## Facts

- The federal government implemented the Aboriginal Fisheries Strategy to increase Indigenous participation in commercial fishing.
- The Minister issued communal fishing licences to certain First Nations, granting an exclusive 24-hour commercial chinook salmon fishery in part of the Fraser River.
- Non-participating commercial licence holders, including mainly non-Indigenous fishers, were excluded from fishing during the 24-hour window.
- The appellants conducted a protest fishery during the exclusive period to trigger charges and challenge the program.
- They were charged under the Fisheries Act and related regulations for fishing at a prohibited time.
- The appellants alleged the communal licence created race-based discrimination contrary to Charter s. 15(1) and the Canadian Bill of Rights.

## Issues

1. Whether the communal fishing licence violated Charter s. 15(1), or was protected as a genuinely ameliorative program under Charter s. 15(2).
2. Whether Charter s. 25 barred the s. 15 equality claim against an Aboriginal-specific measure.
3. Whether the communal licence contravened the equality protections in the Canadian Bill of Rights.

## Decision

- The Supreme Court of Canada dismissed the appeal and upheld the communal licence regime.
- The majority held that Charter s. 15(2) can operate as an independent, complete answer to a s. 15(1) claim where the program is genuinely ameliorative.
- Applying s. 15(2), the majority found no Charter s. 15 breach because the program had a remedial purpose and targeted a disadvantaged group.
- The Court found no violation of the Canadian Bill of Rights on the same reasoning.
- The majority did not decide the case on Charter s. 25.
- In concurrence, Bastarache J. would have dismissed the appeal because s. 25 shielded the Aboriginal-specific measure from a s. 15 challenge.

## Legal Principles

- Charter s. 15(2) is not merely interpretive; it can defeat a s. 15(1) claim when the government shows:
  - the program has an ameliorative or remedial purpose; and
  - the program targets a disadvantaged group identified by an enumerated or analogous ground.
- In assessing s. 15(2), the central focus is the program’s purpose; an ameliorative program may remain protected even if it has adverse effects on others.
- Equality analysis should center on disadvantage, prejudice, and stereotyping; “human dignity” is not a required, independent element.
- A plausible alternative route (per Bastarache J.) is that Charter s. 25 can bar equality-based challenges where applying the Charter would diminish Aboriginal-specific protections.

## Conclusion

The Court upheld an Indigenous-only commercial fishing window as a constitutionally permissible remedial program, clarifying that Charter s. 15(2) can provide a complete defence to s. 15(1) claims when a law’s purpose is to improve conditions for a disadvantaged group.


R. v. Kapp, [2008] 2 S.C.R. 483 (Can. 2008)