Section 15 of the Charter in the Affirmative Action Context

• Author: Lori Sterling
• Profession: Ministry of the Attorney General
• Pages: 423-440

Section

15 of the

Cha

rter

in the

Affirmative

Action Context

Lori

Sterling*

A.

INTRODUCTION

On

June

20,

2000,

the

Supreme Court

of

Canada rendered

its

decision

in

Lovelace

v.

Ontario.1

The

facts

of

this

case were that

the

government

had

reached

an

agreement with bands under

the

Indian

Act to

provide

a

licence

for a

commercial casino, with

the net

profits being distributed

amongst

all

bands

in

Ontario.

No

other disadvantaged groups were

entitled

to the

proceeds

of the

casino.

After

three years

of

negotiations

between

the

chiefs

of

Ontario,

who

represented

the

bands,

and the

gov-

ernment

of

Ontario,

the

casino

was

constructed

on a

reserve near Orillia

and was

called Casino

Rama.

Just

before

the

opening

of

Casino

Rama,

however, several Metis

and

non-status Indians groups brought

a

legal

challenge

alleging that

the

project

violated their right

to

equal treatment

under

section

15(1)

of the

Charter.

The

government

and the

chiefs

of

Ontario responded

by

arguing

that

the

Casino Rama project

did not

violate section 15(1) because

it is a

program

intended

to

ameliorate

the

condition

of a

disadvantaged group

Counsel,

Attorney General

of

Ontario.

The

opinions expressed

in

this paper

are

those

of the

author alone

and do not

represent

the

views

of the

govern-

ment

of

Ontario.

(1997),

33

O.K.

(3d)

735

(C.A..)

and

[2000]

1

S.C.R.

990

[hereinafter

Lovelace].

The

author acted

as

counsel

for the

respondent, Ontario.

423

*

1

424

Lori Sterling

under section 15(2)

of the

Charter.

Alternatively,

it was

argued that

the

project

was

justified

under section

1 of the

Charter.

The

Supreme Court

of

Canada upheld

the

Casino Rama project

on the

basis that

it did not

violate section 15(1)

of the

Charter.

This

was the

first

case

to

reach

the

Supreme Court

of

Canada involv-

ing

section 15(2)

of the

Charter.

Section 15(2) states:

Subsection 15(1) does

not

preclude

any

law, program

or

activity that

has as its

object

the

amelioration

of

conditions

of

disadvantaged indi-

viduals

or

groups including those that

are

disadvantaged because

of

race,

national

or

ethnic origin,

colour,

religion, sex,

age or

mental

or

physical disability.

In its

decision,

the

Supreme Court

of

Canada

had to

grapple with

diffi-

cult

questions such

as: how

does section 15(2)

fit

with section 15(1)

and

section

1 of the

Charter?

What kinds

of

affirmative

action programs does

section

15

protect? Should there

be

judicial deference toward these pro-

grams because

of

their ameliorative purpose?

The

purpose

of

this paper

is to

canvass

the

different

approaches

to

section 15(2) that were open

to the

Supreme Court

of

Canada

in

Lovelace

and to

then analyse

the

approach

it

adopted.

In

particular,

it is

suggest-

ed

that

while

the

Court refused

to

acknowledge

that

it was

amending

the

section 15(1) test

for

ameliorative, targeted programs,

in

fact,

it

did.

The

result

is a

test

for

affirmative

action programs that builds upon

the

pre-existing section 15(1) jurisprudence

and

that,

in its

practical appli-

cation, makes

it

easier

for a

government

to

implement

an

affirmative

action program.

B.

THE

PURPOSE

OF

SECTION 15(2)

OF

THE

CHARTER

Both

the

Ontario Court

of

Appeal

and the

Supreme Court

of

Canada

extensively

reviewed

the

legislative history

of

section 15(2)

of the

Charter.

Not

surprisingly, these courts concluded that section 15(2)

was

intended

to

prevent

the

results

of the

U.S. Supreme Court decision

in

University

of

California

v.

Bakke.2

In

that case,

the

U.S. Sup

reme Court

The

American

approach

is

discussed

in the

following cases:

University

of

California

v.

Bakke,

98 S. Ct.

2733

(1978) [hereinafter

Bakke];

Richmond

(City)

v.

J.A.

Croson

Co.,

109 S. Ct. 706 at

721-722

(1989);

Shaw

v.

Reno,

113 S. Ct.

2816

at

2