By: Jennifer Koshan
Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 53
Jonnette Watson Hamilton and I recently commented on the implications of the Supreme Court of Canada’s decision in R v Kapp, 2008 SCC 41 for the proper approach to equality rights under s.15(1) of the Charter (see The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges). We also noted that Kapp was more clear in terms of the approach to be taken under s.15(2) of the Charter, giving that section “independent status to protect ameliorative laws, programs and activities.” A recent Alberta case deals with a potential new battleground under s.15(2): government attempts to introduce new evidence to establish the ameliorative purpose of their laws on appeal. If a government is successful in this respect, and the court accepts the ameliorative purpose of the law or program in question, this will effectively serve to bar a claim under s.15(1).