Les récentes décisions de la Cour suprême du Canada relatives au paragraphe 15 (2) de la Charte canadienne des droits et libertés soulèvent des craintes quant aux droits à l’égalité des personnes handicapées. Bien que l’arrêt R. c. Kapp ait donné une force autonome à la protection des programmes améliorateurs, favorisant ainsi une égalité réelle, l’arrêt Alberta (Affaires autochtones et Développement du Nord) c. Cunningham a accordé beaucoup de considération aux gouvernements même en ce qui concerne les programmes de prestations ciblés qui sont jugés insuffisants et peut-être même discriminatoires. Le présent article étudie les effets sur les personnes handicapées de la jurisprudence récente de la Cour suprême du Canada relativement au paragraphe 15 (2). Nous soutenons que l’extrême considération accordée par la Cour aux programmes de prestations ciblés pourrait perpétuer l’exclusion sociale et la marginalisation des personnes handicapées à qui le gouvernement refuse des prestations. L’approche de la Cour à l’égard du paragraphe 15 (2) risque aussi de renforcer les visions essentialistes, catégoriques et médicalisées de l’incapacité, et de créer des hiérarchies des incapacités. Ces risques sont particulièrement inquiétants en période de restrictions budgétaires. Bien que les récentes décisions de la Cour suprême relatives au paragraphe 15 (2) ne traitent pas précisément de discrimination fondée sur l’incapacité, nous soutenons que l’échec apparent de la Cour à réfléchir aux effets de ses décisions sur les personnes handicapées indique une lacune évoquée dans la notion de « dé- citoyenneté » de Pothier et Devlin.
Recent Supreme Court of Canada decisions on section 15(2) of the Canadian Charter of Rights and Freedoms raise concerns for the equality rights of persons with disabilities. Although R. v Kapp gave independent force to the protection of ameliorative programs as an aspect of substantive equality, Alberta (Aboriginal Affairs and Northern Development) v Cunningham gave governments significant deference even in relation to targeted benefit programs that are under-inclusive and potentially discriminatory. This article examines the impact of the Supreme Court of Canada’s recent section 15(2) jurisprudence on people with disabilities. We argue that the Court’s extreme deference to targeted benefit programs may perpetuate the social exclusion and marginalization of persons with disabilities to whom the government denies benefits. The Court’s section 15(2) approach also runs the risk of reinforcing [End Page 56] essentialized, categorical, and medicalized views of disability and creating hierarchies of disability. These risks are of particular concern in the current climate of fiscal restraint. While the recent Supreme Court of Canada decisions on section 15(2) do not deal specifically with issues of discrimination on the basis of disability, we argue that the Court’s apparent failure to think through how its decisions would impact people with disabilities is a serious shortcoming indicative of Pothier and Devlin’s notion of “dis-citizenship.”
Introduction
In this article, we examine section 15(2) of the Canadian Charter of Rights and Freedoms1 and the changes in the Supreme Court of Canada’s approach to ameliorative programs as a result of its recent decisions in R. v Kapp2 and Alberta (Aboriginal Affairs and Northern Development) v Cunningham.3 Our focus is on the implications of these changes for the equality claims of persons with disabilities. Some disability rights advocates were deeply pessimistic about the contribution of Kapp to substantive equality goals.4 Unfortunately, Cunningham generates even more doubt. As we will explain, the Court’s approach to section 15(2) is highly deferential to government choices about who should receive the benefit of ameliorative programs, regardless of the impact of excluding some disadvantaged groups (or members of those groups). For persons with disabilities,5 deference to these choices may promote hierarchies of entitlement that perpetuate social exclusion, marginalization, and dis-citizenship.6
In the second part of this article, we canvass the Supreme Court of Canada’s jurisprudence on section 15(2), concentrating on Kapp, which gave independent force [End Page 57] to section 15(2), and Cunningham, which applied the new Kapp approach to a claim of under-inclusiveness. In the third part, we analyze the implications of the Court’s approach to section 15(2) for persons with disabilities and, in the fourth part, we explore the difference that a more substantive equality-focused approach to section 15(2) might make, relying on the alternative model developed by Dianne Pothier and advocated by the Women’s Legal Education and Action Fund (LEAF) in Cunningham. The fifth part of the article concludes that unless the Court is willing to reconsider their approach to section 15(2) in a future case by taking seriously the sort of approach proposed by LEAF, persons with disabilities will continue to “experience unequal citizenship.”7
Supreme Court of Canada Jurisprudence on Section 15(2)
Section 15 of the Charter provides as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Subsection (2) was included to silence debate about the constitutionality of affirmative action programs and to protect them from charges of reverse discrimination.8 It may have done so initially,9 because it was not until the Kapp decision in 2008— almost twenty years after the Supreme Court of Canada’s first decision on section 1510—that a claim of reverse discrimination was dealt with explicitly by the Court. [End Page 58] Prior to Kapp and subsequently, the Court has heard mainly section 15 challenges brought by disadvantaged claimants who were seeking to be included within ameliorative laws, programs, or activities.11
The Court’s unanimous decision in Lovelace v Ontario was their first to consider section 15(2) in a detailed fashion.12 The issue in Lovelace was one of under-inclusiveness in the delineation of the targeted group13—whether Aboriginal groups who were not registered as Indian bands under the Indian Act14 were entitled to share in the profits of Casino Rama, a program targeted at registered Indian bands. In looking at the relationship between section 15(2) and section 15(1), the Court decided that “s. 15(1) must be available to review ameliorative programs,”15 whether those programs were “targeted ameliorative programs . . . [or] universal or generally comprehensive benefit schemes.”16 As a result, Lovelace relegated section 15(2) to relative obscurity as an “interpretive aid” to section 15(1) for the next eighteen years.17 The ameliorative purpose or effects of challenged programs figured only as one of the contextual factors introduced by Law v Canada (Minister of Employment and Immigration) to help to determine whether discrimination was present under a section 15(1) analysis.18 However, the Court in Lovelace [End Page 59] left open the possibility that they might want to reconsider their approach to section 15(2) in the future19 and then, in Kapp, seized on that opening to give section 15(2) an independent role.20
We discuss Kapp first and separately from Cunningham. Kapp involved a claim of reverse discrimination and did not consider under-inclusive ameliorative programs. The focus in Kapp was on the place of section 15(2) in equality rights analysis and on the purpose of ameliorative programs. Subsequently, in Cunningham—a case that did involve a claim that an ameliorative program was under-inclusive—the Court’s focus was on the scope of the protection afforded to such programs by section 15(2).
R. v Kapp
Kapp considered a challenge to the federal government’s Aboriginal Fisheries Strategy, a strategy aimed at enhancing Aboriginal involvement in commercial fisheries. As part of the challenged Pilot Sales Program, the Minister of Fisheries and Oceans issued a communal fishing licence to three First Nations in British Columbia, allowing them to fish exclusively on the Fraser River for a twenty-four-hour period in August 1998 for food, social and ceremonial purposes, and to sell their catch. A group of mainly non-Aboriginal commercial fishers conducted a protest fishery during the closed period for the purpose of bringing a constitutional challenge to the communal licence. A unanimous Supreme Court of Canada held that even though there was differential treatment of the excluded fishers based on the enumerated ground of race, the program was designed to ameliorate the disadvantage of the Aboriginal fishers and was therefore not discriminatory.21
In Kapp, the Court adopted a unified approach to section 15, claiming to emphasize substantive equality.22 While section 15(1) focuses on “preventing governments” from discriminating, section 15(2) focuses on “enabling governments to pro-actively combat existing discrimination through affirmative measures.”23 All [End Page 60] section 15 analyses begin with a consideration of whether there has been differential treatment based on a protected ground, the first step towards claimants proving a violation of section 15(1). If there has been such treatment, a court must turn its focus to section 15(2) if the government argues that the challenged law, program, or activity has an ameliorative purpose that targets a disadvantaged group. If the government can meet its burden under section 15(2), the claimants’ section 15(1) claim will fail. If it cannot, the burden returns to the claimants to prove that there has been discrimination contrary to the second step of Kapp’s section 15(1) test.24 Thus, it is only when the government fails to prove that its program comes within section 15(2) that the challenged law, program, or activity receives “full scrutiny under s. 15(1) to determine whether its impact is discriminatory.”25
Kapp also established a new test for section 15(2). The Court held that a program will not violate equality rights where “the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.”26 It was the first step in this test, focused on purpose, that occupied the Court’s attention in Kapp. The emphasis was on the requirement in section 15(2) that a law, program, or activity “has as its object” amelioration.27 The requirements that a program be “ameliorative” and that it target “disadvantaged individuals or groups” received much less attention.28 In considering the first step in their new test and interpreting the phrase “has as its object,” the Court dealt with three issues: (1) whether courts should look to the purpose or to the effect of the challenged program; (2) whether the ameliorative purpose had to be the only purpose of the challenged program; and (3) the breadth of section 15(2)’s protection— that is, how much of a law, program or activity could section 15(2) protect?
On the first issue, the Court was adamant that it was the purpose of the program that was the “paramount consideration.”29 The principal difference between [End Page 61] subsections 15(1) and (2) is therefore whether courts evaluate effects.30 As we will argue in the third part of this article, this focus on purpose to the exclusion of effects becomes problematic for groups such as persons with disabilities claiming that their exclusion from ameliorative programs has a discriminatory impact.31 Still, it is not just a government’s statement of its purpose that counts. In order to ensure some scrutiny, courts may consider “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 combatting disadvantage.”32 In order to meet the “rationally related” criterion, the Court stated that “there must be a correlation between the program and the disadvantage suffered by the target group.”33 This rationally related criterion connects the first step in Kapp’s section 15(2) test that requires an ameliorative purpose with its second step that requires the targeting of a disadvantaged group.34 A program’s genuineness is measured by whether the “means [are] rationally related to that ameliorative purpose.”35
As for the second issue—whether the ameliorative purpose must be the only purpose of the challenged program—the Court decided that a program need only have an ameliorative purpose as one of several objectives in order to qualify for section 15(2) protection.36 This interpretation is quite deferential and allows for a larger number of programs to qualify for section 15(2)’s protection.37 The prominence of the ameliorative purpose does play a role in resolving the third issue, however, concerning the reach of the section’s protective scope.38
It was in the context of the third issue that the Court established the underpinnings of their later approach to claims of under-inclusiveness.39 After stating that [End Page 62] the importance of the ameliorative purpose within the law, program, or activity “may help determine the scope of s. 15(2) protection,” Kapp continued:
Consider that an ameliorative program may coexist with or interact with a larger legislative scheme. If only the program has an ameliorative purpose, does s. 15(2) extend to protect the wider legislative scheme? We offer as a tentative guide that s. 15(2) precludes from s. 15(1) review distinctions made on enumerated or analogous grounds that serve and are necessary to the ameliorative program.40
In the first part of this passage, the Court is focused on the breadth of the protection that section 15(2) offers. Will protection extend beyond an ameliorative licence to the program of which it is a part or even to the legislation that authorizes that program? The tentative answer in the second part of the passage appears to be that it does not matter where the distinction between targeted and non-targeted groups is found, so long as it serves, and is necessary to, the ameliorative activity, program, or law.
After a lengthy consideration of the meaning of “has as its object,” Kapp dealt more quickly with the concepts of “ameliorative” and “disadvantage.” The Court noted that the concept of “ameliorative” deserved careful attention because courts had misunderstood it in previous cases.41 However, they offered little guidance apart from using “remedial” as a synonym42 and clarifying that “laws designed to restrict or punish behaviour would not qualify for s. 15(2) protection.”43 As for the meaning of disadvantaged in section 15(2), the Court summarized their previous jurisprudence indicating that “disadvantage” meant “vulnerability, prejudice and negative social characterization.” 44 They also elaborated on the notion of programs “targeted” at disadvantaged groups, stating that programs would qualify for section 15(2) protection if they targeted “the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs.”45 Not all members of the specific and identifiable group had to be disadvantaged, however, “as long as the group as a whole has experienced discrimination.”46
Turning to the application of these principles, the claimants in Kapp had demanded identical treatment for everyone—that is, formal equality. The Court rejected their challenge, reaffirming the goal of substantive equality, which, [End Page 63] among other things, acknowledges that treating everyone the same may engender inequality and that treating some groups differently is often necessary to produce equality.47 The Court’s endorsement of substantive equality and differential treatment— and their consequent deference to government—appeared promising for persons with disabilities and other disadvantaged groups targeted by ameliorative programs, but only in the specific context of Kapp, which involved a challenge to differential treatment by more privileged individuals.48
Kapp did not consider whether this new approach was appropriate for claims challenging a government’s delineation of a group targeted for an ameliorative program or the adverse impact that such a delineation might have on a disadvantaged group,49 likely because the case involved a claim of reverse discrimination challenging the fact of targeting. The decision raised almost as many questions as it answered for both sections 15(1) and 15(2).50 The Court did, however, leave themselves an opening to make “some adjustment to the framework” in later section 15(2) cases.51 And adjustments were indeed made in Cunningham, which was the next opportunity they had to consider the application of section 15(2).
Alberta (Aboriginal Affairs and Northern Development) v Cunningham
The claimants in Cunningham did not seek to strike down the ameliorative law as did the excluded fishers in Kapp. Instead, the Cunningham claimants sought to be included as part of the disadvantaged group targeted by the ameliorative legislation. Thus, their claim was one of under-inclusiveness, a challenge to the delineation of the targeted group. These types of claims are of particular concern to disability rights advocates because government programs for persons with disabilities are dependent on drawing lines between groups—for example, lines between people suffering chronic pain and those suffering other injuries,52 or lines between persons with permanent disabilities and those with temporary disabilities.53 [End Page 64]
The claimants in Cunningham were a number of individuals who had been removed from the membership list of the Peavine Métis Settlement in 2001 by the Registrar of Métis Settlements at the request of a former Peavine Métis Council. Under section 90 of the Métis Settlements Act (MSA), a Métis settlement member who voluntarily registered as an “Indian” under the Indian Act after 1 November 1990 had to be removed from the Métis settlement membership list by the Registrar at the request of a Settlement Council.54 The claimants had registered as Indians in order to gain health benefits under the Indian Act and “did not intend to give up their Métis settlement membership.”55 The Registrar refused to reinstate the claimants at the request of a subsequently elected Peavine Métis Council because section 75 of the MSA prohibits an adult Métis person who holds Indian status from obtaining membership in a Métis settlement.
The claimants sought a declaration that the restrictive definition of who is, and who is not, Métis under the MSA violated their rights under sections 2(d), 7, and 15 of the Charter and an order requiring the Registrar to reinstate them to the Peavine membership list. The Alberta Court of Appeal found in favour of the claimants under section 15, holding that section 15(2) did not protect the MSA’s delineation of the targeted group because it arbitrarily excluded from membership those who had identified and lived as Métis for most of their lives.56 On appeal, the Supreme Court of Canada, in another unanimous decision, held that the exclusion of the claimants served and advanced the ameliorative purpose of the MSA, and section 15(2) therefore provided “a complete answer to this claim.”57
Although Kapp had explicitly adopted an approach that would avoid “the symbolic problem of finding a program discriminatory before ‘saving’ it as ameliorative,” 58 in Cunningham the Court did use the language of “saving,”59 as well as the language of “protecting,”60 ameliorative programs when discussing the purpose of section 15(2). The language of saving is key because it defeats an argument that the challenged law, program, or activity might be ameliorative but nonetheless discriminatory.61 The Court’s new approach to section 15(2) operates as an exemption from section 15(1), notwithstanding Kapp’s protestations otherwise, and Cunningham acknowledges this.62 Normally “saving” occurs under section 1 of the [End Page 65] Charter. The government has a much easier task upholding laws, programs, or activities under section 15(2) because it does not need to meet the R. v Oakes test.63
The other way that Cunningham framed the purpose of section 15(2) is as a “permission,” 64 which is in keeping with Kapp’s reiteration of the idea that “[s]ection 15(2) does not create the statutory obligation to establish laws, programs, or activities to hasten equality, ameliorate disadvantage, or eliminate discrimination.”65 Any such obligation is in section 15(1), which has yet to be interpreted to compel much positive action by governments.66 Ameliorative programs are therefore based on government recognition of a need—not obligation—to take positive steps to address systemic and institutional discrimination.67 Arguably, it is because governments are seen as having no duty to take positive steps that courts are so deferential to their choices to allocate resources to particular disadvantaged groups.68 Nonetheless, it is a well-established rule that when the government does choose to provide a benefit, it cannot do so in a discriminatory manner.69 This rule, however, seems to be lost in the Court’s interpretation of section 15(2) in Cunningham.
The idea that a program cannot be both ameliorative and discriminatory is explicit in the Court’s analytical approach to section 15(2) in Cunningham. The first step is to determine whether the program makes “an adverse distinction” against the claimant group on the basis of one of the enumerated or analogous grounds.70 If an [End Page 66] adverse distinction is made, and if the government relies on section 15(2), the analysis proceeds immediately to the question of whether the distinction is “saved” by section 15(2).71 If it is not saved, the analysis returns to section 15(1) “to determine whether the distinction constitutes substantive discrimination by perpetuating disadvantage or prejudice or by inappropriately stereotyping the excluded group.”72
Under this approach, the key question is how claimants can access section 15(1) if the program is ameliorative but the distinctions that the government uses in defining the targeted group, or in directing the benefits to particular individuals, are discriminatory. The more deferential courts are to governments’ delineation of targeted groups, the greater the difficulty in reaching the section 15(1) discrimination step.
Cunningham illustrates how important a particular court’s formulation of the purpose of an ameliorative program is when it is assessing whether the program is genuinely ameliorative and whether there is a “correlation between the program and the disadvantage suffered by the target group.”73 According to Cunningham, the purpose is determined by looking first to the words of the enactment and then to expressions of legislative intent, the legislative history, and the history of the struggle that culminated in the enactment.74 Applying this interpretive approach, the Court found that “the object of the MSA program is not the broad goal of benefiting all Alberta Métis, as the claimants contend, but the narrower goal of establishing a Métis land base to preserve and enhance Métis identity, culture and self-governance, as distinct from surrounding Indian cultures and from other cultures in the province.”75 This dichotomous framing of the purpose of the MSA builds the challenged provision—excluding those with Indian status—into the rationale for the program. The Court’s definition of the MSA’s purpose created the correlation between the means the government chose and the purpose and, through an interpretive process alone, overturned the appeal court’s finding of arbitrariness.76
Unfortunately, Cunningham did not acknowledge that a different type of approach is required under section 15(2) for claims of under-inclusiveness. In fact, the Court did not use the term under-inclusiveness at all. To the extent that the Court considered the unique issues posed by challenges to the delineation of the targeted group, they merely reiterated their deference to government, noting “[i]t is unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others” and that “[i]f governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be [End Page 67] precluded from using targeted programs to achieve specific goals relating to specific groups.”77 As we argue in the third part of this article, this deference even in the case of under-inclusiveness will allow governments to put fiscal concerns ahead of rights with potentially adverse consequences for persons with disabilities.78
Instead of considering how to respond to claims of under-inclusiveness, the Court merely quoted Kapp as holding that if the challenged program is a genuinely ameliorative program, then “s. 15(2) protects all distinctions drawn on enumerated or analogous grounds that ‘serve and are necessary to’ the ameliorative purpose.”79 In Kapp, that statement arose in a different context, and it should not have been used in Cunningham to preclude claims of wrongful exclusion under section 15. It arose as part of a discussion about whether the ameliorative nature of the communal fishing licences at issue in Kapp also protected the larger Pilot Sales Program of which they were a part or even the much broader Aboriginal Fishing Strategy.80 The idea in Kapp that distinctions “that serve and are necessary to the ameliorative program” are protected by section 15(2) did not address whether it is permissible to exclude particular groups from the program. The issue was the breadth of section 15(2)’s protection of government activity in Kapp; in Cunningham, the issue was whether the shield of section 15(2) precluded the challenges of members of the targeted group or other differently disadvantaged groups as well as the challenges of members of advantaged groups. The question of whether a distinction serves and is necessary to the purpose of an ameliorative program plays a different role in Cunningham than it did in Kapp.81
More importantly, the Court then compounded the problems that groups seeking inclusion within ameliorative programs will face by watering down the amount of scrutiny they will give government line drawing, requiring less than Kapp’s standard of “serve and are necessary to the ameliorative purpose.”82Cunningham expressly stated that “‘necessary’ should not be understood as requiring proof that the exclusion is essential to realizing the object of the ameliorative program. What is required is that the impugned distinction in a general sense serves or advances the object of the program.”83 The change from “necessary” to “advances” is much more deferential to government’s line drawing. Indeed, the Court’s illustration of what they meant by “serve and advance”—that is, if the government chooses an “irrational” means to achieve its ameliorative goal, then the distinction will not serve or advance the goal84—makes the test for delineating the targeted group merely a test of rationality. And because governments need not [End Page 68] offer any evidence justifying the delineation, the correlation need only be plausible. 85 Defining the targeted group is therefore simply part of the means that the government uses, judged according to the same standard—the rationally related or correlation standard—as the government’s statement of the ameliorative program’s purpose.86
The Court made one additional point about government line drawing—a point that is, on its face, specific to the Aboriginal context of the case. Cunningham is very clear that even if the included and excluded groups are both Aboriginal groups “who share a similar history of disadvantage and marginalization,” the distinction between the groups is protected.87 The Court kept this latter point firmly within the Aboriginal context when they asserted that merely because “people, including many Métis, include mixed ethnic and cultural strands in their particular individual identity . . . does not mean that every program must recognize everyone who holds some claim to a group targeted by an ameliorative program.”88 If not confined to the Aboriginal context, this last-quoted sentence appears to foreclose all challenges of under-inclusiveness.89 However, the point was made in a way that leaves open the possibility that a future court may hold that some programs must recognize those with certain claims to membership in the group targeted by an ameliorative program—that is, claims of under-inclusivity.
Targeting programs to the needs of disadvantaged groups in order to remedy disadvantage is reflective of substantive equality principles.90 Our objection is not to the targeting but, rather, to the Court’s deference to the government’s line drawing that is not scrutinized for its impact on those who claim to have been wrongly excluded from the targeted group.91 Allowing for scrutiny of distinctions drawn in ameliorative programs on challenges of under-inclusiveness would improve these programs in a way that would better ameliorate the conditions of historically disadvantaged groups and contribute to substantive equality goals. For example, without considering the effects of the law challenged in Cunningham, the intersection of discrimination on the basis of sex and Indian status cannot be appreciated.92 [End Page 69] In our view, a test requiring that the challenged distinction only “in a general sense serves or advances the object of the program,”93 and which fails to examine the effects of the distinction, sets the bar far too low. All delineations of a targeted disadvantaged group will to some extent be rationally related to the ameliorative purpose. If the purpose is, for example, as expressed in the preamble to the MSA, to recognize “the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta,” then even the narrowest understanding of who is Métis would still be rationally connected to that purpose.94 Whether the claimants should be considered as part of the disadvantaged group targeted by the program or whether they are part of a differently disadvantaged group, this exclusion requires an assessment of the effects of the lines drawn by the government.
Cunningham’s overly deferential approach to governments’ freedom to target benefit programs at particular disadvantaged groups, regardless of the exclusion of some members of the targeted group either by purpose or effect, could perhaps be confined to the Aboriginal context of that case in the future. The Court relied explicitly on the constitutional status of Indians and Métis,95 as well as on the long period of consultation between the Alberta government and the Métis in developing the MSA,96 stating that “[l]ine drawing on this basis, far from being irrational, simply reflects the Constitution and serves the legitimate expectations of the Métis.”97 Taking the two groups—Indian and Métis—as given and distinct, the Court ignored the fact that the claimants belonged to both groups and ignored the government’s role in constructing these two peoples.98 They also ignored the fact that those who registered as Indians prior to 1 November 1990 were included as Métis and those who registered after that date, including the claimants, were not, even though this seems like an arbitrary—that is, irrational—line.99 [End Page 70]
It is therefore possible that Cunningham could be distinguished in future cases when the challenge to the delineation of a targeted group does not involve constitutionally recognized peoples or groups100 such as those listed in section 35(2) of the Constitution Act, 1982—Indian, Inuit, and Métis.101 Distinguishing Cunningham’s approach to under-inclusive programs may also be facilitated by the fact that the Court acknowledged that their protection of distinctions that serve or advance the ameliorative goal “may be refined and developed as different cases emerge.”102 However, the argument that Cunningham should be confined to its facts may fare no better than did the argument that Kapp should be confined to reverse discrimination types of claims.103
In Cunningham, the Court decided that no distinction drawn in laws or programs protected by section 15(2) can be assessed as discriminatory and in violation of section 15(1) unless the distinction fails to “serve or advance” the ameliorative goal of those laws.104 Only if the line drawing is irrational will section 15(2) fail to save a distinction, and only then will the analysis return to section 15(1) to determine if the distinction is discriminatory. Cunningham’s message appears to be that, even if the eligibility criteria or other distinctions made in an ameliorative law, program, or activity have the effect of worsening the conditions of disadvantaged groups or individuals, almost any ameliorative law, program, or activity is better than none.
Implications of the Section 15(2) Cases for Persons with Disabilities
In its factum in Cunningham, LEAF argued that the failure to undertake a full section 15(1) review would have a particularly detrimental impact on “vulnerable and marginalized members of disadvantaged groups” experiencing multiple and intersecting forms of disadvantage, such as women with disabilities.105 In this section, we interrogate the problems with the Court’s approach to section 15(2) in Kapp and Cunningham for persons with disabilities. [End Page 71]
First, the Court’s failure to look at the effects of excluding disadvantaged groups from ameliorative programs in Cunningham is highly problematic. Effects-based discrimination is of particular concern for persons with disabilities, given that the impact of exclusionary social structures and practices is at issue more often than intentional exclusion.106 This concern is heightened for those who depart in multiple ways from the norms on which society is structured, such as women with disabilities. 107 An effects-based approach to equality has been central to section 15(1) since Andrews v Law Society of British Columbia and may be undermined by the Court’s new approach under section 15(2), which focuses on purpose and makes it difficult for claimants to get to section 15(1).108
To take an example, in Brown v British Columbia (Minister of Health), a group of claimants sought to challenge the government’s refusal to fully fund azidothymidine drug therapy for HIV/AIDS patients in contrast to its full funding for cancer and transplant patients’ drug treatments. The Supreme Court of British Columbia found that the government’s funding decision could be upheld as ameliorative towards the targeted groups, even if it had adverse effects on the basis of disability and sexual orientation.109 According to the court, “the distinction between HIV drug therapy and cancer and transplant drug therapy is an accommodation of . . . medical difference.”110 This case exemplifies how a focus on the government’s purpose for excluding persons with certain kinds of disabilities from ameliorative programs and on whether that distinction serves and advances the government’s goals is misplaced; the focus should be on the effects of the exclusion.111 [End Page 72]
The Court’s deference to the government’s line drawing in Cunningham, even if the included and excluded groups “share a similar history of disadvantage and marginalization,” is also concerning for persons with disabilities.112 Only if excluded persons are considered similar enough to members of the targeted group, and their exclusion fails to “serve or advance” the ameliorative goal, will a claim of discriminatory under-inclusion be considered under section 15(1). This is a formal equality approach. As noted by Richard Devlin and Dianne Pothier,
[f]ormal equality is inadequate for all equality seekers, but it is most inadequate for persons with disabilities where ableist norms that ignore difference, as well as rigid norms of rationality or reasonableness, can make participation simply impossible . . . The challenge is to pay attention to difference without creating a hierarchy of difference—either between disability and non-disability or within disability.113
To permit governments to draw lines or segregate on the basis of different disabilities within the context of section 15(2) may therefore “[fail] to acknowledge how difference can be transformed into hierarchy and inequality.”114
This was recognized by the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v Martin, where provisions in workers’ compensation legislation excluding persons with chronic pain from full benefits were found to be discriminatory. The Court held that the distinction was “inconsistent with the ameliorative purpose of the Act” and that “[w]hile the legislature’s concern to efficiently allocate resources . . . so as to give priority to the most severe cases is laudable, it cannot serve to shield an outright failure to recognize the actual needs of an entire category of injured workers from Charter scrutiny.”115 While Martin was not a section 15(2) case, it is one of the few cases to be found involving claims of discrimination on the basis of disability where the government’s distinction might be unable to meet the “serve and advance” test from Cunningham, and thus require a full section 15(1) discrimination analysis.116Martin could also be seen as a case involving a gap [End Page 73] in an existing program, so it is consistent with the principle that once a government decides to provide a benefit, it must do so in a non-discriminatory way.117
Although Martin is a positive example of a decision taking a contextual approach that challenges discriminatory attitudes towards chronic pain, it has also been critiqued for using a medical model of disability,118 showing how “even successful disability claims can pose problems with respect to how equality . . . interests are constructed for those individuals who do not fit the stereotypical image of the seriously and permanently disabled person.”119 The Cunningham approach reflects this concern as well. The “serve and advance” test may require persons with disabilities to present themselves as sufficiently similar to targeted groups in terms of the medical nature of their disabilities in order to fit within the goals of particular ameliorative programs. This is a form of forced essentialism that erases diversities among persons with disabilities.120
Another problem with Cunningham is the Court’s failure to recognize an obligation to provide benefits through ameliorative programs. Governments may therefore rely on notions of pity and charity as opposed to citizenship and rights when deciding whether to provide benefits to persons with disabilities.121 Charity focuses on bare survival rather than on true participation and is “highly susceptible to claims of budgetary restraint.”122
Although the Court did not appear explicitly concerned with the cost of extending ameliorative programs in Kapp or Cunningham, cost was likely a motivating factor in its deferential approach in Cunningham and in future cases will likely operate to the detriment of persons with disabilities. For example, in Brown, the [End Page 74] Court held that there was “force in the argument . . . that a government, unable to confer benefits on any person unless it confers an identical benefit on all, will be faced with one viable option: of conferring benefits on no one.”123 This reasoning shows how an economic approach to disability may improperly influence section 15(2) analysis. In contrast, cost concerns (at least in theory) are not a sufficient justification for saving violations of Charter rights under section 1.124
If a court never gets to the discrimination analysis under section 15(1) because a government successfully argues section 15(2), this essentially means that the duty to accommodate—not to mention more significant duties such as fundamental restructuring that challenges able-bodied norms—is subverted.125 Given that mainstream society is still structured around dominant norms, many persons with disabilities require programs to meet their needs in a variety of contexts, including employment, housing, education, and health care. Failing to provide such accommodation violates substantive equality—it fails to respond to, and therefore perpetuates, disadvantage. 126 How does this reality fit into a framework that allows a government to preclude a section 15(1) claim by arguing that it has targeted a different group to receive benefits? For example, how would Eldridge v British Columbia (Attorney General)—which many commentators see as the “high watermark” of equality rights cases127—have been decided if the government had relied on section 15(2) [End Page 75] in targeting communicative accommodation for health service delivery at deaf patients but not those with visual impairments, or at deaf patients except those using services outside a doctor/hospital setting, or at immigrant patients who spoke English as a second language rather than patients with disability-related communication needs?128 If the government’s purpose for targeting particular groups could be framed to include the distinction, as it was in Cunningham, these failures to provide benefits to others would likely be saved under section 15(2).
To build on one of these examples, the government might argue that it was targeting communicative accommodation at persons with disabilities using hospitals and other approved health facilities because these locations were where their most serious health care needs were typically addressed.129 However, this focus would exclude deaf women using midwives for home births from the receipt of needed services. A similar problem occurred in Auton (Guardian ad litem of) v British Columbia (Attorney General), where the Court did not undertake a full section 15(1) analysis, halting the claim at the threshold stage because autism services were not provided by doctors and hospitals, and only such “core” services were “benefits provided by law.”130 In the case of midwife services for home births, the exclusion would not fail to serve or advance the ameliorative purpose identified by government, so it would be exempted from full section 15(1) scrutiny regardless of the fact that it amounts to gendered disability discrimination.131
To take another example, what if a government targeted benefits such as funded drug treatment at persons with chronic, rather than temporary, mental disabilities, thereby excluding women with post-partum depression? This sort of line drawing was found to be permissible in Granovsky v Canada (Minister of Employment and Immigration), in part because the government’s purpose was to ameliorate the circumstances of persons with permanent disabilities, who were seen as “more [End Page 76] disadvantaged” than those with temporary disabilities.132 Again, the distinction would not fail to serve and advance the narrowly framed ameliorative purpose, allowing the government to effectively exclude women with particular disabilities from needed benefits regardless of the discriminatory impact upon them. The government might even be able to rely on the distinction between physical and mental disabilities, codified in sections 15(1) and (2), to justify future line drawing between these groups and the denial of benefits to one or the other, similar to the way in which the codified distinction between Indian and Métis was used in Cunningham.133
Or what if a government provided an employment training program for immigrant women that was wheelchair inaccessible?134 In this case, the discrimination would flow not from the government’s line drawing but, rather, from the adverse impact its delivery of the program had on immigrant women with mobility impairments. The government might fail to meet the test from Cunningham on the basis that the effective exclusion of immigrant women with disabilities did not serve or advance the ameliorative program. However, if the focus remains on the program’s purpose rather than on its effects, even this form of discriminatory exclusion might be saved under section 15(2).
We contend that the Supreme Court of Canada’s failure to consider the implications of their approach to section 15(2) for persons with disabilities is a major oversight, resulting in the harms that Devlin and Pothier describe as dis-citizenship— the perpetuation of “deep structural economic, social, political, legal, and cultural inequality in which persons with disabilities experience unequal citizenship.” 135 To borrow an argument that Janine Benedet and Isabel Grant make in a different context, persons with disabilities should be seen as the “paradigmatic, rather than exceptional” subjects of section 15 rights, and they should have been in the Court’s mind when Cunningham was decided.136 The Court’s approach to section 15(2) not only has the potential to further disempower and marginalize persons with disabilities, but it may also correspondingly privilege those who are able-bodied “in terms of access to resources, power, [and] autonomy.”137 This is [End Page 77] all the more problematic because, as we discuss in the next section, the Court was presented with an approach in Cunningham that would have taken seriously the rights of disadvantaged groups who are impacted in a discriminatory way by ameliorative programs, including persons with disabilities.
An Alternative Approach to Section 15(2)
In Cunningham, LEAF put forward an alternative approach to section 15(2) for claims of discriminatory under-inclusion. This approach was originally developed under the leadership of Dianne Pothier in LEAF’s intervention in Jean v Canada (Minister of Indian Affairs and Northern Development) before the Federal Court of Appeal.138 LEAF acknowledged in Cunningham that the Court’s deferential stance under section 15(2) furthered substantive equality in Kapp given the reverse discrimination context of that case. However, LEAF argued that the Kapp approach is inappropriate in cases alleging discriminatory under-inclusion in relation to ameliorative programs.139 In such cases, the protective purpose of section 15(2) is not engaged, as the ameliorative program and its underlying purpose are accepted rather than challenged.140 Although it is acceptable to target particular groups for ameliorative programs, line drawing cannot be done in a discriminatory way, and this requires full analysis under section 15(1) of the Charter that section 15(2) cannot shield.141 LEAF proposed the following test:
-
1. Is the scheme ameliorative within the meaning of s. 15(2)?
If yes, go to question 2.
If not, s. 15(2) is not engaged. Go to s. 15(1).
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2. Is the challenge to the very fact of targeting (instead of delineation of the targeted group)?
If yes, s. 15(2) is engaged. Apply the two step Kapp test.
If the challenge is to the delineation of the targeted group, s. 15(2) is not engaged. Go to s. 15(1).142 [End Page 78]
The approach put forward by LEAF in Cunningham would allow the discriminatory effects of excluding persons with disabilities from ameliorative programs to be fully considered. Whether the government excluded particular persons with disabilities from an ameliorative program intentionally in its line drawing, by failing to consider them as part of the targeted group or in its implementation of the program, a full section 15(1) analysis would be required. Such an analysis would allow the court to assess the effects of the exclusion on the persons or group in question, including intersectional effects, without undue deference to the government’s purpose. If the section 15(1) analysis then incorporated a substantive equality approach, this would also limit the extent to which section 15(2) could be used to promote hierarchies between persons with different disabilities and the need for the claimants to present themselves as similarly situated to the targeted group. Under section 15(1), courts should also be reluctant to accede to fears about the costs of extending particular ameliorative programs. Even if current jurisprudence does not fully embrace a positive, remedial approach to section 15(1), it is a well-accepted principle that programs that are discriminatorily under-inclusive may violate section 15(1) and that budgetary concerns are relevant only to the appropriate remedy.143
We do not mean to imply that claims of discriminatory under-inclusion analyzed under section 15(1) would necessarily be successful. The Supreme Court of Canada’s approach to section 15(1) in Kapp and subsequent cases has also been problematic, in large part because of the Court’s narrow definition of discrimination that focuses on the perpetuation of prejudice and disadvantage and adverse treatment based on stereotyping.144 Pothier has noted how a definition of equality that relies on freedom from stereotyping can operate to the detriment of persons with disabilities where a court bases its decision on what it perceives to be “true characteristics” rather than on stereotypes.145 Our argument is that persons belonging to disadvantaged groups who are excluded from ameliorative programs, including persons with disabilities, should have the opportunity for a full section 15(1) review that uses a substantive understanding of equality. [End Page 79]
Conclusion
The Supreme Court of Canada’s recent approach to section 15(2) and underinclusive ameliorative programs creates major barriers for persons with disabilities who are seeking the provision of necessary services from the government. Unless the Court is willing to reconsider its approach in a case outside the Aboriginal context by taking seriously the sort of alternative proposed by LEAF, it seems that section 15 of the Charter has become yet another inhospitable site of struggle for persons with disabilities. Even if other forums exist for achieving substantive equality, the Court’s approach to Charter equality rights should not stand unchallenged. 146 The Convention on the Rights of Persons with Disabilities, which Canada has ratified, requires governments to “ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others.”147 This convention is further support for the argument that the Supreme Court of Canada’s current approach to section 15(2) of the Charter results in dis-citizenship for persons with disabilities and must be reassessed. [End Page 80]
Jonnette Watson Hamilton is a professor in the Faculty of Law at the University of Calgary. She joined the faculty in 1992 after thirteen years of private practice in rural Alberta. Her teaching and research interests are in the areas of legal theory, equality, discourse analysis, and property law and theory.
Jennifer Koshan is an associate professor in the Faculty of Law at the University of Calgary. She formerly practised for several years in the Northwest Territories as Crown counsel and worked as the legal director of the BC branch of the Women’s Legal Education and Action Fund. Her teaching and research interests are in the areas of constitutional law, equality and human rights, violence against women, and public interest advocacy.
With respect to the title of this article, see Dianne Pothier, “On Not ‘Getting It’ ” (1994–5) 33 Alberta Law Review 817 at 817–18 (discussing the “relatively high capacity to not ‘get it’ ” when it comes to understanding “a multi-faceted conception of equality”).
Footnotes
1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2. R v Kapp, 2008 SCC 41, [2008] 2 SCR 483 [Kapp].
3. Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 [Cunningham].
4. See, for example, ARCH Disability Law Centre, The Shield Becomes the Sword: The Expansion of the Ameliorative Program Defence to Programs That Support Persons with Disabilities, Research Paper (Toronto: Law Commission of Ontario, 2010) at 31, online: ARCH Disability Law Centre <http://www.archdisabilitylaw.ca/?q=shield-becomes-sword-expansion-ameliorative-programdefence-programs-support-persons-disabilities> (arguing that when governments rely on “ameliorative program” defences as shields from claims of discrimination, the defence is reconfigured from a shield to a sword and persons with disabilities are required to defend themselves from the defences raised by government).
5. Devlin and Pothier note the debates about language and terminology in the context of disability and settle on the descriptor “persons with disabilities” as the “least worst option” available. See Richard Devlin and Dianne Pothier, “Introduction: Toward a Critical Theory of Dis-Citizenship” in Dianne Pothier and Richard Devlin, eds, Critical Disability Theory: Essays in Philosophy, Politics, Policy and Law (Vancouver: UBC Press, 2006) 1 at 4.
6. Dis-citizenship is a term used by Devlin and Pothier, ibid at 1, to describe the “system of deep structural economic, social, political, legal, and cultural inequality in which persons with disabilities experience unequal citizenship.”
7. Ibid.
8. Lovelace v Ontario (1997), 33 OR (3d) 735, 148 DLR (4th) 126 (ONCA), cited with approval in Cunningham, supranote 3 at para 50. “Affirmative action” can be understood as “programs designed to reduce disadvantages resulting from discrimination suffered by a group identified by reference to a prohibited ground of discrimination” (Human Rights Act, RSY 2002, c 116, s 13(3)). “Reverse discrimination” is used to describe challenges to affirmative action by members of advantaged groups (ARCH Disability Law Centre, supranote 4 at 5). Affirmative action implies some adverse impact on members of advantaged groups, an implication not necessarily present in the case of ameliorative programs. Michael Peirce, “A Progressive Interpretation of Subsection 15(2) of the Charter” (1993) 57 Saskatchewan Law Review 263 at 282.
9. Peirce, supranote 8 at 264: “[T]he mere presence of s 15(2) in the Charter may serve as an effective disincentive toward raising such challenges.”
10. Andrews v Law Society of British Columbia, [1989] 1 SCR 143, 56 DLR (4th) 1 [Andrews, cited to SCR].
11. See, for example, Lovelace v Ontario, 2000 SCC 37, [2000] 1 SCR 950 [Lovelace]; Granovsky v Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 SCR 703 [Granovsky]; Vriend v Alberta, [1998] 1 SCR 493, 212 AR 237. For an exception, see R v Hess; R v Nguyen, [1990] 2 SCR 906, 119 NR 353.
13. The wording “underinclusion in the delineation of the targeted group” is from Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 at para 7 (Factum of the Intervener Women’s Legal Education and Action Fund (LEAF)), online: LEAF <http://leaf.ca/wordpress/wp-content/uploads/2011/04/2010-Cunningham-Factum>. pdf> [LEAF Factum in Cunningham]. One of the authors, Jonnette Watson Hamilton, was a member of the LEAF subcommittee that worked with Dianne Pothier, lead counsel, to draft the factum and prepare the oral argument in Cunningham. Under-inclusiveness claims are brought by members of a disadvantaged group whose needs the ameliorative program was designed to address.
14. Indian Act, RSC 1985, c I-5.
16. Ibid at paras 60–1.
17. See Michael H Morris and Joseph K Cheng, “Lovelace and Law Revisited: The Substantive Equality Promise of Kapp” (2009) 47 Supreme Court Law Review 281, for a review of the case law up to and including Kapp. See also Diana Majury, “Equality Kapped; Media Unleashed” (2009) 27 Windsor Yearbook of Access to Justice 1 at 10 (arguing that the Lovelace approach to section 15(2) “represents the substantive equality approach to affirmative action” more so than the Kapp approach).
18. Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 at para 72, 170 DLR (4th) 1 [Law, cited to SCR]. Law laid out a three-part test for discrimination under section 15(1), involving analysis of (1) differential or adverse treatment; (2) based on an enumerated or analogous ground; that (3) resulted in a violation of the claimant’s human dignity, with reference to four contextual factors: (a) pre-existing disadvantage, stereotyping, prejudice, or vulnerability; (b) correspondence (or lack thereof) between the grounds and the actual needs, capacity or circumstances of the claimant; (c) the ameliorative purpose or effects of the law on a more disadvantaged person or group; and (d) the nature and scope of the interest affected (ibid at para 88).
21. Ibid (per McLachlin CJ and Abella J). For critiques of the reliance on race in Kapp, see June McCue, “Kapp’s Distinctions: Race-Based Fisheries, the Limits of Affirmative Action for Aboriginal Peoples and Skirting Aboriginal People’s Unique Constitutional Status Once Again” (2008) 5 Directions 56; Sébastien Grammond, “Disentangling ‘Race’ and Indigenous Status: The Role of Ethnicity” (2008) 33 Queen’s Law Journal 487.
22. Kapp, supranote 2 at para 16. The phrase “unified approach” was coined by Luc B Tremblay in “Promoting Equality and Combating Discrimination through Affirmative Action: The Same Challenge? Questioning the Canadian Substantive Equality Paradigm” (2012) 60 American Journal of Comparative Law 181 at 182–3, to describe the Court’s argument that “[s]ection 15(1) and 15(2) ‘work together’ to promote the vision of substantive equality that underlies Section 15 as a whole.”
23. Kapp, supranote 2 at para 25 [emphasis in original]. The Court did not discuss the rationale of affirmative measures or their substantive equality context beyond this statement. See Majury, supranote 17 at 14.
24. Kapp, supranote 2 at paras 40–1. Kapp set out a two-part test for showing discrimination under section 15(1): (1) does the law create a distinction based on an enumerated or analogous ground and (2) does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (ibid at para 17). Unlike the Law test, the Kapp approach to section 15(1) does not require the claimant group to prove the impact of the law or program on their “human dignity” having regard to four contextual factors (ibid at paras 21–3, citing Law, supranote 18 at paras 62–75). See note 18 for a description of the factors.
26. Ibid at para 41.
27. Ibid at paras 43–52.
28. Ibid at paras 54–5.
29. Ibid at para 44. For discussions of the problems with a test that focuses exclusively on a program’s goals, see Peirce, supranote 8; Mark A Drumbl and John DR Craig, “Affirmative Action in Question: A Coherent Theory for Section 15(2)” (1997) 4 Review of Constitutional Studies 80; M David Lepofsky and Jerome E Bickenbach, “Equality Rights and the Physically Handicapped” in Anne F Bayefsky and Mary Eberts, eds, Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 323.
30. Jean v Canada (Minister of Indian Affairs and Northern Development), 2009 FCA 377, 402 NR 313 at paras 13, 40 (Factum of the IntervenerWomen’s Legal Education and Action Fund), online: LEAF <http://www.leaf.ca/legal/facta/2009-micmac1.pdf#target> [LEAF Factum in Jean]. Both authors were members of the LEAF subcommittee that helped to draft the factum and oral argument in Jean under the leadership of Dianne Pothier.
31. See notes 106 to 111 and accompanying text. See also Sophia Moreau, “R v Kapp: New Directions for Section 15” (2008–9) 40 Ottawa Law Review 283 at 295–6.
32. Kapp, supranote 2 at para 48. Tremblay calls this “some version of ‘majoritarianism’ subjected to a rational basis test.” Tremblay, supranote 22 at 201.
34. In the next case in which the Court sets out its new test for section 15(2), it collapses these two steps into one. See Cunningham, supranote 3 at paras 44–6.
37. On deference in Kapp, see Majury, supranote 17 at 11; Moreau, supranote 31 at 286; Margot E Young, “Unequal to the Task: ‘Kapp’ing the Substantive Potential of Section 15” (2010) 50 Supreme Court Law Review (2d) 183, reprinted in Sanda Rodgers and Sheila McIntyre, eds, The Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat (Markham, ON: LexisNexis Canada, 2010) 183 at 211–13.
39. This was not obvious at the time to most commentators. See, for example, ARCH Disability Law Centre, supranote 4 at 63; Jonnette Watson Hamilton and Jennifer Koshan, “Courting Confusion? Three Recent Alberta Cases on Equality Rights Post-Kapp” (2009–10) 47 Alberta Law Review 927 at 947; LEAF Factum in Cunningham, supranote 13 at paras 4–8; Moreau, supranote 31.
41. Ibid at paras 53–4.
42. See, for example, ibid at paras 23, 33, and 41.
43. Ibid at para 54.
44. Ibid at para 55.
45. Ibid.
46. Ibid.
49. Ibid at 295–6 (noting how an ameliorative program may “indirectly [work] to stigmatize or disadvantage some other disadvantaged group” or may have “deleterious effects on vulnerable members of the targeted group”).
50. Patricia Hughes, “Resiling from Reconciling? Musing on R v Kapp” (2009) 47 Supreme Court Law Review 255 at 256; Watson Hamilton and Koshan, supranote 39 at 928–9; Morris and Cheng, supranote 11 at 318–19; Majury, supranote 17 at 12.
52. Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504 [Martin].
53. Granovsky, supranote 11. See also Denise Réaume, “Equality Kapped: Alberta v Cunningham” (22 July 2011), online: Women’s Court of Canada <http://womenscourt.ca/2011/07/equalitykapped-alberta-v-cunningham/>.
54. Métis Settlements Act, RSA 2000, c M-14 [MSA].
55. Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239 at para 4, 457 AR 297 [Cunningham ABCA].
56. Ibid at para 28.
57. Cunningham, supranote 3 at para 3 (per McLachlin CJ). The Court also dismissed the claims under sections 2(d) and 7 of the Charter.
60. Ibid at paras 44, 45, 46, 47, and 53.
63. R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200. On the other hand, some elements of the Oakes test, such as rationality, are built in to the section 15(2) test.
65. Kapp, supranote 2 at para 32, quoting from Rosalie Silberman Abella, Equality in Employment: The Report of the Commission on Equality in Employment (Ottawa: Supply and Services Canada, 1984) at 13–14.
66. Cara Wilkie and Meryl Zisman Gary, “Positive and Negative Rights under the Charter: Closing the Divide to Advance Equality” (2011) 30 Windsor Review of Law and Social Issues 37 (arguing that the claim in Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 151 DLR (4th) 577 [Eldridge] was simply an accommodation to access an existing health care program). See also Martha Jackman, “Health Care and Equality: Is There a Cure?” (2007) 15 Health Law Journal 87 at 109 (arguing that Eldridge could be seen as a claim of entitlement to universality in the provision of existing health services). For an earlier review of the trends in the Court’s jurisprudence on positive obligations and a more optimistic assessment of the promise of Eldridge, see Bruce Porter, “Beyond Andrews: Substantive Equality and Positive Obligations after Eldridge and Vriend” (1997–8) 9 Constitutional Forum 71.
67. Colleen Sheppard, “Study Paper on Litigating the Relationship between Equity and Equality” (Toronto: Ontario Law Reform Commission, 1993) at 10, online: McGill <http://people.mcgill.ca/files/colleen.sheppard/Litigating_Equity_Equality.pdf>.
69. Brooks v Canada Safeway Ltd, [1989] 1 SCR 1219 at 1240, 59 DLR (4th) 321; Schachter v Canada, [1992] 2 SCR 679 at 721–2, 93 DLR (4th) 1 [Schachter, cited to SCR]; Haig v Canada (Chief Electoral Officer), [1993] 2 SCR 995 at para 84, 105 DLR (4th) 577; Eldridge, supranote 66 at para 73; Granovsky, supranote 11 at para 61; Nova Scotia (Attorney General) v Walsh, 2002 SCC 83 at para 55, [2002] 4 SCR 325; Auton (Guardian ad litem of) v British Columbia (Attorney General), 2004 SCC 78 at para 41, [2004] 3 SCR 657 [Auton].
70. Cunningham, supranote 3 at para 43. The language of “adverse distinction” appears to exclude adverse effects discrimination by requiring that the distinction, rather than its impact, be discriminatory, but one can hope that the language and related omission is merely an oversight given the Court’s long-standing recognition of adverse effects discrimination. See Andrews, supranote 10 at 164; Eldridge, supranote 66 at paras 60–1.
72. Ibid at para 47.
75. Ibid at para 62.
78. See text accompanying notes 123–4.
80. See text accompanying notes 39 and 40.
81. We thank one of the anonymous reviewers for helping us clarify this point.
84. Ibid at para 46.
90. Kapp, supranote 2 at para 28; Cunningham, supranote 3 at para 40. See also Ruth Colker, “Anti- Subordination Above All: A Disability Perspective” (2006–7) 82 Notre Dame Law Review 1415 at 1423 (advocating disability-only services and institutions for those who need or desire them).
91. See also Young, supranote 37 at 211 (discussing Gosselin v Quebec (Attorney General), 2002 SCC 84, [2002] 4 SCR 429).
92. The Indian Act, supranote 14, has a long history of sex discrimination embedded in its status provisions, whereby Indian women who “married out” lost their status. See McIvor v Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153, 91 BCLR (4th) 1, leave to appeal to SCC denied, [2009] SCCA No 234. If attention is only paid to the government’s purpose in enacting the MSA, then the discriminatory context and effects of the delineation of who is and who is not Métis under the MSA is missed (LEAF Factum in Cunningham, supranote 13 at para 19–21).
94. See generally Paul LAH Chartrand, ed, Who Are Canada’s Aboriginal Peoples? Recognition, Definition, and Jurisdiction (Saskatoon, SK: Purich, 2002) for a number of essays looking at defining the Métis people and the connections between Métis, non-status Indians, and Indians. See also Paul LAH Chartrand, “Aboriginal Rights: The Dispossession of the Métis” (1991) 29 Osgoode Hall Law Journal 457, for a discussion of the role of so-called “Half Breed” land rights enacted by the Manitoba Act, 1870, SC 1870, c 3, in the definition of the Métis and, more generally, DN Sprague, “Government Lawlessness in the Administration of Manitoba Land Claims, 1870–1887” (1979–80) 10 Manitoba Law Journal 415.
96. Ibid at paras 16, 20, 73, and 79.
97. Ibid at para 75.
98. Grammond, supranote 21; Larry Chartrand, “The Story in Aboriginal Law and Aboriginal Law in the Story: A Métis Professor’s Journey” (2010) 50 Supreme Court Law Review (2d) 89, reprinted in Rodgers and McIntyre, supranote 37 at 89.
99. This cut-off date is a result of the Transitional Membership Regulation, Alta Reg 337/90, cited in Cunningham, supranote 3 at para 21.
100. The special constitutional status of linguistic minorities is also recognized. Constitution Act, 1867 (UK), 30 and 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, ss 93 and 133.
101. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. The Court did not consider Aboriginal rights to be implicated in Cunningham, nor did it question the historical contingency of the categories “Indian” and “Métis.” As Larry Chartrand has noted, the Court’s focus on race and culture has also resulted in them treating Aboriginal peoples’ legal interests in agreements with the Crown as “affirmative action” programs rather than as manifestations of Aboriginal peoples’ rights and status (Chartrand, supranote 98 at 105 note 46, citing McCue, supranote 21).
103. ARCH Disability Law Centre, supranote 4 at 63–4; LEAF Factum in Jean, supranote 30 at para 3; LEAF Factum in Cunningham, supranote 13 at para 10.
105. LEAF Factum in Cunningham, supranote 13 at para 17. See also Réaume, supranote 53, noting the likely consequences of Cunningham for persons with disabilities.
106. See Devlin and Pothier, supranote 5 at 7; Rosemarie Garland-Thomson, “Feminist Disability Studies” (2005) 30:2 Signs 1557 at 1557.
107. See Fiona Sampson, “The Law Test for Discrimination and Gendered Disability Inequality” in Fay Faraday, Margaret Denike, and M Kate Stephenson, eds, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006) 245 at 251.
108. Andrews, supranote 10 at 165. This is not to say that courts always focus on effects under section 15(1). See, for example, Withler v Canada (Attorney General), 2011 SCC 12, [2011] 1 SCR 396 [Withler], and Jennifer Koshan and Jonnette Watson Hamilton, “Meaningless Mantra: Substantive Equality after Withler” (2011–12) 16 Review of Constitutional Studies 31 at 53–6. Effects are also supposed to have new prominence under the final balancing stage of the Oakes test, although this has not always worked to the benefit of Charter claimants. See Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567 [Hutterian Brethren] and Jennifer Koshan and Jonnette Watson Hamilton, “ ‘Terrorism or Whatever’: The Implications of Alberta v Hutterian Brethren of Wilson Colony for Women’s Equality and Social Justice” (2010) 50 Supreme Court Law Review (2d) 221, reprinted in Rodgers and McIntyre, supranote 37 at 243–7.
109. Brown v British Columbia (Minister of Health) (1990), 66 DLR (4th) 444 (BCSC), 42 BCLR (2d) 294 [Brown, cited to DLR]. In Brown, it was accepted that infection with HIV was a physical disability and that 90 percent of persons affected were gay or bisexual males (ibid at 447).
110. Ibid at 463.
111. We do not mean to imply that if the discrimination claim in Brown had been fully analyzed under section 15(1) it would necessarily have been successful. Cases challenging medical funding decisions have been difficult to mount under section 15(1) (see, for example, Auton, supranote 69, and Jackman, supranote 66 at 102–11 (noting that claims regarding the comprehensiveness of what are considered to be non-core services, such as drug treatments, are particularly difficult)). We thank one of the anonymous reviewers for this point.
114. Dianne Pothier, “Eaton v Brant County Board of Education (Women’s Court of Canada)” (2006) 18 Canadian Journal of Women and the Law 121 at 132.
116. Another case where the government might be unable to meet the “serve and advance” test is Ontario Human Rights Commission v Ontario (1994), 19 OR (3d) 387, 117 DLR (4th) 297 (Roberts) (CA), in which an age-based distinction that provided funding only for visually impaired persons under age twenty-two to purchase closed circuit television magnifiers was seen as irrational by a majority of the Court of Appeal. This case was decided under human rights legislation, not the Charter.
118. A medical model focuses on disability as individual pathology, incapacity, and abnormality requiring prevention and treatment and often privatizes responsibility for the effects of disablement. It also views disability as static, essentialized, and constitutive of the identities of persons with particular disabilities and creates a binary opposition between disabled and ablebodied persons, othering those with disabilities. It has been critiqued by critical disability theorists, who focus on disability as socially constructed by barriers to participation in public life. See Devlin and Pothier, supranote 5 at 4–7; Marcia H Rioux and Fraser Valentine, “Does Theory Matter? Exploring the Nexus between Disability, Human Rights, and Public Policy” in Pothier and Devlin (eds), supranote 5, 47 at 49–51; Pauline Rosenbaum and Ena Chadha, “Reconstructing Disability: Integrating Disability Theory into Section 15” in Sheila McIntyre and Sanda Rodgers, eds, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Markham, ON: LexisNexis Butterworths, 2006) 343 at 346–8.
119. Rosenbaum and Chadha, supranote 118 at 362. The authors raise the same concern with Granovsky, supranote 11 (see ibid at 359–61).
120. For an argument critiquing an essentialist approach to disability, see Devlin and Pothier, supranote 5 at 5.
121. See Rosenbaum and Chadha, supranote 118 at 347–8 (describing the pity/hero model of disability, which views disability as a personal tragedy, valorizes those who overcome their limitations, and responds to disability through charity). The Supreme Court of Canada’s expression of sympathy for the claimants in Auton, supranote 69, while at the same time retaining dominance and power over them and denying their claim, could also be seen as an example of the pity model. See Sampson, supranote 107 at 261.
123. Brown, supranote 109 at 463. See also Sampson’s discussion of the court’s fears about costs in Auton (Sampson, supranote 107 at 262).
124. Cost savings alone do not constitute a pressing and substantial reason for violating Charter rights. See, for example, Martin, supranote 52 at para 109. However, if a government can prove that it was in a fiscal crisis, this may be a pressing and substantial objective under section 1. See Newfoundland (Treasury Board) v Newfoundland and Labrador Assn of Public and Private Employees (NAPE), 2004 SCC 66, [2004] 3 SCR 381. Cost concerns may also infiltrate section 15(1) analysis. See, for example, Withler, supranote 108, and Koshan and Watson Hamilton, “Meaningless Mantra,” supranote 108 at 53–4.
125. See Shelagh Day and Gwen Brodsky, “The Duty to Accommodate: WhoWill Benefit” (1996) 75 Canadian Bar Review 433 (arguing that accommodation may reinforce dominant norms). See also Gwen Brodsky, Shelagh Day, and Yvonne Peters, Accommodation in the Twenty-First Century (March 2012) at 42, online: Canadian Human Rights Commission <http://www.chrc-ccdp.ca/pdf/accommodation_eng.pdf> (arguing that “[f ]or many people with disabilities, the duty to accommodate as it is being applied today, simply does not go far enough to ensure their equality and inclusion in the world they live in”). The Court has also eviscerated its approach to accommodation under section 1 of the Charter, drawing an arbitrary distinction between laws and policies. See Hutterian Brethren, supranote 108 at paras 66–9, and Koshan and Watson Hamilton, “Terrorism or Whatever,” supranote 108 at 239–42.
126. See, for example, Eldridge, supranote 66. See also Helena Orten, “Section 15, Benefits Programs and Other Benefits at Law” (1990) 19 Manitoba Law Journal 288 at 302, for an early argument that because the Court’s approach to Charter equality rights “is based on remedying disadvantage rather than treating likes alike . . . laws that have not benefited disadvantaged groups must now do so,” and Young, supranote 37 at 198, for a more recent argument that the Court’s implementation of substantive equality fails to consider power and hierarchy.
127. See Rosenbaum and Chadha, supranote 118 at 356, discussing Eldridge, supranote 66 (noting however that the decision could be critiqued for drawing a sharp comparison between deaf and hearing patients, which may construct the needs of the disabled as extraordinary, and for relying on the “cheap, time-limited and discrete” nature of the costs involved (ibid, at 357–8)). See also Wilkie and Gary, supranote 66 at 53, who argue that Eldridge only involves closing a gap in the provision of an existing program.
128. Jackman, supranote 66 at 116–18, notes that the lack of interpretation services for Aboriginal persons, new immigrants, and official minority language communities is a real concern in the health care context.
129. Under the Canada Health Act, RSC 1985, c C-6, s 2, provincial obligations focus on health services provided by physicians and hospitals. For a discussion, see Jackman, supranote 66 at 102–3.
130. Auton, supranote 69 at para 26. The Court’s failure to get to the discrimination stage in Auton precluded it from considering the effects of failing to provide autism therapy, including the gendered disability implications put forward by interveners LEAF and the Disabled Women’s Network (DAWN) Canada. See Sampson, supranote 107 at 264. The LEAF/DAWN Factum in Auton is reproduced in Faraday, Denike, and Stephenson, eds, supranote 107 at 493. One of the authors, Jennifer Koshan, served on the LEAF/DAWN subcommittee in Auton, for which Dianne Pothier and Fiona Sampson were counsel.
131. See Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, 151 DLR (4th) 577 at paras 25–6 (Factum of the Intervener Disabled Women’s Network Canada and LEAF), online: LEAF <http://leaf.ca/wordpress/wp-content/uploads/2011/01/1997-eldridge.pdf> (noting the particular health care and communication needs of Deaf women).
132. Granovsky, supranote 11 at para 67. Granovsky involved physical rather than mental disabilities.
133. See notes 95–101 and accompanying text. Jackman, supranote 66 at 119, notes that “the medicare system places a priority on physical over mental health and on physical over mental health care services.”
136. Janine Benedet and Isabel Grant, “Sexual Assault of Women with Mental Disabilities: A Canadian Perspective” in Clare McGlynn and Vanessa E Munro, eds, Rethinking Rape Law: International and Comparative Perspectives (London: Routledge, 2010) 322 at 333 (referring to women with mental disabilities as “paradigmatic, rather than exceptional, victims” of rape law). See also Iris Marion Young, “Structural Injustice and the Politics of Indifference” in Emily Grabham et al, eds, Intersectionality and Beyond: Law, Power and the Politics of Location (Abingdon, UK: Routledge, 2009) 273 at 276, who argued that disability should be seen as “paradigmatic of structural injustice.”
137. Young, supranote 136 at 275 (referring to positional difference more broadly). See also Devlin and Pothier, supranote 5 at 12–13. For example, the LEAF/DAWN Factum in Auton, supranote 130 at para 12, argued that “[a] substantial proportion of health services has nothing to do with disability because the particular conditions being treated do not result in a significant exclusion from full participation in Canadian society.” It follows that if “core” health care needs (for example, broken limbs) are targeted over “non-core” health needs (for example, drug treatment for particular physical or mental disabilities), the able-bodied may be privileged.
140. Ibid at para 12.
141. Ibid at paras 13–16.
142. Ibid at para 18. Other interveners, including the Native Women’s Association of Canada, queried whether the MSA was an ameliorative program under section 15(2), but LEAF did not take a position on this issue (ibid at para 11).
144. See, for example, Watson Hamilton and Koshan, supranote 39 at 937; Koshan and Watson Hamilton, “Meaningless Mantra,” supranote 108 at 48–51; Moreau, supranote 31 at 291–2. In Quebec (Attorney General) v A, 2013 SCC 5 at para 325, Abella J, writing for the majority on the section 15(1) issue, noted this critique and appears to have widened the court’s approch by insisting that “[ p]rejudice and stereotyping are two of the indicia that may help answer that question; they are not discrete elements of the test which the claimant is obliged to demonstrate.”
146. For example, human rights legislation is an alternative avenue for redressing inequality for persons with disabilities. See ARCH Disability Law Centre, supranote 4 at 38; Brendon Pooran and Cara Wilkie, “Failing to Achieve Equality: Disability Rights in Australia, Canada and the United States” (2005) 20 Journal of Law and Social Policy 1 at 5–9; Council of Canadians with Disabilities v VIA Rail Canada Inc, 2007 SCC 15, [2007] 1 SCR 650; Moore v British Columbia (Education), 2012 SCC 61 [Moore]. However, the extent to which section 15 should influence the approach to human rights claims, which may undermine the utility of this option, is an open question. See, for example, Ontario (Director, Disability Support Program) v Tranchemontagne, 2010 ONCA 593, 102 OR (3d) 97 (a human rights case involving substance addiction in which the claimants were successful even though the Ontario Court of Appeal imported some elements of section 15(1)). In Moore, ibid, the Supreme Court of Canada did not avail itself of the opportunity to clarify this issue.
147. Convention on the Rights of Persons with Disabilities, 46 ILM 443 (2007), Can TS 2010 No 8, UN Doc A/RES/61/106 (13 December 2006), Article 29(a), online: UN Enable, <http://www.un.org/disabilities/default.asp?id=150>. Canada has not yet signed the Optional Protocol to the convention, which allows individual complaints to be made to the Committee on the Rights of Persons with Disabilities.
