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 simi