VIII. THE FUTURE OF THE AMELIORATIVE PROGRAM DEFENCE: REMAINING QUESTIONS2017-03-03T18:35:38+00:00

This Section reviews some of the questions that remain unanswered (or under-answered). Those questions are included here in italics and in bullet point at the start of each sub-heading.

 

Despite the express protection of ameliorative programs by the Charter and the Code, significant questions remain about those protections’ appropriate scope and nature. Courts have appeared reluctant to settle those debates decisively. Even following Kapp, there is no coherent theory for the application of “ameliorative programs”. In the two leading cases on the inter-relationship between Section 15(1) and Section 15(2), the Supreme Court deliberately remarked on the possibility of future refinement.[176]  And so, it appears that there is little settled ground on these issues.

 

A. Typology of Complaints where the Special Program Defence May be Raised

  • Is there a different test for challenges to ameliorative programs by individuals from historically privileged groups than for individuals belonging to socially disadvantaged groups?

 

  • Is there a different test for complaints from individuals from disadvantaged groups who the program was not designed to address than for individual from disadvantaged groups who the program was designed to address?

This Section offers a classification of the types of complaints, where a government respondent may raise an “ameliorative program” or “special program” defence.

 

  • Complaints from Individuals who are NOT members of a disadvantaged group:  This is the classic “reverse discrimination’ claim, characteristic of the American context.
  • Complaints from individuals who are members of disadvantaged groups who the program was NOT designed to benefit:  For the purposes of this paper, this kind of claim is termed “exclusion”. These cases generally turn on the determination of the purpose of the program.
  • Complaints from individuals who belong to disadvantaged groups who the program was designed to benefit:   These types of complaints might be termed “under-inclusive” or “partial programs”.
     

 

 Kapp is the authority in “reverse discrimination” claims (Type 1). However, Kapp has been criticized for not offering direction where the claim comes from a member of the very group that it was intended to benefit.[177] It is our contention that Kapp has no application to Type 2 (exclusion) or Type 3 (under-inclusion) complaints. Ankur Bhatt put it this way:

Engaging the test of whether discrimination is justified (at s. 15(2)) prior to even fully finishing off with the test of making it out (at s. 15(1)) would seem to put the cart before the proverbial horse.[178]

 

R v. Willocks is an example of a Type 2 (exclusion) case. Mr. Willocks claimed that the fact that he, as a black man, did not have access to alternative justice programs designed for Aboriginal persons, amounted to discrimination in contravention of Section 15(1) of the Charter.[179]  Justice Watt of the Ontario Divisional Court determined that alternative justice programs designed for persons from Aboriginal communities were “ameliorative programs”. In making that decision, Justice Watt spoke to the value of encouraging governments to set up special programs:

 

 In any program which is designed to ameliorate the conditions of a disadvantaged group, others will be “disadvantaged” as a result of their non-eligibility for participation. Section 15(2) acknowledges as much. What must be avoided is gross unfairness to others. [180]

 

Roberts and Ball, above, are typical “under-inclusive” complaints (Type 3). These cases generally turn on whether the exclusion had a “rational connection” or “nexus” to the program’s purpose.

 

There has not been judicial comment on whether there should be a different test for a complaint of exclusion than for a complaint of under-inclusion. The jurisprudence does not address whether there should be an examination of whether the exclusion from the program’s purpose may be discriminatory, itself. In a similar way, Justice Iaccobucci in Lovelace distinguished between targeted and comprehensive ameliorative programs. He does not comment on whether there would be a different test for a comprehensive program, rather than the targeted program at issue in Roberts.

 

Here, the focus of analysis is not the fact that the appellant and respondent groups are equally disadvantaged, but that the program in question was targeted at ameliorating the conditions of a specific disadvantaged group rather than at disadvantage potentially experienced by any member of society. In other words, we are dealing here with a targeted ameliorative program, which is alleged to be under inclusive, rather than a more comprehensive ameliorative program alleged to be under inclusive.[181]

 

Some claim that the characterization of a claim as “under-inclusive” inappropriately triggers government deference. Professor Sheppard argues that its use was transported from the United States. She prefers the term “partial program”.

 

The term “under-inclusiveness” is itself problematic because it inadvertently seems to draw us back into a “similarly situated” analysis of inequality, an approach reject in the Andrews case.[182]

 

Section IX further comments on the appropriate test for Type 1, 2 and 3 complaints.

 

B. The Relationship between Section 15(1) and Section 15(2)


·         What is the nature and scope of the relationship between Section 15(1) and Section 15(2)?

·         Is the “interpretative aid”, “exemption” or Kapp’s third “independent force” approach more appropriate?

·         Should Section 15(2) have an effect independent of Section 15(1)? Does the answer depend on the type of complaint?

 

Scholars have remarked on the value of Section 15(1) clarifying the meaning of Section 15(2) rather than contradicting it. For instance, Day and Brodsky put it this way:

 

Section 15 is more cogent…when read as a whole with the parts that complement rather than contradict each other. An interpretation of section 15(1) and 15(2) that assumes they are contradictory also assumes that treating everyone the same is the norm of equality although special treatment may be justified in certain circumstances. On the other hand, reading sections 15(1) and 15(2) as a whole assumes that equality is not merely or even primarily a matter of same treatment, but rather a matter of addressing and overcoming the disadvantage of historically oppressed and excluded groups. [183]

 

In her 1984 report for The Royal Commission, Justice Abella also contemplated the relationship between Section 15(1) and Section 15(2). She set out the principles underlying the relationship between Sections 15(1) and 15(2):

 

While section 15(1) guarantees to individuals the right to be treated as equals free from discrimination, section 15(2), though itself creating no enforceable remedy, assures that it is neither discriminatory nor a violation of the equality guaranteed by section 15(1) to attempt to improve the condition of disadvantaged individuals or groups, even if this means treating them differently.[184]

 

There has been much debate about the nature of the relationship between Section 15(1) and Section 15(2). The relationship between Section 15(1) and Section 15(2) has important implications for the breadth of the protection offered by Section 15(2). Questions include whether Section 15(2) has independent effect from Section 15(1), or whether it is merely an “interpretative aid”. In describing this, Edward M. Iacobucci stated,

The debate is whether section 15(2) informs the interpretation of section 15(1), which, if true, indicates that while section 15(2) is not absolutely necessary to establishing equality rights, it is important in determining the scope of the equality rights set out in section 15(1). Under this view, section 15(2) admittedly does not set out any new rights, but it is not redundant.[185]

 

Kapp offered a third approach to understanding the relationship between Sections 15(1) and Section 15(2). The majority held that the Section 15(2) is an interpretative guide to the Section 15(1) analysis, but that it pre-empts Section 15(1). That is, a program that meets Section 15(2) standards cannot be said to be “justified discrimination”, since it is not “discrimination” at all.

 

The question that arises from Kapp, then, is whether this third approach to “justified discrimination” in the operation of targeted ameliorative programs applies only to “reverse discrimination” cases, typical of the American context.

 

C. Demonstrating Disadvantage


How can “disadvantage” be demonstrated? What kind of evidence is required?
Is the test for disadvantage a subjective or objective one?
 

The determination of “disadvantage” is central to the analysis of the ameliorative program defence. Problematic, though, is the precise or practical meaning of “disadvantage”. The Court in Kapp did not offer comment on the precise meaning of “disadvantage” and what evidence would demonstrate that disadvantage.

 

There are different types of “disadvantage”:  social, economic, political, and historical. Sometimes the term “privileged” is used. The Supreme Court in R. v. Turpin found that the discrimination analysis required attention to the “larger social, political and legal context”.[186]  The Court in Kapp found that disadvantage also connotes “vulnerability, prejudice and negative social characterization.” [187] As set out by LEAF in its factum to the Federal Court of Appeal in Jean, the Supreme Court has used a variety of indicia to demonstrate disadvantage:  devaluation, stigmatization, political and social prejudice, stereotyping, lacking political power, exclusion, marginalization, social political and legal disadvantage, vulnerability, oppression and powerlessness. [188] 

 

Courts have commented on the “disadvantage” experienced by particular groups. The Court in Lovelace held that all Aboriginal groups experience pre-existing disadvantage.[189]  The Court also upheld that a lack of access to culturally-based programs is a unique disadvantage.[190]  The Supreme Court in Eldridge made the following comment about the disadvantage experienced by persons with disabilities.

 

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions… This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw.[191]

 

The principle of disadvantage is also central to the Section 15(1) discrimination analysis. With respect to the third part of the Law test, pre-existing disadvantage weighs in favour of a discrimination finding where claimants are able to establish that they suffer a “unique pre-existing disadvantage”.[192] Justice Iaccobucci in Law put it this way:

 

The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of “discrete and insular minorities” should always be a central consideration. Although the claimant’s association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.[193]

 

The fact that not all individuals within the group are disadvantaged to the same degree is not a sufficient basis for invalidating an ameliorative program. Kapp makes clear that not all members of the group need to be disadvantaged, as long as the group as a whole has experienced discrimination.[194] Justice Gonthier in Martin found:

 

This Court has long recognized that differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated. [195]

 

The determination of disadvantage is particularly important to determine the claims of competing groups, especially in the context of Type 2 (exclusion) and Type 3 (under inclusion) complaints. Sheppard commented on the difficulties inherent in deciding who is in, and who is out. Deciding who is entitled to be part of a social group, may exacerbate intra-group conflict.[196] From an American perspective, MB Abrams put it this way:

 

.. a major problem with addressing discrimination through race-conscious laws is the balancing of historical experiences. How and by whom shall the varying grievances of different groups be weighed and judged in order to decide what varying levels of compensation society should pay.[197]

 

It is clear, though, the determination of “disadvantage” cannot be understood as how “sick”, “deficient”, “abnormal” or “flawed” a claimant with a disability is. Sheppard emphasized that “disadvantage” is rooted in societal mistreatment. Over-reliance on “disadvantage” may emphasize the individual’s or group’s lack of conformity with the dominant norm.[198] Fiona Sampson also spoke to the particular disadvantage experienced by persons with disabilities. Historically, society has understood disability as due to individual “deficiency”, and understood those differences bio-medically. She found that the traditional social construction of the experience of disability has been identified by many authors and academics as the greatest source of disability discrimination.[199]

 

D. Determining the Program’s Purpose


·         How is the program’s purpose determined?

·         Are there evidentiary problems with determining the program’s purpose? 

·         Can the claimant challenge the government’s determination of the program’s purpose?

·         Could the government construct the program’s purpose too narrowly, in order to avoid, limit or pre-empt scrutiny?

 

It was well established that programs designed to alleviate disadvantage can discriminate by leaving out those identified by a prohibited ground. The Supreme Court addressed this point in Battlefords and District Co-operative Ltd. v. Gibbs [200], Vriend v. Alberta[201] and Nova Scotia (Workers’ Compensation Board) v. Martin[202]. The joint decision of the Chief Justice and Justice Abella in Kapp also makes the following point:

 

By their very nature, programs designed to ameliorate the disadvantage of one group will inevitably exclude individuals from other groups. This does not necessarily make them either unconstitutional or “reverse discrimination”. Andrews requires that discriminatory conduct entails more than different treatment. As McIntyre J. declared at p. 167, a law will not “necessarily be bad because it makes distinctions”. [203]

 

The determination of the program’s purpose is decisive to the outcome of the determination of the “ameliorative defence”. The Supreme Court in Kapp found that there must be “correlation between the program and the disadvantage suffered by the target group”[204]. Restrictions must be related to the ameliorative program’s purpose.[205] As the Ontario Human Rights Commission, in its Special Program Guidelines, described:

 

Restrictions in the program cannot be arbitrary, and indeed must be demonstrably related to the goal of the program. In other words, special programs must not include eligibility restrictions that unreasonably restrict who can benefit from them.[206]

 

The government respondents may characterize the impugned program’s purpose in a self-preserving way in order to avoid scrutiny. A broadened defence permits a tribunal or a Court to rely on a government’s assertion that a program has an ameliorative purpose “as a shield to protect an activity or program which is unnecessarily discriminatory.”[207] The majority of the Supreme Court in Kapp held that government respondents are not permitted to rely on the ameliorative program defence where the impugned programs are based on “colourable pretexts”.[208] 

 

There is nothing to suggest that a test focussed on the goal of legislation must slavishly accept the government’s characterization of its purpose.[209]

 

 

The Court in Kapp, however, does not offer specific advice about how to avoid the injury of an overly-deferential approach to determining the program’s purpose. Justice Bastarache in his concurring opinion in Kapp offered a different understanding of the program’s purpose.[210] With respect to the determination of the program’s purpose, the Court in Kapp noted:

 

In examining purpose, courts may … find it necessary to consider not only statements made by the drafters of the program but also whether the legislature chose means rationally related to that ameliorative purpose, in the sense that it appears at least plausible that the program may indeed advance the stated goal of combating disadvantage.[211]

 

The approach to determination of purpose must “be consonant with the goals of human rights legislation”.[212] Legislative debates are relevant to a determination of the purpose of a piece of legislation.[213]  As stated by Justice McLachlin (as she then was) in Miron, a Section 15(1) case:

 

Examination of the goal of the legislation is vital in discrimination cases as elsewhere. Sometimes the legislative goal is apparent on the face of the legislation. Other times it may not be. Legislation aimed at effecting a less than worthy goal may be cloaked in the rhetoric of justice and reason. The task of the court in every case is to identify the functional values underlying the law.[214]

 

Chairperson Wright at the Human Rights Tribunal of Ontario in the Ball decision considered the purpose or underlying rationale of the Special Diet program.

 

This is a legal analysis, in that the Tribunal is not making a factual determination about what was in the minds of those who developed and implemented the current version of the special diet program. Rather, I must determine, based upon the legislation and regulations and appropriate extrinsic evidence, the objective or goal of the program.[215]

 

In the context of Section 15(1), Shelaigh Martin made the following comment about Law v. Canada:

 

The Court’s ability to select the government’s purpose allows for a great deal of analytical leeway under both Section 15 and Section 1. In Law, the Court accepted that the government’s purpose was to provide for the long-term needs of surviving spouses. Had it accepted the plaintiff’s characterization that the Act was meant to provide also for the immediate needs of those who are widowed, the result may have been different.[216]

 

Not only is the determination of the program’s purpose determinative to the defence, it is also very difficult. Complainants challenging an “under inclusive” ameliorative program will have to gather evidence about the program’s purpose, in order to argue that they should be included in the program’s purpose. Complainants may have difficulty accessing records or evidence about the programs “true purpose”. Government respondents may claim that the records are “privileged”. The determination of the purpose may be hidden behind claims of privilege. Complainants may be required to make freedom of information requests, adding to the delay in the resolution of the complaint.

 

The program’s purpose is often not static but is instead fluid. [217] The program might have started off with one purpose in mind, but the continuance of the program may have served another objective. [218]

 

Special consideration must be paid to the situation where the alleged “ameliorative program” is premised on stereotypes that do not correspond to the claimants’ actual circumstances. Although not a Section 15(2) case, Justice MacIntyre in Andrews found that where distinctions are drawn, they must not rely on stereotypes that could bring about or reinforce the disadvantage of those groups and individuals.[219] Andrews considered the claim by non-citizens who were denied the ability to practice law. The Court found that the denial breached Section 15(2), since the distinction was founded on stereotypes that non-citizens were not capable to practice law in another country.

 

The purpose of an ameliorative program must be remedial, rather than coercive or restrictive. The Court in Kapp stressed that the defence should not encompass “laws designed to restrict or punish behaviour”.[220]  However, in Gosselin v. Quebec (Attorney General), Chief Justice McLachlin considered the constitutionality of Quebec’s welfare rules, offering lower benefits to recipients under 30 years. She characterized the purpose of the welfare rule as identifying the important role that young people play in the workplace.[221] Those welfare rules acted as a negative incentive or even as a punishment. While the Chief Justice did not clearly consider whether the purpose of the welfare rule was “ameliorative”, she did address the value of the objective encouraging young people to participate in or return to the workplace.

 

E. Objects and Effects of Ameliorative Programs


·         Must an ameliorative program have an ameliorative effect or ameliorative purpose/object?

·         What kind of evidence may demonstrate ameliorative effect/object?

 

Relying on a language of Section 15(2), the majority of the Court in Kapp required that the program only have an ameliorative purpose, and not ameliorative effect.[222] This finding suggests that as long as the government purpose is defensible, its failure to achieve ameliorative effect is irrelevant. Russel Jurianz commented on the distinction between an ameliorative programs’ goal and effects, as follows:

 

This distinction is sometimes characterized by “subjective” (goal-based) and “objective” (effects-based language). There are critical analyses that span these two positions. Some criticize the subjective (goal-based) as “too wide” and too easily permit a government to avoid a discrimination challenge by claiming the impugned law, program or activity as “ameliorative”. [223] 

 

With respect to claims from persons with disabilities, David Lepofsky and Jerome Bickenbach contend that a defendant must establish that the impugned program has some serious likelihood of achieving its ameliorative goal.[224] By only requiring ameliorative purpose, governments may too easily circumvent Charter scrutiny by pre-emptively declaring a program as “ameliorative”:

 

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.’ [225]

 

Many human rights statutory regimes require the establishment of the effectiveness of the alleged “special program”. For instance, Section 11 of the Manitoba Human Rights Code requires that the program will “achieve or is reasonably likely to achieve that object”. Section 42(1)(b) of the British Columbia Human Rights Code requires that the special program “achieves or is reasonably likely to achieve that objective”.

 

Even if a program’s ameliorative effects are considered, there must be attention paid to the effect of the program on individuals belonging to other disadvantaged groups. Indeed, the program may “deepen the disadvantage” experienced by other groups. The Council of Canadians with Disabilities in its factum to the Supreme Court in Lovelace offered comment on this situation, which they characterized as a “zero sum issue”:

 

In the rarest of situations a program which has affirmative effects may also have other consequences which are discriminatory. Thus the affirmative action program is simultaneously furthering and undermining the purposes underlying Section 15(1).[226]

 

Where there is overlap between the victims of an ameliorative program and its intended beneficiaries, this zero sum issue is not appropriately resolved under Section 15(2). To do so would suggest that the benefits of an ameliorative program for one group “trump” the discrimination experienced by another disadvantaged group.

 

F. Third Contextual Factor of the Law Test


What is the relationship between the third contextual factor of the third stage of the Law test (“ameliorative purpose or effect”) and Section 15(2) (“ameliorative purpose”)?
Given Kapp’s unclear pronouncement on the revision of the Law test, does there continue to be a role for the programs “ameliorative purpose or effect” in the contextual analysis?
 

It is remarkable that the third contextual factor of the third part of the Law test requires that the Court attend to the impugned law, program or activity’s ameliorative purpose or effects. Section 15(2) only requires attention to the law, program or activity’s purpose. The Court in Kapp made the following comment on the third factor’s application to the Section 15(2) test:

 
The ameliorative purpose or effect of law or program (the third factor in Law) goes to whether the purpose is remedial within the meaning of section 15(2). (We would suggest, without deciding here, that the third Law factor might also be relevant to the question under Section 15(1) as to whether the effect of the law or program is to perpetuate disadvantage). [227]

 

In Cunningham, the Alberta Court of Appeal found that the analysis of “ameliorative purpose” of Section 15(2) parallels the analysis performed in determining discrimination under Section 15(1). [228]  The Alberta Court of Appeal went to find that:

 

Ameliorative purpose and effect may also be relevant to the question of whether a law perpetuates disadvantage, but is most appropriately dealt with under the Section 15(2) analysis. [229]

 

In early equality jurisprudence, including Andrews, the Court was clear that the question of whether or not there has been discrimination should be determined solely from the perspective of the claimant, and that the justification of discrimination should be restricted to Section 1. However, Justice Iaccobucci in Law set out that one of the contextual factors of the third branch of the Law test is whether the impugned activity, program or legislation has an “ameliorative purpose or effect” for a historically disadvantaged group.

 

An ameliorative purpose or effect which accords with the purpose of Section 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. I emphasize that this factor will likely only be relevant where the person or group that is excluded from the scope of ameliorative legislation or other state action is more advantaged in a relative sense. Under-inclusive ameliorative legislation that excludes from its scope the members of a historically disadvantaged group will rarely escape the charge of discrimination.[230]

 

Martin expanded, and argued that for the purposes of Section 15(1), pre-existing disability only weighs in favour of a discrimination finding where claimants are able to establish that they suffer a unique pre-existing disadvantage. [231]

 

G. Towards Section 1


What is the relationship between Section 1 and Section 15(2)?
Should the analysis of the programs’ “ameliorative purpose” be dealt with under Section 1 as a “pressing and substantial objective”?  Does the answer depend on the type of complaint?
 

Section 1 of the Charter guarantees the rights and freedoms set out in the Charter – including Section 15 – subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[232] The Supreme Court’s decision in R. v. Oakes is the leading case about the analysis of Section 1.[233] Chief Justice Dickson set out a two-part test, to be applied once the claimant has proven that one of the provisions of the Charter has been violated. The onus is on the Crown.

 

1. There must be a pressing and substantial objective.

2. The means must be proportional.

a. The means must be rationally connected to the objective.

b. There must be minimal impairment of rights.

c. There must be proportionality between the infringement and objective.

 

In the context of Section 15(1), the Supreme Court in Law rejected the proposition that any distinction should be treated as a violation of Section 15(1), and any justificatory work should be done within the frame of Section 1 of the Charter. Sophia Moreau commented on this approach:

 

We think of discrimination not just as any sort of differential treatment but as a particular kind of differential treatment; to be discriminated against is not just to be denied something that others have but to be denied it in a way that is objectionable or unfair. … Allowing for some justificatory considerations to weigh into our determination of whether or not Section 15 has been violated, then, gives us an understanding of discrimination that accords with our ordinary moral thought about discrimination.[234]

 

However, the “ameliorative purpose or effect” – a contextual factor in determining whether discrimination exists – may “open the door” for balancing competing claims under  Section 15 rather than Section 1. [235] The contextual factor (“ameliorative purpose or effect”) of the Law test permits balancing at the Section 15(1) stage, rather than at the Section 1 stage. Martin expands on moving the “balancing” to Section 15(1) from Section 1 of the Charter where a claimant is a member of a privileged group.

 

This may happen when the person or group that is excluded is more advantaged with respect to the circumstances addressed by the legislation – the Court’s very conclusion in Law.[236]

 

In Law, the Court found that Nancy Law had not experienced discrimination at all, and consequently there was no need for the Section 1 analysis. To make that decision, Justice Iaccobucci found that Parliament can premise remedial legislation on informed generalizations and that “legislation need not always correspond perfectly with social reality to comply with Section 15(1) of the Charter.”[237]  However, he continued on to find that a more precise correspondence will be required where the excluded group is already disadvantaged or vulnerable. [238]

 

Also, in Granovsky, the differential treatment of persons with temporary disabilities was determined not to breach Section 15(1), because that legislation was designed to ameliorate the disadvantage experienced by persons with permanent and severe disabilities.[239] There was no Section 1 analysis in Granovsky.

 

This Section has reviewed some of the questions that remain unanswered (or under-answered) by the Courts. There must be guidance from the Courts on these points in order to develop a coherent framework to analyze the constitutionality of ameliorative programs. In the meantime, the next Section is designed to be of more practical significance for persons with disabilities who must defend themselves against the defence.

 

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