Transposing Tranchemontagne into the Charter Context: Section 15(2)
Nearly two weeks ago, the Ontario Court of Appeal (“ONCA”) heard arguments in the controversial and much-anticipated case Director, Ontario Disability Support Program v Tranchemontagne (2009), 95 OR (3d) 327. The appeal revolves around two acknowledged alcoholics, disabled by their disease, who seek to receive income support under the Ontario Disability Support Program Act, 1997, SO 1997, c 25, Sched B [ODSPA], but who are precluded from these benefits because substance abuse is their sole impairment to ordinary functioning. The question before the court is whether this “sole impairment” distinction is discriminatory contrary to s. 1 of the Ontario Human Rights Code, RSO 1990, c H.19. The Divisional Court answered in the affirmative with very compelling reasons, and ultimately we do not expect the Court of Appeal to overturn this finding.
If nothing but to “vary the phrase” of legal argument and interest those critics (including ourselves) who are more familiar with equality jurisprudence under the Canadian Charter than the Ontario Code, this post will transpose all relevant facts and issues into the constitutional context. Doing so, we would find that the ODSPA’s “sole impairment” distinction does not run afoul of the Charter’s equality guarantee because it plays a part in a broader income support scheme which serves an “ameliorative purpose,” thus engaging s. 15(2) protection.
As such, we hope that this post may also help foster discussion about the Supreme Court of Canada’s (“SCC”) recently revised 15(2) test, as the section was relatively unexplored by the courts in the years leading to R v Kapp,  2 SCR 483 [Kapp] – a case which has arguably emboldened Charter protection of ameliorative programs.
Relevant Facts and Issues
The individual respondents in this case had a long history of chronic substance abuse. Although neither suffered from any different or concurrent disabilities, both applied independently for income support benefits under the ODSPA. Both were deemed ineligible to receive support under s. 5(2) of the Act, which precludes members of the sole impairment group from receiving benefits incurred to persons with substantially debilitating and continuous disabilities as defined in s. 4. The respondents now challenge the constitutionality of s. 5(2) on the basis that it violates their s. 15 right to equal benefit of the law without discrimination, based on the enumerated ground of “disability.”
Section 15 of the Canadian Charter of Rights and Freedoms
The Charter is a purposive document designed to protect individual rights and freedoms. In the foundational case Andrews v. Law Society of British Columbia,  1 SCR 143, the SCC identified the purpose of the equality right guaranteed by s. 15 of the Charter as furthering the goals of substantive equality, which entails:
[t]he 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.
Applications of s. 15, thus, in seeking to defend an ameliorative program under 15(2) or charge of discrimination under 15(1) must have their goal the achievement of substantive equality.
Analysis under Section 15(2)
In Kapp, the Supreme Court held it may be unnecessary to conduct a s. 15(1) analysis where the government can demonstrate that an impugned program meets the criteria of s. 15(2). Under the revised approach to s. 15 proposed in Kapp, s. 15(1) and s. 15(2) are interpreted harmoniously as working together to promote substantive equality. At paragraph 28, the court explains that:
[n]ot every distinction is discriminatory. By their very nature, programs designed to ameliorate the disadvantage of one group will inevitably exclude individuals from other groups. This does not necessarily make them…unconstitutional.
The purpose of s. 15(2) is to enable governments to proactively combat discrimination through ameliorative programs. Accordingly, we would argue that the ODSPA creates a program designed to ameliorate the unique challenges faced by persons with disabilities caught within the ambit of the Act.
According to Kapp,
[w]here a program makes a distinction on one of the grounds enumerated under s. 15 or an analogous ground but has as it object the amelioration of the conditions of a disadvantaged group, s. 15’s guarantee of substantive equality is furthered, and the claim for discrimination must fail.
Section 15(2) operates to protect government programs providing affirmative benefits to historically marginalized groups. Specifically, the section contemplates:
any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups. [Emphasis added]
The Supreme Court in Kapp explored the meaning of three key terms in the provision — “has as its object,” “amelioration,” and “disadvantaged” — to establish a framework to guide future courts (and blogs) in their interpretation and application of s. 15(2).
Objective of the Impugned Program
The first consideration in the Kapp framework is an evaluation of the impugned government program’s objective. The Supreme Court rejected an effects-based approach to evaluating legislation, instead adopting a “subjective” purpose-based approach which focuses on the program’s goals as identified by the government. In doing so, the court reserves the ability to determine whether an identified purpose is genuine.
The first step in the analysis is to determine the greater purpose of the ODSPA and its relation to s. 5(2). The plain text of s. 1 of the ODSPA reveals that its purpose is to provide income and employment supports to eligible persons with disabilities who need assistance, with eligibility being conditional on meeting a number of requirements.
The most relevant to this appeal is that persons must qualify as “disabled” under s. 4, which requires that they experience continuous or recurrent impairment which has the direct and cumulative effect of impeding their ability to attend to their personal care, function in the community, or function in the workplace. Section 5(2) makes clear that members of the sole impairment group are ineligible for such support. By expressly referencing the eligibility restrictions in its legislated objective, the statute effectually circumscribes the scope of the benefit it intends to confer to persons identified as experiencing specific disadvantage and needing specific support.
While s. 5(2) does draw a distinction based on the unique nature of the respondents’ disability, this distinction is necessary to create a program which supports only those persons with disabilities sharing key features such that they may be grouped together under the umbrella of the ODSPA. These features are related to the program’s purpose of serving eligible persons with disabilities who need assistance. Persons whose sole impairment is the unauthorized use of chemically-altering substances do not share these features; accordingly, they are prevented from accessing the legislation to enable the state to create an effective income support regime for persons with disabilities identified as needing assistance. In short, the two groups’ “disability-difference” justifies the program’s ameliorative focus on eligible persons alone.
Substance addiction differs from other disabilities in a number of ways relevant to the objective of the ODSPA. For example, an expert testified at trial that eligible different and concurrent disorders are either untreatable or require a longer period of time to concentrate on treatment and recovery than substance abuse alone. Further, unlike many disabilities covered by the ODSPA, successful recovery from substance abuse depends on the commitment of the individual.
Human rights tribunals have gone so far to say that while chemically dependent people do not choose to become dependent, they may choose to behave in a manner which maintains their problems and they have the capacity to make different choices. Even those persons whom some studies suggest may have a genetic predisposition to alcoholism cannot be absolved of responsibility: predispositions are not determinative and histories of how addiction came about nearly always include some element of autonomy in determining their condition. The unique relationship between addicts and addiction has led some to characterize substance abuse as a “voluntary” disability. To this effect, the Federal Court of Justice held in Canada (Attorney General) v. Wasylka, 2004 FCA 219, that:
[t]he consumption of drugs by the respondent, even though attractive or irresistible, was voluntary in the sense that his acts were conscious and he was aware of the effects of that consumption and the consequences that could or would result.
Courts made similar findings in Canada (Attorney General) v Langlois, 2008 FCA 18, Canada (Attorney General) v Pearson, 2006 FCA 199, and Mishibinijima v. Canada (Attorney General), 2007 FCA 36. This element of voluntariness distinguishes substance abuse from other disabilities covered by the statute, the durations of which are not as readily attributable to willful choice but rather result from physiological factors out of persons’ control.
While addiction may be a chronic condition in some respects, the debilitating effects of the disease — that is, those effects which interfere with the respondents’ ability to work, function in society, or attend to their personal care — are necessarily temporary in nature. Indeed, an expert also testified that, not only are seventy percent of persons with substance dependence already employed, but that “all of them are capable of employment.”
The ODSPA was designed to create a program that caters to specific needs, capacities, and circumstances of persons suffering from involuntary and continuously debilitating disabilities. If members of the sole impairment group were not excluded from the legislation, it is doubtful that the government would be able to design an effective program for the amelioration of both groups’ disadvantages. These diverge on key features relating to employability, the nature of their impairment, and the appropriateness of different supports. As all these factors are key issues which the ODSPA is designed to address, we would argue the government’s goal in precluding substance abusers from accessing the ODSPA was to group together persons with disabilities which are conceptually aligned for the purposes of the support program, so as to more effectively cater to the unique needs of these group members.
Finally, Kapp states that courts must ask whether it was rational for the state to conclude that the means chosen to reach its ameliorative goal would contribute to achieving the legislation’s objective. As previously noted, this objective is defined subjectively by the government in s. 1 of the ODSPA. It encompasses two fundamental objectives: (i) to provide assistance to those in need, and (ii) to provide such assistance in an effective manner.
As previously discussed, members of the sole impairment group may be distinguished from persons with other or concurrent impairments because of their relative advantage in terms of self-sufficiency and employability. Precluding their access to income support under the ODSPA helps the government accomplish its objective of providing support to persons in need. Moreover, the distinction created by s. 5(2) allows the government to better ameliorate the conditions of those persons with disabilities found eligible for income support, thus advancing the government’s objective of providing assistance in an effective manner.
The next step in the 15(2) analysis is determining whether the impugned legislation serves an ameliorative purpose. This is a straightforward question in the case at bar. The ODSPA is designed to ameliorate the relative financial hardship suffered by eligible persons with disabilities by providing income support. Persons qualifying for relief are all substantially impaired and generally unable to function in an occupational capacity. The ODSPA responds by providing those who qualify for assistance with continuous and potentially long-term income support.
Appreciating that individuals who qualify for such support are generally unemployable because of an involuntary incapacity, the program also offers employment supports on a voluntary basis. In this way, the ODSPA establishes a comprehensive support program for persons with severe disabilities, intending to ameliorate the unique challenges flowing from their inability to find or maintain gainful employment.
The Supreme Court in Kapp only asks that we consider the ameliorative effect of a legislative distinction on the disadvantaged group targeted by a program. However, since the impugned distinction in the ODSPA is made between two groups, both of which experience disadvantage in different ways, it may be instructive to consider the distinction’s ameliorative effect on members of the sole impairment group. We would argue that the distinction created by s. 5(2) of the ODSPA has the additional effect of ameliorating the specific conditions experienced by members of the sole impairment group. The indirect effect of s. 5(2)’s exclusion is to situate members of the sole impairment group facing a period of unemployment within the province of the Ontario Works Act, 1997, SO 1997, c 25, Sched A [OWA].
Recalling that substance dependency has a unique voluntary aspect which does not preclude members of the sole impairment group from entering the workforce, the OWA may provide an alternative support program attuned to their unique abilities. The OWA is specifically designed to encourage and empower recipients to find jobs by mandating participation in employment assistance activities and providing financial support in the interim. Incidentally, then, s. 5(2) may also have the effect of ameliorating the disadvantage of a group ineligible to qualify for OSDPA benefits – persons with sole impairment – by directing them into a more suitable program.
The final stage of the s. 15(2) enquiry requires that a government program seek to remediate “disadvantage”, connoting vulnerability, prejudice, and negative social characterization, suffered by a specific and identifiable group. Our understanding of s. 4 is that the ODSPA exclusively targets persons with severe disabilities who are unable to function at a personal, social, or occupational level. Such a program cannot be characterized as broad societal legislation (such as a welfare assistance program) which casts its net so widely as to exceed the ambit of s. 15(2). Rather, persons with severe disabilities suffer historical and continuing marginalization with respect to employability, social status, ability to function, and daily quality of life to an extent that such treatment constitutes disadvantage in Canadian society.
Unlike persons eligible for income support under the ODSPA, persons with substance dependency are capable of voluntary recovery as well as subsequent employment and self-sufficiency. For this reason, and with great respect that members of the sole impairment group suffer from historic and continuing disadvantage, they are less disadvantaged than eligible ODSP recipients with regards to the specific purposes of the ODSPA. The Supreme Court’s following comments in Law v Canada (Minister of Employment and Immigration),  1 SCR 497, are instructive on this point:
An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. I emphasize that this factor will likely only be relevant where the person or group that is excluded from the scope of ameliorative legislation or other state action is more advantaged in a relative sense.
The abundance of reliable evidence in this case supports the classification of members in the sole impairment group as “more advantaged” than persons with disabilities eligible to receive income support under the ODSPA. It remains the legislature’s prerogative to classify individuals and groups, and then confer benefits respecting such groups following an assessment of legitimate need based on actual (and not attributed) characteristics. This furthers the goal of substantive equality articulated in Andrews and reinforced in Kapp that recognizing different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it.
At stake in this case is the ability of the legislature to implement social programs redressing the actual needs, capacities, and circumstances of identified constituents, in full respect of the Charter’s equality guarantee.
We would find that the ODSPA was designed to create a program tailored to the unique condition of eligible persons suffering from involuntary and continuously debilitating disabilities, which impair their ability to maintain employment and achieve self-sufficiency. Members of the sole impairment group, whose sole affliction is the abuse of chemically-altering substances, are distinct from these eligible persons because their condition contains a voluntary aspect and is not similarly restrictive of their functioning. The impugned income support provisions which delimit the application of the program to persons with different or concurrent disabilities thus reflect a legitimate policy decision to ameliorate these persons’ relative disadvantage and are accorded protection under s. 15(2) of the Charter.
In a companion piece that will be published on April 6th, we shall assume the opposite position on this issue (that s. 15(2) of the Charter does not protect the “sole impairment” exception) so as to then consider arguments about whether the impugned provision would thus run afoul of every individual’s s. 15(1) right to equal benefit of the law.
While the relevant constitutional tests may not be the easiest to understand or apply in this case, we hope that these articles on controversial and relatively accessible subject matter — substance abuse, disability, entitlement to support payments, etc. — might engage readers, prompt critical thought about these issues, and encourage the development (and sharing) of views on the (un?)constitutionality of the ODSPA.