[2008] 2 S.C.R. 483
In an attempt to increase Aboriginal involvement in commercial fishing, the federal government introduced special, communal licences to certain Aboriginal bands and designated a 24-hour period in which they would have exclusive access to the river. The appellant, a non-Aboriginal man, was caught fishing during that 24-hour period and was charged with fishing at a prohibited time. He challenged the charge, arguing that the program discriminated against him on the basis of race. The Supreme Court dismissed the appeal, stating that ss.15(1) and 15(2) of the Charter are intended to work together: the first prevents government from making distinctions on enumerated or analogous grounds that would further disadvantage or prejudice, or impose disadvantage on the basis of stereotyping. The second allows governments to actively fight against such discrimination and disadvantage by creation ameliorative programs. Therefore a distinction based on an enumerated or analogous ground will not infringe on s.15 equality rights if, under s.15(2) it can be shown to have an ameliorative or remedial purpose and the program is aimed at a disadvantaged group that can be identified by the enumerated or analogous ground. As the communal licences satisfied these criteria, there was no infringement of s.15.
Faculty of Law Research and Commentary Discussing R v. Kapp
Denise Réaume, “Defending Human Rights Codes from the Charter,” (2012) 9 JL & Equality 67-102.
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