Supreme Court Releases Decision that Will Impact Equality Rights Claims by People with Disabilities

Monday, July 25, 2011

July 25, 2011-Toronto --The Supreme Court of Canada released its decision on July 21, 2011 in the case of Cunningham v. Alberta.  The case was heard on December 16, 2010.  Represented by Laurie Letheren and Tess Sheldon of ARCH Disability Law Centre, the Canadian Association for Community Living (CACL) had intervened in the appeal before the Supreme Court.

The primary issue that the Court addressed was whether Sections 75 and 90 of the Métis Settlements Act (MSA) that prohibit individuals with Indian status from holding Métis settlement membership violate the guarantee of equality under Section 15 of the Charter of Rights and Freedoms. The Cunninghams are lifelong residents of the Peavine Métis Settlement.  Their membership in the Settlement was terminated when they obtained status under the Indian Act. They argued that their termination from membership in the Peavine Métis Settlement violates the guarantee of equality of Section 15 of the Charter.  

The Supreme Court concluded the MSA is an ameliorative program and that Section 15(2) of the Charter protects the MSA from a claim of equality violations. Ameliorative programs, sometimes known as “affirmative action”, are programs that target a specific disadvantaged group in order to benefit members of that group. The Court concluded that in order to benefit one group it is necessary to exclude others from the benefits of the program. Section 15(2) allows for this form of “discriminatory” state action which would otherwise be contrary to Section 15.

The Court found that the purpose and effect of the MSA is to enhance Métis identity, culture, and self-governance by creating a land base for Métis.  The exclusion of status Indians from membership in the new Métis land base serves and advances this object and hence is protected by Section 15(2).

In their submissions to the Court, CACL provided the Court with examples of how, when faced with a Charter challenge to a government program, government respondents have increasingly succeeded in shielding a program from an inquiry into whether the program breaches equality rights by asserting that the programs are ameliorative. The CACL argued that Section 15(2) should only be applied in the claims of “reverse discrimination” where a claimant is challenging the very existence of the program.  It was the CACL’s position that claims made by members of disadvantaged groups who assert that they were excluded from a program that was intended to benefit them or who assert that the program has a discriminatory impact on them should still undergo full scrutiny under Section 15(1) to determine whether the groups’ equality rights are violated by the program.

Letheren and Sheldon state that it is unfortunate that in this decision the Supreme Court did not acknowledge that claims of “under inclusion” or “adverse impact” must be afforded full scrutiny under Section 15(1) of the Charter in order to insure that the Charter’s goal of substantive equality is advanced.  The Court states, “Section 15(2) affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be precluded from using targeted programs to achieve specific goals relating to specific groups … All the government need show is that it was rational for the state to conclude that the means chosen to reach its ameliorative goal would contribute to [its ameliorative] purpose”.

Letheren suggests that the Court’s decision may be of some assistance to equality seeking groups by limiting the ability of government respondents to shield the claim from an equality analysis by simply declaring the program to be ameliorative without having to backup this claim.  The Court has stated that “The object of an ameliorative program must be determined as a matter of statutory interpretation, having regard to the words of the enactment, expressions of legislative intent, the legislative history, and the history and social situation of the affected groups.  Defining the objective of the ameliorative program too broadly or too narrowly will skew the analysis.”

As well, Sheldon explains that the Court may have left some room for future challenges to government claims that all ameliorative programs are protected from Charter scrutiny when the Chief Justice wrote, “These propositions, as discussed [in this decision], suffice to resolve the issue that arises in this case. What is at issue here is a special type of ameliorative program — one designed to enhance and preserve the identity, culture and self-governance of a constitutionally-recognized group… It is therefore unnecessary to embark on a lengthy consideration of precisely what considerations may enter into the issue of how distinctions are made for ameliorative programs in different types of cases.  The law is best left to develop on an incremental basis.”

The full Supreme Court decision can be read at:

For More Information contact:

Laurie Letheren
ARCH Staff Lawyer
416 482 8255 x 232

Tess Sheldon
ARCH Staff Lawyer
416 482 8255 x 234


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