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
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, RSC 1983, App II, No 46;
Fisheries Act, RSC 1985, c F‑14;
Indian Act, RSC 1985, c I‑5, ss 81, 83, 85.1, 88.
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.
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.
^SCC Case Information - Docket 31603 Supreme Court of Canada
RvKapp, 2008 SCC 41 is a Supreme Court of Canada decision that held that a communal fishing license granted exclusively to Aboriginals did not violate...
of outcomes for group characteristics and group outcomes. The case of RvKapp was instrumental in shifting the focus from formal equality to substantive...
Although the fishermen who were prosecuted were successful at trial in RvKapp, this decision was overturned on appeal. The first wave of Chinese immigrants...
Although the fishermen who were prosecuted were successful at trial in RvKapp, this decision was overturned on appeal. Two military coups in Fiji in...
test has been applied include Rv Gladstone, which involved the Cowichan Tribes' traditional fishing practices, and RvKapp, which involved the Stó:lō Nation's...
aboriginals is not discriminatory. The leading case on section 15(2) is now R. v. Kapp, 2008 SCC 41. In a deal made in the early 1990s, the Ontario government...
British Columbia Court of Appeal case R. v. Kapp as one that discusses section 25's application. She argues Kapp failed to resolve the issue of whether...
Jason. "Litigating a Charter Challenge". CanLII. Retrieved May 17, 2024. R. v. Kapp, 2008 SCC 41, [2008] 2 SCR 483 Morton, Ted, and Knopff, Rainer (2000)...
the 2008 case RvKapp, back to the original test, but re-adjusted in Quebec (AG) v A in 2013 and again by Kahkewistahaw First Nation v Taypotat in 2015...
comparing the claimant and his or her treatment to other groups.: para 17 In R. v. Kapp in 2008, however, the Court recognized that the comparator group analysis...
education). After Law v. Canada (1999) the question of whether dignity was affected was key to a section 15 analysis. In R. v. Kapp (2008), the problems...
test for a section 15 equality analysis comes from Andrews as affirmed in RvKapp. It requires that the court satisfy two conditions: (1) the law creates...
SCC 10; R. v. Kapp, 2008 SCC 42; R. v. Sappier; R. v. Gray, 2006 SCC 54; Peoples Department Stores Inc. (Trustee of) v. Wise, 2004 SCC 64; R. v. Demers...
cape. From Kapp Valdivia, southeast to Kapp Lollo, on the east side of the island, the coast is known as Victoria Terrasse. From there to Kapp Fie at the...
Play-off winners; (R) Relegated June 6: Sandaker-Ranheim 3–1 June 13: Kapp-Kristiansund 2–3 July 4: Ranheim-Kristiansund 3–0 Sandaker-Kapp 5–1 July 11:...
Shapiro, Beth; Wojcik, Genevieve; Rasmussen, Morten; Soares, André E. R.; Kapp, Joshua; Sockell, Alexandra (2018-06-26). "Ancient genomes from North Africa...
reasons on motions. Motions released in 2008: Canada (Justice) v. Khadr, [2008] 2 S.C.R. 143, 2008 SCC 29 Although the judgement was rendered in June,...
survivors movement The Myth of Mental Illness Botha M, Chapman R, Giwa Onaiwu M, Kapp SK, Stannard Ashley A, Walker N (March 12, 2024). "The neurodiversity...
9780890425787. ISBN 978-0-89042-575-6. S2CID 249488050. Kapp, Steven K.; Ne'eman, Ari (2020), Kapp, Steven K. (ed.), "Lobbying Autism's Diagnostic Revision...
Otto Kapp (2 August 1885-20 February 1966) was a professor of electrical engineering at UCL. He was appointed to the Pender chair in 1935. "Kapp, Reginald...
Naturheilkunde. 10 (2): 85–87. doi:10.1159/000071667. PMID 12808367. S2CID 42348141. Kapp, J. M.; Sumner, W. (2019). "Kombucha: a systematic review of the empirical...
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