Transposing Tranchemontagne into the Charter Context: S. 15(1)

The Ontario Court of Appeal recently heard arguments in Director, Ontario Disability Support Program v. Tranchemontagne, (2009) 95 O.R. (3d) 327, a case of great interest to constitutional scholars for its engagement with issues surrounding substance abuse and disability. Specifically, the complainants suffer from chronic alcoholism as their “sole impairment” to ordinary functioning.  They have challenged the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, (“ODSPA”) under the provincial Human Rights Code, R.S.O. 1990, c. H19, for only providing income support to persons with different or concurrent conditions.

This is our second post in a series concerning the Tranchemontagne appeal, which transposes its relevant facts and issues into the Charter context. Two weeks ago here, we articulated a staunch (and somewhat improbable) defence of the ODSPA under s. 15(2) for its creating an ameliorative program that should attract Charter protection. Today we shall assume the opposite proposition – that s. 15(2) would not protect the “sole impairment” exception – leading us to consider whether the disputed provisions run afoul of the complainants’ s. 15(1) right to equal benefit of the law. As such, we would find (again somewhat improbably) that they do not.

Relevant Facts and Issues

At the risk of repetition, we will again review the facts and issues of the Tranchemontagne case for those readers unfamiliar with our companion piece or otherwise needing a refresher.

The individual respondents 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”.

Analysis under Section 15(1)

The Andrews/Kapp Test

In R. v. Kapp, [2008] 2 S.C.R. 483, the Supreme Court adopted a modified version of the flexible and easily applicable test for discrimination first articulated in Andrews v. Law Society of British Columbia, [1989] S.C.J. No. 6. The reformulated Andrews/Kapp test reads as follows:

(1) Does the law create a distinction based on an enumerated or analogous ground?
(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

(1)    Does the law create a distinction based on an enumerated or analogous ground?

S. 15(1) enumerates “mental or physical disability” as a protected ground of discrimination under the Charter. We do not dispute that addiction to chemically-altering substances can qualify as a “physical or mental disability” for the purposes of s. 15(1). In Handfield v. North Thompson School District No. 26, [1995] B.C.C.H.R.D. No. 4, the British Columbia Council for Human Rights accepted evidence of virtual consensus among medical professionals that substance abuse is a medical impairment with both physical and mental features. Section 5(2) of the ODSPA creates a distinction between members of the sole impairment group and those with different or concurrent disabilities based on the type of disability; thus, it is not disputed that s. 5(2) meets the first step of the Andrews/Kapp test in that it creates a distinction based on the enumerated ground of disability.

(2)    Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

Given that s. 5(2) of the ODSPA creates a distinction based on the enumerated ground of disability, the issue becomes whether that distinction amounts to discrimination by perpetuating disadvantage or stereotyping under s. 15(1).

Not all Distinctions are Discrimination

It is well-established that not every distinction at law will transgress the equality guarantees of s. 15. Equality sometimes means treating people the same despite their differences, and at other times means treating them as equals by accommodating their differences. To ignore differences may actually be to ignore unique and legitimate needs. Thus, the legislature must occasionally apply different rules, regulations, and requirements to different individuals and groups if it is to govern fairly and effectively. In Wareham v. Ontario (Community and Social Services), 2008 CanLII 1179 (ON S.C.), the court noted that,

[i]t is not discriminatory for the government to create programs that grant different benefits and provide different mechanisms for accessing those benefits. Not all ameliorative programs will, should, or must operate in the same manner.

Appreciating “Disability-Difference”

Disability, as an enumerated ground, differs from other enumerated grounds such as sex or age because there is no individual variation with respect to these grounds. Within the “disability” catch-all, there exist physical and mental impairments, short-term and long-term impairments, as well as treatable and untreatable impairments (to name but three variations.) Further, the physical or mental conditions(s) giving rise to a disability may manifest differently depending on the individual and the context. For this reason, disability support programs almost invariably distinguish between different types of disabilities when determining eligibility for benefits. These “disability-differences” will not run afoul of s. 15 if their provisions take into account the actual (and not attributed) characteristics of disabled persons. As the Supreme Court stated in Martin v. Nova Scotia (Workman’s Compensation Board), [2003] SCC 54, sensitivity to difference “is key to achieving substantive equality for persons with disabilities.”

The ODSPA confers the benefit of income support to all eligible persons with disabilities resulting in substantial and enduring impairment of their daily functioning; however, members of the sole impairment group (whose significant restriction in activities is entirely attributable to the use of a chemically-active substance) are deemed ineligible to receive the benefit under s. 5(2). The respondents allege that this section is discriminatory because it runs contrary to the actual needs, capacity, or circumstances of the sole impairment group, and instead relies on attributed characteristics of substance abusers in a manner that perpetuates prejudice or stereotyping.
We would argue that the ODSPA does not discriminate against the respondents in purpose or effect. Rather, it provides income and employment support to persons with disabilities demonstrated to share features aligned with the legitimate purposes of the legislation, which members of the sole impairment group – by virtue of their unique “disability difference” – do not share.

Comparative Analysis

Since issuing its foundational reasons in Andrews and continuing through Kapp, the Supreme Court has reiterated the importance of assessing not only the impugned legislation giving rise to an equality challenge but also the larger social, political, and legal context in which the scheme operates. The enquiry must always remain contextual rather than mechanical, appreciating any or all relevant factors.  The four criteria identified in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, do not represent an exhaustive list.  Thus, it is only by examining the larger context surrounding the ODSPA and the complainants’ situation that this court may determine whether differential treatment under s. 5(2) results in inequality.

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, provides that this contextual analysis is to proceed on a comparative basis, weighing the impact of legislation on an equality seeker in relation to the impact on others who are similarly situated. The comparison must be with others with whom he or she can legitimately invite comparison, meaning that the “comparator group” must share all conditions precedent to qualification for the benefit or burden in question save the personal characteristic that is alleged to ground the unlawful distinction.  In this case, the complainants claim that members of the sole impairment group suffer disadvantage compared to persons with disabilities who are otherwise eligible to receive income support under the ODSPA. As explained below, given the true character of the impugned program and given the particular disadvantage experienced by those eligible for its benefits, we would argue that the complainants’ comparison is inappropriate.

The first step in the analysis is to determine the greater purpose of the ODSPA and its relation to s. 5(2). As the Supreme Court writes in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657,

[i]f a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory.

This means the legislature is under no obligation to create a benefit that is accessible to all groups if its legitimate objective is to restrict access to some groups. It follows, then, that the ODSPA may deny members of the sole impairment group access to income support if the program’s legitimate purpose accords with doing so.

As previously stated, the program’s fundamental objective is to provide effective support to persons with disabilities who are in need of assistance, with eligibility flowing from qualification as “disabled” under s. 4, requiring a substantial and enduring impairment distinct from that which is experienced by persons addicted to alcohol or drugs. These provisions establish the statute’s range of apprehension to include only those persons experiencing particular disadvantages and requiring particular supports.

If the true character of the ODSPA was to provide blanket supports for all persons with disabilities without attention paid to degrees of impairment, it would be appropriate to compare the benefits available for different disabilities, as the complainants do. We would argue that this is not the true character of the ODSPA. Such a characterization focuses the program’s purpose at too high a level of generality. Far from offering a comprehensive benefit package to all persons with disabilities, the ODSPA seeks to redress the unique disadvantages faced by persons with substantial and enduring disabilities as defined by s. 4 of the Act and which are not faced by members of the sole impairment group.

It is uncontested that alcoholism and drug dependence are properly classified as disabilities under s. 15 the Charter and that members of the sole impairment group are equally deserving of consideration and respect as all other Canadians. Recalling that impairments giving rise to disability may vary depending on individual and context, however, persons whose sole affliction is substance abuse may be distinguished from persons with other impairments eligible to receive income support. Their actual (and not attributed) “disability-difference” substantiates the legitimate policy decision to extend benefits to one group under the ODSPA.

At the outset, it should be recognized that both members of the sole impairment group and persons with other impairments suffer pre-existing disadvantage. As equality scholar David Lepofsky has explained, persons with disabilities are impeded by a barrage of  inaccurate pejorative stereotypes, which are the remnants of long-standing social prejudice. Given their unique histories, the pre-existing disadvantage experienced by each group is distinct, although it is neither necessary nor prudent to engage in a weighing exercise for the purposes of a comparative analysis. Law holds that there is “no principle or evidentiary presumption that differential treatment for historically disadvantaged persons is discriminatory.” The more appropriate enquiry weighs the actual present condition of persons eligible to receive income support under the ODSPA against persons whose sole affliction is abuse of chemically-altering substances.

The needs, capacities, and circumstances of persons with different or concurrent disorders and members of the sole impairment group are distinct in several key aspects. Many persons eligible for income support are either permanently impaired or in continuous treatment and recovery for a longer period of time than substance abusers, who may lapse in and out of their disabled condition. The impermanent nature of substance abuse stems, in some part, from an element of voluntariness which distinguishes it as a treatable illness. Addicts are at least somewhat responsible for self-destructive behaviour which perpetuates their condition.

Finally, members of the sole impairment group generally demonstrate greater potential to attend to their personal care, function in the community, and retain permanent employment than persons with substantial and enduring disabilities. An expert testified at the Tranchemontagne trial that seventy percent of persons with substance dependence are already employed, and most significantly, “all of them are capable of employment.” Unlike the more restrictive impairments covered by the statute, while the unique features of substance dependence do create serious challenges for persons experiencing the condition, they do not preclude such persons from navigating the labour force. Further, the voluntary element to addiction does not similarly negate the ability of impaired persons to attend to their personal care or function in the community. In effect, they are not entirely deprived of agency to improve their condition and achieve sobriety, and as such may not be as restricted as persons experiencing substantial and enduring disabilities under s. 4. This demonstrates that unauthorized substance abuse falls outside the ODSPA’s intended range of application.

Discriminatory Purpose

Given that the excluded benefit does not undercut the larger objectives pursued by the statute, the question then becomes whether the legislature’s choice not to accord income support to members of the sole impairment group was motivated by a discriminatory purpose.

As argued in our companion piece, the ODSPA was enacted with the intent to ameliorate the conditions of all persons with disabilities which meet its requirements. Members of the sole impairment group, by virtue of their condition not impairing daily activities or their entry into the labour force as substantially as eligible persons, may be considered “more advantaged in a relative sense” than those targeted by the statute. This suggests that the ODSPA accords with the Charter’s equality guarantee because the legislature identified a legitimate policy preference in its allocation of disability support, based on the actual characteristics of possible recipients, and created the program in satisfaction of that preference. Thus, we would argue that does not function by the device of stereotyping and cannot be discriminatory in purpose or effect.

Rather, the distinction created by the program may reflect familiar challenge facing legislatures when devising social programs: how to allocate limited resources in a world of unlimited need. The exercise may inevitably result in the somewhat arbitrary drawing of lines in complex schemes involving the balancing of competing interests. Despite the fact that some disadvantaged people may be excluded from the distribution of resources as a result, as long as the benefits conferred and burdens imposed are consonant with the overall purposes of the legislation and the purposes themselves are non-discriminatory, these programs may not run afoul of s. 15 of the Charter.

Conclusion

We would find that s. 5(2) of the ODSPA, precluding members of the sole impairment group from accessing income support under the statute, is consonant with s. 15(1) of the Charter because it does not create a disadvantage by perpetuating prejudice and stereotyping. Rather, it draws a distinction based on the actual (and not attributed) characteristics of eligible persons with substantial and enduring disabilities and ineligible persons with substance abuse problems. Disability support programs almost invariably distinguish between types of impairment in allocating benefits, and these two groups’ “disability-difference” substantiates the government’s decision to only provide income support to eligible persons requiring assistance.

As is always our mission here at TheCourt.ca, we hope this exercise did not simply entertain our academic curiosity, but also that its discussion motivates our readership to engage with the subject matter and consider its constitutional questions. Even if Tranchemontagne did not emerge as a Charter challenge, we very eagerly anticipate reasons from the Ontario Court of Appeal in this case, and (we hope) reasons from the Supreme Court of Canada as well.