Lovelace Case Factum

Court File No. 26165

SUPREME COURT OF CANADA
(Appeal from the Ontario Court of Appeal)

BETWEEN:

ROBERT LOVELACE, on his own behalf and
On behalf of the Ardoch Algonquin First Nation and Allies,
the ARDOCH ALGONQUIN FIRST NATION AND ALLIES, and
CHIEF KRIS NAHRGANG, on behalf of the Kawartha Nishnawbe First Nation
The KAWARTHA NISHNAWBE FIRST NATIONAL,
CHIEF ROY MEANISS on his own behalf and on behalf of the
Beaverhouse First Nation, and the BEAVERHOUSE FIRST NATION,
CHIEF THERON MCCRADY on his own behalf and on behalf of
the Poplar Point Ojibway First Nation, the POPLAR POINT OJIBWAY FIRST
NATION, and the BONNECHERE METIS ASSOCIATION &
BE-WAB-BON METIS AND NON-STATUS INDIAN ASSOCIATION
and ONTARIO METIS ABORIGINAL ASSOCIATION

Appellants
(Applicants)

- And -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
And THE CHIEFS OF ONTARIO

Respondents
(Respondents)

---

FACTUM OF THE INTERVENER
THE COUNCIL OF CANADIANS WITH DISABILITIES

---

DAVID BAKER
Barrister and Solicitor
7 Braemore Gardens
Toronto, ON
M6G 2C7

TEL: (416) 653-2405

Counsel for the Intervener
The Council of Canadians
With Disabilities

GOWLING STRATHY & HENDERSON
Barristers and Solicitors
2600-160 Elgin Street
P.O. Box 466, Stn. D
Ottawa, ON K1P 1C7

TEL: (613) 233-1781
FAX: (613) 563-9869

BRIAN A. CRANE
Ottawa Agents for the Intervener
The Council of Canadians
With Disabilities

TO:

CHRISTOPHER REID
Barrister and Solicitor
41 Unity Road
Toronto, ON
M4J 4A3

TEL: (416) 466-9928
FAX: (416) 466-1852

Counsel for the Appellants
Lovelace et al.

DOWLING, STRATHY & HENDERSON
Barristers and Solicitors
2600 — 160 Elgin Street
Ottawa, ON
K1P 1C3

Eduard Van Bemmel
TEL: (613) 233-1781
FAX: (613) 563-9869

Ottawa Agents for the Appellants

AND TO:

SARLO O'NEILL
Barristers and Solicitors
116 Spring Street
Sault Ste. Marie, ON
P6A 3A1

Robert MacRae
Michael S. O'Neill
Colleen Sheppard
Kent Roach

TEL: (705) 949-6901
FAX: (705) 949-0618

Counsel for the Appellants
Be-Wab-Bon Métis and Non-
Status Indian Association et al.

GOWLING, STRATHY & HENDERSON
Barristers and Solicitors
2600 — 160 Elgin Street
Ottawa, ON
K1P 1C3

Eduard Van Bemmel
TEL: (613) 233-1781
FAX: (613) 563-9869

Ottawa Agents for the Appellants

AND TO:

MINISTRY OF THE ATTORNEY GENERAL
Constitutional Law Branch
720 Bay Street, 7th Floor
Toronto, ON
M5G 2K1

Lori Sterling
Sara Kraicer

Counsel for the Respondent
Her Majesty the Queen in
Right of Ontario

BURKE-ROBERTSON
Barristers and Solicitors
70 Glouster Street
Ottawa, ON
K2P 1A2

TEL: (613) 236-9665
FAX: (613) 235-4430

Ottawa Agents for the Respondents
Her Majesty the Queen in Right of Ontario

AND TO:

CHIEFS OF ONTARIO
22 College Street, 2nd Floor
Toronto, ON
M5G 1K2

TEL: (416) 972-0212
FAX: 972-0217

Michael Sherry

Counsel for the Respondent
The Chiefs of Ontario

BURKE-ROBERTSON
Barristers and Solicitors
70 Glouster Street
Ottawa, ON
K2P 1A2

TEL: (613) 236-9665
FAX: (613) 235-4430

Ottawa Agents for the Respondent
Chiefs of Ontario

TABLE OF CONTENTS

PART I STATEMENT OF FACTS

A. Council of Canadians with Disabilities
B. Position on the Facts

PART II CONSTITUTIONAL QUESTIONS AND POINTS IN ISSUE

PART III ARGUMENT

Reverse Discrimination

Dangers Inherent in Applying s. 15(2) in Isolation from s. 15(1)

A. Underinclusion
B. Duty to Accommodate
C. Intention v. Effects
D. Zero Sum

Conclusion

PART IV ORDER SOUGHT

PART V LIST OF AUTHORITIES

PART I - STATEMENT OF FACTS

A - COUNCIL OF CANADIANS WITH DISABILITIES

1. The Council of Canadians with Disabilities (hereinafter CCD) is the national cross-disability organization of persons disabilities. It is governed by a Council of Representatives consisting of one designate from each of its eight provincial member groups and six national disability organization, plus a national chairperson and two members at large.

2. The CCD was established by people with disabilities to create a voice for Canadians with Disabilities, to promote their full participation and equal opportunity in Canadian society. The CCD has the following specific mandate:

   • to improve the status of persons with disabilities;
   • to promote self-help for persons with disabilities;
   • to provide a democratic structure for persons with disabilities to voice concerns;
   • to monitor federal legislation affecting persons with disabilities;
   • to promote policies determined by persons with disabilities in Canada;
   • to share information and co-operate with disability organizations in Canada and in other countries; and
   • to establish a positive image of persons with disabilities in Canada.
     
     

3. Over the years the CCD was granted intervener status in a series of human rights and s. 15 Charter cases which represent many of the cornerstone decisions in the substantive model of equality adopted by this honourable Court.

4. On June 23, 1999 Bastarache J. granted CCD leave to intervene and file a factum in this case.

   B. - POSITION OF THE FACTS

5. The CCD takes no position on the facts in this appeal.

   PART II - CONSTITUTIONAL QUESTIONS AN POINTS IN ISSUE

6. This honourable Court set the following constitutional questions:
   
   

   1. Does the exclusion of the appellant Aboriginal groups from the First Nations Fund, and from the negotiations on the establishment and operation of the Fund, set up pursuant to s. 15(1) of the Ontario Casino Corporation Act, 1993, S.O. c.25, on the ground they are not Aboriginal groups registered as Indian Act Bands under the Indian Act, R.S.C. 1985, c. I-5, violate s. 15 of the Canadian Charter of Rights and Freedoms.

   2. If the answer to No. 1 is yes, is the violation demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms?

   3. Is the exclusion of the appellant Aboriginal groups from the First Nations Fund of the Casino Rama Project, and from the negotiations on the establishment and operation of the Fund on the grounds that they are not Aboriginal groups registered as Indian Act Bands under the Indian Act, R.S.C. 1985, c.1-5, ultra vires the power of the province under the Constitutional Act, 1987?
      
      
7. This intervener takes no position on issues 2 and 3. On issue 1 CCD takes no position on the application of s. 15 to the facts of this particular case. It's submissions are restricted to the role of s.15(2), and the relationship between it and s. 15(1) of the Canadian Charter of Rights and Freedoms (hereinafter the Charter).

   PART III - ARGUMENT

8. CCD agrees with the position of the Be-Wab-Bon appellants, as stated in paragraph of their factum, that s. 15(2) of the Charter serves as an interpretive aid to s. 15(1). As such it should be viewed as deepening our understanding of the guarantee of equality in s. 15(1), rather than as a defence or an exception to it.

9. S. 15 of the Charter provides:
   
   

   1. Every individual is equal before and under the law and has the right to the equal protection and equal benefit without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability.

   2. Subsection (1) does nor preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability.
      
      

10. As an interactive aid, the purposes underlying s. 15(2) must be fully reflected in an interpretation of s. 15(1) which produces a seamless and coherent s. 15. To go further and interpret s. 15(2) as a freestanding exemption from s. 15(1) would suggest the sub-sections are mutually antagonistic. An analytic approach that begins and ends with s. 15(2) presumes that s. 15(1) would produce a conflicting outcome. The preferable alternative would be to interpret s. 15(1) in a manner which does not preclude affirmative action programs.

11. Much of what government does could be described as having as it object the amelioration of disadvantage. It was never intended that such programs as health care, education (including special education), disability and employment insurance, social insurance and pension plans should be exempted from s. 15(1) review altogether. Such programs are extremely important to persons with disabilities.

    Re MacVicar and Superintendent of Family and Child Services, (1986), 34 D.L.R. (4^th) 488 at 503-04, approved R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906 at 945-46 per McLachlin J. (dissenting on other grounds)

12. It is consistent with the purposes of s. 15 for a program to have an ameliorative object or to achieve the goal of ameliorating conditions of disadvantage. Amelioration of disadvantage is never per se discriminatory.

    However, it does not follow that discrimination cannot occur within such programs. CCD submits that recognizing s. 15(2) as an interpretive aid is the most effective way to eliminate discrimination.

    REVERSE DISCRIMINATION

13. In the United States it has been a cruel irony that remedial steps could be taken, in the form of affirmative action, on behalf of all groups except those with constitutionally recognized equality rights. Moreover the higher the level of scrutiny attaching to malicious discrimination based on a particular category, the less likely a benign or remedial program based on the category would be found to be constitutional.

    Taking Rights Seriously, (Harvard: 1977) at 225.

    The Advocate 559 at 563-64.
14. The legislative history of s. 15(2) makes it clear that affirmative action on behalf of disadvantaged persons was not to be found unconstitutional based on the claims of advantaged persons that they had experienced "reverse discrimination". "Reverse discrimination" claims had succeeded in the United States. As stated in the decision under appeal, "Section 15(2) was undoubtedly included in the Charter to silence this debate in Canada and to avoid litigation similar to Bakke…". The legislative history does not provide a comparably clear indication as to whether s. 15(2) was to be an exemption or an interpretive aid. Neither does it give any indication that the affirmative action clause was intended to limit the discrimination claims of disadvantaged individuals or groups.

    Ardoch Algonquin First Nation V. Ontario, (1997), 148 D.L.R. (4^th) 127 at 142-43.

15. Even before s. 15 of the Charter came into effect members of this Court confirmed that affirmative action was not only consistent with, but inherently part of what was only later to be known as the substantive (as opposed to the formal) concept of equality.

    Athabasca Tribal Council V. Amoco Canada Petroleum Co.,[1981] 1 S.C.R. 699 at 711 per Ritchie J.

16. A respected expert on human rights, Walter Tarnopolsky, played a prominent role before the Special Committee of the Senate and the House of Commons on the Constitution of Canada. Soon thereafter he wrote that in his opinion s. 15(2) was "…not a substantive provision (1)". At that time s. 15(2) was included in the Charter the Amoco case had not been decided and it way by no means clear that affirmative action would be found to be consistent with the concept of equality ultimately adopted by the courts. According to this view s. 15(2) was added through "excessive caution". 61 Can. B. Rev. 242 at 257-59.
17. From the outset with its first s. 15 decision, Andrews, this Court has rejected the formal approach to equality which had been used to strike down affirmative action programs based on claims of reverse discrimination in the United States. In its place a substantive concept of equality was adopted. Substantive equality did not develop in isolation from the purposes underlying s. 15(2). On the contrary these purposes have been incorporated into all three steps of the inquiry into a discrimination claim s. 15(1).
    
    

    1. When determining whether a law imposes differential treatment, a determination must be made whether it " … fail[s] to take into account the claimant's already disadvantaged position within Canadian society".

    2. When determining which grounds will be considered analogous to those enumerated in s. 15, a primary factor will be the "historical, social and economic disadvantage of the group in question", and

    3. When deciding whether the law is discriminatory, a purposive and contextual interpretation is required. The purpose of s. 15(1) is…remedying prejudice, stereotyping and historical disadvantage". Two of the contextual factors relevant to determining whether a claimant's dignity has been demeaned are "pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue", and "the ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society".

    Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at 517-40.

18. It is submitted that the acknowledged legislative purpose of s. 15(2) in protecting affirmative action programs from claims of "reverse discrimination" by claimant who are members of advantaged groups has been comprehensively addressed through the substantive approach to equality which the Court has adopted, particularly the contextual factor of ameliorative purposes or effects CCD submits s. 15(2) is an interpretive aid to s. 15(1). Canadian Charter of Rights and Freedoms, at 597 - 98.

    Study Paper on Litigating the Relationship Between Equity and Equality, (OLRC), at 18.

    DANGERS INHERENT IN APPLYING S. 15(2) IN ISOLATION FROM S. 15(1)

19. Both the appellants and the respondents apparently agree with the Court of Appeal's statement that:

    We view s. 15(2) of the Charter as furthering the guarantee of equality in s. 15(1), not as providing an exception to it. … We therefore read s. 15(1) and (2) of the Charter together to embrace or a defense to s. 15(1) is antithetical to this concept.

    The Court of Appeal addressed this issue without the benefit of having read the Law decision and only considered the relationship between the 2 parts of s. 15 in the context f one potential violation of s. 15(1): underinclusion. As a result the decision under appeal can be misconstrued as being consistent with the analytical framework proposed by the respondent province of Ontario at paragraph 57 of its factum. It is submitted that after making allowance for the lone exception of underinclusion, the respondent's proposed framework makes s. 15(2) precisely what the Court of Appeal said it should not be: an exception or a defense. It is CCD's position that there are circumstances, including but not restricted to underinclusion, when applying s. 15(2) in isolation from s. 15(1) would be antithetical to the guarantee of equality. Having examined the claim of reverse discrimination, it is submitted the other situations where affirmative action programs could violate s. 15(1) should each be examined, before concluding that s. 15(2) can operate in isolation from s. 15(1).

    Ardoch Algonquin First Nation v. Ontario, supra at 143.

    A. - UNDERINCLUSION

20. Under both s. 15(1) and human rights legislation it has been recognized that "underinclusion may be simply a backhanded way of permitting discrimination…". Subsequent to the decision in the Bliss case, the Court has consistently held that underinclusion, whether by formal distinction or by failure to take into account a claimant's already disadvantaged position within society can result in differential treatment which is potentially discriminatory.

    Vriend v. Alberta, [1998] 1 S.C.R. 493 at para. 80-82.

    Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at 1240.

    Gibbs v. Battlefordd and District Co-operative Ltd., (1996), 140 D.L.R. (4^th) 1

21. Underinclusion occurs when a law, program or activity confers a benefit, but denies the benefit to an individual or group in a manner which vilates s. 15(1). Whether the program ameliorates disadvantage, or confers a benefit on the advantaged or doesn't alter the reason why underinclusion can be discriminatory. Dignity issues offending the purposes underlying s. 15(1) can arise regardless. For a black student from a low income family it is no answer that a scholarship fund benefits white students from low income families. Due to the problem of scarcity, exclusion from an affirmative action program can deepen the disadvantage of those who doubly disadvantaged. For this reason affirmative action programs should not be immune from scrutiny under s. 15(1). Philosophy and Public Affairs 107 at 163-64.

    Vriend v. Alberta, supra, at para. 94-104.

22. Governments say they would be discouraged from acting affirmatively if they must include all who would benefit from the outset. In this case the Court of appeal appears to have seen some merit in this argument. It states "Governments should be able to establish special programs under s. 15(2) that distinguish between or even within groups protected under s. 15(1)". In the end, however, it recognized s. 15(2) does not immunize affirmative action programs from constitutional review and applies the same test for underinclusion under s. 15(1) which would have been applied had the program not been affirmative. In so doing the Court of Appeal rejected the primary argument advanced by the respondent province for the analytical framework it proposes i.e. the need for freedom to proceed incrementally and in a targeted manner with affirmative action programs. All parties appear to agree with the Court of Appeal that there is no independent role for s. 15(2) in underinclusion cases. Subsequently, the Law decision added the contextual factor of ameliorative purpose or effects to s. 15(1) analysis. This went an extra step in the direction of showing deference to the affirmative intentions of government, without insulating affirmative action programs from s. 15(1) review altogether.

    Ardoch Algonquin First Nations v. Ontario, supra, at para. 64-71 and 94.

    Law v. Canada (Minister of Employment and Immigration), supra, at para.72.

    B - DUTY TO ACCOMMODATE

23. In Vriend the Court observed that, in the case of both underinclusion and the duty to accommodate "substantive equality may be violated by a legislative omission" i.e. a failure to go far enough in the interests of achieving equality. According to the analytic framework proposed by the respondent province, the ameliorative object of the less than adequate accommodation would end the claim under s. 15(2) without reference to the extent of the obligation under s. 15(1). No explanation is offered which would justify why s. 15(2) should prevent review when the discriminatory omission is a failure to accommodate but permit review when the omission is underinclusion.

    Vriend v. Alberta, supra, at para. 83.

24. The removal of barriers to participation in the mainstream of society is of enormous importance to persons with disabilities. Examples of accommodations ameliorate the disadvantage of persons with disabilities but which might fall short of the obligation to accommodate under s. 15(1) include:
    
    

    1. a municipal public transportation authority that limits paratransit service for persons with disabilities to trips to and from medical appointments;

    2. a hospital which only provides sign interpreters for deaf patients weekdays from 9 to 5; and

    3. a school board providing only a half day educational program for pupils with developmental disabilities.

    In each case the disadvantaged conditions of people with disabilities are ameliorated to some degree by the program. In each case they are being denied equal benefit of the law. Unless the adequacy of the accommodation can be reviewed under s. 15(1) a token gesture at amelioration would relieve a public authority of its duty of accommodating to the point of undue hardship.

    Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at paras. 66-67.

    Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at paras. 6061.

25. Based on the approach advanced by the respondent province of Ontario at paragraph 57 of its factum, supported by the intervener Attorney General of Canada at paragraphs 40-42 of her factum, accommodations which fall short of what might otherwise be required under s. 15(1) would be insulated from review by s.15(2). It is submitted that an ameliorative object should not be sufficient to produce this result. Even if the public authority held a bona fide belief that the accommodation which it had made was sufficient to afford equal benefit of the law, it would undermine the adverse effects analysis which is fundamental to the substantive approach to equality to allow intentions to override effects in this way. In the three example cited above it is the failure of the public transit authority, the hospital and the school board to provide equal benefit to persons with disabilities within their programs that is of primary concern, rather than their good intentions. As Arbour J. A. stated in Eaton:

    Even though these [special education] programs were enacted in part to ameliorate the condition of disabled students, they arguably do no more than to provide these students with the real equality that they are entitled to under s. 15(1). In such a case, they may not be viewed as "affirmative action" programs as understood under s. 15(2). Be that as it may, even if the special education programs could only have been implemented pursuant to s. 15(2) of the Charter, it does not follow that these programs would be immune from attack by the proposed recipients of the intended benefit. … The enactment of an affirmative action program does not exempt the state from Charter compliance within the program.

    In fairness, this appears to be the position take by the Ontario Court of Appeal at the end of paragraph 62 of the decision under appeal. After some highly deferential language, the Court below cites the authority of McLachlin J. in R. v. Nguyen for the broad proposition that :

    If some aspect of the program infringes the equality guarantee, the government's rationale or justification for the infringement should be considered under s. 1 of the Charter.

    Thus while the equality challenge in this case was based on underinclusion, the principle of subjecting affirmative action programs to s. 15(1) review is not limited to discrimination on this basis alone.

    Eaton v. Brant (County) Board of Education, (1995), 123 D.L.R. (4^th) 43.

    Ardoch Algonquin First Nation v. Ontario, supra, at para. 62.

    C - INTENTION v. EFFECTS

26. Either a discriminatory purpose or effect will indicate the purposes of s. 15(1) have been violated. Where the effect is discriminatory, the fact that the effect was either not intended or not understood to be adverse is no defense. Persons with disabilities experience discrimination not only as a result of prejudice and stereotyping, but as a consequence of neglect and paternalism. It is no exaggeration to say people with disabilities have been killed by good intentions. Equality Rights and the Canadian Charter of Rights and Freedoms, (Carswell: 1985) 323 at 326-27 and 354-55.
27. A program that was benign and ameliorative at the outset, may become discriminatory as attitudes change or new evidence about a program's effects becomes available. For example, Sopinka J. in the Eaton case described such a process of change. Following the Williston Report came general recognition of the desirability of integrated living options and de-institutionalization for persons with developmental disabilities. While people were technically free to live wherever they chose, in reality they were dependent upon publicly funded support services. Since these services were only available in institutional settings the result was de facto incarceration. In the United States this change in public attitudes recently culminated in a decision by its Supreme Court holding that the unnecessary and unwanted institutionalization of persons with disabilities absent undue hardship, is discriminatory. Presumably this was the kind of shift to which Iacobucci J. was alluding when he stated "The possibility of new forms of discrimination denying essential human worth cannot be denied."

    Eaton v. Brant County Board of Education, supra, at para. 58.

    Olmstead et al v. L.C. decided June 22, 1999. (USSC).

    Law v. Canada (Minister of Employment and Immigration), supra at para. 73.

28. The government's argument against exposing their programs to s. 15(1) scrutiny is unpersuasive. Rather than encouraging government to advance the purposes underlying s. 15(1) in their programs, immunizing them from review would diminish their incentive to update them and to ensure they further the cause of equality.

29. Another's intention are always difficult to prove. This is particularly true of governments, where legislative intent is complex, if not contradictory, and may remain hidden behind claims of privilege. It would be as onerous to prove a government's object was not ameliorative as it would be to require s. 15(1) claimant to prove discriminatory intent. The reasons for retaining a program may be completely different from the reasons for having initiated it, particularly after the adverse effects of the program on its supposed beneficiaries have been drawn to the attention of the government responsible. At that point, it is submitted that the reasons for retaining the program are more suitably analysed under s. 1 than under s. 15(2).

    Law v. Canada (Minister of Employment and Immigration), supra, at para. 80.

30. It is submitted that the inclusion of ameliorative purposes, as well as effects, among the contextual factors relevant to a determination of whether a program is discriminatory, more than adequately responds to governments' desire for deference for their affirmative intentions. It means a well-intentioned government need not face the more onerous obligation of establishing a s. 1 defense every time a program has adverse effects. To go further and provide the state with an absolute defense, however discriminatory the consequences of its programs, serves no identifiable function consistent with the purposes underlying S. 15.

    Law v. Canada (Minister of Employment and Immigration), supra, at para. 72.

    D - ZERO SUM

31. In the rarest of situations a program which has affirmative effects may also have other consequences which are discriminatory. Thus the affirmative action program is simultaneously furthering and undermining the purposes underlying s. 15(1). It is ameliorating disadvantage by preventing or remedying discrimination. At the same time some aspect of the program is deepening disadvantage in a manner that is discriminatory. In these circumstances it is difficult to see why one should "trump" the other, particularly before any review is undertaken of whether the discriminatory result could have been avoided.

32. Where there is substantial overlap between the groups benefiting from the affirmative action program and experiencing its discriminatory consequences the situation is analogous to that identified in the "Intention v. Effects" section supra. For example in McKinney it was asserted that retirement pensions were only viable if mandatory retirement was permitted. Wilson J. noted:

    … mandatory retirement may be accompanied by an attractive "package deal" and … some categories of employees may be prepared to sacrifice their right to continue in their employment beyond age 65 in exchange for substantial pension and other benefits.

    LaForest J. writing for the majority, while noting pensions and mandatory retirement are "closely intertwined", declined to hold that a casual connection existed, and decided the case under s. 1 on other grounds. It is submitted that the ameliorative purpose underlying retirement pensions should not insulate mandatory retirement from s. 15(1) review. Presumably it would be relevant whether the "package deal" is a good bargain for employees. This would be determined under s. 15(1). The issue of whether discrimination is a necessary incident of an affirmative action program is best determined under . 1.

    McKinney v. University of Guelph, supra, at 308 and 314-15 per LaForest J. and 405-06 per Wilson J.

33. In circumstances where there is no overlap between the victims of the discrimination and the beneficiaries of the affirmative action program the Court has held the dilemma should be resolved pursuant to s. 1.

    Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872 at 878.

    McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 402 per Wilson J. dissenting.

34. Thus whether or not there is a substantial overlap between the victims of the discrimination and the beneficiaries of the affirmative action program, it is submitted that the zero sum issue is best resolved under s. 15(1) and s. 1, rather than automatically assuming the affirmative action program "trumps" the discrimination in all cases.

    CONCLUSION

35. CCD submits that the approach to s. 15(1) in the Law case fully and adequately reflects the purposes underlying s. 15(2). To adopt an analytic approach that began and ended with the question of whether a program has an ameliorative object would frustrate the achievement of the purposes underlying s. 15 as a whole. It is respectfully submitted that the goal of equality is best served by accepting s. 15(2) as an interpretive aid to s. 15(1) rather than as an exception or a defense to a s. 15(1) claim.

    PART IV - ORDER SOUGHT

36. The intervener takes no position on the order to be made in this case.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated November 22, 1999 at the City of Toronto.

________________

David Baker

Solicitor for the Intervener

Council of Canadians with

Disabilities

PART V - LIST OF AUTHORITIES

Case Law — Page

RE MacVicar and Superintendent of Family and Child Services, (1986), 34 D.L.R. (4^th) 488 — 3

R. v. Hess; R. v. Nguyen [1990] 2 S.C.R. 906. — 3

Ardoch Algonquin First Nation v. Ontario (1997), 148 D.L.R. (4th) 127. — 4, 7, 8, 10

Athabasca Tribal Council v. Amoco Canada Petroleum Co., [1981] 1 S.C.R. 699. — 4

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. — 5, 8, 11, 12

Vriend v. Alberta [1998] 1 S.C.R. 493. — 7, 8, 9

Brooks v. Canada Safeway Ltd., [1989], 1 S.C.R. 1219 — 7

Gibbs v. Battlefords and District Co-operative Ltd., (1996), 140 D.L.R. (4^th) 1. — 7

Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241. — 9, 11

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. — 9

Eaton v. Brant (County) Board of Education, (C.A.) (1995), 123 D.L.R. (4^th) 43 — 10

Olmstead et al v. L.C., June 22, 1999 (USSC). — 11

Weatherall v. Canada (Attorney General), [1993] 2 S.C.r. 872. — 13

McKinney v. University of Guelph, [1990] 3 S.C.R. 229. — 13

Books and Articles

Ronald Dworkin, Taking Rights Seriously, (Harvard: 1977) — 4

The Advocate 559. — 4

Can. B. Rev. 242. — 5 Canadian Charter of Rights and Freedoms — 6

Colleen Sheppard, Study Paper Litigating the Relationship Between Equity and Equality, Ontario Law Reform Commission, 1993. — 6

5 Philosophy and Public Affairs 107 — 8 Canadian Charter of Rights and Freedoms, (Carswell: 1985) 323. — 11