Week 10 – March 10, 2014
Charter Affirmative Action Lecture & Cunningham Case
The obsession with being number one or two doesn’t translate to anything else especially further down the line. By understanding this and by relying on
systems for predicting who will do well really doesn’t give diverse groups of people and causes discrimination. The difficulty with relying on this is that you
are really keeping people out that should be in and they are out for extraneous reasons.
There is the issue of historical discrimination that aboriginal experience and its used as an excuse to as to why people are assisting them. Aboriginal
people face contemporary discrimination as well as coloured people they aren’t facing historic discrimination anymore they are still being discriminated
against in every day society. They have a preexisting disadvantage that affects today’s society and causes contemporary discrimination.
This is not to say that there is not criticism of affirmative action because there is. There are problems with affirmative action programs such as
determining who is going to get preference over another group.
Ex. As a society we have myths about ourselves and think we are a good society but the biggest indicator that people will have challenges in their life is
due to income. If you are born poor your outcomes are much less likely going to be good. Being born poor which has nothing to do with the person you
are leads to worse outcomes with health, education etc. income is a large predictor of disadvantage and very few affirmative action programs focus on
income and class issues.
How you define people is also a challenge. Ex. In the US some affirmative action programs give preference to latino and Spanish origin but the issue is
who is a latino? Are you latino if you are born in L.A from Spanish decendants? If your dad or mom are Spanish? How you define people is a challenge.
The other problem or problem with affirmative action is that there is an element of it that skims off the top. There are 6 different places for aboriginal
students programs but the reality of there disadvantages is that their outcomes after being educated and graduating are worse because people wont hire
them. These affirmative action programs tend to help the people that are at the top of the affirmative action programs that have access to it and tend to
it’s a good argument to say that whatever people get into these programs is good because it helps and makes them a role model but its also a critique.
Another thing about these programs is that there is an assumption that we live in this meritocracy where the best always gets in and there are reserved
places for the people who need help. Ex. Backie case where Man wanted to go to medical school but couldn’t get in b/c they needed to let in
black/Spanish people even though they were less qualified then him. In reality the school he was going to had other ways of getting in such as parents
donating money to the school but needed to make sure there was a diverse demographic in the school.
its important to look at these things because when looking at case law we need to know whats really going on.
Decisions about affirmative action or s.15(2) of the charter are common b/c if someone is perceived to get a benefit from the government there are
people who think they should receive a benefit as well and have been deprived. It is very often to see charter challenges to benefit programs given by the
When the charter was enacted equality rights section had to parts 15.1 and 15.2 which says that 15.1 does not preclude any law program or activity that
has its objective to ameliorate or disadvantage an individual or group …… this created the feeling that this law was put in by the government to deal with
the Backie case, to deal with the Angry White Men of the world and prevent them from arguing and challenging not to benefit other groups. This is the
myth of the idea behind the reason of s.15.2.
The government wants to implement affirmative action programs and make them able to be challenged under the charter.
There are 3 leading cases on what s.15.2 means and all involve aboriginal people.
Case 1 Lovelace
Casino Rama is located on the Rama first nation and when the provincial government was establishing casinos they made an arrangement with the
people at Rama because they wanted to put a casino on aboriginal land that the funds from the casino would go to the provincial government and to
Rama and other first nations in the province.
There was a challenge under s.15 brought by other aboriginal groups that were not first nations and the government recognizes certain groups that are
first nations and other groups that are not. And this other group thought they were being discriminated against because they were not considered the right
type of aboriginal to receive casino profits. This case went to the SCC and they said that s.15(2) is not an exception to s.15. people often read s.15(2) and assume its okay to discriminate people on
those basises. The court said that affirmative action is not an exception to equality and it is necessary part to achieve equality. If you bring a challenge to
a benefit program you cant see if it is saved under s.15.1.
If the government can show that the purpose of the program is to advantage people that are disadvantaged there is no discrimination or violation of the
First point – its not a case of who is the most disadvantaged the government can choose to help whichever group they need to and there are reasons for
helping particular groups and just because they don’t help all groups is not a violation of s.15.They said that First nations is a certain way in which
aboriginal people organize themselves, these other group are aboriginals but they don’t organize themselves as first nations and its legitimate for the
government to say they want to benefit aboriginal people even if its a certain group and not all of them.
Case 2 R v. Kapp
Case in British Columbia that allows aboriginal fishers early access to the fisheries in order to help them in their business and help them get going. The
government program to benefit aboriginal fishers was challenged by other fishers that wanted access to the fish and claimed discrimination that the
government is giving preference to aboriginals over them and its discrimination under s.15.
First point from SCC: as they had said before in the Andrews case not all distinctions are discriminatory. Governments make distinctions all the time and
making one doesn’t mean it is discriminatory.
S.15(2) exists to protect remedial programs that are there to remedy a problem that assist disadvantaged groups. What 15.(2) does is if the program is
aiding a disadvantaged group and meets criteria under s.15(2) then that trumps any 15.1 claim. All the government has to show that this an ameliorate
program that benefits a disadvantaged group and it is never a violation of discrimination under the charter and cant be saved under a s.15.1 claim.
Interestingly and importantly what the court said in Kapp is that the focus is on the purpose of the legislation and not on the effect. You don’t need to
show that the program actually works just have to show that the government is trying to remedy the situation. If you think back to freedom of speech the
government said it can be violated by the purpose and the effect to detect discrimination but in s.15(2) its about the effect and not the purpose or if the
programs are working. This is basically because its about benefit programs and the court doesn’t want to make actions that might hinder these programs
and future programs.
if the government gives benefits to an disadvantaged group and another group complains it doesn’t mean they are discriminating and the court cant