VII. CONCEPTUAL APPROACHES TO DISABILITY2017-03-03T18:35:38+00:00

The broadened application of the “ameliorative program” defence raises considerations about how tribunals and Courts conceptualize disability. Ameliorative programs are illustrative of the tension between individual and group-based understandings of equality. This Section also examines the possibility of a “universalist approach” to the understanding of ameliorative programs.

 

A. Individual-Regarding Equality and Group-Regarding Equality
 

Ameliorative programs focus on the disadvantage experienced by groups or individuals. For instance, Section 15(2) offers protection to a law, program or activity “that has as its object the amelioration of conditions of disadvantaged individuals or groups”.[131] Section 14 of the Code protects programs “designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups”.[132]

 

There is considerable debate as to whether constitutional and statutory protections should aim to remedy group patterns of historical and social disadvantage or whether they should redress any harmful individual treatment based on group attributes, regardless of the group’s historical social status.[133] Speaking to the evolution of equality rights jurisprudence ahead of the Court’s decision in Law, Sophia Moreau pointed out that there had been no agreement on what “substantive equality” involved. She elaborated:

And was the right to substantive equality really, at bottom, an individual right, concerning the way in which individuals ought to be treated relative to each other; or was it ultimately aimed at equalizing opportunities between different social groups?[134]

 

Some are critical of the value of the attention to equality at the group level, and in particular the allocation of social benefits based on group membership. They point to concerns that social engineers will “submerge” personality, effort, and character under the “blanket” of race, sex and ethnicity.[135] Drumbl and Craig describe as particularly dangerous those assumptions about group membership upon which ameliorative programs are based.[136] They described as “constitutionally problematic” the situation where allocations are prescribed based on a group membership that is “irrelevant to the issue of whether the individuals want or need the social benefit.”[137]

 

Treating individuals differently on the basis of generalization about the groups to which they belong, while ignoring their actual needs and abilities, is the hallmark of discrimination.[138]

 

On the other hand, recognition of the institutionalized and historical patterns of exclusion of people with disabilities – from work, social and community lives – requires attention to group-based barriers. Narrowly constructed ameliorative programs that focus on individual rather than institutional change reinforce the status quo rather than challenge it.[139] Effective interventions require attention beyond the individual level. Justice Abella, in her 1984 Royal Commission Report on employment equity, described an individual approach to the enforcement of human rights (rather than a group approach) as unable to deal with the “pervasiveness and subtlety of discrimination.”[140] She continued:

In recognition of the journey many have yet to complete before they achieve equality. … Section 15(2) covers the canvas with a broad brush, permitting a group remedy for discrimination. This section encourages a comprehensive or systemic rather than a particularized approach to the elimination of discriminatory barriers. [141]

 

Ameliorative programs are directed at redressing systemic patterns of group inequality, a value “most consistent with substantive equality….“[142]  Sheppard found that concentration on discrimination experienced by individuals does not address the core power imbalances between groups.[143] She elaborated:

Affirmative action … is a group-based concept based on social thought, for it recognizes that while groups remain excluded from social and economic benefits, their exclusion fuels further inequality.[144]

 

Nevertheless, Sheppard described programs that address institutional transformation and those that address individual accommodation as complementary. Together they are part of a “multi-dimensional approach” to remedying disadvantage as a result of discrimination.

Transforming institutional policies, practices, standards and customs to make them welcoming and responsive to formerly excluded or marginalized groups is the essence of affirmative action. Nevertheless, in some instances, special accommodation of particular groups and individuals needs will be required to facilitate multiple ways of doing things within an institution. Thus, equity programs must embrace both institutional change and special accommodations as two important strategies for promoting equality.[145]

 

Shelagh Day and Gwen Brodsky suggested that accommodation cannot be dealt with only as an ‘individual matter’ as it entrenches the mainstream. Particularly in the case of disability, accommodation requires group-based measures to address accessibility of public spaces.[146]

 

B. Ameliorative Programs as Positive Obligations
 

Ameliorative programs are proactive responses to the patterns of exclusion and disadvantage. Section 15 guarantees of equal protection and equal benefit create a positive obligation on the state to actively protect persons with disabilities from economic and social disadvantage.[147]  Colleen Sheppard put it as follows:

 

Affirmative action is premised on the recognition of the need to take positive steps to redress institutionalized discrimination and persistent societal inequalities.[148]

 

In human rights discourse, there are primarily two types of rights considered: negative and positive. Negative rights, such as civil and political rights, are guarantees of “freedom from” state interference. For example, negative rights include freedom from false arrest, freedom from illegal searches and from unreasonable state interference. On the other hand, positive rights grant individuals access to goods or services and may require state action. Examples of positive rights include economic and social rights, such as a right to health care.

 

Libertarian theorists generally accept only negative rights as legitimate.[149]  They argue that states are not under an obligation to provide goods and services.[150]  They purport that voluntary charity, rather than government-enforced charity, must answer the moral claims of the disadvantaged.[151] Martin pointed out that equality jurisprudence typically protects classically liberal, individualized interests such as autonomy and physical integrity of the person.[152]

 

On the other hand, the human rights field widely accepts that states must be bound to take positive steps to assist persons who are disadvantaged, to ensure their meaningful participation in an inclusive community. Positive steps must be taken to ensure that disadvantaged groups benefit equally from services offered to the public.[153]  This positive approach to disability, according to the Ontario Human Rights Commission, entails government responsibility for inclusive design and integration. This positive approach is preferable to the modification of rules or “barrier removal”, since the latter assumes the status quo of able-bodied standards.[154] This positive approach is also more effective because it is accessible and inclusive from the start.

 

The protection of the development of targeted ameliorative program may be distinct from advocacy towards the development of a positive right to comprehensive health or education programs, for example. Distinguishing between targeted and comprehensive ameliorative programs, Sheppard pointed out that Section 15(2) should “not be reduced to a requirement that all problems be solved or addressed at the same time and allocated the same amount of resources”.[155]  She continued in the footnotes,

 

I do not mean to foreclose the possibility of positive claims for government action in specific areas. I simply think that such initiatives should be made independently of any critique or challenge to an existing program in another domain. [156] 

 

It is unlikely that Section 15(2) will be interpreted to require that all disadvantaged communities benefit from tailored ameliorative programs.[157] Judicial interpretation will likely preserve governments’ authority to target particular disadvantaged communities voluntarily.[158] Justice Abella in the 1984 report on employment equity found that Section 15(2) does not create a statutory obligation to establish ameliorative programs. Instead, it sanctions them with “statutory acquiescence”.[159] The Court in Kapp clarified that Section 15 only applies to targeted programs and not to broad societal legislation.[160] That said, there are remaining questions about how far a positive rights approach will take Section 15(2) jurisprudence.

 

C. Is it Really Just an Accommodation?
 

The provision of accommodation might be claimed to be a “special program”, as opposed to an obligation on a service provider or employer. Persons with disabilities rely on a myriad of government supports and services, and they might require accommodation in order to access those supports and services.

 

There is judicial work to be done to distinguish, in a principled way, between an “ameliorative program” and the duty to accommodate. The provision of accommodation might be claimed to be a “special program”, as opposed to an obligation on a service provider or employer.

 

Persons with disabilities rely on a myriad of government supports and services, but they might require accommodation in order to access those supports and services. For instance, the applicants in Ball argued that the Ministry of Community and Social Services (MCSS) had failed to accommodate their disabilities with respect to the administration of the Special Diet program. The MCCS argued that the case was not about accommodation, and that the language and case-law relating to the duty to accommodate were inapplicable. The HRTO did not accept the MCCS’ arguments.

 

Ena Chadha pointed out that the Ontario Human Rights Commission’s position in the Special Transit cases was that specialized transit is a form of accommodation.[161] Since they are accommodations, she argued that specialized transit providers may not rely on Section 14 of the Code.[162]

 

At the Court of Appeal, Justice Arbour in Eaton found that even though special education programs were enacted in part to ameliorate the conditions of students with disabilities, they do nothing more than to provide these students with the real equality that they are entitled to under Section15(1).[163] Justice Arbour held:

It is unnecessary to determine whether the special education programs offered pursuant to the provisions of the Education Act and regulations would need the protection of s.15(2) of the Charter in the event of an allegation that they discriminate against mainstream students. Even though these programs were enacted in part to ameliorate the conditions of disabled students, they arguably do nothing more than to provide these students with the real equality that they are entitled to under s.15(1). In such a case, they may not be viewed as “affirmative action” programs as understood under s.15(2).[164]

 

 

Universal design offers an alternative approach to the targeting of particular disadvantaged groups. Like ameliorative programs, universal design takes a proactive approach. Universal design principles, however, work towards ensuring that services, products and environments are accessible and usable by the broadest possible community without the need for specialized or targeted programs. Universal design includes the need to ensure that the design is useful and flexible to accommodate a wide range of diverse abilities and preferences.[165] Universal design focuses on ensuring that disability supports and services are inclusive and accessible at the outset, without the need for after-the-fact modification, accommodation or targeting.

 

Universal design can play a practical role in the provision of disability services and supports, including transportation, education and employment. Universal design can be applied to social planning in order to proactively redress barriers, prevent future barriers and create more inclusive social environments. Unlike ameliorative programs, the universal design approach is not bound by the status quo; rather new possibilities for inclusive disability services and supports can be imagined. Employing a universal design approach can assist in developing a framework for the delivery of services that facilitates and promotes inclusive communities.

 

Universal design principles are forward-thinking; they do not address the pressing power imbalances that currently threaten our communities. Beatrice Vizkelety points out that in a “utopian” society, universal requirements would be sufficiently flexible to accommodate a variety of Code-related needs. She argues that “until that day arrives, the right to differentiate is very much a necessary means of achieving equality.”[166]  Similarly, the American Supreme Court in Grutter held that while narrowly tailored affirmative action programs may survive constitutional scrutiny, the use of racial preferences will no longer be necessary in 25 years.[167]

 

 

D. The Universalist Approach to Ameliorative Programs
 

The protection of ameliorative programs demonstrates the conflict between human rights approaches and universalist approaches. A principled rights-model more easily applies to the understanding of ameliorative programs. The concept of “universalism” is not easily compatible with the nature and purpose of the “ameliorative programs” defence. The nature and purpose of the “ameliorative program” defence reinforces the view of persons with disabilities as a “special interest minority group”. “Targeting” a disadvantaged community undermines an understanding of disability as universal. There is more judicial and scholarly work to be done to determine how government can target “specialized populations”, while still engaging the principles of universal design.

 

If an ameliorative program is not genuinely inclusive, a participant in an “ameliorative program” may be perceived as a recipient of favouritism or special treatment. She may be subject to feelings of resentment and jealously. The impression that an ameliorative program is a “treat” offered by generous employers is an attitudinal barrier. Such an attitude fuels the predominant stereotype that persons with disabilities are dependent and in need of charity.

 

The “universalist” approach to disability understands disability as a fluid concept that will affect every human being at some point in their lives.[168] People who do not have a disability may be referred to as the “not yet disabled”.[169]  Martha Fineman theorized a concept of vulnerability that embraces a more substantive vision of equality, that we are all “vulnerable”.[170] 

 

An approach to ameliorative programs must avoid reinforcing the pervasive social attitude that people with disabilities require special treatment and are deserving of “charity”. Day and Brodsky argued that the principles of “accommodation” do not challenge the imbalances of power, thereby undermining the promise of substantive equality.[171] They maintained that accommodation cannot address the underlying social structures at the root of equality claims as long as the formal standard remains intact.[172]  Accommodation remains entrenched in the formal model of equality; while “likes” are treated alike, those who are “different” are treated differently. Day and Brodsky added:

 

Accommodation seems to mean that we do not change procedures or services. We simply “accommodate” those who do not quite fit. We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness…. Its goal is to try to make “different” people fit into existing systems.[173]

 

Despite the dangers of its mainstreaming effects, the notion of accommodation is still useful, and well-developed accommodation efforts may indeed transform attitudes.[174]  The Council of Canadians with Disabilities agreed:

 

Regardless of how the duty is manifested, it is clear that the courts have begun to interpret accommodation as a process for transforming norms that are based on majoritarian values into norms that are more inclusive of all abilities and characteristics. Over the last couple of decades accommodation has evolved from a concept that promoted minor tinkering to a concept that has the potential to redefine the meaning of status quo.[175]

 

 

Based on our consultations, advocates are concerned that an over-expansive “ameliorative program” defence will lead to more segregated programs. Governments will be more likely to develop “segregated” programs with limited or carefully defined program purposes to clearly exclude those who might try to claim membership. By narrowly constructing the programs’ purposes, those programs would be more likely to meet the requirements of the ameliorative program defence. This is attractive to governments in order to avoid future scrutiny.

 

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