R v Kapp

At his hearing in provincial court, Kapp filed a Notice of Constitutional Question seeking a declaration stating that the communal fishing licenses and the provisions they were issued under violated Section 15 of the Canadian Charter of Rights and Freedoms.[c 5]

On July 28, 2003, Judge W.J. Kitchen ruled the communal fishing licenses infringed upon the equality rights protected under Section 15 of the Charter. Furthermore, he determined that these licenses could not be justified under Section 1 of the Charter. As a result, Judge Kitchen decided to stay the charges against Kapp and the other protest fishers.[c 6]

In reaching this conclusion, Judge Kitchen applied the Law test established in the 1999 case of Law v Canada (Minister of Employment and Immigration). He relied on the testimony provided by the non-aboriginal fishers, who stated that they felt the program was offensive and demeaning, and resulted in a loss of human dignity.[4] Additionally, Judge Kitchen found that the government had not made any efforts to assess the economic benefits of the program or the needs of the Aboriginal bands. Based on these findings, he concluded that the program could not be justified under Section 1 of the Charter.[4][c 7]

In the appeal to the Supreme Court of British Columbia, Chief Justice Donald Brenner reached a different conclusion than Judge Kitchen regarding the implementation of the Law test. Chief Justice Brenner determined that Judge Kitchen had not properly applied the test, placing undue emphasis on the subjective perceptions of the witnesses rather than considering the objective reality of their situation.[5] As a result of this ruling, Chief Justice Brenner allowed the appeal and entered convictions against the protesters.[5][c 8] Kapp and the other protest fishers received a suspended sentence of six months and a $100 fine.[c 9]

Upon evaluating the Law test, Chief Justice Brenner found that all four aspects of the test weighed against the argument made by Kapp and the other non-aboriginal fishers that they had experienced discrimination.[5][c 10] Additionally, Chief Justice Brenner recognized a strong connection between the pilot program and the needs of the Aboriginal bands. He concluded that the program partially served as an ameliorative measure by providing economic opportunities.[5][c 11]

Kapp and the other convicted fishers proceeded to appeal Justice Brenner's decision to a five-member panel of the British Columbia Court of Appeal. On June 8, 2006, the Court of Appeal dismissed the appeal, with each justice providing unique reasons that concurred with the findings of reached by Justice Richard T.A. Low.[6]

Justice Richard T.A. Low concluded that the Section 15 challenge put forth by Kapp and the fishers could not succeed. He reasoned that they had not been denied a legal benefit in a regular or discriminatory manner, instead Low emphasized that the general fisheries management system had provided the fishers with numerous benefits.[6][c 12] Justice Low chose not to consider the applicability of Section 25, as he believed it was necessary to establish the existence of a Charter violation before addressing the rights provided under Section 25. However, he expressed reservations about whether Aboriginal commercial fishing rights could be considered under Section 25.[6][c 13] Justice Kenneth C. Mackenzie found that the Section 15 challenge could not succeed. He agreed largely with the opinion of Justice Brenner of the British Columbia Supreme Court, noting that the fishers were unable to satisfy the human dignity element of the Law test.[6][c 14] Chief Justice Lance Finch concurred with the reasons of Low and Mackenzie on the applicability of Section 15 and agreed that Section 25 was not engaged.[6][c 15] Justice Risa Levine concurred with the reasons of Justices Low and Mackenzie, but declined to consider Section 25 on the grounds it was introduced by the intervener parties and the court had to give primary consideration to the arguments of the parties.[6][c 16] Justice Pamela A. Kirkpatrick concurred with the reasons of Justices Low and Mackenzie that the Section 15 challenge be dismissed,[c 17] however, she disagreed with the lower courts conclusion that Section 25 did not provide that a fishing licence is an Aboriginal right.[6][c 18] Justice Kirkpatrick argued that the protection afforded by Section 25 through the language "other rights or freedoms" provided that the content of the right was the significant factor (fishing), and not the manner it was acquired (licence).[6][c 19]

The majority opinion was authored by Chief Justice of Canada Beverley McLachlin (left) and Justice Rosalie Abella (right).

The majority opinion, jointly authored by Chief Justice McLachlin and Justice Abella, presented a new interpretation of Section 15(2). They argued that the provision allows for certain distinctions in law to be exempted from full scrutiny under Section 15(1) when those programs have an ameliorative purpose.[7] In the case of Kapp, the court agreed that the communal fishing licenses program made a distinction based on race.[c 21] However, the court deemed the program constitutional under Section 15(2) of the Charter due to its intent to ameliorate the conditions of a disadvantaged group.[8] This approach represents a change from the previous interpretation of Section 15(2) from the 2000 case Lovelace v Ontario. In Lovelace, the court found that Section 15(2) was "confirmatory" of Section 15(1), meaning a claim against a government program must be assessed under Section 15(1) first.[9]

The majority acknowledged the challenges posed by the Law test, which had utilized human dignity as a legal standard. They recognized that "human dignity" is an abstract and subjective concept, and caused confusion and difficulty in its application.[10][c 22] Additionally, the Law test imposed an added burden on claimants seeking equality, rather than the enhancement it was supposed to provide. The Court also noted that the comparator group analysis could resurface in the shape of a formal analysis "focussed on treating likes alike".[c 22] Consequently, the majority redefined the Law test, removing the "human dignity" element,[10] and placing more focus on whether the claimant experienced discrimination that either perpetuated a disadvantage or stereotype.[11][12][c 23]

Significantly, the majority emphasized the role of Section 15(2) and accorded it greater weight when determining whether a government program is discriminatory under Section 15(1). This interpretation places the onus on the government to demonstrate that their program actively combats discrimination in pursuit of substantive equality.[13][12][c 24] To support the government's argument, it is necessary to establish a legislative goal for the program, rather than relying solely on its actual effects.[8][14][c 25] In essence, the majority found that Section 15(1) and 15(2) work in tandem to promote the concept of substantive equality. Section 15(1) prevents "discriminatory distinctions", while Section 15(2) permits governments to implement programs aimed at assisting disadvantaged groups (e.g., affirmative action) without the risk of challenge under Section 15(1).[12][8][c 26]

The court also acknowledged certain limitations to the application of Section 15(2). They observed that laws intended to "restrict or punish behaviour" would not be safeguarded by Section 15(2).[15][c 27] Additionally, for a program to receive protection, the group it targets must be specific and identifiable. Programs with a broad societal impact, such as social assistance, would not meet this criterion.[15][c 28]

Regarding Section 25 of the Charter, the majority raised concerns about whether the communal licenses would fall within the scope of this section. They found that only rights of a constitutional nature can benefit from the protection offered by Section 25.[16][2][c 29]

Justice Michel Bastarache provided a concurring opinion, aligning with the majority's conclusion that Kapp and the commercial fishers' appeal could not succeed. He also agreed with the revised test for the application of Section 15.[11][c 30] However, Justice Bastarache held the view that the appeal could not be successful because the program in question was protected under Section 25 of the Charter.[2][16][c 30] According to his perspective, in cases where a conflict arises between an equality claim invoking both Section 15 and Section 25, the court must prioritize the consideration of Section 25 before delving into Section 15.[16]