Case comment on R. v. Kapp: an analytical framework for section 25 of the Charter.

• Author: Hutchinson, Celeste

There is a significant void in the jurisprudence and literature regarding section 25 of the Canadian Charter of Rights and Freedoms. Consequently, there is no settled interpretation of either when it is triggered or the specific analytical framework that should apply. In R. v. Kapp, the British Columbia Court of Appeal provides a groundbreaking analysis of section 25 that addresses both constitutional questions.

The author first reviews the facts of the case, in which ten non-Aboriginal persons accused of unlawful fishing challenged regulations that restricted fishing in an area to members of licensed First Nations bands on the ground that they violated section 15 of the Charter. A majority of the British Columbia Court of Appeal dismissed the appeal, finding no infringement of section 15.

While several members of the court declined to consider the section 25 argument, Justices Low and Kirkpatrick provide an in-depth analysis of the section. The author shows how neither decision resolves the debate about whether section 25 should be triggered after a Charter right analysis has commenced or as a threshold issue before beginning such an analysis.

Justice Kirkpatrick, however, provides a structured three-part framework for section 25 that the author argues will serve as a starting point for future courts undertaking a section 25 analysis. The author addresses several problems with the framework. Finally, the author notes that the decision does not deal with the potential conflict between an individual Aboriginal right protected by the Charter and a collective Aboriginal right protected by section 25.

Un important vide subsiste dans la jurisprudence et dans la doctrine au sujet de l'article 25 de la Charte canadienne des droits et libertes. Par consequent, l'interpretation de cet article demeure incertaine quant a la determination des criteres selon lesquels cet article est susceptible d'etre invoque ainsi qu'au choix du cadre analytique approprie ou pouvant s'y appliquer. Dans l'affaire R. v. Kapp, la Cour d'appel de la Colombie-Britannique a arbore une analyse sans precedent de l'article 25 qui aborde ces deux questions constitutionnelles.

En guise d'introduction, l'auteure presente les faits de la cause. Dix personnes non autochtones accusees d'avoir peche sans autorisation invoquerent l'article 15 de la Charte afin de contester la constitutionnalite des reglements restreignant toute peche dans la region aux membres de bandes de premieres nations pourvues de permis. La majorite de la Cour d'appel de la Colombie-Britannique a rejete l'appel refusant ainsi de reconnaitre le bien fonde de l'existence d'une violation en vertu de l'article 15.

Bien que plusieurs juges de cette cour aient refuse de considerer les arguments relatifs a l'article 25, les juges Low et Kirkpatrick offrirent quant a eux une analyse approfondie de la portee de l'article. L'auteure souligne cependant qu'aucun de ces jugements ne resout le debat quant a savoir si l'article 25 devrait etre invoque apres l'initiation d'une analyse fondee sur la Charte, ou si un argument invoquant cet article devrait etre considere comme une question de seuil avant qu'une telle analyse ne soit debutee.

L'auteure soutient que le cadre d'analyse en trois parties de l'article 25 developpe par le juge Kirkpatrick servira dorenavant de point de depart pour les analyses fondees sur cet article. L'auteure souleve cependant un nombre de problemes que pourraient susciter l'utilisation de ce cadre d'analyse, et note une lacune importante dans le jugement : celui-ci n'aborde pas la possibilite d'un conflit eventuel entre un droit autochtone individuel protege par la Charte et un droit autochtone collectif protege en vertu de l'article 25.

Introduction I. Facts and Case History II. Constitutional Drafting III. Jurisprudence IV. Approach to Section 25 in Kapp V. Analysis Conclusion I. Introduction

Since the enactment of the Constitution Act, 1982, (1) most Aboriginal claims have been brought before the courts within the context of section 35. As a result, little attention has been given to section 25 of the Canadian Charter of Rights and Freedoms. (2) However, in R. v. Kapp (3) the British Columbia Court of Appeal provided an analysis of section 25 and its application in relation to the Charter. Although a majority of the court held that it was not applicable in this case, Justice Low indicated circumstances in which it may be invoked, albeit in a limited fashion. Justice Kirkpatrick, agreeing in result, went further than the majority by holding that the appeal could be dismissed solely by virtue of section 25.

As there is little reference to section 25 in Aboriginal rights cases, its significance in relation to Charter interpretation has been somewhat speculative. Kapp provides some insight into the direction the courts may take in its application. The majority in this case followed prior jurisprudence in finding that section 25 is not applicable unless a Charter issue arises in the context of Aboriginal rights. However, Kapp differs from prior cases in two ways. First, it provides an analysis regarding the point in time at which section 25 is "triggered". As can be seen in Justice Low's decision, there is an ongoing debate about whether section 25 is a threshold issue or whether it is to be applied only once a Charter analysis has commenced. Second, Justice Kirkpatrick establishes an analytical framework for the application of section 25.

As Kapp is one of the first cases to provide such extensive analysis, it is important to look not only at the drafting history of section 25 but also at the jurisprudence that predates it. Both are indicative of the purpose the provision was designed to perform. By critically analyzing the reasoning behind the opinions of Justices Low and Kirkpatrick, difficulties and weaknesses of the proposed framework are exposed, as are possible issues that may arise in the future. While the position of Justice Low may have merit, and while Justice Kirkpatrick's approach is not without its problems, there is a strong possibility that Justice Kirkpatrick's more in-depth analysis of section 25 will provide the building blocks for the future application of this potentially valuable Charter provision.

1. Facts and Case History

   After the decision in R. v. Sparrow, (4) the federal government implemented the Aboriginal Fisheries Strategy ("AFS") to create increased economic opportunities for Aboriginal people in Canadian fisheries. As part of the policy, Parliament, under the power granted to it by the Fisheries Act, (5) enacted the Aboriginal Communal Fishing Licenses Regulations, (6) which granted communal fishing licences to three First Nations as part of a Pilot Sales Program ("PSP"). (7) Those three First Nation bands were the Musqueam, the Burrard, and the Tsawwassen ("MBT").

   Kapp was one of ten non-Aboriginal persons charged with unlawfully fishing for salmon with a gillnet, in or near Area 29, contrary to the Pacific Fishery Regulations, 1993, (8) resulting in an offence under the Fisheries Act. The area in which the accused were fishing was closed for a twenty-four-hour period, allowing only designated members of the MBT to fish in the area pursuant to the ACFLR.

   At trial, Justice Kitchen entered a stay of proceedings due to a breach of subsection 15(1) of the Charter. (9) This decision was overturned by the Supreme Court of British Columbia as the PSPs were not found to have a purpose or effect that was discriminatory under subsection 15(1). (10)

   The appellant brought two challenges before the Court of Appeal: (1) the licences created exclusive fisheries, which was not within the power of Parliament to delegate, and was therefore ultra vires; and (2) the provisions of the ACFLR violated section 15 of the Charter. The matter was dismissed by a majority of the court on the non-Charter argument regarding the delegation of authority to the minister. Justice Low, in considering Parliament's delegation of the power to issue licenses and to make regulations with respect to their issuance, held that there was "no basis for concluding that all of this is hot regulation properly authorized by Parliament simply because the communal licence was issued to the MBT and was not available to all Canadians." (11)

   The majority of the Court of Appeal also dismissed the appeal on the Charter equality issue. While there were some differences among the members of the court in their analysis of the application of subsection 15(1), a majority found that there was no infringement of the right. (12) Justice Low held that although the regulation may seem discriminatory at first glance, upon further examination "the appellants were given the right to fish under commercial licence during other openings of the fishery ... The MBT communal licence and the commercial licences under which the appellants fished were both parts of the overall scheme by which the Minister allocated the resource ..." (13) Thus "[t]he licensing scheme did not constitute unequal treatment of either the appellants or of the MBT" (14) as required by the first branch of the test set out in Law v. Canada (Minister of Employment and Immigration). (15) Justice MacKenzie, in his concurring judgment, held that the appellant's section 15 argument failed on the third branch of the Law test. (16) He found that although the licensing scheme imposed differential treatment based on an enumerated ground, there was no actual or objective disadvantage realized by the appellants. (17)

   Although several members of the court found it inappropriate to consider the section 25 argument brought forth by the intervenor Tsawwassen First Nation, Justices Low and Kirkpatrick felt it necessary to address the issue. Justice Low held that section 25 could not be triggered where a Charter violation had not occurred. As no infringement or breach of subsection 15(1) had been found, section 25 was inapplicable. (18) Justice...