R. v. Kapp (J.M.) et al., 79 BCLR (4th) 201

Judge:McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
Court:Supreme Court of Canada
Case Date:December 11, 2007
Jurisdiction:Canada (Federal)
Citations:79 BCLR (4th) 201;232 CCC (3d) 349;256 BCAC 75;[2008] SCJ No 42 (QL);78 WCB (2d) 343;376 NR 1;294 DLR (4th) 1;[2008] 8 WWR 1;[2008] 3 CNLR 347;[2008] CarswellBC 1312;2008 SCC 41;(2008), 256 B.C.A.C. 75 (SCC);37 CELR (3d) 1;JE 2008-1323;[2008] ACS no 42;[2008] 2 SCR 483;58 CR (6th) 1;EYB 2008-135098;175 CRR (2d) 185
 
FREE EXCERPT

R. v. Kapp (J.M.) (2008), 256 B.C.A.C. 75 (SCC);

    431 W.A.C. 75

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2008] B.C.A.C. TBEd. JN.055

John Michael Kapp, Robert Agricola, William Anderson, Albert Armstrong, Dale Armstrong, Lloyd James Armstrong, Pasha Berlak, Kenneth Axelson, Michael Bemi, Leonard Botkin, John Brodie, Darrin Chung, Donald Connors, Bruce Crosby, Barry Dolby, Wayne Ellis, William Gaunt, George Horne, Hon van Lam, William Leslie Sr., Bob M. McDonald, Leona McDonald, Stuart McDonald, Ryan McEachern, William McIsaac, Melvin (Butch) Mitchell, Ritchie Moore, Galen Murray, Dennis Nakutsuru, Theordore Neef, David Luke Nelson, Phuoc Nguyen, Nung Duc Gia Nguyen, Richard Nomura, Vui Phan, Robert Powroznik, Bruce Probert, Larry Salmi, Andy Sasidiak, Colin R. Smith, Donna Sonnenberg, Den van Ta, Cedric Towers, Thanh S. Tra, George Tudor, Mervin Tudor, Dieu To Ve, Albert White, Gary Williamson, Jerry A. Williamson, Spencer J. Williamson, Kenny Yoshikawa, Dorothy Zilcosky and Robert Zilcosky (appellants) v. Her Majesty The Queen (respondent) and Attorney General of Ontario, Attorney General of Quebec, Attorney General for Saskatchewan, Attorney General of Alberta, Tsawwassen First Nation, Haisla Nation, Songhees Indian Band, Malahat First Nation, T'Sou-ke First Nation, Snaw-naw-as (Nanoose) First Nation and Beecher Bay Indian Band (collectively Te'mexw Nations), Heiltsuk Nation, Musqueam Indian Band, Cowichan Tribes, Sportfishing Defence Alliance, B.C. Seafood Alliance, Pacific Salmon Harvesters Society, Aboriginal Fishing Vessel Owners Association, United Fishermen and Allied Workers Union, Japanese Canadian Fishermens Association, Atlantic Fishing Industry Alliance, Nee Tahi Buhn Indian Band, Tseshaht First Nation and Assembly of First Nations (intervenors)

(31603; 2008 SCC 41; 2008 CSC 41)

Indexed As: R. v. Kapp (J.M.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 27, 2008.

Summary:

The accused were licensed commercial fishers, mainly non-aboriginal, who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP). The accused were charged under s. 78 of the Fisheries Act with fishing for salmon with a gillnet in the Fraser River during a closure. The accused sought a stay of the charges.

The British Columbia Provincial Court (2003 BCPC 279), granted the stay on the basis that the licence granted to the three First Nations Bands violated the equality rights of the accused under s. 15 of the Charter. The trial judge also ruled that the licence was not saved by s. 1 of the Charter. The Crown appealed (i.e., a summary conviction appeal).

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 958, allowed the appeal and entered convictions. The accused were sentenced accordingly ([2004] B.C.T.C. 1503). The accused applied for leave to appeal the convictions.

The British Columbia Court of Appeal, per Donald, J.A., in a decision reported 205 B.C.A.C. 71; 337 W.A.C. 71, granted leave to appeal in part. Interested First Nations and other interested parties applied for leave to intervene.

The British Columbia Court of Appeal, per Levine, J.A., in a decision reported 212 B.C.A.C. 72; 350 W.A.C. 72, allowed the applications for leave to intervene on the Charter equality issue and on the exclusive fishery issues. Subsequently the Chief Justice of British Columbia directed that a five judge panel would be convened because the accused's arguments involved a challenge to a prior decision of the court.

The British Columbia Court of Appeal, in a decision reported 227 B.C.A.C. 248; 374 W.A.C. 248, dismissed the appeal. The court rejected the accused's argument that the PSP and the 24 hour communal licence created a racially segregated commercial fishery denying them equal benefit of the law contrary to s. 15(1) of the Charter. Kirkpatrick, J.A., in a separate judgment concurring that the appeal should be dismissed, opined that s. 25 of the Charter, which dealt with aboriginal rights, was a complete answer to the accused's Charter argument and it was therefore unnecessary to embark on a s. 15 analysis. Kirkpatrick, J.A., interpreted s. 25 and discussed the relationship between s. 25 and other provisions of the Charter. The accused appealed.

The Supreme Court of Canada dismissed the appeal, holding that the communal fishing licence was constitutional. Bastarache, J., concurring in the result, discussed s. 25 of the Charter in detail and agreed with Kirkpatrick, J.A., that s. 25 was a complete answer to the accused's Charter argument.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - The accused were licensed commercial fishers, mainly non-aboriginal, who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - The accused were convicted under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the communal fishing licence discriminated against them on the basis of race contrary to s. 15(1) of the Charter - The Crown argued that the general purpose of the PSP was to regulate the fishery and to ameliorate the conditions of a disadvantaged group - Those contentions, taken together, raised the issue of the interplay between s. 15(1) and s. 15(2) of the Charter (i.e., the issue of whether s. 15(2) was capable of operating independently of s. 15(1) to protect ameliorative programs from claims of discrimination) - The Supreme Court of Canada concluded that where a program makes a distinction on one of the grounds enumerated under s. 15 or an analogous ground but has as its object the amelioration of the conditions of a disadvantaged group, s. 15's guarantee of substantive equality was furthered, and a claim of discrimination would fail - Since the communal fishing licence challenged in this appeal fell within s. 15(2)'s ambit, one of its objects being to ameliorate the conditions of the participating aboriginal bands, the accused's claim of a violation of s. 15 could not succeed - See paragraphs 1 to 3 and 56 to 61.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - Section 15(1) of the Charter prohibited discrimination on a number of grounds - Section 15(2) provided that s. 15(1) did not preclude amelioration programs - The Supreme Court of Canada discussed the relationship between ss. 15(1) and 15(2) - The court noted that in Lovelace v. Ontario (SCC 2000), Iacobucci, J., perceived two possible approaches to the interpretation of s. 15(2) - Iacobucci believed that the Supreme Court could either read s. 15(2) as an interpretive aid to s. 15(1) (the approach adopted in Lovelace) or read it as an exception or exemption from the operation of s. 15(1) - The court, in the case at bar, opined that there was a third option: if the government could demonstrate that an impugned program met the criteria of s. 15(2), it might be unnecessary to conduct a s. 15(1) analysis at all - The court held that while ss. 15(1) and 15(2) were confirmatory of each other, that confirmatory purpose did not preclude an independent role for s. 15(2) - The court stated that "section 15(2) is more than a hortatory admonition. It tells us, in simple clear language, that s. 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of s. 15 ... In other words, once the s. 15 claimant has shown a distinction made on an enumerated or analogous ground, it is open to the government to show that the impugned law, program or activity is ameliorative and, thus, constitutional. This approach has the advantage of avoiding the symbolic problem of finding a program discriminatory before 'saving' it as ameliorative, while also giving independent force to a provision that has been written as distinct and separate from s. 15(1). Should the government fail to demonstrate that its program falls under s. 15(2), the program must then receive full scrutiny under s. 15(1) to determine whether its impact is discriminatory" - See paragraphs 38 to 40.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - Section 15(1) of the Charter prohibited discrimination on a number of grounds - Section 15(2) provided that s. 15(1) did not preclude amelioration programs - The Supreme Court of Canada discussed the test applicable where s. 15(2) was in issue - The court stated that "... we would therefore formulate the test under s. 15(2) as follows. 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. In proposing this test, we are mindful that future cases may demand some adjustment to the framework in order to meet the litigants' particular circumstances. However, at this early stage in the development of the law surrounding s. 15(2), the test we have described provides a basic starting point - one that is adequate for determining the issues before us on this appeal, but leaves open the possibility for future refinement" - See paragraph 41.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - Section 15(1) of the Charter prohibited discrimination on a number of grounds - Section 15(2) provided that subsection (1) did not preclude "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups ..." - The Supreme Court of Canada discussed the meaning of the phrase "has as its object" as it appeared in s. 15(2) - The court noted that one issue that arose in interpreting this phrase was whether courts should look to the purpose or to the effect of the legislation - The court held that given the language of the provision and its goal of enabling governments to pro-actively combat discrimination, the "purpose"-based approach was more appropriate than the "effect"-based approach - In examining purpose, courts may have to consider not only statements made by the drafters of the program but also whether the legislature chose means rationally related to that ameliorative purpose, in the sense that it appears at least plausible that the program may indeed advance the stated goal of combatting disadvantage - See paragraphs 43 to 49.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - Section 15(1) of the Charter prohibited discrimination on a number of grounds - Section 15(2) provided that subsection (1) did not preclude "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups ..." - The Supreme Court of Canada discussed the meaning of the phrase "has as its object" as it appeared in s. 15(2) - The court noted that one issue that arose in interpreting this phrase was whether, in order to qualify for s. 15(2) protection, a program had to have an ameliorative purpose as its sole object, or whether having such a goal as one of several objectives was sufficient - The Supreme Court of Canada held that it was not necessary for the program's ameliorative purpose to be its exclusive object - The court stated that "the importance of the ameliorative purpose within the scheme may help determine the scope of s. 15(2) protection, however. Consider that an ameliorative program may coexist with or interact with a larger legislative scheme. If only the program has an ameliorative purpose, does s. 15(2) extend to protect the wider legislative scheme? We offer as a tentative guide that s. 15(2) precludes from s. 15(1) review distinctions made on enumerated or analogous grounds that serve and are necessary to the ameliorative purpose" - See paragraphs 50 to 52.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - Section 15(1) of the Charter prohibited discrimination on a number of grounds - Section 15(2) provided that subsection (1) did not preclude "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups - The Supreme Court of Canada interpreted the word "amelioration" as used in s. 15(2) - The court stated that "although the word does not at first seem liable to misunderstanding, courts have previously understood the term (and s. 15(2)) to apply in surprising circumstances ... These precedents suggest that the meaning of 'amelioration' deserves careful attention in evaluating programs under s. 15(2). We would suggest that laws designed to restrict or punish behaviour would not qualify for s. 15(2) protection. Nor, as already discussed, should the focus be on the effect of the law. This said, the fact that a law has no plausible or predictable ameliorative effect may render suspect the state's ameliorative purpose. Governments, as discussed above, are not permitted to protect discriminatory programs on colourable pretexts" - See paragraphs 53 and 54.

Civil Rights - Topic 939

Discrimination - Government programs - Affirmative action or ameliorative programs - Section 15(1) of the Charter prohibited discrimination on a number of grounds - Section 15(2) provided that subsection (1) did not preclude "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups - The Supreme Court of Canada interpreted the word "disadvantaged" as used in s. 15(2) - The court stated that "'Disadvantage' under s. 15 connotes vulnerability, prejudice and negative social characterization. Section 15(2)'s purpose is to protect government programs targeting the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs. Not all members of the group need to be disadvantaged, as long as the group as a whole has experienced discrimination" - See paragraph 55.

Civil Rights - Topic 1031

Discrimination - Race and national or ethnic origin - General - [See first Civil Rights - Topic 939 ].

Civil Rights - Topic 5500

Equality and protection of the law - General principles and definitions - General - The Supreme Court of Canada discussed the purpose of s. 15 of the Charter - See paragraphs 14 to 26.

Civil Rights - Topic 5500

Equality and protection of the law - General principles and definitions - General - [See first and second Civil Rights - Topic 939 ].

Civil Rights - Topic 5502

Equality and protection of the law - General principles and definitions - Whether right to equality abridged - [See first Civil Rights - Topic 939 ].

Civil Rights - Topic 5504

Equality and protection of the law - General principles and definitions - Scope of right - [See first and second Civil Rights - Topic 939 ].

Civil Rights - Topic 5507

Equality and protection of the law - General principles and definitions - Equal benefit of the law - [See first and second Civil Rights - Topic 939 ].

Civil Rights - Topic 5581

Equality and protection of the law - Affirmative action or ameliorative programs - General - [See all Civil Rights - Topic 939 ].

Civil Rights - Topic 5586

Equality and protection of the law - Affirmative action or ameliorative programs - Particular programs - [See first Civil Rights - Topic 939 ].

Civil Rights - Topic 5588

Equality and protection of the law - Affirmative action or ameliorative programs - Protection from review - [See first and second Civil Rights - Topic 939 ].

Civil Rights - Topic 5646

Equality and protection of the law - Particular cases - Indians and Métis - [See first Civil Rights - Topic 939 ].

Civil Rights - Topic 5656

Equality and protection of the law - Particular cases - Licensing - [See first Civil Rights - Topic 939 ].

Civil Rights - Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See first and second Civil Rights - Topic 939 and both Civil Rights - Topic 8485 ].

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - The accused were convicted under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the PSP and 24 hour communal licence created a racially segregated commercial fishery contrary to s. 15(1) of the Charter - One of the First Nations Bands argued that s. 25 of the Charter, which dealt with aboriginal rights, should be applied to defeat the s. 15 claim - The Supreme Court of Canada dismissed the appeal, holding that s. 15 was not breached - The court stated that while it was unnecessary to consider whether s. 25 would bar the accused's claim, the court wished to "signal our concerns with aspects of the reasoning of Bastarache, J., and of Kirkpatrick, J.A., both of whom would have dismissed the appeal solely on the basis of s. 25. An initial concern is whether the communal fishing licence at issue in this case lies within s. 25's compass. In our view, the wording of s. 25 and the examples given therein - aboriginal rights, treaty rights, and 'other rights or freedoms', such as rights derived from the Royal Proclamation or from land claims agreements - suggest that not every aboriginal interest or program falls within the provision's scope. Rather, only rights of a constitutional character are likely to benefit from s. 25. If so, we would question, without deciding, whether the fishing licence is a s. 25 right or freedom. A second concern is whether, even if the fishing licence does fall under s. 25, the result would constitute an absolute bar to the appellants' s. 15 claim, as distinguished from an interpretive provision informing the construction of potentially conflicting Charter rights" - The court stated that those complex issues were best left for resolution on a case-by-case basis as they arose before the court - See paragraphs 62 to 65.

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - The accused were licensed commercial fishers who engaged in a protest fishery by fishing during a 24 hour period when only three First Nations Bands were licenced to fish under a government policy called the Pilot Sales Program (PSP) - The accused were convicted under the Fisheries Act with fishing for salmon during a closure - The accused appealed, alleging that the PSP and 24 hour communal licence created a racially segregated commercial fishery contrary to s. 15(1) of the Charter - One of the First Nations Bands argued that s. 25 of the Charter, which dealt with aboriginal rights, should be applied to defeat the s. 15(1) claim - The Supreme Court of Canada dismissed the appeal, holding that s. 15 was not breached and that it was unnecessary to consider s. 25 in this case - Bastarache, J., however, opined that s. 25 afforded a complete answer to the accused's s. 15 equality challenge - Bastarache, J., discussed the legislative history, role, effect and scope of s. 25, interpreted the provision and proposed an analytical approach to be followed when s. 25 was engaged - See paragraphs 76 to 123.

Civil Rights - Topic 8486

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Equality provision (s. 15) - [See all Civil Rights - Topic 939 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See first and second Civil Rights - Topic 939 ].

Fish and Game - Topic 976

Indian, Inuit and Métis rights - Right to fish and regulation of Indian fishery - Licensing - [See first Civil Rights - Topic 939 ].

Indians, Inuit and Métis - Topic 508

Rights - Abrogation (Charter, s. 25) - [See both Civil Rights - Topic 8485 ].

Words and Phrases

Amelioration - The Supreme Court of Canada discussed the meaning of this word as it appeared in s. 15(2) of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 53 and 54.

Words and Phrases

Disadvantaged - The Supreme Court of Canada discussed the meaning of this word as it appeared in s. 15(2) of the Canadian Charter of Rights and Freedoms, 1982 - See paragraph 55.

Words and Phrases

Has as its object - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 15(2) of the Canadian Charter of Rights and Freedoms, 1982 - See paragraphs 43 to 52.

Cases Noticed:

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [paras. 4, 71].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [paras. 5, 97].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [paras. 6, 106].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 14].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [paras. 17, 75].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [paras. 21, 98].

Athabasca Tribal Council v. Amoco Canada Petroleum Co. et al., [1981] 1 S.C.R. 699; 37 N.R. 336; 29 A.R. 350, refd to. [para. 31].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 34].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Manitoba Rice Farmers Association v. Human Rights Commission (Man.) (1987), 50 Man.R.(2d) 92 (Q.B.), revd. in part (1988), 55 Man.R.(2d) 263 (C.A.), refd to. [para. 46].

R. v. Music Explosion Ltd. (1989), 62 Man.R.(2d) 189 (Q.B.), revd. (1990), 68 Man.R.(2d) 203 (C.A.), refd to. [para. 53].

Rebic v. Collver, P.C.J. (1985), 20 C.C.C.(3d) 196 (B.C.S.C.), affd. (1986), 28 C.C.C.(3d) 154 (B.C.C.A.), refd to. [para. 53].

Rebic and R., Re - see Rebic v. Collver, P.C.J.

R. v. R.C.M. (1985), 36 Man.R.(2d) 252; 21 C.C.C.(3d) 116 (Q.B.), refd to. [para. 53].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 55].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [paras. 59, 104].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304; 2001 SCC 56, refd to. [para. 82].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 83].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 87].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 87].

Adler et al. v. Ontario et al., [1996] 3 S.C.R. 609; 204 N.R. 81; 95 O.A.C. 1, refd to. [para. 87].

R. v. Drybones, [1970] S.C.R. 282, refd to. [para. 88].

Canada (Attorney General) v. Lavell, [1974] S.C.R. 1349, refd to. [para. 88].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 89].

R. v. Steinhauer, [1985] 3 C.N.L.R. 187; 63 A.R. 381 (Q.B.), refd to. [para. 96].

Campbell et al. v. British Columbia (Attorney General) et al., [2000] B.C.T.C. 528; [2000] 4 C.N.L.R. 1 (S.C.), refd to. [para. 96].

Shubenacadie Indian Band v. Canadian Human Rights Commission et al. (2000), 256 N.R. 109; 187 D.L.R.(4th) 741 (F.C.A.), refd to. [para. 96].

R. v. Nicholas (W.) and Bear (G.) et al., [1989] 2 C.N.L.R. 131; 91 N.B.R.(2d) 248; 232 A.P.R. 248 (T.D.), refd to. [para. 96].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 99].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 106].

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al., [2004] 3 S.C.R. 550; 327 N.R. 133; 206 B.C.A.C. 132; 338 W.A.C. 132; 2004 SCC 74, refd to. [para. 106].

Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) - see Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al.

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 505 (C.A.), refd to. [para. 107].

Statutes Noticed:

Aboriginal Communal Fishing Licences Regulations - see Fisheries Act Regulations (Can.).

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1), sect. 15(2) [para. 13]; sect. 25 [para. 84].

Fisheries Act Regulations (Can.), Aboriginal Communal Fishing Licences Regulations, SOR/93-332, generally [para. 7].

Authors and Works Noticed:

Arbour, Jane M., The Protection of Aboriginal Rights Within a Human Rights Regime: In Search of an Analytical Framework for Section 25 of the Canadian Charter of Rights and Freedoms (2003), 21 S.C.L.R.(2d) 3, pp. 30 to 37 [para. 93]; 60 [para. 89].

Baines, Beverley, Equality, Comparison, Discrimination, Status, in Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 73 [para. 22, footnote 2].

Bartlett, Richard H., Survey of Canadian Law: Indian and Native Law (1983), 15 Ottawa L. Rev. 431, generally [para. 94].

Bayefsky, Anne F., and Eberts, Mary, Equality Rights and the Canadian Charter of Rights and Freedoms (1985), p. 355 [para. 45].

Beck, Stanley M., and Bernier, Ivan, Canada and the New Constitution: The Unfinished Agenda (1983), vol. 1, p. 231 [para. 90].

Bredt, Christopher D., and Dodek, Adam M., Breaking the Law's Grip on Equality: A New Paradigm for Section 15 (2003), 20 S.C.L.R.(2d) 33, generally [para. 22, footnote 1].

Brunelle, Christian, La dignité dans la Charte des droits et libertés de la personne: de l'ubiquité à l'ambiguïté d'une notion fondamentale, in Nadeau, Alain-Robert, La Charte québécoise: origines, enjeux et perspectives, [2006] R. du B. (numéro thématique) 143, generally [para. 22, footnote 1].

Canada, Report of the Commission of Inquiry on Equality in Employment (1984), pp. 2 [para. 18]; 13, 14 [para. 32].

Canada, Commission on the Pacific Fisheries Policy, Turning the Tide: A New Policy For Canada's Pacific Fisheries (Pearse Final Report) (1982), generally [para. 6].

Canada, Fisheries and Oceans, An Evaluation of the Pilot Sale Arrangement of Aboriginal Fisheries Strategy (AFS) (Gardner Pinfold Report) (1994), generally [para. 7]; p. 3 [para. 6].

Canada, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 3 (November 12, 1980), pp. 68, 84 [para. 93].

Canada, Prime Minister's Office, P.E. Trudeau, A Time for Action: Toward the Renewal of the Canadian Federation (1978), generally [para. 90].

Cumming, Peter, Canada's North and Native Rights, in Morse, Bradford W., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (1985), p. 732 [para. 94].

Dickson, Timothy, Section 25 and Intercultural Judgment (2003), 61 U.T. Fac. L. Rev. 141, generally [para. 95].

Drumbl, Mark A., and Craig, John D.R., Affirmative Action in Question: A Coherent Theory for Section 15(2) (1997), 4 Rev. Const. Stud. 80, para. 102 [para. 36].

Faraday, Fay, Denike, Margaret, and Stephenson, M. Kate, Making Equality Rights Real: Securing Substantive Equality under the Charter (2006), p. 73 [para. 22, footnote 2].

Fyfe, R. James, Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court of Canada (2007), 70 Sask. L. Rev. 1, generally [para. 22, footnote 1].

Gardner Pinfold Report - see Canada, Fisheries and Oceans, An Evaluation of the Pilot Sale Arrangement of Aboriginal Fisheries Strategy (AFS).

Gilbert, Daphne, and Majury, Diana, Critical Comparisons: The Supreme Court of Canada Dooms Section 15 (2006), 24 Windsor Y.B. Access Just. 111, generally [para. 22, footnotes 1, 2].

Gilbert, Daphne, Time to Regroup: Rethinking Section 15 of the Charter (2003), 48 McGill L.J. 627, generally [para. 22, footnote 1].

Goldenberg, André, "Salmon for Peanut Butter": Equality, Reconciliation and the Rejection of Commercial Aboriginal Rights (2004), 3 Indigenous L.J. 61, p. 90 [para. 95].

Greschner, Donna, Does Law Advance the Cause of Equality? (2001), 27 Queen's L.J. 299, generally [para. 22, footnote 1].

Greschner, Donna, The Purpose of Canadian Equality Rights (2002), 6 Rev. Const. Stud. 291, generally [para. 22, footnote 1].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), vols. 1, pp. 810, 811 [para. 94]; 2, pp. 55-28, 55-29 [para. 22, footnote 1]; 2, p. 55-53 [para. 37].

Hutchinson, Celeste, Case Comment on R. v. Kapp: An Analytical Framework for Section 25 of the Charter (2007), 52 McGill L.J. 173, pp. 186 [para. 107]; 189 [para. 95].

Isaac, Thomas, Canadian Charter of Rights and Freedoms: The Challenge of the Individual and Collective Rights of Aboriginal People (2002), 21 Windsor Y.B. Access Just. 431, generally [para. 95].

Joppke, Christian, and Lukes, Steven, Multicultural Questions (1999), p. 87 [para. 99].

Juriansz, Russell G., Recent Developments in Canadian Law: Anti-Discrimination Law Part I (1987), 19 Ottawa L. Rev. 447, p. 483 [para. 45].

Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995), p. 35 [para. 99].

Lepofsky, M. David, and Bickenbach, Jerome E., Equality Rights and the Physically Handicapped, in Bayefsky, Anne F., and Eberts, Mary, Equality Rights and the Canadian Charter of Rights and Freedoms (1985), p. 355 [para. 45].

Lyon, Noel, Constitutional Issues in Native Law, in Morse, Bradford W., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (1985), p. 423 [para. 94].

Lysyk, Kenneth M., The Rights and Freedoms of the Aboriginal Peoples of Canada, in Tarnopolsky, Walter S., and Beaudoin, Gérald-A., The Canadian Charter of Rights and Freedoms: A Commentary (1982), pp. 471 [para. 94]; 472 [paras. 94, 101].

Macklem, Patrick, Indigenous Difference and the Constitution of Canada (2001), generally [para. 95]; pp. 225 [paras. 99, 103]; 226, 227 [para. 99].

Martin, Sheilah, Balancing Individual Rights to Equality and Social Goals (2001), 80 Can. Bar Rev. 299, generally [para. 22, footnote 1].

McAllister, Debra M., Section 15 - The Unpredictability of the Law Test (2003-2004), 15 N.J.C.L. 3, generally [para. 22, footnote 1].

McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), pp. 71, 95, 135 [para. 22, footnote 2].

McIntyre, Sheila, Deference and Dominance: Equality Without Substance, in McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), p. 95 [para. 22, footnote 2].

McNeil, Kent, The Constitutional Rights of the Aboriginal Peoples of Canada (1982), 4 S.C.L.R. 255, p. 262 [para. 94].

Moran, Mayo, Protesting Too Much: Rational Basis Review Under Canada's Equality Guarantee, in McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), p. 71 [para. 22, footnote 2].

Moreau, Sophia Reibetanz, Equality Rights and the Relevance of Comparator Groups (2006), 5 J.L. & Equality 81, generally [para. 22, footnote 2].

Morin, Alexandre, Le droit à l'égalité au Canada (2008), p. 80-82 [para. 22, footnote 1].

Morse, Bradford W., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (1985), pp. 423, 732 [para. 94].

Nadeau, Alain-Robert, La Charte québécoise: origines, enjeux et perspectives, [2006] R. du B. (numéro thématique) 143, generally [para. 22, footnote 1].

Ontario English-French Legal Lexicon (1987), entry 224 [para. 87].

Pearse Final Report - see Canada, Commission on the Pacific Fisheries Policy, Turning the Tide: A New Policy For Canada's Pacific Fisheries.

Peirce, Michael, A Progressive Interpretation of Subsection 15(2) of the Charter (1993), 57 Sask. L. Rev. 263, generally [para. 44].

Pentney, William F., The Aboriginal Rights Provisions in the Constitution Act, 1982 (1987), generally [para. 109].

Pentney, William F., The Rights of the Aboriginal Peoples of Canada and the Constitution Act, 1982 (1988), 22 U.B.C. L. Rev. 21, p. 57 [para. 107].

Picotte, Jacques, Juridictionnaire: Recueil des difficultés et des ressources du français juridique (1991), vol. I.A., p. 228 [para. 87].

Pothier, Dianne, Connecting Grounds of Discrimination to Real People's Real Experiences (2001), 13 C.J.W.L. 37, generally [para. 22, footnote 2].

Pothier, Dianne, Equality as a Comparative Concept: Mirror, Mirror, on the Wall, What's the Fairest of Them All?, in McIntyre, Sheila, and Rodgers, Sanda, Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), p. 135 [para. 22, footnote 2].

Proulx, Daniel, Le concept de dignité et son usage en contexte de discrimination: deux Chartes, deux modèles, [2003] R. du B. (numéro spécial) 485, generally [para. 22, footnote 1].

Russell, Dan, A People's Dream: Aboriginal Self-Government in Canada (2000), p. 100 [para. 109].

Ryder, Bruce, Faria, Cidalia C., and Lawrence, Emily, What's Law Good For? An Empirical Overview of Charter Equality Rights Decisions (2004), 24 S.C.L.R.(2d) 103, generally [para. 22, footnote 2].

Sanders, Douglas, Prior Claims: Aboriginal People in the Constitution of Canada, in Beck, Stanley M., and Bernier, Ivan, Canada and the New Constitution: The Unfinished Agenda (1983), vol. 1, p. 231 [para. 90].

Sanders, Douglas, The Rights of the Aboriginal Peoples of Canada (1983), 61 Can. Bar Rev. 314, p. 321 [para. 94].

Schwartz, Bryan, First Principles: Constitutional Reform with Respect to the Aboriginal Peoples of Canada 1982-1984 (1985), generally [para. 94].

Shachar, Ayelet, The Paradox of Multicultural Vulnerability: Individual Rights, Identity Groups, and the State, in Joppke, Christian, and Lukes, Steven, Multicultural Questions (1999), p. 87 [para. 99].

Slattery, Brian, The Constitutional Guarantee of Aboriginal and Treaty Rights (1982-83), 8 Queen's L.J. 232, p. 239 [para. 94].

Tarnopolsky, Walter S., and Beaudoin, Gérald-A., The Canadian Charter of Rights and Freedoms: A Commentary (1982), pp. 471 [para. 94]; 472 [paras. 94, 101].

Wildsmith, Bruce H., Aboriginal Peoples & Section 25 of the Canadian Charter of Rights and Freedoms (1988), pp. 5 to 8 [para. 90]; 10 [para. 79]; 11 [paras. 79, 80]; 12 [para. 80]; 23 [para. 94]; 25, 26, 33, 37 [para. 98]; 39 [para. 100].

Wilkins, Kerry, ... But We Need the Eggs: The Royal Commission, the Charter of Rights and the Inherent Right of Aboriginal Self-Government (1999), 49 U.T.L.J. 53, generally [para. 95].

Zlotkin, Norman K., Unfinished Business: Aboriginal Peoples and the 1983 Constitutional Conference (1983), p. 46 [para. 94].

Counsel:

Bryan Finlay, Q.C., J. Gregory Richards and Paul D. Guy, for the appellants;

Croft Michaelson and Paul Riley, for the respondent;

Sarah T. Kraicer and S. Zachary Green, for the intervenor, the Attorney General of Ontario;

Isabelle Harnois and Brigitte Bussières, for the intervenor, the Attorney General of Quebec;

Richard James Fyfe, for the intervenor, the Attorney General for Saskatchewan;

Robert J. Normey, for the intervenor, the Attorney General of Alberta;

Joseph J. Arvay, Q.C., and Jeffrey W. Beedell, for the intervenor, the Tsawwassen First Nation;

Allan Donovan and Bram Rogachevsky, for the intervenor, the Haisla Nation;

Robert J.M. Janes and Dominique Nouvet, for the intervenors, the Songhees Indian Band, the Malahat First Nation, the T'Sou-ke First Nation, the Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations);

Maria A. Morellato and Joanne R. Lysyk, for the intervenors, the Heiltsuk Nation and the Musqueam Indian Band;

F. Matthew Kirchner and Lisa C. Glowacki, for the intervenor, the Cowichan Tribes;

J. Keith Lowes, for the intervenors, the Sportfishing Defence Alliance, the B.C. Seafood Alliance, the Pacific Salmon Harvesters Society, the Aboriginal Fishing Vessel Owners Association and the United Fishermen and Allied Workers Union;

John Carpay and Chris Schafer, for the intervenor, the Japanese Canadian Fishermens Association;

Kevin O'Callaghan and Katey Grist, for the intervenor, the Atlantic Fishing Industry Alliance;

Ryan D.W. Dalziel, for the intervenor, the Nee Tahi Buhn Indian Band;

Hugh M.G. Braker, Q.C., and Anja P. Brown, for the intervenor, the Tseshaht First Nation;

Bryan P. Schwartz and Jack R. London, C.M., Q.C., for the intervenor, the Assembly of First Nations.

Solicitors of Record:

WeirFoulds, Toronto, Ontario, for the appellants;

Public Prosecution Service of Canada, Toronto, Ontario, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Attorney General of Alberta, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Arvay Finlay, Vancouver, British Columbia, for the intervenor, the Tsawwassen First Nation;

Donovan & Company, Vancouver, British Columbia, for the intervenor, the Haisla Nation;

Cook, Roberts, Victoria, British Columbia, for the intervenors, the Songhees Indian Band, the Malahat First Nation, the T'Sou-ke First Nation, the Snaw-naw-as (Nanoose) First Nation and the Beecher Bay Indian Band (collectively the Te'mexw Nations);

Blake, Cassels & Graydon, Vancouver, British Columbia, for the intervenors, the Heiltsuk Nation and the Musqueam Indian Band;

Ratcliff and Company, North Vancouver, British Columbia, for the intervenor, the Cowichan Tribes;

J. Keith Lowes, Vancouver, British Columbia, for the intervenors, the Sportfishing Defence Alliance, the B.C. Seafood Alliance, the Pacific Salmon Harvesters Society, the Aboriginal Fishing Vessel Owners Association and the United Fishermen and Allied Workers Union;

Canadian Constitution Foundation, Calgary, Alberta, for the intervenor, the Japanese Canadian Fishermens Association;

Fasken Martineau DuMoulin, Vancouver, British Columbia, for the intervenor, the Atlantic Fishing Industry Alliance;

Bull, Housser & Tupper, Vancouver, British Columbia, for the intervenor, the Nee Tahi Buhn Indian Band;

Braker & Company, West Vancouver, British Columbia, for the intervenor, the Tseshaht First Nation;

Pitblado, Winnipeg, Manitoba, for the intervenor, the Assembly of First Nations.

This appeal was heard on December 11, 2007, before McLachlin, C.J.C., and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was delivered in both official languages on June 27, 2008, and the following opinions were filed:

McLachlin, C.J.C., and Abella, J. (Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 66;

Bastarache, J., concurring in the result - see paragraphs 67 to 123.

To continue reading

FREE SIGN UP