II. INTRODUCTION

Despite constitutional and statutory affirmations of the right to equality, our communities continue to be characterized by patterns of economic, political and social exclusion. The recognition of the persistent, systemic and institutional nature of inequality may require the development of proactive and broad-scale measures, including the development of ameliorative programs.

The Supreme Court’s decision of R v. Kapp (2008) offers a deferential reading of the governments’ authority to target particular groups, and establish those ameliorative programs. Kapp stands for the proposition that a government respondent’s declaration that a disability support or service is an “ameliorative” program may shield it from further Charter scrutiny.

Following Kapp, government respondents have increasingly relied on “ameliorative program” defences to claims of persons with disabilities. Government respondents may argue that an “ameliorative” program is immune from a finding of discrimination. For instance, providers of specialized transportation have argued that specialized transit is an “ameliorative program”. Government defendants have argued that the Ontario Disability Support Plan, the Special Diet Allowance, funding for children with autism and autism spectrum disorder and special education supports/services are ameliorative programs.

Here, we offer a critical analysis of the application of the ameliorative defence to programs that support persons with disabilities. We do so in eight parts: 

1. First, we review the legislative context of the “ameliorative program” defence, as well as the application of the defence outside of Ontario and internationally.
2. Second, we review equality jurisprudence, which stands for the proposition that a government respondent’s declaration that a disability support or service is “ameliorative” may shield it from further scrutiny.
3. We review recent caselaw from Ontario, demonstrating that government respondents increasingly rely on “ameliorative program” defences to claims of persons with disabilities.
4. In the fourth Section, we detail how the actual raising of the defence poses particular procedural barriers for claimants with disabilities – even if the defence is not made out.
5. In the fifth Section, we address the theoretical/conceptual implications of the (broadened) application of the defence. In particular, we examine how an over-expansive “ameliorative program” defence undermines the promise of substantive equality that underpins the Charter and the Code.
6. In the sixth Section, we highlight questions that have been unanswered or under-answered by the Courts.
7. In the final Section, we offer a principled and rigorous alternative to the analysis of ameliorative program defenses. We also provide practical guidance and arguments available to groups seeking to protect themselves from governments’ “ameliorative program” defences.

A. Ameliorative Programs and Persons with Disabilities
 

Ameliorative programs are forward-looking, proactive challenges to group-based patterns of exclusion. They are designed to redress institutionalized, systemic or historic discrimination. Their goals might include to: eliminate present inequalities, remedy past inequalities, equalize opportunities between groups and to embrace and promote diversity.[5] In the case of disability, Marcia Rioux and Tim Daly put it this way:

Ameliorating disability is not simply a matter of intervening medically. It is about addressing the physical, social, civic, economic, and cultural rights violations experienced by people with disabilities.[6]

There are a variety of types of ameliorative programs, in a variety of contexts (including workplace programs, educational institutions). Ameliorative programs may be used in both the public and private sector. For the purposes of this paper, types of ameliorative programs include, but are not limited to:

                      i.        Hiring preferences for members of disadvantaged groups;

                    ii.        Setting quotas, ensuring that at least a set number of positions (including paid jobs, board members, volunteers) are occupied by members of disadvantaged groups;

                   iii.        Outreach to certain kind of applicants (job, board member, volunteer); and

                   iv.        Special admission standards to educational institutions for members of disadvantaged groups.

Our focus is on the application of the ameliorative program defence to claims by persons with disabilities. While the expanded defence is a barrier for all equity seeking groups, people with disabilities more often rely on, or are the subject of, government programs than persons without disabilities, including: medical or health services, specialized transportation services, social assistance, education. In particular, women with disabilities are subject to increased scrutiny by a variety of institutions, including Children’s Aid Societies. As a result of socio-economic-political marginalization, persons with disabilities from racialized communities are subject to increased scrutiny by – for example – psychiatric settings, social services and justice institutions.

Because they often rely on government programs, an over-expansive defence particularly threatens the equality claims of persons with disabilities. People with disabilities are at an increased risk of poverty, and rely on government programs for minimal and basic entitlements. People with disabilities are less likely to be employed and, when they are employed, earn less than people without disabilities.[7] People with disabilities are more much more likely than people without disabilities to be living in poverty.[8] Persons with disabilities often face poor and unsafe living conditions.[9] Discrimination, inaccessible environments and lack of access to health services and supports threatens participation in work, social and community lives (including schooling). [10]  It ultimately results in a systemic pattern of life-long exclusion.

B. Ameliorative Programs as an Expression of Substantive Equality
 

Adherence to formal equality has been referred to as applying the “similarly situated” test. That is, the similarly situated should be similarly treated.[11]  On the other hand, substantive equality is concerned with the actual distribution of resources, opportunities and choices within a society. Indeed, Anne Bayefsky contended that the wording of Section 15 deliberately provides for “equality of results”.[12]  

In Andrews v. Law Society of British Columbia,[13] the first equality rights case after Section 15 came into effect, the Supreme Court of Canada confirmed that the equality guarantee was concerned with “equality of results” and not formal equality.[14] Speaking for the majority of the Supreme Court, Justice McIntyre expressly recognized that “the accommodation of differences….is the essence of true equality”.[15] He emphasized the crucial importance of considering differing needs when looking at achieving substantive equality.

It is well established that ameliorative programs are intended to promote and be an expression of the Charter’s promise of substantive equality. The ameliorative program defence, then, is a necessary part of the government fulfilling its Section 15(1) obligations. Peter Hogg put it this way:

Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it.[16]

Indeed, the principle of substantive equality may require the proactive provision of additional support and accommodation. In that way, the ameliorative program defence is related to calls for a “positive obligation” approach. For more on this point, see Section VII.B “Ameliorative Programs as Positive Obligations”.

C. Ameliorative Programs as Targeted Resource Allocation
 

Ameliorative programs focus on segments of the population in order to ensure that those with the greatest needs are supported.[17] Ameliorative programs preserve resources in the most effective[18] and efficient manner. [19] Deferring to the government’s resource-allocation role, Courts have held that there should be minimal restrictions on the authority of governments to set up special programs. In Lovelace, Justice Iaccobucci wrote for the Court:

Given its important purpose, ameliorative programs should be permitted to operate with a minimum amount of difficulty.[20] 

In R v. Willocks, Justice Watt of the Ontario Divisional Court considered whether alternative justice programs designed for persons from Aboriginal communities were “special programs”. Justice Watt spoke to the value of encouraging governments to set up special programs:

The Charter does not ask, in my respectful view, that an affirmative action program within its s. 15(2), address at once all individuals or groups who suffer similar disadvantage. There must be some room left to establish and give effect to priorities amongst disadvantaged groups, provided there is no gross unfairness.[21]

Constance Backhouse heard the seminal decision of Roberts (see Section IV.B for more on Roberts) at the Ontario Board of Inquiry, and commented on the value of targeting, which is reflective of the principle of substantive equality:

…[I]t is consistent with the object of substantive equality to develop targeted ameliorative programs, and to exclude those without the same needs as those for whom the program is developed.[22] 

It is well established that governments are permitted to identify priorities and ‘target’ particular disadvantaged groups. That ‘targeting’ necessarily excludes other groups. Persons who are excluded from an ameliorative program may challenge that “targeting” as discriminatory. There are two types of challenges: 

A challenge of that targeting by a member of an advantaged group is sometimes referred to “reverse discrimination”.
A challenge of that targeting by a member of a disadvantaged group is sometimes referred to “under-inclusion”.
 

D. Criticisms of Ameliorative Programs, Generally
 

Ameliorative programs, of course, are not uncontroversial. For instance, Mark Drumbl and John Craig argue that affirmative action programs make unfair generalizations about a person’s needs, based on group membership.

Constitutionally problematic affirmative action then is any state law or program which generalizes about an individual’s social and economic status on the basis of group membership and allocates social benefits accordingly. Treating individuals differently on the basis of generalizations about the groups to which they belong, while ignoring their actual needs and ability, is the hallmark of discrimination.[23]

Critics claim that affirmative action programs only benefit the most-advantaged of members from historically disadvantaged groups.[24]  Others express concern that some affirmative action programs offer “cookie cutter” approaches to ameliorating disadvantage. Indeed, a “one size fits all” approach is less effective than developing individualized and contextualized responses to the particular needs of a member of a disadvantaged group.

Other critics question the actual benefit or value of affirmative action programs.[25]  M.B. Abrams claims that such “social engineering” confers benefits without actually addressing the underlying cause of disadvantage.[26] Abrams continues on to say narrowly constructed affirmative action programs reinforce the status quo rather than challenging it. In the same way, Frank de Zwart explains that the unintended effect of affirmative action in India was to reinforce the caste system.[27]  Rather than ameliorate disadvantage with an eye towards long-lasting change, individuals from disadvantaged groups rely on membership to establish entitlements in the short-term.