The Supreme Court’s decision in R. v. Kapp substantially advances the equality analysis under section 15 by revisiting the test for a section 15 infringement, most recently articulated in Law v. Canada (Attorney General), and by establishing a new role for section 15(2). A fuller understanding of the impact of this landmark decision on ameliorative programs requires an appreciation of the thorny history of section 15 treatment of ameliorative programs. This paper examines the legislative and judicial history of section 15(2) and situates the Kapp decision within it. It further discusses the promise that the Kapp decision holds of a more straightforward substantive equality analysis when addressing challenges to ameliorative programs. While acknowledging Kapp’s potential, this paper also examines fundamental questions left unanswered by Kapp that courts both before and after have grappled with: what role do the contextual factors underlying the human dignity test set out in Law (most particularly the correspondence analysis) now have? How will the “rational connection” test for section 15(2) articulated by the Court in Kapp be applied in future? and how should section 15(2) apply to under-inclusive challenges? On the latter issue, the Ontario Court of Appeal’s solution in Lovelace is proffered as a potential model for how to proceed.
Morris, Michael H. and Cheng, Joseph K..
"Lovelace and Law Revisited: The Substantive Equality Promise of Kapp."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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