AMELIORATIVE PROGRAMS AND THE CHARTER: REFLECTIONS ON THE SECTION 15(2) LANDSCAPE SINCE R V KAPP

Abstract

Section 15(2) of the Canadian Charter of Rights and Freedoms affirms the importance of ameliorative laws and programs in the pursuit of substantive equality. In its 2008 decision in R v Kapp, the Supreme Court of Canada interpreted section 15(2) as having independent force to “save” suspect distinctions in government laws, programs or activities that have an ameliorative purpose from scrutiny under section 15(1) or section 1 of the Charter when certain conditions are met. Following Kapp, advocates and commentators expressed various concerns about the new framework for section 15(2) of the Charter. This paper reflects on four of these concerns in light of the small, but growing, body of jurisprudence on section 15(2) that has emerged in the years since the Kapp decision: (1) the application of the Kapp analysis in cases alleging a law or program with an ameliorative purpose is underinclusive; (2) the lack of guidance on what constitutes an “ameliorative law, program or activity” for the purposes of section 15(2); (3) the proper relationship between the section 15(2) analysis and consideration of ameliorative purpose and effects at the section 15(1) stage; and, (4) deference and justification under section 15(2). The paper concludes that there are significant ongoing uncertainties with the Kapp framework for section 15(2), and suggests that section 15(1) of the Charter can protect ameliorative laws and programs in a more principled and equality-enhancing manner than the Kapp framework.