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FactsEdit

Aboriginal bands were granted permission to fish one day in advance of the general season on the Fraser River under the Aboriginal Communal Fishing License Registration. Kapp was a non-aboriginal fisherman who, along with several others, organized a protest fish during this day so that they would be able to claim that the issuing of the licenses was contrary to s.15(1) of the Charter as it discriminated against them on the basis of race. The appellants were charged with fishing without a license, and raised the Charter claim in defence. The trial judge found that the issuing of licenses violated s.15 and that it was not saved by s.1. The first appeal was allowed stating that this program did not affect the human dignity of the non-aboriginal fisherman. The appeal to the British Columbia Court of Appeal was dismissed.

IssueEdit

  1. How does s.15(2) of the Charter interact with s.15(1)?

DecisionEdit

Appeal dismissed.

ReasonsEdit

The majority (Bastarache concurring) agree with McLachlin and Abella's decision. They state that the s.15(1) test established in Andrews needs to be modified to include interaction with s.15(2) when ameliorative programs are involved. The court is still concerned with substantive equality, and to allow affirmative action programs to be found as discriminatory would be contrary to this idea.

The majority states that the purpose of s.15(1) is to prevent discriminatory distinctions that impact disadvantaged groups, while the purpose of s.15(2) is to preserve the right of the government to implement programs that combat discrimination by helping disadvantaged groups. They also acknowledge that proving a violation of human dignity has become a burden on claimants, rather than helpful as it was originally meant to be. They state that the central purpose of combating discrimination underlies both ss.15(1) & 15(2), and therefore they should both be considered when determining if a program is discriminatory. Section 15(2) is partially included to show that identical treatment does not always result in equality.

The court determines that because the licenses were issued pursuant to a federal statute, they fall under the definition of "law, program or activity" within s.15(2). They hold that in order for the government to show that a program falls under the definition of a program in s.15(2) they must prove two things:

  1. the program has an ameliorative or remedial purpose; and
  2. the program targets a disadvantaged group identified by the enumerated or analogous grounds.

If they are able to prove both of these factors, then the program in question will fall under the definition of a program in s.15(2). If they government is able to do this, then the s.15(1) claim must fail. The claim will end here, and the rest of the s.15(1) analysis does not need to proceed. The claimant must show that there has been a distinction drawn on the basis of an enumerated or analogous ground, and then the government has the chance to show that the program falls under the definition of an ameliorative program in s.15(2) (a burden shift). If the government shows this, the claim fails; however, if the government cannot show this then the rest of the s.15(1) analysis must proceed.

The court then clears a few things up. They state that the ameliorative program must only have amelioration as its purpose; the effect is not to be considered. However, the purpose that the government sets out does not need to be accepted; the courts can find what the true purpose is. The sincere purpose must be to promote equality by ameliorating the conditions of a disadvantaged group. This does not need to be the sole purpose of the program, however the more importance that this purpose is given in the program the more likely it is that the program will fall under s.15(2). In order to show that the program had an ameliorative purpose the government must show that there is a correlation between the program and the disadvantage of the group.

Applying this test to the case at bar, the court then finds that the program falls under s.15(2) as one of its main purposes is to ameliorate the disadvantaged position of aboriginal fishermen. The means chosen to do it are rationally related to the disadvantage. The fact that some individual members of the bands may not have had personal disadvantages is immaterial, as it does not negate the group disadvantage suffered by the band members.

RatioEdit

  • When a claimant makes a s.15(1) discrimination claim they must first prove that a distinction has been drawn on an enumerated or analogous ground. After they have proven this, the government has the opportunity to prove that the program in question falls under s.15(2). In order to do this the government must prove:
    • the program has an ameliorative or remedial purpose; and
    • the program targets a disadvantaged group identified by the enumerated or analogous grounds.
  • To fall under s.15(2), the program must only have a sincere ameliorative purpose; the effects are not to be strictly considered (the burden is on the government to prove that the purpose is sincerely to promote the amelioration of the disadvantaged group; they must prove that there is a correlation between the program and the disadvantage of the group).
  • Although the ameliorative purpose does not need to be the sole purpose of the program, the more important the ameliorative purpose is, the more likely it is that the program will fall under s.15(2).
  • The fact that not all members of the group being helped by the program suffer disadvantage is not important so long as there is a group disadvantage suffered by the group targeted by the program.

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