Document Type

Article

Publication Title

Ottawa Law Review

Abstract

R. v. Kapp offers novel interpretations of both section 15(1) and section 15(2) of the Canadian Charter of Rights and Freedoms. The Supreme Court explicitly distances itself from the dignity test developed in Law v. Canada, invoking instead an approach based on Andrews v. Law Society of British Columbia, which asks simply whether the claimant has suffered disadvantage, prejudice and stereotyping. And for the first time, the Supreme Court reads section 15(2) as more than an interpretive aid to section 15(l), allowing that it can insulate certain ameliorative programs from any kind of scrutiny under section 15(l). The author argues that these two new developments can be seen as promising, provided that the Court offers a more expansive interpretation of the idea of "disadvantage" under section 15(1), and provided that it qualifies its highly deferential approach under section 15(2) in certain key ways. The author also criticizes the majority's reticence to engage with section 25 of the Charter in this case, arguing that their reticence stems from a mistaken view of the Court's role in cases that raise politically charged issues.

First Page

283

Volume

40

Publication Date

2009

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