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 understand