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