Promoting Equality and Combating Discrimination Through Affirmative Action: The Same Challenge? Questioning the Canadian Substantive Equality Paradigm

I argue that the interpretation of Section 15 of the Canadian Charter of Rights and Freedoms expressed by the Supreme Court in R v. Kapp is not entirely satisfactory. While the Court assumes that Sections 15(1) and 15(2) work together to combat discrimination, I show that many affirmative actions programs might be discriminatory within the meaning of Section 15(1). Moreover, I argue that the conflicts are internal to the concept of substantive equality itself They partly reproduce the tensions between a politics of recognition and a politics of distribution. I suggest that such conflicts must be resolved in accordance with the principle of proportionality. Finally, I suggest that programs designed to ameliorate the conditions of Aboriginal people might find better ground in the concept of "aboriginal rights."