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]

 

The burden of adducing evidence of the purpose of Section 15(2) is entirely on the government.[246] This is different from the Section 15(1) analysis of the program’s ameliorative purpose or effect pursuant to the Law third stage.

 

If a Section 15(2) defence is made out the provision is saved, then the analysis stops and there is no Section 1 analysis. If a Section 15(2) defence is not made out, the analysis turns to Section 15(1). If a Section 15(1) breach is found, the analysis turns to Section 1 to determine if the Section 15(1) breach can be justified.

 

C. Mandatory Section 15(1) Analysis for Type 2 and Type 3 Complaints
 

As set out in Section V (“The Current Context: Expanding the Application of the Defence”), government defendants have relied on the ameliorative program defence in the context of claims of reverse discrimination (as in Kapp) as well as claims of under-inclusion. Any claim by a member of a disadvantaged group should not be funnelled through Section 15(2) of the Charter or Section 14 of the Code. For Type 2 (exclusion) or Type 3 (under-inclusion) complaints, there is no consideration of Section 15(2) principles. Everything else does violence to Section 15(1) jurisprudence.

 

For complaints from individuals who are members of disadvantaged groups, there should always be a fulsome Section 15(1) analysis. The analysis starts with the two-stage Section 15(1) analysis. The reformulated Kapp/Andrews test is:

 

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

 

The onus continues to be on the claimant at the Section 15(1) stage. If there is no Section 15(1) breach, the analysis ends. If there is a Section 15(1) breach the analysis turns to Section 1. The analysis of the programs’ ameliorative purposes – including the “rational connection” between the exclusion and the objective of the program – will be appropriately addressed at the Section 1 stage.

 

D. Complaints of Underinclusion, Section 15(1) and Section 15(2)
 

It is well established that when a government decides to provide benefits, it must do so in a non-discriminatory way, without arbitrary exclusions.[247]  Under-inclusion, in most circumstances, has been determined to constitute discrimination.[248]  Where determined to be discriminatory, that under-inclusiveness may be justified. It is at this point that special program provisions (that is, Section 15(2) of the Charter or equivalent human rights code provisions) have been relied upon to justify partial programs.

 

In Bliss v. Attorney General of Canada, the Supreme Court found that the denial of unemployment insurance to pregnant women did not offend the equality protections of the (now defunct) Canadian Bill of Rights.[249] The Court in Brooks went to some lengths to repair the damage of Bliss in Brooks v. Canada Safeway Ltd., with regards to the exclusion of pregnant women from an employee benefit program.[250]  Chief Justice Dickson held:

 

Under-inclusion may be simply a backhanded way of permitting discrimination…. Once an employer decides to provide an employee benefit package, exclusions from such scheme may not be made in a discriminatory fashion.[251]

 

Section 15(1)’s explicit reference to the protection of the “equal benefit” of the law reinforces that “under inclusiveness” is a violation of Section 15.[252]   In Eldridge, the Supreme Court held (as has often been cited) that once the state does provide a benefit, it is obligated to do so in a non-discriminatory manner.[253]

 

The Ontario Human Rights Commission’s Position Paper offers a fulsome analysis of the definitions of “special programs” and of the Roberts analysis.[254] The Commission, in its Guidelines of Special Programs, provided:

 

Even where a program appears to qualify as a special program under section 14(1) [of the Code], the program provider can not arbitrari