By: Linda McKay-Panos
Reposted from LawNow 42(6) with permission
he Canadian Charter of Rights and Freedoms (Charter) provides protection from discrimination in s 15(1). Section 15(2) allows governments to establish programs to ameliorate historical disadvantage of particular minority groups. These programs are sometimes referred to as “affirmative action programs”.
While s 15(2) has been in force since 1985, it has only recently achieved a fairly prominent place in case law. Originally, s 15(2) was seen as a descriptive section, meant to support the interpretation of s 15(1). See for example: Lovelace v Ontario (1997), 33 OR (3d) 735 (CA), affirmed 2000 SCC 37.
The role of s 15(2) gained prominence in R v Kapp, 2008 SCC 41 (Kapp). A group of non-indigenous fishers challenged a program designed by the federal government, which had granted exclusive fishing licenses for the Fraser River to three First Nations groups in the region. Because commercial fishers were excluded from the program, they argued that their rights under Charter s 15(1) had been violated—they were discriminated against because they were not a part of the First Nations groups benefiting from the program. The Supreme Court of Canada (SCC) held that if the government could prove that the program targeted a disadvantaged group, and that it was designed to improve the conditions of the group, it would not violate anyone’s equality rights under s 15(1). This legal test was further developed in the case of Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37,  2 SCR 670 [Cunningham]. The SCC applied the Kapp test for considering whether a government can rely on s 15(2) to “defend” its ameliorative program (at paras 43-44).
In Cunningham, the SCC held that the Alberta Métis Settlement Act, RSA 2000, c M-14, was an ameliorative program protected by Charter s 15(2), because the exclusion of status Indians from formal membership in Métis settlements helped to respect the Métis’ right to culture and the role of the Métis in defining themselves as a people. The SCC stated that the ameliorative program: “corresponds to the historic and social distinction between the Métis and Indians, furthers realization of the object of enhancing Métis identity, culture and governance, and respects the role of the Métis in defining themselves as a people” (para 89). The SCC held that it was open to the government to target ameliorative programs at some disadvantaged groups, while excluding others if the program “serves and advances” the ameliorative program in question (Cunningham at para 45). This aspect of the decision has been criticized for failing to recognize the equality principle that once the government decides to implement a program that confers a benefit, it must do so without discrimination (Eldridge v British Columbia (Attorney General),  3 SCR 624). See: Jennifer Koshan, “Age Discrimination and Ameliorative Protections to be Broadened under Alberta Human Rights Act” (November 8, 2017) online [Koshan].
A number of human rights laws across Canada have added provisions that appear to have a similar goal of supporting ameliorative programs. Like the Charter, which allows governments to prove that a rights violation is reasonable and demonstrably justified in a free and democratic society (Charter s 1), human rights laws have always had some defences available to a claim of discrimination. For employment, there is the bona fide occupational requirement (e.g., it is not discrimination to advertise for a male to attend to the toileting needs of a male patient in a nursing home), and for all areas, there is the defence of reasonable and justifiable discrimination. More recently, human rights laws have officially recognized that ameliorative programs are not a form of “reverse discrimination”. “Reverse discrimination”, may be defined as “discrimination against members of a dominant or majority group in favour of a historically disadvantaged group.”
The way that ameliorative programs in human rights laws are instituted varies across Canada.
Focus Broadly on Purpose or Object (applicable to various areas):
In some jurisdictions, the human rights code focuses on the purposes (or objects) of the ameliorative program rather than its effects (this aligns with the Charter s 15(2) interpretation in the caselaw). For example, the Nova Scotia Human Rights Act (RSNS 1989 c 214) special program provision states:
6 Subsection (1) of Section 5 does not apply……
(i)to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5.
Other jurisdictions with similar legislation include: the Canadian Human Rights Act, RSC 1985, c H-6, section 16; Ontario Human Rights Code, RSO 1990, c H.19, section 14.
Focus on Effect (applicable generally to various areas):
In some jurisdictions, the human rights code focuses on the effects of the ameliorative program; this differentiates the analysis from that in Charter 15(2) as the respondent (individual or government) will have to demonstrate that the program has achieved or is reasonably likely to achieve the ameliorative object. Alberta is the latest jurisdiction to add a provision that deals with ameliorative programs and activities and which requires that the respondent demonstrate that the program has achieved or is reasonably likely to achieve its objective.
The Saskatchewan Human Rights Code, SS 1979 c S-24.1, section 48, and Manitoba’s The Human Rights Code, CCSM c H175, section 11, also require that the program or activity achieves or is reasonably likely to achieve its ameliorative objective.
Focus on Effect (applicable to only some specific areas).
Some jurisdictions have more specific defences that focus on the reasonable likelihood of achieving the ameliorative objective, yet the defence is only available in the employment context (see, for example British Columbia’s Human Rights Code, RSBC 1996, c 210, section 42).
Requirement that approval be sought by the human rights commission for the ameliorative program.
In British Columbia, for ameliorative programs outside of the employment context, the approval of the human rights commission must be sought (section 42, BC Human Rights Code). In New Brunswick, the Human Rights Act, RSNB 2011, s 14, provides an application for the commission’s approval of a program “designed to promote the welfare of any person or class of persons.”
One fear is that the requirement for proving that the ameliorative program is “reasonably likely to achieve its objective” (rather than focusing on the genuine ameliorative purpose of the program) is that some might argue that it permits those who have claims of discrimination based on conflicting grounds, or those who have claims of “reverse discrimination” to defeat genuine ameliorative programs (Koshan). This might occur when the program has a genuine ameliorative purpose but it is difficult to prove that it is reasonably likely to achieve its purpose. This is most concerning.