This paper has aimed to, first, identify the evolution of the expanded ameliorative program defence. The Supreme Court’s decision in Kapp offers a deferential reading of the governments’ authority to target particular groups by developing ameliorative programs. Kapp stands for the proposition that a government respondent’s declaration that a disability support or service is an “ameliorative” program may shield it from further Charter scrutiny. Following Kapp, government respondents have increasingly relied on “ameliorative program” defences as a shield from claims of discrimination. In that way, the defence is reconfigured from a shield to a sword.
This paper also aimed to demonstrate how the expanded defence poses particular barriers for the claims from persons with disabilities. Because they often rely on government programs, an over-expansive defence particularly threatens the equality claims of persons with disabilities. In particular, an over-expansive “ameliorative program” defence may lead to more segregated programs. Governments will be more likely to develop programs with limited or carefully defined program purposes to clearly exclude those who might claim membership.
Even where government defendants do not make out the “ameliorative program” defences, persons with disabilities will have to shield themselves from the operation of the defence, raised by sophisticated government respondents. Given the dissolution of the Court Challenges Program, changes at Legal Aid Ontario, and the relative unavailability of advance costs, persons with disabilities are not likely to access or afford legal support to defend their claims against special program defences.
The paper offers an alternate vision of the ameliorative program defence, and practical guidance to persons with disabilities to “defend against the defence”. Here, we have made a case for the proposition that Section 15(2) is only designed to apply to claims of “reverse discrimination” from members of historically privileged groups. Any claim by a member of a disadvantaged group should not be funnelled through Section 15(2) of the Charter. For complaints from individuals who are members of disadvantaged groups, there should always be a fulsome Section 15(1) analysis. In that way, the operation of a program will be open to challenge by beneficiaries of the program. If the program is experienced by its intended beneficiaries as problematic, such concerns should be open to legal challenge.
|Table of Contents