R v Kapp

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R v Kapp
Supreme Court of Canada
Hearing: December 11, 2007
Judgment: June 27, 2008
Full case name Her Majesty The Queen v John Michael Kapp et al
Citations 2008 SCC 41, [2008] 2 S.C.R. 483, 294 D.L.R. (4th) 1, [2008] 8 W.W.R. 1, 232 C.C.C. (3d) 349, 58 C.R. (6th) 1, 79 B.C.L.R. (4th) 201
Docket No. 31603
Prior history Stay of proceedings granted, 2003 BCPC 279, [2003] 4 C.N.L.R. 238; Stay lifted, 2004 BCSC 958, (2004), 31 B.C.L.R. (4th) 258, [2004] 3 C.N.L.R. 269; Affirmed, 2006 BCCA 277 (CanLII), (2006), 56 B.C.L.R. (4th) 11, 271 D.L.R. (4th) 70, [2006] 10 W.W.R. 577, [2006] 3 C.N.L.R. 282
Ruling A communal fishing license granted exclusively to Aboriginals does not violate s. 15 of the Charter because s. 15(2) enables governments to pro‑actively combat discrimination by developing programs aimed at helping disadvantaged groups to improve their situation
Court Membership
Reasons given
Majority McLachlin C.J. and Abella J. (paras. 1-66), joined by Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.
Concurrence Bastarache J. (paras. 67-123)
Laws Applied
Aboriginal Communal Fishing Licences Regulations, SOR/93‑332. Canadian Bill of Rights, R.S.C. 1985, App. III, s. 2. Canadian Charter of Rights and Freedoms, ss. 1, 2, 3, 15, 16(3), 21, 25, 27, 28, 29, 32(a). Constitution Act, 1867, ss. 91(24), 93. Constitution Act, 1982, s. 35. Constitution Amendment Proclamation, 1983, R.S.C. 1983, App. II, No. 46. Fisheries Act, R.S.C. 1985, c. F‑14. Indian Act, R.S.C. 1985, c. I‑5, ss. 81, 83, 85.1, 88.

R v Kapp is a 2008 Supreme Court of Canada case dealing with an appeal from a British Columbia Court of Appeal decision that held that a communal fishing license granted exclusively to Aboriginals did not violate section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court dismissed the appeal on the basis that the distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under s. 15 if, under s. 15(2): (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. In other words the court found that the prima facie discrimination was allowed because it was aimed at improving the situation of a disadvantaged group as allowed by s. 15(2) of the Charter.

This decision recognizes difficulty found with Law v. Canada (Minister of Employment and Immigration) in trying to employ “human dignity” as a legal test. No doubt that human dignity is an essential value underlying s.15, but it is an abstract and subjective notion that, even with the guidance of the 4 factors outlined in Law, are confusing to apply and have proven to be an additional burden on equality claimants. This case interprets Law so that it does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality set out in Andrews v. Law Society of British Columbia and developed in the following decisions.

The central purpose of combatting discrimination underlies both ss.15(1) and 15(2). Section 15(1) focuses on preventing governments from making distinctions based on the enumerated or analogous grounds that have the effect of perpetuating group disadvantage and prejudice, or impose disadvantage on the basis of stereotyping. Section 15(2) focuses on enabling governments to proactively combat existing discrimination through affirmative measures.