not to debate “affirmative action” as it is currently misunderstood.
The term “equity program” is applied to formal employment and pay equity systems, and does not appear to have a broader or less formal application.
“Reverse discrimination” is sometimes used to describe the kind of complaints from historically privileged communities, typical of the American jurisprudence. Some advocates from equity seeking groups challenge this language, arguing that “reverse discrimination” is not discrimination at all.
There are also regional differences in the use of the terms. “Affirmative action” is a term more often used in the United States. Until recently, the United Kingdom often used the term “positive discrimination” or “positive action”. Others use the term “benign discrimination”.
In the first phase of the project, we conducted a review of the legal literature on the application of the “ameliorative program” defence. We undertook a survey of the cases where government respondents have raised Section 15(2) of the Canadian Charter of Rights and Freedoms or Section 14 of Ontario’s Human Rights Code. Where available, we reviewed facta and oral submissions on the application of that defence. The review focused on its application to programs that support persons with disabilities. Applying a comparative analysis, we reviewed relevant legislation in other Canadian jurisdictions and internationally.
In the second phase of the research, we conducted in-depth interviews and discussed the review findings with equality seeking groups including advocates for persons with disabilities. The targeted consultations were carried out in May of 2010. The structure of consultations was flexible. A focus group of experts in the field was held in May of 2010. Where they could not be conducted in person, consultations were conducted by telephone. Given that the interviews were not intended to represent a random sample, interviewees were selected to represent a broad range of views.
We are very grateful for the opportunity to have consulted with the following experts:
Kate Stephenson, Human Rights Legal Support Centre
Larissa Ruderman, Clinic Resource Office, Legal Aid Ontario
Lesli Bisgould, Clinic Resource Office, Legal Aid Ontario
David Baker, Baker Law
Cathy Pike, Ontario Human Rights Commission
Dianne Pothier, Schulich School of Law, Dalhousie University.
Yvonne Peters, Legal Advisor to the Council of Canadians with Disabilities
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