This paper argues that after the Supreme Court of Canada’s interpretation, in R. v. Kapp and R. v. Cunningham, of section 15(2) of the Canadian Charter of Rights and Freedoms as an exemptive provision pursuant to which a government law or program with an ameliorative purpose may be “saved” from further Charter scrutiny, section 15(2) is now best understood as constituting an internal limit on the right to equality. Given that section 15(2) supplants section 1 of the Charter when an ameliorative law or program is at issue, the contours of the section 15(2) limit should be defined according to the general framework of proportionality review, akin to the test for section 1 established in R. v. Oakes. A government hoping to rely on section 15(2) to insulate an impugned law or program from section 15(1) would the n be required to justify not only the purpose of an ameliorative law or program, but also its means and effects. Importing proportionality review into section 15(2) would mitigate the risk that the exemptive interpretation of section 15(2) will be used to “save” ameliorative laws or programs that rely on underinclusive means or have discriminatory effects on marginalized groups or individuals.
"Section 15(2), Ameliorative Programs and Proportionality Review."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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