Given that government respondents will increasingly rely on “ameliorative program” defences, there is an urgent need to empower persons with disabilities to defend their claims against “ameliorative program” defences. This Section is intended to be of practical use for equity-seeking groups, including advocates for the rights of persons with disabilities. It proposes resources and arguments available to groups seeking to protect themselves from governments’ “ameliorative program” defences.
This Section also proposes a vision of a rigorous, principled ameliorative program defence. This Section relies heavily on the input of expert consultants. It is also an evolving area – law reform strategies must be revisited and refined as the law changes and Courts address the questions set out in the preceding Section VIII.
A. The Dangers of Deference: Taking the Ameliorative Program Defence Too Far
Developing the “ideal” test for an ameliorative program defence is challenging. On one hand, persons with disabilities may benefit from well-developed ameliorative programs. In that way, it should be easy enough for governments to set up ameliorative programs. The Court of Appeal in Lovelace found that if ameliorative programs can be too readily challenged, governments will be discouraged from initiating such programs.[240] Sheppard made the following comment on striking that balance:
It is significant that Section 15(2) does not require a prior finding of discrimination against a particular group before remedial affirmative action can be taken. To impose such a prerequisite would undermine voluntary equity initiatives since employers, educational institutions. Governments may be reluctant to admit to past discrimination to the extent that such an admission would leave them open to legal claims for redress.[241]
In addition, the defence should be able to efficiently dispose of Type 1 (“reverse discrimination”) complaints, typical of the American jurisprudence.
On the other hand, there is a danger of too deferential (to the government’s policy making/resource allocation role) an approach. In the extreme situation, if the defence is too deferential, the government respondents may be tempted to characterize all government “law, programs and activities” as ameliorative. LEAF offered the following comment on the dangers of too deferential an approach:
A deferential approach in cases involving a challenge by a disadvantaged claimant to an under inclusive remedial program is not consistent with Section 15’s purpose of furthering substantial equality.[242]
Lepofsky and Bickenbach also addressed the dangers of an over-expansive test for Section 15(2):
…If ameliorative legislative purpose were the sole test under section 15(2), a legislature could easily circumvent the egalitarian requirements under section 15(1) by including in any potentially discriminatory legislation a clause which provides that ‘this Act has as its object the amelioration of the conditions of … a disadvantaged group.’ [243]
In its factum to the Supreme Court in Lovelace, the Council of Canadians with Disabilities also warned that – if taken too far – most of the government’s work could be held to be “ameliorative”, and therefore insulated from review.
Much of what government does could be described as having as its object the amelioration of disadvantage. It was never intended that such programs as health care, education (including special education), disability and employment insurance, social insurance and pensions plans should be exempted from s. 15(1) review altogether. Such programs are extremely important to persons with disabilities.[244]
The goal then is to strike a balance between making it easy for governments to set up ameliorative programs, but not so easy that the defence is used to avoid, pre-empt or limit Code or Charter scrutiny. In our consultations with expert advocates for persons with disabilities, we developed the following Proposal. While this Proposal focuses on the Charter, its principles apply to the special program defence under the Code.
B. Kapp is only Available to Reverse Discrimination Claims
For claims from privileged complainants, the Kapp analysis is satisfactory. Indeed, the Kapp analysis was only designed for reverse discrimination claims. For a claim of reverse discrimination, the test from Kapp is two fold:
1) the program has an ameliorative or remedial purpose.
2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.[245]