This Section reviews the evolution of the “ameliorative program” defence, from the inception of the Charter’s equality provisions (in force in 1985) to the Supreme Court’s most recent pronouncements. This Section does not focus on Ontario, but offers attention to its evolution across Canada.
There have been three distinct periods of the use of the ameliorative program defence.
The first wave is characterized by a mixed or inconsistent application of ameliorative program defences.
In the second wave, the Court appeared to attempt to develop a principled approach to the defence and even rebuked the government where it sought to expand the defences’ application (Roberts, Eaton, Schafer and Lovelace).
The emergent third wave of jurisprudence offers increasing deference to the government to target particular disadvantaged groups (Kapp).
This Section of the Paper does not distinguish between its pedigree in Charter and statutory human rights contexts. These areas share a history, although their boundaries are contested. It is beyond the scope of this paper to elaborate on the link between the Charter and the Code. The Court of Appeal will have the opportunity to comment on the relationship between the Charter and the Code in Tranchemontage, heard in March 2010.
There are considerable differences between the operation of the defence in the Charter and the Code context. Indeed, Russel Jurianz found that statutory human rights defences are narrower than Section 15(2) of the Charter – that is, it is more difficult to make out a Code special program defence, than it is to make out a Charter defence. Examples of the differences include:
Human rights statutes do not have the equivalent of Section 1 of the Charter.
Human rights instruments offer protection from discrimination by non-governmental and governmental actors.
Section 15(2) only applies to ameliorative programs established by government actors. 
This Paper is primarily concerned with the application of the Code’s “special program” defence by government respondents.
Section 15(2) requires that groups are disadvantaged “because of” an enumerated or analogous ground. Legislative exceptions require that the disadvantage be “based on” the enumerated ground. 
Despite the difference in the two contexts, the Ontario Human Rights Commission held that cases decided under the Charter can advance understanding of how Section 14 of the Code is properly interpreted. Human rights tribunals have appeared to be more willing to consider the special program defense in a way that supports a substantive vision of equality, as in the case of Roberts and Ball (below).
A. First Wave: Mixed Application of the Ameliorative Program defence (1985- 1994)
This Section reviews early judicial commentary to the ameliorative program defense from the introduction of Section 15(2) until the Ontario Court of Appeal’s seminal human rights decision in Roberts in 1994. This first wave is characterized by an inconsistent application of the ameliorative program defence.
In Action Travail des Femmes v. Canadian National Railway, the Court considered the constitutionality of a human rights tribunal’s order that CN hire one woman for every four new hires. The evidence demonstrated that women had been improperly excluded for many years by systemic discriminatory employment practices. The Supreme Court upheld the employment equity program in that it was “rationally connected” to the purpose of increasing the number of women in CN’s workforce. 
In Apsit Manitoba Rice Farmers Association v. Human Rights Commission (1987), the Manitoba Court of Queen’s Bench considered the decision of the Manitoba Human Rights Commission to approve a plan that gave preference in the granting of licences to harvest wild rice to Aboriginal persons. Justice Simonsen found that the affirmative action plan did not serve to actually redress the disadvantage, since the cause of the disadvantage was not the difficulty in getting licences. Aboriginal farmers did not have the resources or equipment that they needed.
In order to justify a program under section 15(2), I believe there must be a real nexus between the object of the program as declared by the government and its form and implementation. It is not sufficient to declare that the object of a program is to help a disadvantaged group if in fact the ameliorative remedy is not directed toward the cause of the disadvantage. There must be a unity or interrelationship amongst the elements in the program which will prompt that court to conclude that the remedy in its form and implementation is rationally related to the cause of the disadvantage.
Silano v. British Columbia (1987) involved a Section 15(1) challenge to the provisions of a provincial assistance program, wherein recipients under 26 years of age received $25 less per month than recipients over 26 years of age. Justice Spenser of the British Columbia Supreme Court rejected the argument that the discriminatory provisions could be saved by Section 15(2), since young people are not disadvantaged because of age. The age distinction did not have a rational connection to the program’s purpose, and therefore, the program was not saved by Section 15(2).
In Andrews, Justice McIntyre used Section 15(2) as an interpretive aid to understand Section 15(1). In particular, he found that:
It must be recognized, however, as well that the promotion of equality under s. 15 has a much more specific goal than the mere elimination of distinctions. If the Charter was intended to eliminate all distinctions, then there would be no place for sections such as 27 (multicultural heritage); 2(a) (freedom of conscience and religion); 25 (aboriginal rights and freedoms); and other such provisions designed to safeguard certain distinctions. Moreover, the fact that identical treatment may frequently produce serious inequality is recognized in s. 15(2), which states that the equality rights in s. 15(1) do “not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups….”
Justice Wilson, in her dissenting reasons in Harrison v. University of British Columbia (1990), concluded that mandatory retirement policies could not be construed as affirmative action measures, since older workers under the age of 65 have not experienced discrimination. She argued that Section 15(2) strengthens the notion adopted by the Court in Andrews.
It seems to me clear […] that at the very least the purpose of this section is to enshrine the notion of the viability, indeed the necessity, of measures designed to redress the drastic effects of discrimination. … It follows, in my respectful view, that for any measure to be characterized as an “affirmative action” measure within the meaning of s. 15(2), it must first be established that the measure is directed towards assuaging the effects of discrimination against a disadvantaged group.
This first wave is characterized by an inconsistent application of the ameliorative program defence. The legal landscape changed with the Ontario Court of Appeal’s decision in Roberts.
B. Second Wave: Towards a Principled Approach (1994 – 2000)
This second wave is characterized by an attempt by the Courts to develop a principled approach to the ameliorative program defence. Courts appeared, at times, to rebuke a government respondent where it sought to unreasonably expand the defence’s application.
In Ontario (Human Rights Commission) v. Ontario (“Roberts”), the complainant applied for funding from Ontario’s Assistive Devices Program (ADP) to purchase a closed circuit television magnifier. He was 71 years old at the time of the application. He was determined to be ineligible for ADP funding, since at that time there was a cut-off age of 18 years for assistance to purchase that type of assistive device.
The Court of Appeal found that Section 14 of the Ontario Human Rights Code only insulates a program from review where the challenge is from a member from a historically privileged group or a disadvantaged person whose disability the program was not designed to benefit.
Section 14(1) has a dual purpose: the exemption of affirmative action programs from review and the promotion of substantive equality. The Divisional Court erred in law in construing s. 14(1) as having as its only purpose the exemption of special programs from the application of the Code. Where a person whom a special program is designed to assist is discriminated against on an enumerated ground prohibited by the Code, s.14(1) is to be construed as an interpretive aid aimed at promoting substantive equality. Programs aimed at promoting substantive equality are reviewable depending on the context in which the challenge is brought. The exemptive purpose of s.14(1) is not invoked in this appeal.
… In this case, the Board of Inquiry and the Divisional Court erred in law in finding that the inquiry ends when “special program” status is proven. The inquiry should have considered: (1) whether a particular provision or limitation of a special program results in discrimination against a person or group with the disadvantage