On December 16, 2010, LEAF intervened in this Supreme Court of Canada appeal to address the interpretation and application of s.15(2) of the Charter which protects ameliorative programs (sometimes referred to as affirmative action programs) from s.15(1) Charter claims. The case involved an equality rights challenge to the exclusion of those who “voluntarily” obtain status under the Indian Act from Metis Settlement Membership under the Alberta Metis Settlements Act. LEAF took no position on the ultimate disposition of the case, but intervened to argue that the case should be decided on the basis of s. 15(1), not 15(2) of the Charter. LEAF contended that deference to government under s. 15(2) should be reserved for instances where the objection is to the existence of an ameliorative program. LEAF argued that claims by members of disadvantaged groups who have been excluded from such programs should be subject to full s.15(1) Charter scrutiny of the alleged discriminatory effects. LEAF’s concern was that deference in cases of underinclusion will improperly shield discriminatory legislation from Charter scrutiny and will allow the Court to look only at the purpose of ameliorative legislation, as opposed to its effects on the equality seeking claimant group. LEAF argued that protection of ameliorative programs even from claims by disadvantaged groups will almost certainly have a disproportionate impact on women (and others) who experience multiple layers of discrimination, and are thus more likely to be excluded from a targeted “affirmative action” program. LEAF also intervened to address the importance of residual sex discrimination under the Indian Act to a full contextual analysis of the appeal. In its judgment rendered on July 21, 2011, the SCC declined to follow LEAF’s arguments and upheld the impugned legislative provisions on the basis of s.15(2).
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