R v Kapp
2008 Supreme Court of Canada decision / From Wikipedia, the free encyclopedia
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R v Kapp, 2008 SCC 41, is a Supreme Court of Canada 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 case stemmed from an appeal by John Michael Kapp and a group of non-aboriginal commercial fishers who staged a "protest" fishery with the intention of being charged by law enforcement and challenging the constitutional status of an exclusive Aboriginal commercial fishing license.
R v Kapp | |
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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 SCR 483, 294 DLR (4th) 1, [2008] 8 WWR 1, 232 CCC (3d) 349, 58 CR (6th) 1, 79 BCLR (4th) 201 |
Docket No. | 31603 [1] |
Prior history | Stay of proceedings granted, 2003 BCPC 279, [2003] 4 CNLR 238; Stay lifted, 2004 BCSC 958, (2004), 31 BCLR (4th) 258, [2004] 3 CNLR 269; Affirmed, 2006 BCCA 277 (CanLII), (2006), 56 BCLR (4th) 11, 271 DLR (4th) 70, [2006] 10 WWR 577, [2006] 3 CNLR 282 |
Ruling | A communal fishing license granted exclusively to Indigenous people does not violate section 15 of the Charter because section 15(2) enables governments to pro‑actively combat discrimination by developing programs aimed at helping disadvantaged groups to improve their situation |
Court membership | |
Chief Justice: Beverley McLachlin Puisne Justices: Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron, Marshall Rothstein | |
Reasons given | |
Majority | McLachlin CJ and Abella J (paras 1–66), joined by Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ |
Concurrence | Bastarache J (paras 67–123) |
Laws applied | |
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The Supreme Court dismissed the appeal based on the understanding that a distinction made on the basis of an enumerated or analogous ground in a government program would not constitute discrimination under Section 15 if the program met a two part test under Section 15(2): (1) it had an ameliorative or remedial purpose, and (2) it targeted a disadvantaged group identified by the enumerated or analogous grounds. In essence, the Court concluded that the prima facie discrimination was permitted because it aimed to improve the situation of a disadvantaged group, as allowed by Section 15(2) of the Charter.
In the Kapp decision, the Court acknowledged the difficulties encountered with the Court's ruling in Law v Canada (Minister of Employment and Immigration), particularly regarding the utilization of "human dignity" as a legal test. While human dignity is an essential value underlying Section 15, it is an abstract and subjective concept that, even with the guidance provided by the four factors outlined in the Law case, proves to be confusing when applied and poses an additional burden on equality claimants. This ruling reinterprets Law in a manner that does not impose a new and distinct test for discrimination but rather reaffirms the approach to substantive equality established in Andrews v Law Society of British Columbia and subsequent decisions.
The core objective of combating discrimination underlies both Section 15(1) and Section 15(2) of the Charter. Section 15(1) aims to prevent governments from making distinctions based on the enumerated or analogous grounds that perpetuate group disadvantage and prejudice or impose disadvantage based on stereotypes. Section 15(2), on the other hand, enables governments to actively address existing discrimination through affirmative measures.