Unequal to the Task: ‘Kapp’ing the Substantive Potential of Section 15

Abstract:     
This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights.

This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. This failure exists, the author argues, despite the clear intention of the Court in Kapp to reinvigorate and place back at the foreground the reasoning of Andrews. The issues discussed are: the Court’s re-emphasis on stereotyping as evidence of discrimination; the section 15(2) trump; and the division of labour the Court draws between section 15(1) and section 15(2). It is ironic that the Court, even as it explicitly crafts a return to Andrews, creates doctrine that seems geared to put us farther and farther away from reaching the promise of what was best and clearest in Andrews.

Number of Pages in PDF File: 38

Keywords: Canada, Charter of Rights and Freedoms, Section 15, Equality Rights

Accepted Paper Series