Affirmative Action in Question: A Coherent Theory for Section 15(2)

Authors

• Mark A. Drumbl, Washington and Lee University School of LawFollow
• John D.R. Craig, Lincoln College, University of Oxford

Document Type

Article

Publication Title

Review of Constitutional Studies

Publication Date

1997

Abstract

Affirmative action programs are constitutionally protected in Canada under section 15(2) of the Charter. This section has received little judicial interpretation and, consequently, no coherent approach to the interpretation of section 15(2) has been developed. Furthermore, there is an urgent need to define the meaning of section 15(2), as affirmative action programs can be used to perpetuate stereotypes and discrimination while being given a blanket endorsement through section 15(2). The authors suggest that section 15(2) does not merely promote substantive equality, as this is the function of section 15(1), but embodies the social justice conception of equality, which allocates social benefits based on group membership. Membership in a group, however, may be a poor indicator of need as the least disadvantaged of the target group 'will often benefit the most. The authors look at a number of authorities from Europe and the United States which have considered the contours of affirmative action programs. Ultimately, the authors suggest that, as section 1 and section 15(2) perform essentially the same role with respect to Charter rights, the test for section 15(2) should be similar to the section I Oakes test. The proposed section 15(2) test would result in an interpretation of section 15(2) which would limit the potential gulf between substantive equality and the social justice model.

Recommended Citation

Mark A. Drumbl & John D.R. Craig, Affirmative Action in Question: A Coherent Theory for Section 15(2), 4 Rev. Const. Stud. 80 (1997).