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 educati