Canada: R. v. Kapp

Copyright 2008, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Aboriginal Issues, July 2008

The decision of the Supreme Court of Canada in R. v. Kapp, released June 27, 2008, is the first case to formulate a legal test which informs the proper implementation of ameliorative measures or affirmative action programs targeting disadvantaged groups. The case also squarely addresses the issue of whether the federal government has the constitutional authority to enact legislation which enhances aboriginal involvement in the commercial fishery by distinguishing between aboriginal and non-aboriginal fishers.

Essentially, the appellants claimed that the aboriginal communal fishing licence in question discriminated against them on the basis of race. The court dismissed the appeal, concluding that the impugned legislation was constitutionally valid. The court concluded that because the purpose behind the enabling legislation was ameliorative and the aboriginal communities were "disadvantaged in terms of income, education and a host of other measures", there was no violation of the s. 15 equality provisions of the Canadian Charter of Rights and Freedoms.


The appellants were commercial fishers, mainly non-aboriginal, who asserted that their equality rights under s. 15 of the Charter were violated by a communal fishing licence granting members of three aboriginal communities the exclusive right to fish for salmon in the mouth of the Fraser River for a period of 24 hours. Under the licence, the aboriginal communities were also allowed to sell the fish harvested. The federal Crown argued that the general purpose of the program under which the licence was issued, known as the Aboriginal Fisheries Strategy, was intended to better regulate the fishery and that it effectively ameliorated the conditions of a disadvantaged group, namely, the aboriginal licence-holders. Accordingly, the court was required to examine how ss. 15(1) of the Charter, which prevents governments from making discriminatory distinctions, interacts with ss. 15(2) of the Charter, which enables "governments to proactively combat existing discrimination through affirmative measures."

Subsection 15(1) of the Charter provides in part that "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination". The language of this section also prohibits discrimination "based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." Subsection 15(1) must be read in conjunction with ss.15(2) which expressly provides that ss. 15(1) "does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

While the Supreme Court of Canada had previously set out the legal test to determine whether there has been a violation of the equality rights protected under ss. 15(1), it had not provided a legal test in relation to ss. 15(2). In the instant case, the court set out the following formula: a program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds subsumed in ss. 15(1) (the enumerated grounds in ss. 15(1) are race, national or ethnic origin, colour, religion, sex, age or mental or physical disability).

Within this legal context, the court considered the substantive purpose of s.15 in light of the ameliorative licensing program which provided benefits to the Musqueam, Tseshaht, and Tsawwassen First Nations. In doing so, the court reasoned that "not every distinction is discriminatory" and it noted that identical treatment may actually "produce serious inequality." Further, while the court found that the appellants had been treated differently on the basis of race, it concluded the Aboriginal Fisheries Strategy constituted an affirmative measure under ss. 15(2) of the Charter. The court reasoned that ss. 15(2) protected government efforts to adopt remedial schemes designed to assist disadvantaged groups, stating that "the disadvantage of Aboriginal people is indisputable" and underscoring "the legacy of stereotyping and prejudice against Aboriginal peoples."

It is noteworthy that the majority of the court (McLachlin, Abella, Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.) declined to address the nature and scope of s. 25 of the Charter which provides, in part, that the "guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada... ." While the court had originally framed a constitutional question requesting that the parties address this issue (and, in fact, the parties did so), the court concluded that given that the matter raised "complex questions of the utmost importance to peaceful reconciliation of aboriginal entitlement with the interest of all Canadians," the implications flowing from s. 25 would be "best left for resolution on a case-by-case basis as they arise."

While the majority of the court declined to address s. 25, Bastarache J. focused his minority judgment precisely on this point, concluding that the Charter operated to bar the appellants' constitutional challenge. He also proposed a legal framework for the application of s. 25, reasoning that s. 25 serves the purpose of protecting the rights of Aboriginal peoples where the application of the Charter would diminish the distinctive, collective and cultural identity of an aboriginal group.


The majority reasons of the court reflect a clear attempt to simplify, re-state, and clarify the guiding legal principles in what has been a complex and somewhat convoluted area of the law. Further, the court has finally set out a legal test relating to s. 15(2) of the Charter. It is now clear that government legislation and programs do not offend the equality provisions of our Charter where distinctions are made which provide benefits and advantages to particular groups and not to others; however, to be shielded by ss. 15(2), it is necessary to demonstrate that the law or program in question has an ameliorative or remedial purpose and that the target group is disadvantaged in relation to the enumerated or analogous grounds protected by s. 15. While the majority of the court did not address the metes and bounds of s. 25 of the Charter, the minority decision of Bastarache J. nonetheless advances judicial discourse in relation to this provision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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