Sometimes Help Hurts: Imagining a New Approach to Section 15(2)

AuthorJoseph Marcus
PositionIs currently pursuing his JD at Osgoode Hall Law School
Winner of the 2013 McCarthy Tétrault Law Journal Prize
forExceptional Writing
By Joseph Marcus*
CITED: (2013) 18 Appeal 121-138
One point is critical. S ubstantive equality is not necessarily se rved by legislators
taking dierences into account in designing their policies. e important
question is this: which di erences should they take into account?
— Donna Greschner1
Broadly put, section 15(1) of the Canadian Charter of Rights of Freedoms tells Canadian
governments to treat everyone equa lly.2 Section 15(2), however, provides a crucial
qualication, allowing governments to assist certain disadvantaged groups “without
being paraly zed by the necessity to a ssist all.”3 While the Supreme Court of Canada’s
longstanding interpretation of these two provisions as operating in unison to promote
substantive equality enjoys widespread accepta nce, the same level of accord cannot
currently be axed to the precise role that section 15(2) should play within the section
15 analysis as a whole. It is, as such, the aim of this paper to engage in this debate, to
explore the Supreme Court’s current equality test with a critical eye, and ultimately to
propose—or at least to i magine—a more appropriate approach.
Naturally, this paper nds its genesis in the case of Alberta v Cunningham, the Supreme
Court’s recent articulation of its preferred approach to section 15(2). On 21 July 2011,
Chief Justice McLachlin, writing for a unanimous bench, rejected a section 15(1) claim
brought forth by a group of equality-seeking claimants from Alberta’s Peavine Métis
Settlement.4 One day later, Denise Réau me published a pointed blog entry declaring
that Chief Justice McLachlin’s excessively deferential section 15(2) methodology could
essentially give governments a free pass, opening up a “loophole” so gaping that their
* Joseph Marcus is currently p ursuing his JD at Osgoode Hall Law Scho ol. He will be articling
with Bennett Jones LL P in 2013-14. He would like to thank Professor Bruce Ryde r and Appeal’s
editorial board.
1 Donna Greschner, “Does Law Advance the Cause of Equalit y?” (2001) 27 Queen’s LJ 299 at 304.
2 Canadian Charter of Rights and Freedoms, s 15(1), Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
3 Alberta (Aboriginal Aairs and Northern Development) v Cunningham, 2011 SCC 37 at para 49, 2
SCR 670 [Cunningham].
4 Ibid.
“lawyers could drive a Mack truck through.”5 Just as the authoritative words of Chief
Justice McLachli n provide the genesis for this paper, it is the unrepentant sentiments of
Denise Réaume that s upply the inspiration.
Réaume’s basic concern was that t he Supreme Court’s new armative action approach
would eectively enable governments, simply by claiming that a program is genuinely
aimed at ameliorating the circumstances of a certain d isadvantaged group, to “exclude
other similarly disadvantaged groups with impunity.”6 It should be made clear that the
force and precision with which Réau me articulated this concern were not generated
entirely in the single day be tween the judgment’s release and her blog entry’s publication;
the Cunningham decision merely added fuel by way of conrmat ion, lending authoritative
support to the Supreme Court’s ruling in R v Kapp three years earlier.7 ough Kapp is
widely heralded as rect ifying the judicial te st for section 15(1) claims, it is also recognize d
for providing section 15(2) with independent analytical force. It is with section 15(2)’s
newfound power to cut short the fu ll trajectory of a section 15 analysis that b oth Réaume
and this paper ta ke issue.
It may draw on Réaume’s rather inammatory notion of a truck-sized loophole (read:
exemption), but this paper has no intention of mimicking her arguments. Indeed, a
fundamental pu rpose of this paper is to critically a ssess the true breadth of this suppos ed
loophole; to the extent that it does appear tr uck-sized, this pa per hopes to narrow it and
to contribute to the search for a more bala nced methodology.
e discussion proceeds in three parts. Part I provides the necessary background,
concentrating on the meaning of “substantive equalit y” as it has been developed in
Ca nad a’s Charter-era equa lity jurisprudence. Bui lding on Part I’s jurisprudential
considerations, Part II zeroe s in on the current incarnation of the test, as was formed
in Kapp a nd rearmed in Cunningham. It traces the rationale laid out by Chief Justice
McLachlin in her t wo sets of reasons, keeping a critical e ye focused on her decision to opt
for a distinctly deferenti al methodology. Compelled by the conceivable dangers of t reating
underinclusive ameliorative programs with such supreme deference, Part III constructs a
more nuanced test, one that at lea st tries to strike a bala nce between deference and scr utiny,
thereby encouraging govern ments to create and implement ameliorative programs that do
not violate the Charter’s equalit y guarantee through discri minatory underinclusion.
Rarely does the Supreme Cour t of Canada miss a n opportunity to reiterate that
“[s]ections 15(1) and 15(2) work together to promote the vision of substantive equa lity
that underlies s. 15 as a whole.”8 It follows that any analysis of section 15 as a whole will
necessarily be grounded in its particu lar vision of substantive equality; simi larly, the
aptness of an equal ity test will necessa rily be measured by its alignment w ith the vision of
substantive equal ity to which it subscribes. To provide the proverbial stick, then, against
which the ecacy of a section 15 test can be properly measured, this section’s aim is
to review the conception of substantive equality that has been developed in Canada’s
Charter jurisprudence over the pa st few decades.
5 Denise Réaume, “Equality Kapped: Al berta v. Cunningham” The Women’s Court of Canada (22 July
2011) online: 1/07/equality-kapped-alberta-v-cunningham/>.
6 Réaume, supra note 5.
7 R v Kapp, 2008 SCC 41, 2 SCR 483 [Kapp].
8 See e.g. ibid at para 16.

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