Reconsidering Kapp – An Unintended Barrier To Future Equality Claims?
R. v. Kapp, 2008 SCC 41, was a s. 15 Charter challenge to British Columbia’s issuing of communal fishing licences to aboriginal bands. The majority of the Supreme Court decided that s. 15(2) provided a full defence to the claim, making it unnecessary to conduct a full s. 15(1) analysis. Nevertheless, McLachlin C.J. and Abella J. take the opportunity to address the heavy criticism that has been levelled at the court since its decision in Law v. Canada,  1 S.C.R. 497.
Since Law, the Supreme Court has struck down nearly every equality claim to come its way, often using the third step of the Law analysis by assessing the impact of the impugned law or program on the claimant’s “human dignity.” Legal commentators have argued that this third step has become a significant barrier to equality claimants who have to prove that their dignity has been affronted, and that it has allowed formalism to creep into the court’s understanding of equality.
In Kapp, the court acknowledges this criticism, and responds by saying that Law should not be understood as introducing a new test for discrimination, but as focussing the analysis on combating discrimination in a substantive way. It remains to be seen if the Supreme Court will modify its approach to make s. 15 more accessible to claimants in the future.
This remains doubtful, as McLachlin CJ and Abella J did not address one of the major criticisms of the Law approach: that the dignity analysis has been used to import justification arguments from s. 1 into s. 15. This is the substantial difference between Andrews v. Law Society of British Columbia,  1 S.C.R. 143, and Law that the court in Kapp claims does not exist. Such a practice was adamantly opposed by the court in its early equality jurisprudence, which stated that the question of whether or there has been discrimination should be determined solely from the perspective of the claimant.
After Law, equality claims are frequently resolved with the declaration that the dignity of the claimant could not reasonably have been affronted if she took into account the purpose of the impugned legislation – rather than simply its impact on her life – and that therefore there was no discrimination. This is the main source of frustration for the Supreme Court’s critics who see this approach as being divorced from reality, and to no small degree condescending towards claimants. The problem is framed as one of excessive deference to government purposes.
Surely a certain amount of deference may be called for, but if the impugned legislation is worthy of such deference then there is no reason why it shouldn’t be saved by s. 1. It should not be necessary to deny the validity of the claimants’ experience of being denied their dignity.
Not only is this criticism overlooked in Kapp, but the decision also furthers the trend of deference towards government purposes. It is clear from lower court decisions that the case could have been decided on a number of different bases and still have had the same outcome; however, the method chosen by the Supreme Court was to set up s. 15(2) as a pre-emptive defence to an equality claim.
If the government can prove that an impugned program or piece of legislation has as one of its purposes the amelioration of disadvantage perpetuated by discrimination, then it becomes unnecessary for the court to so much as address the substance of the claimant’s case. While there is something to be said for discouraging challenges to affirmative action programs, there is also something to be said for giving voice to individuals who feel that their constitutional rights have been violated.
Moreover, while McLachlin CJ and Abella J write that courts do not have to “slavishly” accept the government’s stated purpose at face value, the facts as related by Bastarache J in his concurring opinion make it unclear that the issuing of communal fishing licenses could properly be characterized as an “affirmative action” program. It seems that the majority of the court deferred to a purpose for which government itself did not strenuously argue.
Many legal commentators have given up on s. 15 as a tool for advancing substantive equality. While it is encouraging to see that their critiques of equality jurisprudence have not gone unnoticed, it does not yet appear that those critiques have been taken to heart. The Supreme Court recognized that the dignity analysis of the Law test has been a barrier to claimants. The irony is that it did so in a case that set up an even more effective obstruction to equality claims.
(EDITOR’S NOTE: Interested readers may also wish to consider the Women’s Court’s re-ruling on Law, available via TheCourt.ca here.)