L’interprétation du paragraphe 15(1) de la Charte (enfin) recentrée sur son objet égalitaire de non-discrimination
The Law case has been highly criticized by numerous legal academics for requiring plaintiffs to prove a breach of human dignity in section 15 equality rights cases under the Charter. In Kapp, McLachlin C.J.C. finally decided to drop that requirement. Does Kapp, constitute a real change in the orientation of the Supreme Court of Canada in constitutional equality cases? After placing the debate in its larger context and in the evolution of constitutional equality rights in Canadian caselaw, the author tries to demonstrate that Kapp, is a step in the right direction. Putting aside the concept of human dignity will allow the courts to focus on the true anti-discriminatory purpose of section 15 and to eliminate the confusion that has prevailed since Law between two discrete types of legal distinctions: those required by section 15 to achieve more equality, and those justified under section 1 of the Charter by public interest considerations.
Daniel Proulx is a professor and the Dean of the Faculty of Law at the University of Sherbrooke.