G. R v Kapp: Law Qualified and Simplified?

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 347-351

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In the 2008 case of R v Kapp,⁵⁰the Court, in a joint judgment by Mc-Lachlin CJC and Abella J, qualified the Law test for equality and signaled its preference for the simpler 1989 Andrews test. As discussed

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above, the Andrews test for equality was based on these two questions:

(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?

The Court in Kapp noted that Law had succeeded in unifying what had, since Andrews, become a divided approach to equality rights and that Law "was an important contribution to our understanding of the conceptual underpinnings of substantive equality."⁵¹Nevertheless, the Court recognized that the focus on human dignity had created an additional burden on equality claimants. Even with the guidance of the four contextual factors outlined in Law, the human dignity concept had become "confusing and difficult to apply."⁵²The Court warned that the four contextual factors should not be read as rigid requirements but rather "as a way of focusing on the central concern of section 15 identified in Andrews - combating discrimination, defined in terms of perpetuating disadvantage and stereotyping."⁵³The Law contextual factors should be used as a tool to focus on stereotyping in the form of attributed characteristics that affect the degree of correspondence between the differential treatment and the reality of the claimant’s group or the perpetuation of pre-existing disadvantage. The ameliorative purpose or effect of the law was most relevant to whether it qualified as an affirmative action program under section 15(2), but the Court stated, without deciding, that it could also be relevant to determining whether the law would perpetuate disadvantage.⁵⁴The two-part Andrews-Kapp test has been confirmed and followed in several subsequent cases, so it would appear that Kapp will have a significant impact on the evolution of equality rights jurisprudence. In Ermineskin Indian Band and Nation v Canada,⁵⁵the Court applied the two-part test articulated in Kapp to reject a section 15 challenge to provisions of the Indian Act that prohibited investment of a band’s oil and gas royalties. The Court held that, while the Act drew distinctions on prohibited grounds, the distinctions were not discriminatory because they allowed bands some control over the funds and did not draw a distinction that perpetuates disadvantage through prejudice or stereotyping. The unanimous Court made no mention of the Law test, including its reference to human dignity and the four contextual factors used to make judgments about the effect of a law on human dignity. The Court

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again applied the two-part Andrews-Kapp-test in AC v Manitoba (Director of Child and Family Services)⁵⁶where it upheld a provincial law that allowed medically necessary treatment to be ordered when in the best interests of children under sixteen years of age. Citing Kapp, Abella J concluded that because the law allowed children under sixteen "to lead evidence of sufficient maturity to determine their medical choices, their ability to make treatment decisions is ultimately calibrated in accordance with maturity, not age, and no disadvantaging...