CCPI
Charter Committee on Poverty Issues

Back to CCPI's Litigation

Court File No.26165

(On Appeal from the Court of Appeal for the Province of Ontario)

B E T W E E N :

Robert LOVELACE, on his own behalf and on behalf of the

ARDOCH ALGONQUIN FIRST NATION & ALLIES, and the

ARDOCH ALGONQUIN FIRST NATION & ALLIES, and

CHIEF KRIS NAHRGANG on behalf of KAWARTHA NISHNAWBE FIRST NATION,

and the KAWARTHA NISHNAWBE FIRST NATION,

and CHIEF ROY MEANISS on his own behalf and on behalf of the

BEAVERHOUSE FIRST NATION, and the BEAVERHOUSE FIRST NATION,

and CHIEF THERON McCRADY on his own behalf and on behalf of

the POPLAR POINT OJIBWAY FIRST NATION,

and the POPLAR POINT OJIBWAY FIRST NATION,

and the BONNECHERE METIS ASSOCIATION &

BE-WAB-BON METIS AND NON-STATUS INDIAN ASSOCIATION, and

the ONTARIO METIS ABORIGINAL ASSOCIATION

APPELLANTS

(Applicants)

- and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and

THE CHIEFS OF ONTARIO

RESPONDENTS

SACK GOLDBLATT MITCHELL NELLIGAN POWER

Barristers & Solicitors Barristers & Solicitors

20 Dundas Street West 66 Slater Street

Suite 1130 Suite 1900

Toronto, ON M5G 2G8 Ottawa, ON K1P 5H1

Cynthia Petersen Pamela MacEachern

tel: (416) 979-6440 tel: (613) 231-8276

fax: (416) 591-7333 fax: (613) 238-2098

Solicitors for the Intervener Ottawa Agent

Charter Committee on Poverty Issues

PART I - THE FACTS 1

PART II - THE ISSUES 2

PART III - THE ARGUMENT 2

B. The Equality Rights of Poor People are at Stake 3

C. Subsection 15(1) of the Charter Guarantees Substantive Equality 4

D. Governments Have a Constitutional Obligation to Take Positive Steps to Remedy Substantive Inequalities 6

Positive Obligations on Governments 8

(d) Section 36 of the Constitution Act, 1982

Recognizes a Positive Duty to Remedy Inequalities 12

E. The Duty to Ameliorate the Conditions of Aboriginal Peoples is Particularly Pressing 13

F. Ameliorative Programs Should Not be Subject to Lesser Scrutiny Under s.15(1) 14

G. The Appropriate Approach to s.15(2) of the Charter 15

H. The AGO's Approach to s.15(2) is Inconsistent

with the Guarantee of Substantive Equality 17

I. Conclusion 20

1. This appeal concerns the Ontario government's exclusion of Metis and non-status Aboriginal groups from sharing in the proceeds of the Casino Rama Project (the "Project") and from participating in negotiations regarding the Project. The parties dispute whether the Project is designed to benefit only Indian bands or whether its purpose is to benefit all Aboriginal peoples, including Metis and non-status Aboriginal groups. However, there is no dispute that the proceeds of the Project are intended to be used for cultural and community development, to address the health, housing, education, and other social service needs of Aboriginal peoples. In other words, the parties agree that the Project constitutes a government program designed to ameliorate the socio-economic conditions of a disadvantaged group.

2. Although the parties dispute whether Indian bands or Metis and non-status Aboriginal groups suffer greater socio-economic disadvantage, it is undisputed that all Aboriginal persons in Canada - including on-reserve and off-reserve status Indians, non-status Indians, and Metis - experience significant socio-economic disadvantage in comparison to the non-Aboriginal population (see paragraph 21 of the Factum of the Attorney General of Ontario). Indeed, the Report of the Royal Commission on Aboriginal Peoples ("RCAP") reveals, inter alia, that:

• Aboriginal people experience higher unemployment rates than the average Canadian and those who are employed earn considerably less on average than the average Canadian.
• Aboriginal people receive lower transfers than Canadians generally from several income support programs, including employment insurance and the Canada and Quebec Pension Plans.
• Social assistance dependence levels for Aboriginal people are considerably higher than the national average and are increasing over time.
• Approximately 50% of Aboriginal children live in poverty.
• Aboriginal people often face inadequate nutrition, substandard housing and sanitation, unemployment and poverty, discrimination and racism, violence, inappropriate and absent services, and subsequent high rates of physical, social, and emotional illness, injury, disability, and premature death.

8. The questions stated by this Court include whether the exclusion of the Appellant Aboriginal groups from the Casino Rama Project is ultra vires the power of the province under the Constitution Act, 1867, whether it violates rights guaranteed by s.15 of the Charter and, if so, whether that violation is justified pursuant to s.1 of the Charter. The Respondent Attorney-General of Ontario ("AGO") asserts that the Project is subject to limited judicial scrutiny under s.15(1) of the Charter because it is an ameliorative program within the meaning of s.15(2). This appeal therefore raises before this Court, for the first time, issues about the relationship between s.15(1) and s.15(2). The intervention of the Charter Committee on Poverty Issues ("CCPI") is restricted to submissions on the appropriate interpretation and application of these subsections of the Charter. CCPI takes no position on whether there is a constitutional violation on the specific facts in this case.

9. CCPI submits that s.15(2) of the Charter should be construed, not as an exemption or exclusion from the requirements of s.15(1), but rather as an interpretive aid that clarifies and enhances the nature and purpose of the equality guarantee contained in s.15(1). Section 15 should be read as a whole, with parts that complement rather than contradict each other. Subsections 15(1) and 15(2) are both intended to ensure that substantive rather than merely formal equality is provided by the Charter. Underlying both subsections is a recognition that governments must take affirmative steps to remedy the effects of discrimination and ameliorate the conditions of disadvantaged groups, in order for substantive equality to be realized.

10. By proposing an analytical framework that would effectively insulate most ameliorative programs from scrutiny under s.15(1), the AGO and the Court of Appeal treat s.15(2) as an exemptive provision. Both the AGO and the Court of Appeal assert that a lesser standard of review of ameliorative programs is warranted based on the assumption that governments have no obligation to implement such programs in the first place and consequently require an incentive to do so, in the form of a promise of judicial deference. Central to this appeal, therefore, is the issue of whether the enactment of ameliorative programs is purely optional on the part of governments or whether it is an obligation that flows from constitutional imperatives.

11. CCPI submits that any approach to s.15(2) which presupposes that governments have no positive obligation to redress substantive inequalities is inconsistent with international legal norms. As discussed below, if the AGO's position were adopted by this Court, it would place Canada's domestic Charter equality jurisprudence in conflict with our international human rights obligations.

12. CCPI further submits that the AGO's position is contrary to domestic human rights and Charter jurisprudence. In particular, it is inimical to the remedial purpose of s.15 of the Charter. Although ostensibly designed to encourage the development of ameliorative programs, in reality, the AGO's approach to s.15(2) provides no incentive to governments to implement programs that ameliorate the conditions of disadvantaged individuals or groups. On the contrary, it invites judicial deference and acquiescence to government inaction and/or incremental action in the face of substantive inequalities that cry out for remedial measures.

13. If the AGO's approach to s.15(2) were adopted by this Court, this case would have catastrophic results for the equality rights of poor people. The AGO argues for limited judicial scrutiny under s.15(1) of government programs designed to ameliorate the conditions of disadvantaged groups. These include virtually all of the programs on which poor people rely for their well-being and survival, such as those that address social assistance, education, health, housing, and other basic needs. The AGO seeks to insulate these programs from discrimination claims made by disadvantaged as well as advantaged groups. The AGO not only asserts that governments are free to act or not to act in developing ameliorative programs, but also argues that governments should be permitted to discriminate against those who require such programs in ways that would be constitutionally unacceptable in any other type of program.

14. The AGO's approach to s.15(2) would give governments an unfettered right to discriminate against disadvantaged individuals or groups based on enumerated or analogous grounds in programs that have as their object the amelioration of disadvantage. If this approach were adopted, poor people (who frequently rely on ameliorative programs) would regularly be denied the full protection of s.15(1) of the Charter. They would effectively be deemed to have waived their constitutional equality rights in exchange for benefitting from government programs. Such an approach to s.15(2) reflects a pernicious and discriminatory attitude toward poor people, which holds that they ought to be grateful for the purported generosity of social assistance programs, rather than claiming entitlement to the benefit of such programs as a fundamental human right.

15. It is now well established in this Court's jurisprudence that s.15(1) of the Charter guarantees substantive and not merely formal equality.

16. Subsection 15(2) of the Charter reinforces the guarantee of substantive equality in s.15(1). As Gwen Brodsky and Shelagh Day have written, s.15(2) "indicates that the amelioration of disadvantage is central to the purpose of section 15, and that it is the conditions of disadvantage, not merely distinctions in the form of law, which the equality guarantee is intended to address."

17. Since its earliest rulings on s.15, this Court has consistently rejected a formal equality model, recognizing that identical treatment of different groups will sometimes produce serious inequality, and that differential treatment will not always result in inequality. In recent cases, this Court's articulation of the meaning of substantive equality has evolved beyond a rejection of the "same treatment" model of equality, toward an acknowledgment that positive measures addressing the specific needs of disadvantaged groups are not only acceptable, but are sometimes required under s.15 of the Charter.

18. For example, in Eldridge v. B.C. (A.G.), this Court held that, where sign language interpreters are necessary for effective communication in the delivery of medical services, the failure to provide them constitutes a violation of s.15(1) of the Charter. In that case, interpreter services had previously been funded by private sources, but the funding had ceased to exist. The provincial government was aware that the private funding had been cut, but took no steps to ensure the continuation of the interpreter services. In response to the applicants' Charter claim of discrimination, the government argued that it had no constitutional obligation to ameliorate disadvantage that it had neither created nor exacerbated (namely, disability due to deafness). This Court rejected that argument with the following remarks:

19. Similarly, in Vriend v. Alberta, this Court ruled that the Alberta legislature had violated s.15(1) of the Charter by failing to prohibit discrimination based on sexual orientation in its human rights legislation, thereby denying lesbians and gay men "the very protection they so urgently need because of the existence of discrimination against them in society." The provincial government had argued that it was not constitutionally required to adopt measures to redress discrimination that existed independently of any legislative action (namely, anti-lesbian and anti-gay discrimination in the public and private sectors). This Court rejected that argument, affirming that "substantive equality may be violated by legislative omission."

20. In both Eldridge and Vriend, the applicants formulated their Charter claim as an argument based on underinclusion. The issue was framed as whether the impugned governmental failure to act or legislative omission resulted in discrimination within the existing schemes for the provision of benefits and legislative protections. In both cases, this Court moved beyond the appellants' formulation to a more substantive approach to equality, which mandates positive government action to address disadvantage existing independently of the legislation in question. However, in both cases the necessary benefit/protection could be provided through the existing schemes and this Court concluded that it was not required to determine whether governments have a constitutional obligation under s.15 of the Charter to provide health services or legislative human rights protections in the first place.

21. Although the Appellants in the present case have framed their Charter argument as a claim of underinclusion -- they assert that their exclusion from the Casino Rama Project is discriminatory -- the Respondents' position on s.15(2) requires this Court to address the larger issue of whether s.15(1) of the Charter imposes positive obligations on governments, not only to extend existing programs that contain discriminatory excluding provisions, but also to develop ameliorative programs where a failure to take any initiative would result in substantive inequalities. The fundamental premise underlying the AGO's and Court of Appeal's approach to s.15(2) of the Charter is that governments have no constitutional obligation to adopt positive measures to remedy the effects of discrimination or ameliorate the conditions of disadvantaged groups. CCPI submits that this premise is erroneous and should be rejected by this Court.

22. The requirement under s.15(1) of the Charter to take positive steps to ameliorate conditions of disadvantage arises not only in the context of claims of discriminatory underinclusion by disadvantaged groups, but also in instances where substantive inequalities would otherwise result from a government's failure to take any (or adequate) affirmative steps to address the specific needs of disadvantaged groups. As outlined below, a purposive approach to s.15 of the Charter, domestic and international human rights jurisprudence, and s.36 of the Constitution Act, 1982, all support an interpretation of s.15 that recognizes governments' affirmative duty to adopt measures to ensure the realization of substantive equality.

23. This Court has consistently recognized, since its earliest Charter equality decisions, that s.15(1) has a "large remedial component". In Andrews v. Law Society of B.C., this Court ruled that the guarantee of equality in s.15 "entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration." The AGO's position, which presupposes that governments have no positive obligation to remedy the effects of discrimination or redress the conditions of disadvantaged groups, is inconsistent with the remedial purpose of s.15 of the Charter.

24. When interpreted in a manner consistent with the remedial purpose of the Charter's equality guarantee, s.15(2) underscores the principle that achieving substantive equality sometimes requires governments to take positive steps to ameliorate the conditions of disadvantaged groups. Justice Wilson recognized this point in Harrison v. University of B.C., where she stated that "the purpose of [s.15(2)] is to enshrine the notion of the viability, indeed the necessity, of measures designed to redress the drastic effects of discrimination."

25. As this Court recognized in Eldridge, the interpretation of s.15 of the Charter has been, and should continue to be, guided by established human rights jurisprudence.

26. Under human rights legislation, it is a settled principle that equality provisions give rise to positive obligations on the part of both governments and the private sector. Moreover, a de minimus standard for assessing the extent of these positive obligations has been rejected by this Court and affirmative measures with significant cost consequences have been required to remedy the effects of discrimination.

27. CCPI submits that s.15(1) of the Charter should not be construed more narrowly than the provisions of Canadian human rights statutes and should therefore be interpreted to impose positive obligations on governments to take the necessary measures to remedy substantive inequalities.

28. This Court has recognized the importance and utility of international human rights instruments in interpreting Charter guarantees. As Justice L'Heureux-Dube stated, writing for the majority in Baker v. Canada, international law is a "critical influence on the interpretation of the scope of the rights included in the Charter." Similarly, she remarked in R. v. Ewanchuk that "our Charter is the primary vehicle through which international human rights achieve a domestic effect."

29. Canada is a signatory to the International Covenant on Civil and Political Rights (the "ICCPR") and the International Covenant on Economic, Social and Cultural Rights (the "ICESCR"), both of which impose positive obligations on governments to take measures to ensure the equal enjoyment of social, economic, civil, and political rights.

30. As a party to the ICCPR, Canadian governments have an obligation to take affirmative measures to remedy substantive inequalities. The ICCPR establishes that "where not provided for by existing legislative or other measures", governments are obliged to "adopt such legislative or other measures as may be necessary to give effect to the rights" protected by the Covenant, including equality rights.

31. Similarly, by ratifying the ICESCR, Canadian governments have agreed as a matter of international law to take steps, applying the "maximum of available resources", to protect social and economic rights included in the ICESCR, and to ensure that disadvantaged individuals and groups benefit from the equal enjoyment of such rights without discrimination.

32. The U.N. Committee on Economic, Social and Cultural Rights, which monitors compliance with the ICESCR, has confirmed that the obligation to promote progressive realization of Covenant rights requires governments to do more than merely abstain from adopting measures that might have a negative impact on disadvantaged or vulnerable groups. The obligation of state parties to the ICESCR is to take positive action, to the maximum of available resources, to reduce systemic and structural inequalities, and to give appropriate preferential treatment to disadvantaged groups, where necessary, in order that they may achieve substantive equality.

33. International human rights instruments, such as the ICESCR and ICCPR, constitute an expression of a resolve by state parties to protect vulnerable groups, through legislation and other positive measures, from violations of their fundamental human rights. In international legal jurisprudence, it would be inconceivable to construe the scope of the rights contained in these Covenants in the absence of a recognition of the positive obligations on governments to provide for the needs of disadvantaged groups.

34. CCPI submits that s.15 of the Charter should be interpreted in a manner that is consistent with the positive obligations recognized by international legal norms. This Court has already acknowledged the appropriateness of using the content of Canada's international human rights obligations as indicia of the scope of Charter protections. As the former Chief Justice Dickson stated in Reference re Public Service Employee Relations Act (Alta.), "the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada ratified." Section 15 of the Charter should therefore be presumed to require governments to take positive steps to remedy substantive socio-economic inequalities and ensure the realization of fundamental human rights.

35. An interpretation of s.15 that recognizes a positive duty to address socio-economic disadvantage is required for compliance with Canada's obligations under international human rights law. As the U.N. Committee on Economic, Social and Cultural Rights stated in its General Comment on the Domestic Application of the ICESCR,

36. If this Court were to accept the fundamental premise underlying the AGO's approach to s.15(2) in this case, the Charter right to substantive equality would place no obligation on Canadian governments to address pressing human rights violations, such as those related to the Aboriginal peoples' unequal enjoyment of social and economic rights.

37. In their periodic reviews of Canada's compliance with international human rights Covenants, U.N. Committees have expressed serious concerns about the fact that lower courts in Canada have opted for interpretations of the Charter which relieve governments of any domestic legal obligation to meet their obligations under international law. For example, in its1993 evaluation of Canada's compliance with the ICESCR, the U.N. Committee on Economic, Social and Cultural Rights examined a number of lower court decisions dismissing social welfare related claims under the Charter. The Committee expressed concern about the judiciary's characterization of social and economic rights "as mere 'policy objectives' of governments rather than as fundamental human rights." With a view to ensuring greater compliance with the ICESCR, the Committee urged Canadian Courts to "adopt a broad and purposive approach to the interpretation of the Charter of Rights and Freedoms ... so as to provide effective remedies to violations of social and economic rights."

38. In its most recent review, the U.N. Committee on Economic, Social and Cultural Rights reiterated its deep concern

39. Similarly, in its most recent review of Canada's compliance with the ICCPR, the U.N. Human Rights Committee criticized the lack of effective remedies for human rights violations in Canada. The Committee expressed concerns about gaps between the protections afforded by the ICCPR and those available under the Canadian Charter and domestic human rights statutes.

40. As Justice L'Heureux-Dubé remarked in R. v. Ewanchuk, s.15 of the Charter (along with s.7) is an especially important vehicle to give domestic effect to international human rights because it embodies the notion of respect of human dignity. Yet, as U.N. Committees have repeatedly noted in their reports, lower courts in Canada have made little effort to achieve consistency between the ambit of s.15 and the nature of governments' positive obligations under international human rights law.

41. The most recent U.N. Committee report on Canada's compliance with the ICESCR did, however, include the following favourable comments on the implications of this Court's decisions in recent cases such as Eldridge and Vriend:

42. While this Court has been cautious to date about asserting the extent to which s.15 imposes positive obligations on governments in contexts other than those involving claims of "underinclusion", CCPI submits that international legal norms, as well as the direction of this Court's own equality jurisprudence, leads inexorably to the conclusion that it must.

43. Under s.36(1) of the Constitution Act, 1982, the federal Parliament and the provincial legislatures, together with the federal and provincial governments, are committed to"promoting equal opportunities for the well-being of Canadians; furthering economic development to reduce disparity in opportunities; and providing essential public services of reasonable quality to all Canadians."

44. Section 36 has repeatedly been cited by the government of Canada as proof of Canada's compliance with its international human rights obligations. As recently as October 1997, the commitments in s.36 were represented to the U.N. as being "particularly relevant in regard to Canada's international obligations for the protection of economic, social and cultural rights". In 1988, the Alberta Court of Appeal approved a submission by the government of Canada that the provisions of s.36 contemplate that both orders of government would, within their jurisdictional limits, create programming to ensure the provision of essential public services of reasonable quality to all Canadians, such as health care and social assistance.

45. CCPI submits that the constitutional obligations outlined in s.36 provide further support for an interpretation of s.15 of the Charter that includes the recognition of a positive duty on both orders of government to remedy substantive inequalities in Canadian society.

46. Governments' constitutional duty to take positive steps to ameliorate the conditions of disadvantaged groups is particularly pressing with respect to the impoverishment of Aboriginal peoples.

47. In its most recent evaluation of Canada's implementation of the ICCPR, the U.N. Human Rights Committee highlighted the discriminatory effect of poverty on certain disadvantaged groups in Canada, particularly Aboriginal groups. In its Concluding Observations, the Committee noted the Canadian government's acknowledgment that the impoverished situation of Aboriginal peoples constitutes "the most pressing human rights issue" in this country. The Committee recommended that "decisive and urgent action be taken towards the full implementation" of the recommendations of the RCAP.

48. Similarly, in its recent review of Canada's compliance with the ICESCR, the U.N. Committee on Economic, Social and Cultural Rights highlighted the disproportionate impact of social program cuts on disadvantaged groups and condemned the discriminatory nature of poverty in Canada. In particular, the Committee expressed concern about the "gross disparity between Aboriginal people and the majority of Canadians with respect to the enjoyment of Covenant rights" and condemned "the shortage of adequate housing, the endemic mass unemployment and the high rate of suicide, especially among youth, in the Aboriginal communities." Noting that "[t]here has been little or no progress in the alleviation of social and economic deprivation among Aboriginal people", the Committee implored Canadian governments "to take concrete and urgent steps" to remedy the disadvantaged conditions of Aboriginal communities and to implement the recommendations of the RCAP.

49. CCPI submits that this Court ought to affirm, in response to the AGO's position, that s.15 of the Charter places serious obligations on governments to address what the Government of Canada has itself acknowledged as the most pressing human rights issue in this country.

50. Based on all of the foregoing, CCPI submits that the fundamental premise underlying the AGO's approach to s.15(2) of the Charter - namely, that governments have no constitutional obligation to adopt positive measures to remedy substantive inequalities - is erroneous and should be rejected by this Court.

51. There is therefore no basis for the AGO's assertion and the Ontario Court of Appeal's ruling that ameliorative programs should be subject to lesser scrutiny under s.15(1). The argument that judicial deference to such programs should be exercised in order to encourage their implementation is fundamentally flawed in its failure to recognize that the implementation of such programs is required by constitutional imperative.

52. Moreover, s.15(2) of the Charter is not intended to limit judicial scrutiny of ameliorative programs under s.15(1). Rather, it is an interpretive aid that explains and enhances the guarantee of substantive equality in s.15(1). Its purpose is to clarify that government programs aimed at ameliorating the conditions of disadvantaged groups will not be vulnerable under s.15(1) to claims of "reverse discrimination" made by members of advantaged groups who seek to impose a formal model of equality.

53. The history of the enactment of s.15 supports this interpretation of s.15(2). It is uncontroverted that s.15(2) was included in the Charter to avert in Canada the debate over the legitimacy of affirmative action programs that has raged in the United States. As Justice McLachlin stated in R. v. Hess:

54a CCPI submits that the appropriate approach to s.15(2) is that which has been adopted by the Ontario Court of Appeal in its interpretation of s.14(1) of the Ontario Human Rights Code (the "Code"). Subsection 14(1) is the Code's counterpart to s.15(2) of the Charter. In Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (hereinafter "Roberts"), the Court of Appeal remarked that s.14(1) of the Code and s.15(2) of the Charter are "similar in spirit" insofar as they are both "aimed at protecting and promoting substantive equality". The Court also noted that both sections share the common history of having been enacted to protect affirmative action programs from the"reverse discrimination" claims.

55a In Roberts, a visually impaired 71-year-old man complained that he suffered discrimination on the basis of age because he was refused a visual aid by the provincial Ministry of Health's Assistive Devices Program ("ADP"), which provided devices to physically disabled persons under the age of 25 years. The Ministry argued that the ADP was exempt from challenge because it constituted a "special [affirmative action] program" protected by s.14(1) of the Code. The Court of Appeal rejected the Ministry's argument, ruling that the ADP and other affirmative action programs are subject to review under the Code when a person from a disadvantaged group makes a complaint of discrimination based on a prohibited ground. As Justice Weiler stated,

56a The Court of Appeal in Roberts adopted the following statement by Helena Orton on the relationship between ss.15(1) and 15(2) of the Charter as the correct approach to s.14(1) of the Code:

CCPI submits that this approach to s.15(2) of the Charter should be upheld by this Court.

57a CCPI submits that the proper approach to all Charter claims of discrimination is to analyze each claim in accordance with the existing framework developed by this Court in its equality jurisprudence under s.15(1). The position advanced by the AGO and adopted by the Court of Appeal is inappropriate because it would create a different framework for analyzing discrimination claims when they are made in respect of ameliorative programs, namely a framework that insulates most ameliorative programs from judicial review under s.15(1).

58a By proposing a separate and less rigorous framework for analyzing discrimination claims made in respect of ameliorative programs, both the AGO and the Court of Appeal effectively treat s.15(2) as an exception to the guarantee of substantive equality in s.15(1). According to the position advanced by the AGO and adopted by the Court of Appeal, the starting point for analyzing any s.15 challenge to an ameliorative program is s.15(2), rather than s.15(1). If a program is found to be "authorized" by s.15(2), then it is deemed to comply with s.15 and the analysis never proceeds to an assessment of the impugned provisions of the program under s.15(1). This approach is intended to exempt, and effectively exempts, most ameliorative programs from review under s.15(1).

59a CCPI submits that the AGO's approach is inconsistent with well-established human rights and Charter principles on the meaning of substantive equality. In particular, under the proposed s.15(2) test, government programs could be deemed to comply with s.15 on the basis of their ameliorative purposes, notwithstanding their provisions have discriminatory effects on disadvantaged groups based on enumerated or analogous grounds. Contrary to the AGO's submission that a "purpose-based approach is an integral feature of constitutional practice" (paragraph 77 of the AGO's factum), the AGO's focus on the purpose of an impugned program is contrary to settled Charter and human rights jurisprudence, which requires courts to consider the discriminatory effects of a program or provision, even if the program has a valid objective, in order to determine whether equality rights have been violated. Since its earliest rulings in s.15 cases, this Court has consistently maintained that the primary consideration in any equality analysis must be, not the purpose, but rather the impact of an impugned program or law on the individual or group concerned.

60a The AGO asserts that a deferential approach to ameliorative programs under s.15(2) is warranted because governments will be disinclined to develop such programs if they believe that courts are likely to order them to extend the benefits of their programs to a larger pool of recipients. In support of this assertion, the AGO argues that governments operate within fiscal constraints, must reconcile competing claims for limited resources, and cannot feasibly remedy all socio-economic inequalities at once, or adequately respond to the unique needs of different disadvantaged groups within a single program. CCPI submits that it is inappropriate to consider the AGO's plea for judicial deference based on these considerations at the s.15 stage of analysis.

61a By asserting the need to reconcile competing claims for limited government resources as a basis for judicial deference under s.15(2), the AGO is seeking to introduce justificatory factors into the s.15 analysis, which this Court has consistently ruled should not be given consideration, except at the s.1 stage of analysis.

62a The AGO's approach to s.15(2) effectively circumvents s.1 of the Charter, which requires evidence on a balance of probabilities that a discriminatory provision in an impugned program constitutes a reasonable and justifiable limit on equality rights. Arguments about the relative disadvantage of different groups and the need to balance competing interests can be made by the government in defence of an underinclusive ameliorative program, but they must satisfy the requirements of s.1 in order for the program to withstand constitutional scrutiny. In other words, the government must demonstrate, inter alia, that the exclusion of the claimant group from the benefits of the impugned program constitutes a rational and minimally intrusive means of implementing a pressing and substantial objective.

63a Moreover, arguments about fiscal restraint are not appropriate considerations in determining whether an ameliorative program contains discriminatory provisions that violate s.15 of the Charter. Cost factors should only be considered, if at all, in the context of deciding remedial issues in the event that a constitutional violation is found.

64a As Justice Cory stated, on behalf of a unanimous Court in Vriend, the deference that may be due to legislative or governmental choices

65a CCPI is not suggesting that the needs of every disadvantaged group must be simultaneously addressed in comprehensive affirmative action programs, nor that every instance of underinclusion in an affirmative action program is necessarily discriminatory and in breach of s.15(1). Substantive equality often requires that disadvantaged groups be treated differently, not only from advantaged groups, but also from other disadvantaged groups, in accordance with their respective unique needs and circumstances. Consequently, many distinctions drawn by provisions in ameliorative programs will not violate the Charter's equality guarantee. Distinctions based on enumerated or analogous grounds should not, however, be subject to a lesser standard of scrutiny under s.15(1) simply because they arise in the context of government programs that have ameliorative purposes.

66a Although governments may not have an obligation to include all disadvantaged groups in every ameliorative program, they are required, under s.15 of the Charter, to adopt positive measures to address the substantive equality issues of those who are excluded, and to do so in ways that respect the dignity of all who rely on such measures. In the context of this appeal, the government of Ontario has a constitutional obligation to take affirmative measures to address the needs of Metis and non-status Aboriginal groups.

67a The parties' dispute about the relative disadvantage of status and non-status Aboriginal groups obscures the important facts that Aboriginal communities generally are impoverished in Canada and that governments have not fulfilled their duty under s.15(1) of the Charter to take adequate steps to remedy this disadvantage. Section 15 requires, at minimum, that the equal enjoyment of rights afforded by international human rights covenants be realized and protected. Thus the social and economic disadvantage of Metis and non-status Aboriginal groups in Canada constitutes a violation of s.15 of the Charter, quite apart from their exclusion from the Casino Rama project.

68a CCPI submits that the fundamental equality issue in this case is not the disparities between Indian bands on the one hand, and Metis and non-status Aboriginal groups on the other, but rather the socio-economic disadvantage suffered by all Aboriginal peoples in relation to society at large. It is the latter inequality that places obligations on all levels of government to act. CCPI submits that, in the first case in which this Court is being asked to address the poverty of Aboriginal people within the context of the s.15 Charter guarantee, the Court ought to place at the centre of its analysis governments' obligations to redress the social and economic disadvantage of all Aboriginal communities, as this remains one of the most disturbing and irrefutable violations of the right to substantive equality in Canada.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

Cases Page Numbers

R. v. Oakes, [1986] 1 S.C.R. 103 19

Ref. Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 8, 10

Canadian National Railway v. Canada (C.H.R.C.), [1987] 1 S.C.R. 1114 8

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 4, 7, 18

Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 8, 10

R. v . Hess, [1990] 2 S.C.R. 906 15

Harrison v. University of B.C., [1990] 3 S.C.R. 451 7

R. v. Keegstra, [1990] 3 S.C.R. 697 8

Schachter v. Canada, [1992] 2 S.C.R. 679 19

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 8

Miron v. Trudel, [1995] 2 S.C.R. 418 18

RJR MacDonald v. Canada (A.G.), [1995] 3 S.C.R. 199 19

Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624 4, 5, 7, 18

Vriend v. Alberta, [1998] 1 S.C.R. 493 4, 5, 19

R. v. Ewanchuk (25 February 1999, SCC doc.26493) 8, 12

Law v. Canada (25 March 1999, SCC doc.25374) 4, 18

Baker v. Canada (9 July 1999, SCC doc.25823) 8

(1988), 53 D.L.R. (4th) 413 (Alta.C.A.) leave to appeal to SCC

denied (1989), 55 D.L.R. (4th) viii 13

(1994), 21 C.H.R.R. (Ont.C.A.) 16, 17

Rosenberg v. Canada (A.G.) (1998), 38 O.R. (3d) 578 (C.A.) 19

Quesnel v. London Educational Health Centre,

(1995) 28 C.H.R.R. D/474 (Ont.Bd.Inq.) 8

(1986), 7 C.H.R.R. D/3546 (B.C.C.H.R.) 8

Walter Tarnopolsky, "The Equality Rights

in the Canadian Charter of Rights and Freedoms"

(1983) 61 The Canadian Bar Review 242 15

Gwen Brodsky and Shelagh Day, Canadian Charter Equality Rights

(Canadian Advisory Council on the Status of Women, 1989) 4, 15

Dianne Pothier, "Charter Challenges to Underinclusive Legislation:

The Complexities of the Sins of Omission" (1993), 19 Queens Law Journal 261 15

Bruce Porter, "Beyond Andrews: Substantive Equality

and Positive Obligations after Eldridge and Vriend"

(1998) 9:3 Constitutional Forum 71 6, 9

Report of the Royal Commission on Aboriginal Peoples 1

U.N. Committee on Economic, Social and Cultural Rights,

Consideration of Reports: Canada, 8th Sess., 5th & 6th Mtg., E/C.12/1993/19 (1993) 11

U.N. Committee on Economic, Social and Cultural Rights,

Concluding Observations (Canada), E/C.12/1993/5 (1993) 11

U.N. Committee on Economic, Social and Cultural Rights,

General Comment No. 5, 11th Sess., 38th Mtg., E/C.12/1994/13 (1994) 9

U.N. Committee on Economic, Social and Cultural Rights,

General Comment No. 9, 19^th Sess., E/C.12/1998/24 (1998) 10

U.N. Committee on Economic, Social and Cultural Rights,

Concluding Observations (Canada),

10 December 1998, E/C.12/1/Add.31 (1998) 9, 11, 12, 14

U.N. Human Rights Committee, Concluding Observations (Canada),

7 April 1999, CCPR/C/79/Add.105 (1999) 11, 13

(Canada, October 1997), HRI/CORE/1/Add.91 13

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