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 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.
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.
In 1981, the government of Canada appointed a Commission under the Inquiries Act led by Peter H. Pearse to examine commercial fishing on the Pacific coast and make recommendations related to the condition, management and utilization of these fisheries.
[c 3] However, a group of non-aboriginal commercial fishers including John Michael Kapp, organized a "protest" fishery with the intent of being charged by law enforcement and challenging the constitutional status of the exclusive aboriginal license.
[2][c 4] 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.
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][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.
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.
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.
[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.
[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.
[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.
[17][c 31] Professor Sophia Moreau from the University of Toronto suggests that this decision may have been influenced by the fact that the claimants in Kapp belonged to a privileged group that is not eligible for protection under Section 15.
[18] The Supreme Court further expanded on the newly established formula for Section 15(2) of the Charter in the 2011 case of Alberta (Aboriginal Affairs and Northern Development) v. Cunningham.
[19] Moreover, the government is not obligated to meet the new "rational contribution" test, which would require proving that excluding a particular group is essential to achieving the program's objectives.