R. v. Kapp: Taking Section 15 Back to the Future
The Kapp (2008 SCC 41) ruling offers the most important addition to s.15 jurisprudence since the Law ( 1 S.C.R. 497) decision of 1999. After a number of years of silently enduring an academic onslaught, the Court has engaged with the barrage of scholarly criticism directed at the Law test (see footnotes 1 and 2) and has sought to make adjustments in two ways. First, it has reinstated the simpler and less burdensome Andrews ( 1 S.C.R.) 143 test as the lodestar of s.15 jurisprudence (paras. 14-28). The Law test, as dominant in judicial interpretation of s.15 as Oakes ( 1 S.C.R.) has been to s.1, has now been relegated to a supporting role. Second, the Court has clarified the burdens placed on governments seeking to defend ameliorative programs under s.15(2). (paras.37-55)
The main opinion was written by McLachlin CJ and Abella J. As expected, they found no violation of s.15. Unexpectedly, they focused their analysis on s.15(2). They found no need to engage with s.25 of the Charter, preferring to leave the complex issues it raises for another day (para. 65).
Bastarache J wrote a separate concurring opinion, saying that s.25 provided a complete answer to the claim (para. 76). Therefore, he found no need to engage with s.15. He did note that he is “in complete agreement with the restatement of the test for the application of s.15 that is adopted by the Chief Justice and Abella J. in their reasons for judgment.” (para.77) Thus, like Iacobucci J’s opinion in Law, what the Chief Justice and Abella J. have to say about s.15 in their joint opinion represents the unanimous opinion of the Court.
Restatement of the Section 15 Test: Back to Andrews?
The joint opinion places Andrews, not Law, at the heart of its analysis. Andrews, McLachlin CJ and Abella J. wrote, “set the template”, one which subsequent decisions “enriched but never abandoned.” (para. 14). The test set out in Andrews has two steps: “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, in substance, the same.” (para.17) Notice the absence of the human dignity test from this formulation.
The joint opinion goes on to note that “several difficulties have arisen from the attempt in Law to employ human dignity as a legal test.” (para. 21) In particular, “human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has also proven to be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be. [fn1] Criticism has also accrued for the way Law has allowed the formalism of some of the Court’s post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focussed on treating likes alike. [fn2]” Amen to both points. How heartening to see the Court once again demonstrating its engagement with academic critiques of s.15, something we have not seen much of from the top court judges during the past decade.
The Court’s self-critique offers a clear and convincing rebuke of the Law test. However, the Court did not overrule Law, nor did it reject the Law test. It offered only a vague suggestion that we should de-emphasize the four contextual factors set out in Law. Apparently, we should not take them too literally, nor should we reject their significance. The utility of the four contextual factors is that they should assist us in answering the second Andrews question. Here is the sum total of the reconstructive part of McLachlin C.J. and Abella J.’s discussion of s.15(1):
The analysis in a particular case, as Law itself recognizes, more usefully focuses on the factors that identify impact amounting to discrimination. The four factors cited in Law are based on and relate to the identification in Andrews of perpetuation of disadvantage and stereotyping as the primary indicators of discrimination. Pre-existing disadvantage and the nature of the interest affected (factors one and four in Law) go to perpetuation of disadvantage and prejudice, while the second factor deals with stereotyping. The ameliorative purpose or effect of a law or program (the third factor in Law) goes to whether the purpose is remedial within the meaning of s. 15(2). (We would suggest, without deciding here, that the third Law factor might also be relevant to the question under s. 15(1) as to whether the effect of the law or program is to perpetuate disadvantage.)
Viewed in this way, Law does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrews and developed in numerous subsequent decisions. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of s. 15 identified in Andrews — combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping.
The central purpose of combatting discrimination, as discussed, underlies both s. 15(1) and s. 15(2). Under s. 15(1), the focus is on preventing governments from making distinctions based on the enumerated or analogous grounds that: have the effect of perpetuating group disadvantage and prejudice; or impose disadvantage on the basis of stereotyping. Under s. 15(2), the focus is on enabling governments to pro-actively combat existing discrimination through affirmative measures.
This is a vague discussion that offers insufficient guidance to courts and tribunals adjudicating s.15 claims. It does signal a significant shift in direction and emphasis, one aimed at easing the burden on s.15 claimants by rescuing them from the uncertainties and burdens of the human dignity stage of the Law test. However, the concrete doctrinal modalities of this shift in emphasis are underdeveloped. If lower courts and tribunals are to be pushed away from their familiarity with, and devotion to, the structured analysis of the Law test, they may require a bigger and clearer nudge than this.
Independent Analytical Significance of Section 15(2)
In Law (1999) and Lovelace ( 1 S.C.R. 950), (2000), s.15(2) was essentially absorbed into the s.15(1) analysis. As Iacobucci J. put it in Lovelace at para 108:
…at this stage of the jurisprudence, I see s. 15(2) as confirmatory of s. 15(1) and, in that respect, claimants arguing equality claims in the future should first be directed to s. 15(1) since that subsection can embrace ameliorative programs of the kind that are contemplated by s. 15(2). By doing that one can ensure that the program is subject to the full scrutiny of the discrimination analysis, as well as the possibility of a s. 1 review. However, as already stated, we may well wish to reconsider this matter at a future time in the context of another case.
The Court has used the Kapp case to reconsider this approach. The Court continues to see s.15(1) and s.15(2) as working together harmoniously to further the vision of substantive equality first formulated in Andrews:
….s. 15(1) and s. 15(2) should be read as working together to promote substantive equality. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other. Section 15(2) supports a full expression of equality, rather than derogating from it. (para. 37)
Under the Law/Lovelace approach, the ameliorative nature of the law or program is just one factor (the third contextual factor) to be weighed in determining whether differences in treatment are discriminatory in a substantive sense such that human dignity is violated. According to Kapp, if government can establish that the purpose of the impugned law or program is to ameliorate the conditions of a group defined by one or more prohibited grounds, then the s.15 claim can be dismissed. It is not necessary to conduct a s.15(1) analysis (para. 37). So long as the criteria set out in s.15(2) are met, the ameliorative nature of the program is determinative, not just one factor. As the Chief Justice and Abella J. put it,
….where a program makes a distinction on one of the grounds enumerated under s. 15 or an analogous ground but has as its object the amelioration of the conditions of a disadvantaged group, s. 15’s guarantee of substantive equality is furthered, and the claim of discrimination must fail. (para.3)
In other words, unlike the Law and post-Law rulings, the Kapp opinion gives s.15(2) independent analytical significance. It places the burden of establishing the existence of a s.15(2) ameliorative program on government, and then rescues such programs from the uncertainties of the Law human dignity test. If the government can show that the distinct criteria set out in the text of s.15(2) are met, then the law or program is constitutionally valid. The communal fishing licences at issue here were aimed at ameliorating the social and economic disadvantage of the Aboriginal bands to which they were issued, and thus were protected by s.15(2) from being challenged pursuant to s.15(1).
The twin aims of the adjustments to the s.15 jurisprudence made by the Court in Kapp appear to be:
1) Lowering the burden on claimants seeking to establish violations of s.15. The focus, as in Andrews, should be on whether they can demonstrate disadvantage on the basis of prohibited grounds; and
2) Lowering the burden on governments seeking to defend programs aimed at overcoming disadvantage on the basis of prohibited grounds. Governments should be encouraged by s.15 jurisprudence to pursue such programs without being unduly hindered by uncertainties about their constitutional validity.
These are laudable developments that offer new rays of hope to equality-seeking groups in the otherwise bleak landscape of twenty-first century Canadian equality rights jurisprudence.