Courting Confusion? Three Recent Alberta Cases on Equality Rights Post-Kapp

Abstract

This article examines current confusion surrounding how courts are to analyze challenges brought under s. 15 of the Canadian Charter of Rights and Freedoms. The authors begin with a review of the 2008 Supreme Court of Canada decision in R. v. Kapp, which gave s. 15(2) independent status to shield ameliorative laws, programs, and activities from the finding of discrimination, but left the application of s. 15(1) unclear. The authors then articulate how three recent Alberta cases on equality post-Kapp illustrate the new uncertainty surrounding how courts are to address equality rights. Through an analysis of the Supreme Court’s 2009 decision in Ermineskin Band and Nation v. Canada, and subsequent decisions of the Alberta Court of Appeal in Morrow v. Zhang and Cunningham v. Alberta (Aboriginal Affairs and Northern Development), this article explores the Supreme Court’s failure to adequately guide lower courts and tribunals on how to apply s. 15 post-Kapp. For example, a framework for reconciling the new role of s. 15(2) and claims of under-inclusive ameliorative programs has yet to be developed. Further, the authors argue that the guidance that has been delivered has improperly narrowed the definition of discrimination to stereotyping and prejudice.