The Supreme Court of Canada, Ameliorative Programs, and Disability: Not Getting It

Canadian Journal of Women and the Law, Forthcoming

32 Pages Posted: 7 Nov 2012

See all articles by Jonnette Watson Hamilton

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Jennifer Koshan

University of Calgary - Faculty of Law

Date Written: September 15, 2012

Abstract

Recent Supreme Court of Canada decisions on section 15(2) of the Canadian Charter of Rights and Freedoms raise concerns for the equality rights of persons with disabilities. Although Kapp gave independent force to the protection of ameliorative programs as an aspect of substantive equality, Cunningham gave governments significant deference even in relation to targeted benefit programs that are under-inclusive and potentially discriminatory. This paper examines the impact of the Supreme Court’s recent section 15(2) jurisprudence on people with disabilities. We argue that the Court’s extreme deference to targeted benefit programs may perpetuate the social exclusion and marginalization of persons with disabilities to whom the government denies benefits. The Court’s section 15(2) approach also runs the risks of reinforcing essentialized, categorical, medicalized views of disability and creating hierarchies of disability. These risks are of particular concern in the current climate of fiscal restraint. While the recent Supreme Court decisions on section 15(2) do not deal specifically with issues of discrimination on the basis of disability, we argue that the Court’s apparent failure to think through how its decisions would impact people with disabilities is a serious shortcoming indicative of Pothier and Devlin’s notion of “dis-citizenship.”

Suggested Citation

Hamilton, Jonnette Watson and Koshan, Jennifer, The Supreme Court of Canada, Ameliorative Programs, and Disability: Not Getting It (September 15, 2012). Canadian Journal of Women and the Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2171894

Jonnette Watson Hamilton

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

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