R. v. Kapp: new directions for section 15.

• Author: Moreau, Sophia
• Position: Equal protection - Canada

R. v. Kapp offers novel interpretations of both section 15(1) and section 15(2) of the Canadian Charter of Rights and Freedoms. The Supreme Court explicitly distances itself from the dignity test developed in Law v. Canada, invoking instead an approach based on Andrews v. Law Society of British Columbia, which asks simply whether the claimant has suffered disadvantage, prejudice and stereotyping. And for the first time, the Supreme Court reads section 15(2) as more than an interpretive aid to section 15(1), allowing that it can insulate certain ameliorative programs from any kind of scrutiny under section 15(1). The author argues that these two new developments can be seen as promising, provided that the Court offers a more expansive interpretation of the idea of "disadvantage" under section 15(1), and provided that it qualifies its highly deferential approach under section 15(2) in certain key ways. The author also criticizes the majority's reticence to engage with section 25 of the Charter in this case, arguing that their reticence stems from a mistaken view of the Court's role in cases that raise politically charged issues.

Dans l'arret R. c. Kapp, la Cour supreme du Canada donne aux paragraphes 15(1) et 15(2) de la Charte canadienne des droits et libertes une nouvelle interpretation. Elle s'ecarte en effet expressement du critere de l'atteinte a la dignite qu'elle avait elabore dans l'arret Law c. Canada, preferant adopter une approche fondee sur l'arret Andrews c. Law Society of British Columbia. Dans cette derniere decision, on avait juge suffisant que le demandeur ait subi un desavantage ou un prejuge, ou qu'on lui ait impose un desavantage fonde sur l'application de stereotypes. Pour la premiere fois, la Cour supreme du Canada interprete le paragraphe 15(2) comme ayant un role plus important que celui d'une simple disposition interpretative du paragraphe 15(1), en ce qu'il permet de soustraire certains programmes a caractere ameliorateur a l'examen prevu au paragraphe 15(1). Selon l'auteur, on peut considerer qu'il s'agit la de developpements prometteurs, sous reserve que la Cour fournisse une interpretation relativement large de la notion de << desavantage >> visee au paragraphe 15(1) et qu'elle definisse plus precisement son attitude tres deferente aux termes du paragraphe 15(2). L'auteur deplore en outre la reticence des juges majoritaires a analyser l'article 25 de la Charte dans le cadre de cette affaire, et soutient que cette reticence decoule sans doute d'une vision erronee du role de la Cour dans les causes qui soulevent des questions delicates d'un point de vue politique.

Table of Contents I. INTRODUCTION: THE SIGNIFICANCE OF R. v. KAPP II. FACTUAL AND JUDICIAL HISTORY OF THE CASE III. THE SUPREME COURT'S JUDGMENTS I. INTRODUCTION: THE SIGNIFICANCE OF R. v. KAPP

R. v. Kapp (1) is perhaps the most significant equality rights decision from the Supreme Court of Canada since the 1999 case of Law v. Canada. (2) It offers novel interpretations of both section 15(1) and section 15(2) of the Canadian Charter of Rights and Freedoms. (3) Up until now, section 15(2) has been treated largely as an interpretive aid to section 15(1), a reminder that ameliorative programs targeting disadvantaged groups are often expressions of equality rather than departures from it, and hence a reminder that the ameliorative purpose of such programs should be treated as a factor that weighs against a finding of discrimination under section 15(1). (4) When understood in this way, section 15(2) simply requires courts to treat such programs more deferentially when they engage in a section 15(1) analysis. But the Supreme Court in Kapp reads section 15(2) as an independent guarantee of legitimacy, a provision capable of insulating ameliorative programs from challenges under section 15(1). As long as the government can show that one of the purposes of the program is ameliorative, and that the program targets a disadvantaged group marked out by one of the enumerated or analogous grounds of discrimination, then, according to the Court, no section 15(1) analysis will be necessary and the program will be deemed non-discriminatory. This is so even if the program has other purposes, and regardless of its actual effects. Kapp thus gives government very broad discretion in designing and maintaining affirmative action programs. Kapp also contains an important discussion of section 15(1). Unexpectedly, the Court explicitly rejects what has come to be known as the "Law test" for violations of section 15, which asks whether the claimant's dignity was demeaned. Instead, the Court suggests that we should adopt something closer to the old approach under Andrews v. Law Society of British Columbia, (5) asking simply whether the claimant has suffered "discrimination, defined in terms of [acts] perpetuating disadvantage and stereotyping." (6)

These new interpretations of section 15(1) and section 15(2) are all the more significant given that they have the endorsement of all nine judges on the Supreme Court. Eight judges signed onto the majority judgment, co-authored by Justice Abella and Chief Justice McLachlin, in which the discussions of section 15 take place. The remaining judge, Justice Bastarache, explicitly notes that he is "in complete agreement with the restatement of the test for the application of s. 15 ...," (7) differing from the majority only in that he would have decided the case based on section 25 of the Charter.

In what follows, I shall lay out the facts of the case and the lower court judgments and then present the two Supreme Court judgments in more detail. I shall argue that the new interpretations of section 15(1) and section 15(2) can be seen as largely promising developments--provided that the Court qualifies its remarks in certain key ways in subsequent cases. The Court will need, at a minimum, to reduce the broad discretion that it has given to governments under section 15(2) in cases where the group that objects to an ameliorative program is itself disadvantaged or stigmatized. For the mere fact that a program is ameliorative and targets a group marked out by a recognized ground of discrimination is compatible with the program's highly discriminatory effects, either on some minority group within the larger disadvantaged group, or on some other disadvantaged group. Consequently, in cases where the claimant is from a disadvantaged group, courts will need to consider at least some of the factors that normally play a role in section 15(1) analysis, such as whether the program stereotypes the claimants, or whether it in some other way objectionably perpetuates their disadvantaged position. With respect to its return to Andrews in the interpretation of section 15(1), the Court must clarify how we are to understand the references to "prejudice," "stereotyping" and "disadvantage." In particular, the Court must ensure that it does not give an overly restrictive interpretation to these ideas, one which would narrow our understanding of discrimination to cover only those distinctions that are actually motivated by, or have the effect of, perpetuating prejudice or stereotyping. Such a narrow interpretation would blind us to the other ways in which individuals and groups can surfer serious and long-standing disadvantage of a kind that we think of as "discriminatory--cases, for instance, that do not involve either overt prejudice or false stereotyping, but do involve persistent disadvantage rooted in social oppression, or involve a denial of goods that seem basic or necessary for full participation in Canadian society. Any approach that blinds us to these other forms of discrimination would be problematic in some of the same ways that the Law test was problematic: it would make it harder for courts to recognize and address many cases of genuine discrimination.

The majority's judgment in Kapp is also important by virtue of what it does not say about one section of the Charter, namely, section 25. Section 25 states that the rights and freedoms guaranteed by the Charter should not be interpreted so as to derogate from "any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada." (8) In his judgment, Justice Bastarache argues that section 25 provides a complete answer to the case, obviating the need for a section 15 analysis; and he engages in a subtle analysis of the role chat section 25 could play as a shield in cases involving a potential conflict between certain Aboriginal rights and a Charter right. (9) By contrast, the majority of the Court declines to make any definitive pronouncement on section 25, claiming that although it is likely that section 25 protects only rights of a constitutional character, prudence suggests that such issues should be resolved on a case-by-case basis. (10) This is a puzzling dismissal, in that it is unclear why a fuller discussion of the implications of section 25 for the particular factual circumstances in Kapp would not have contributed to just the sort of case-by-case analysis that the Court has in mind. I shall offer some reflections on why the majority may have declined to discuss section 25, and...