Rethinking Affirmative Action Analysis in the Wake of Kapp: A Limitations-Interpretation Approach
![handle is hein.journals/jleq6 and id is 3 raw text is: RETHINKING AFFIRMATIVE ACTION ANALYSIS IN THE
WAKE OF KAPP:
A LIMITATIONS-INTERPRETATION APPROACH
Jess Eisen*
I. INTRODUCTION
Substantive equality has long been the rallying cry of Canadian
constitutional equality jurisprudence. Unlike its American counterpart,
the Canadian Supreme Court has, at least rhetorically, disavowed the
formalist methodology of treating likes alike, favouring an approach
focused on human dignity and contextual analysis.' Affirmative action
programs have, unsurprisingly, presented unique challenges under such
an approach. Given the formal precommitment to affirmative action2 in
the Canadian Charter of Rights and Freedoms,3 and the Court's
jurisprudential departure from American formal equality, it is clear that
Canada will have to chart its own course in this area.
In the June 2008 R. v. Kapp4 decision, the Canadian Supreme
Court reconsidered its approach to equality as a whole and to affirmative
action in particular. While Kapp's long-anticipated changes to the core
structure of constitutional equality analysis will likely attract substantial
* B.A. (Barnard College, Columbia), J.D. Candidate 2009 (Toronto).
Law Society ofBritish Columbia v. Andrews, [ 1989] 1 S.C.R. 143 [Andrews]; Law v.
Canada (Minister ofEmployment and Immigration), [ 1999] 1 S.C.R. 497 [Law].
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (1982) [Charter]. John
Hucker notes that, although both the Charter and the Canadian Human Rights Act,
R.S.C. 1985, c. H-6, provide for programs designed to ameliorate the conditions of
disadvantaged groups, [n]either law uses the words affirmative action, a term originally
eschewed in Canada. In this article, I have used the terms affirmative action and
ameliorative programs interchangeably. John Hucker, Antidiscrimination Laws in
Canada: Human Rights Commissions and the Search for Equality (1997) 19 Hum. Rts.
Quart. 563.
For a discussion of the role that constitutional precommitments play in affirmative
action jurisprudence and popular discourse, see Christopher Totten, Constitutional
Precommitments to Gender Affirmative Action in the European Union, Germany,
Canada, and the United States: A Comparative Approach, (2003) 21 Berkeley J. Int'l L.
27.
4 R. v. Kapp, 2008 SCC 41 [Kapp].](ViewImageLocal?handle=hein.journals/jleq6&div=4&collection=&method=preview&ext=.png&size=3)
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Rethinking Affirmative Action Analysis in the Wake of Kapp: A Limitations-Interpretation Approach
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