This Section reviews legislation governing the application of the special program defence in Canada. It touches briefly on the protection of analogous (or nearly analogous) programs internationally. This Section does not offer particular comment on legislative measures, including Ontario’s Pay Equity Act[28] or the federal Employment Equity Act.[29]


A. Canadian Charter of Rights and Freedoms

Section 15(2) was added through “excessive caution”, following American litigation challenging affirmative action programs.[30] Section 15(2) of the Charter provides:


Subsection [15(1)] does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[31]


Section 15(2) offers protection to “any law, program or activity”. The Supreme Court in McKinney v. University of Guelph, found that the wording of Section 15(2) supported the view that Section 15(1) was not meant to be restricted to “law”.[32]


B. Ontario’s Human Rights Code

Section 14 of Ontario’s Human Rights Code provides:

1. A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. [33]


The Code also includes a number of procedural provisions with respect to the designation of “special program”[34], the duration of the effect of that designation[35] and how that designation may be used as evidence before the Human Rights Tribunal of Ontario.[36] An application may be made to the Ontario Human Rights Commission (OHRC) for a program to be designated as a special program.[37] Generally, the OHRC has declined to undertake the function of designating special programs.


The OHRC cannot inquire into special programs that are implemented by the Crown. Section 14(9) of the Code provides that those procedural provisions do not apply to a program implemented by the Crown or an agency of the Crown.[38]   Section 18 of the Code provides that restrictions to membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization are protected from findings of discrimination.


C. Other Canadian Jurisdictions

The protections offered to special programs are codified in legislation across Canadian jurisdictions. Appendix I offers a review of relevant sections of the governing human rights statutes in the federal, provincial and territorial jurisdictions, including:

Canadian Human Rights Act
Charte des droits et libertés de la personne du Québec
British Columbia Human Rights Code
Alberta Human Rights, Citizenship and Multiculturalism Act
Saskatchewan Human Rights Code
Manitoba Human Rights Code
New Brunswick Human Rights Act/ Loi sur les droits de la personne du Nouveau-Brunswick
Nova Scotia Human Rights Act
Prince Edward Island Human Rights Act
Newfoundland Human Rights Code
Yukon Human Rights Act
Northwest Territories Human Rights Act

Some of Canadian jurisdictions, including British Columbia[39], appear to only offer the special program defence in the context of employment. Other jurisdictions, like Saskatchewan, offer protection to fraternal, religious, racial or social organizations who give preference in employment to persons identified by the same ground that the organization is engaging in the serving the interests of.[40] Nova Scotia’s Human Rights Act directly cites Section 15(2) of the Charter.[41]


Through its “Equity Works” program, the Saskatchewan Human Rights Commission approves and supports equity plans of specific organizations. Saskatchewan Human Rights Commission has taken an active role in designating equity programs, keeping approval requirements to a minimum.[42]


Alberta’s newly enacted Human Rights Act is silent on the issues of “ameliorative” or “special programs”.[43] Instead it offers that a contravention is deemed not to have occurred where the contravention is “reasonable and justifiable in the circumstances”. [44]


Quebec’s Charte des droits et libertés de la personne du Québéc [Quebec Charter] is the most extensive, and deserves further examination outside this Paper. For instance, the Quebec Charter requires that the Commission des droits de la personne et des droits de la jeunesse lend assistance to develop affirmative action programs.[45]  The Charter also provides that the Commission shall supervise the administration of affirmative action programs. Section 86 deems an affirmative action program non-discriminatory if it is established in conformity with Quebec’s Charter.[46]


D. Examples of International Approaches to Special Programs

This Section reviews how jurisdictions outside of Canada have addressed the persistent barriers to equality. Rather than a comprehensive review, this Section offers a few jurisdictions as illustration. On the other hand, Global Rights’ report, Affirmative Action: A Global Perspective comprehensively surveys affirmative action programs across the world, including in Brazil, Malaysia and South Africa.[47]


1. United States

In the United States, there is no constitutional protection for “affirmative action” programs. Instead, the Fifth Amendment and the Fourteenth Amendment of the United States Constitution simply provide for “the equal protection of the laws”.[48] The status of affirmative action programs continues to be hotly contested. Jason Morgan-Foster describes the American approach to affirmative action as the “most restrictive”.[49] Roozbeh Baker also offers:

The American definition of equality rights has become highly formalistic and requires that the government not discriminate against select citizens, by – save for the most narrow circumstance – attempting to treat all equally under the law. In taking the equal treatment for all citizens as its point of departure, US equality rights jurisprudence has resulted in a piecemeal approach to affirmative action programs.[50]


Much of the affirmative action jurisprudence in the U.S. has developed in the context of racial discrimination, which requires a “strict scrutiny” analysis. American courts review legislation that classifies people on the basis of gender under the less onerous “intermediate scrutiny” test.[51] There has been little attention paid to the constitutionality of sex-based affirmative action programs in the United States.


The American colour blind approach is reminiscent of a formal understanding of equality. Justice Harlan, dissenting in Plessy v. Ferguson, argued that the Constitution “is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”[52]  In Adarand Constructors Inc. v. Pena, Justice Thomas found that “it is relevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help…”[53]


The bulk of American jurisprudence involves complaints from members of historically privileged groups – that is, claims of “reverse discrimination”. For example:

In Regents of the University of California v. Bakke, the American Supreme Court struck down as discriminatory the admissions policy of a medical school that offered priority to black applicants on a quota system.[54]
In Adarand Constructors Inc. v. Pena, the Supreme Court considered a challenge to a federal program offering financial incentives to hire subcontractors who were “socially and economically disadvantaged”. The Court confirmed that all race-based affirmative actions programs must be reviewed on a standard of “strict scrutiny”. The Court split on whether a government affirmative action program could ever pass the “strict” standard.
In 2003, the Supreme Court determined that the University of Michigan’s use of race in its “Undergraduate Admissions Policy” violated the Equal Protection Clause.[55] The “point system” used by the Michigan Admissions Office made race too decisive a factor, and failed to consider applicants as “individuals.” 
In a companion case, the Supreme Court found that the “Law School Admissions Policy” was narrowly tailored, and served the compelling state interest of diversity.[56]  The Law School Admissions Policy survived the strict scrutiny test.

2. India

India’s approach to affirmative action is “liberal, expanded” [57] and “firmly embrace[s] the notion of substantive equality”. [58] The Indian Constitution explicitly allows for affirmative action programs, known as “reservations”.[59] The State mandates that a percentage of public sector jobs be reserved for minority candidates. Public and private educational institutions, except in the religious/ linguistic minority educational institutions, also use reservations.[60] Entry criteria are lowered for certain identifiable groups that are under-represented in the schools. Gender and caste are the most often used criteria to identify under-represented groups. Disability is not a ground on which reservations may be made.


Approximately 65% of the population has reservations available to them.[61] There has been much concern about who falls within a protected class, and whether the reservation system only benefits the wealthiest and educated members of a protected class. In April 2008, the Supreme Court of India upheld Other Backward Classes (“OBC”) quotas in Government funded institutions. The wealthier and better educated members of the OBC’s (referred to as the “creamy layer”) are excluded from the ambit of reservation policy.[62]


3. United Kingdom

The United Kingdom’s newly promulgated Equality Act (2010) extends the range of voluntary “positive actions” as wide as is permitted under EU legislation, without discarding the merit principle. [63] In particular, the Equality Act extends until 2030 the exemption from sex discrimination law allowing political parties to select all women or all men candidate short-lists.[64]  Unlike its predecessor, the new Equality Act does not engage the principle of “positive discrimination”, given that it “would have been unlawful under both current domestic and European legislation because it would discard the merit principle”.[65]


4. European Union

Most jurisdictions in the European Union appear to be generally uncritical or at least supportive of affirmative action programs. For example, Article 23 (“Equality between Men and Women”) of the European Union’s Charter of Fundamental Rights (2000) provides:


Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.[66]


That support for affirmative action, however, is not unwavering. In its 1995 decision in Kalanke, the European Court of Justice found the affirmative action programs, such as preferential treatment and quotas in favour of women, were not bringing about the end of discrimination.[67] At issue in Kalanke was a “tie break” rule that preferred a female job applicant over an equally qualified male competitor. The European Court of Justice found that affirmative action programs of that kind were not compatible with the equal treatment of women and men. Kalanke has been mitigated to some degree by Marshall.[68] The European Court upheld a narrowly tailored affirmative action program[69] that required that priority be given to equally qualified female candidates in particular job sectors.[70]


E. International Law

Ameliorative programs are “strongly endorsed by international law”.[71]   This Section reviews the international law materials, as they apply to “affirmative action” programs. The Section reviews international materials in chronological order.


The United Nations opened the Convention on the Elimination of All Forms of Racial Discrimination for signature on March 7, 1966. Canada signed the Convention on August 24, 1966 and ratified it on October 14, 1970. Article 1(4) provides:


Article 1(4). Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.


Article 2(2) of the Convention on the Elimination of All Forms of Racial Discrimination provides:


Article 2(2). States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. [72]



Canada is a signatory to the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and ratified it on December 10, 1981. Article 4 provides the following comment on “temporary special measures”.


Article 4(1). Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.


2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.[73]


At paragraph 10 of the General Comment 18 to the International Covenant on Civil and Political Rights (ICCPR), the Office of the Commissioner of Human Rights provides the following comment on affirmative action programs:


10. The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.[74]


Article 27 of the newly ratified Convention on the Rights of Persons with Disabilities provides for the recognition of the rights of persons with disabilities to work on an equal basis with others. State parties are required to take appropriate steps to realize that goal, including the development of affirmative action programs:


27.1(h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures.[75]


In short, international law and material clearly contemplates a role for “affirmative action” programs, including those that  ameliorate the disadvantage experienced by persons with disabilities.


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