R. v. Kapp
Encyclopedia
R. v. Kapp is a 2008 Supreme Court of Canada
case dealing with an appeal from a British Columbia Court of Appeal
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 on the basis that the distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under s. 15 if, under s. 15(2): (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. In other words the court found that the prima facie discrimination was allowed because it was aimed at improving the situation of a disadvantaged group as allowed by s. 15(2) of the Charter.
This decision recognizes difficulty found with Law v. Canada (Minister of Employment and Immigration)
in trying to employ “human dignity” as a legal test. No doubt that human dignity is an essential value underlying s.15, but it is an abstract and subjective notion that, even with the guidance of the 4 factors outlined in Law, are confusing to apply and have proven to be an additional burden on equality claimants. This case interprets Law so that it does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality set out in Andrews v. Law Society of British Columbia
and developed in the following decisions.
The central purpose of combatting discrimination underlies both ss.15(1) and 15(2). Section 15(1) focuses on preventing governments from making distinctions based on the enumerated or analogous grounds that have the effect of perpetuating group disadvantage and prejudice, or impose disadvantage on the basis of stereotyping. Section 15(2) focuses on enabling governments to proactively combat existing discrimination through affirmative measures.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case dealing with an appeal from a British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
decision that held that a communal fishing license granted exclusively to Aboriginals
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
did not violate section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Supreme Court dismissed the appeal on the basis that the distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under s. 15 if, under s. 15(2): (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. In other words the court found that the prima facie discrimination was allowed because it was aimed at improving the situation of a disadvantaged group as allowed by s. 15(2) of the Charter.
This decision recognizes difficulty found with Law v. Canada (Minister of Employment and Immigration)
Law v. Canada (Minister of Employment and Immigration)
Law v. Canada , [1999] 1 S. C. R. 497 is a leading Supreme Court of Canada decision. The ruling is notable because the court created the Law test, a significant new tool that has since been used by Canadian courts for determining the validity of equality right claims under section 15 of the...
in trying to employ “human dignity” as a legal test. No doubt that human dignity is an essential value underlying s.15, but it is an abstract and subjective notion that, even with the guidance of the 4 factors outlined in Law, are confusing to apply and have proven to be an additional burden on equality claimants. This case interprets Law so that it does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality set out in Andrews v. Law Society of British Columbia
Andrews v. Law Society of British Columbia
Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada case to deal with section 15 of the Canadian Charter of Rights and Freedoms...
and developed in the following decisions.
The central purpose of combatting discrimination underlies both ss.15(1) and 15(2). Section 15(1) focuses on preventing governments from making distinctions based on the enumerated or analogous grounds that have the effect of perpetuating group disadvantage and prejudice, or impose disadvantage on the basis of stereotyping. Section 15(2) focuses on enabling governments to proactively combat existing discrimination through affirmative measures.