The author places R. v. Kapp in the context of the “reconciliation” jurisprudence of the Supreme Court of Canada. Recognizing that at the rights stage, Charter rights may come into tension and that the relationship between rights and section 1 requires consideration of different interests and, in some cases, rights, the Supreme Court has developed the mes of reconciliation and balancing. Although the jurisprudence has not been consistent, generally it reflects an attempt at the rights stage to make the rights compatible with each other, that is, to reconcile the m. In contrast, the process under section 1 is one of balancing, with some rights and interests being given primacy over others. In practice, the outcome of the two approaches may not be very different; however, they do imposes different burdens and may seem to treat the significance of the rights at issue differently. The author suggests that Kapp, while giving much needed substance to section 15(2), appears to reject the the me of reconciliation and to adopt a more absolutist approach, both in the majority’s analysis of the relationship between section 15(1) and section 15(2) and in the minority’s consideration of section 25. In doing so, the author argues, the analyses appear to bring closure to what are in both cases complex issues and with respect to equality rights, the analysis seems to ignore the possibility that minorities among those disadvantaged groups benefiting from programs under section 15(2) might the mselves be even further disadvantaged by the programs.
"Resiling from Reconciling?: Musing on R. v. Kapp."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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