R. v. Kapp

R. v. Kapp
Collection
Supreme Court Judgments
Date
2008-06-27
Neutral citation
2008 SCC 41
Report
[2008] 2 SCR 483
Case number
31603
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Constitutional law
Fishery
Notes
SCC Case Information: 31603
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41
Date: 20080627
Docket: 31603
Between:
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
and
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
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Joint Reasons for Judgment:
(paras. 1 to 66)
Reasons Concurring in result:
(paras. 67 to 123)
McLachlin C.J. and Abella J. (Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ. concurring)
Bastarache J.
______________________________
R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41
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 Interveners
Indexed as: R. v. Kapp
Neutral citation: 2008 SCC 41.
File No.: 31603.
2007: December 11; 2008: June 27.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Right to equality — Affirmative action programs — Relationship between s. 15(1) and s. 15(2) of Canadian Charter of Rights and Freedoms — Ambit and operation of s. 15(2) — Communal fishing licence issued under pilot sales program granting members of three aboriginal bands exclusive right to fish for salmon for period of 24 hours — Commercial, mainly non‑aboriginal, fishers excluded from fishery at that time alleging a breach of their equality rights on basis of race‑based discrimination — Whether program protected by s. 15(2) of Charter .
Constitutional law — Charter of Rights — Aboriginal rights and freedoms not affected by Charter — Right to equality — Communal fishing licence issued under pilot sales program granting members of three aboriginal bands exclusive right to fish for salmon for period of 24 hours — Commercial, mainly non‑aboriginal, fishers excluded from fishery at that time alleging a breach of their equality rights on basis of race‑based discrimination — Whether s. 25 of Canadian Charter of Rights and Freedoms applicable to insulate program from discrimination charge.
Fisheries — Commercial fishery — Aboriginal Fisheries Strategy — Communal fishing licence issued under pilot sales program granting members of three aboriginal bands exclusive right to fish for salmon for period of 24 hours — Commercial, mainly non‑aboriginal, fishers excluded from fishery at that time alleging a breach of their equality rights on basis of race‑based discrimination — Whether licence constitutional — Canadian Charter of Rights and Freedoms, s. 15 .
The federal government’s decision to enhance aboriginal involvement in the commercial fishery led to the Aboriginal Fisheries Strategy. A significant part of the Strategy was the introduction of three pilot sales programs, one of which resulted in the issuance of a communal fishing licence to three aboriginal bands, permitting fishers designated by the bands to fish for salmon in the mouth of the Fraser River for a period of 24 hours and to sell their catch. The appellants, who are all commercial fishers, mainly non‑aboriginal, excluded from the fishery during this 24‑hour period, participated in a protest fishery and were charged with fishing at a prohibited time. At their trial, they argued that the communal fishing licence discriminated against them on the basis of race. The trial judge found that the licence granted to the three bands was a breach of the appellants’ equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms that was not justified under s. 1 of the Charter . Proceedings on all the charges were stayed. A summary convictions appeal by the Crown was allowed. The stay of proceedings was lifted and convictions were entered against the appellants. The Court of Appeal upheld that decision.
Held: The appeal should be dismissed. The communal fishing licence was constitutional.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.: The communal fishing licence falls within the ambit of s. 15(2) of the Charter , and the appellants’ claim of a violation of s. 15 cannot succeed. [3]
Section 15(1) and s. 15(2) work together to promote the vision of substantive equality that underlies s. 15 as a whole. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro‑actively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. Through s. 15(2), the Charter preserves the right of governments to implement such programs without fear of challenge under s. 15(1) . It is thus open to the government, when faced with a s. 15 claim, to establish that the impugned program falls under s. 15(2) and is therefore constitutional. If the government fails to do so, the program must then receive full scrutiny under s. 15(1) to determine whether its impact is discriminatory. [16] [37] [40]
A distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under s. 15 if, under s. 15(2): (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. Given the language of the provision and its purpose, legislative goal is the paramount consideration in determining whether or not a program qualifies for s. 15(2) protection. The program’s ameliorative purpose need not be its sole object. [41] [44] [48] [50] [57]
The government program at issue here is protected by s. 15(2) of the Charter . The communal fishing licence was issued pursuant to an enabling statute and regulations and qualifies as a “law, program or activity” within the meaning of s. 15(2) . The program also “has as its object the amelioration of conditions of disadvantaged individuals or groups”. The Crown describes numerous objectives for the program, which include negotiating solutions to aboriginal fishing rights claims, providing economic opportunities to native bands and supporting their progress towards self‑sufficiency. The means chosen to achieve the purpose (special fishing privileges for aboriginal communities, constituting a benefit) are rationally related to serving that purpose. The Crown has thus established a credible ameliorative purpose for the program. The program also targets a disadvantaged group identified by the enumerated or analogous grounds. The bands granted the benefit were disadvantaged in terms of income, education and a host of other measures. This disadvantage, rooted in history, continues to this day. The fact that some individual members of the bands may not experience personal disadvantage does not negate the group disadvantage suffered by band members. It follows that the program does not violate the equality guarantee of s. 15 of the Charter . [30] [57‑59] [61]
With respect to s. 25 of the Charter , it is not clear that the communal fishing licence at issue lies within the provision’s compass. The wording of s. 25 and the examples given therein suggest that only rights of a constitutional character are likely to benefit from s. 25 . 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. Prudence suggests that these issues, which raise complex questions of the utmost importance to the peaceful reconciliation of aboriginal entitlements with the interests of all Canadians, are best left for resolution on a case‑by‑case basis as they arise. [63‑65]
Per Bastarache J.: Section 25 of the Charter operates to bar the appellants’ constitutional challenge under s. 15 . Although there is agreement with the restatement of the test for the application of s. 15 of the Charter set out in the main opinion, there is no need to go through a full s. 15 analysis before considering whether s. 25 applies. It is sufficient to establish the existence of a potential conflict between the pilot sales program and s. 15 . [75] [77] [108]
Section 25 is not a mere canon of interpretation. It serves the purpose of protecting the rights of aboriginal peoples where the application of the Charter protections for individuals would diminish the distinctive, collective and cultural identity of an aboriginal group. This is consistent with the wording and history of the provision. The s. 25 shield against the intrusion of the Charter upon native rights or freedoms is restricted by s. 28 of the Charter , which provides for gender equality “[n]otwithstanding anything in this Charter ”. It is also restricted to its object, placing Charter rights and freedoms in juxtaposition to aboriginal rights and freedoms. This means in essence that only laws that actually impair native rights will be considered, not those that simply have incidental effects on natives. [80‑81] [89] [93] [97]
The reference to “aboriginal and treaty rights” in s. 25 suggests that the focus of the provision is the uniqueness of those persons or communities mentioned in the Constitution; the rights protected are those that are unique to them because of their special status. Legislation that distinguishes between aboriginal and non‑aboriginal people in order to protect interests associated with aboriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny. Laws adopted under the power set out in s. 91(24) of the Constitution Act, 1867 would normally fall into this category, the power being in relation to the aboriginal peoples as such, but not laws that fall under s. 88 of the Indian Act , because they are by definition laws of general application. “[O]ther rights or freedoms” in s. 25 comprise statutory rights which seek to protect interests associated with aboriginal culture, territory, self‑government, and settlement agreements that are a replacement for treaty and aboriginal rights. But private rights of individual Indians held in a private capacity as ordinary Canadian citizens would not be protected. Section 25 reflects the imperative need to accommodate, recognize and reconcile aboriginal interests. [103] [105‑106]
There are three steps in the application of s. 25 . The first step requires an evaluation of the claim in order to establish the nature of the substantive Charter right and whether the claim is made out, prima facie. The second step requires an evaluation of the native right to establish whether it falls under s. 25 . The third step requires a determination of the existence of a true conflict between the Charter right and the native right. [111]
Here, there is a prima facie case of discrimination pursuant to s. 15(1) . The right given by the pilot sales program is limited to Aboriginals and has a detrimental effect on non‑aboriginal commercial fishers who operate in the same region as the beneficiaries of the program. It is also clear that the disadvantage is related to racial differences. The native right falls under s. 25 . The unique relationship between British Columbia aboriginal communities and the fishery should be enough to draw a link between the right to fish given to Aboriginals pursuant to the pilot sales program and the rights contemplated by s. 25 . The right to fish has consistently been the object of claims based on aboriginal rights and treaty rights, the enumerated terms in the provisions. Furthermore, the Crown itself argued that these rights to fish were a first step in establishing a treaty right and s. 25 reflects the notions of reconciliation and negotiation present in the treaty process. Finally, the right in this case is totally dependent on the exercise of powers given to Parliament under s. 91(24) of the Constitution Act, 1867 , which deals with Indians. The Charter cannot be interpreted as rendering unconstitutional the exercise of powers consistent with the purposes of s. 91(24) , nor is it rational to believe that every exercise of the s. 91(24) jurisdiction requires a justification under s. 1 of the Charter . Section 25 is a necessary partner to s. 35(1) of the Constitution Act, 1982 ; it protects s. 35(1) purposes and enlarges the reach of measures needed to fulfill the promise of reconciliation. There is also a real conflict here, since the right to equality afforded to every individual under s. 15 is not capable of application consistently with the rights of aboriginal fishers holding licences under the pilot sales program. Section 25 of the Charter accordingly applies in the present situation and provides a full answer to the claim. [116] [119‑123]
Cases Cited
By McLachlin C.J. and Abella J.
Considered: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Van der Peet, [1996] 2 S.C.R. 507; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Oakes, [1986] 1 S.C.R. 103; Athabasca Tribal Council v. Amoco Canada Petroleum Co., [1981] 1 S.C.R. 699; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; Manitoba Rice Farmers Association v. Human Rights Commission (Man.) (1987), 50 Man. R. (2d) 92, rev’d in part (1988), 55 Man. R. (2d) 263; R. v. Music Explosion Ltd. (1989), 62 Man. R. (2d) 189, rev’d (1990), 68 Man. R. (2d) 203; Re Rebic and The Queen (1985), 20 C.C.C. (3d) 196, aff’d (1986), 28 C.C.C. (3d) 154; Re M and The Queen (1985), 21 C.C.C. (3d) 116; Miron v. Trudel, [1995] 2 S.C.R. 418; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.
By Bastarache J.
Referred to: R. v. Sparrow, [1990] 1 S.C.R. 1075; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; R. v. Daoust, [2004] 1 S.C.R. 217, 2004 SCC 6; Adler v. Ontario, [1996] 3 S.C.R. 609; R. v. Drybones, [1970] S.C.R. 282; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; Mahe v. Alberta, [1990] 1 S.C.R. 342; R. v. Steinhauer, [1985] 3 C.N.L.R. 187; Campbell v. British Columbia (Attorney General), [2000] 4 C.N.L.R. 1; Shubenacadie Band Council v. Canada (Human Rights Commission) (2000), 37 C.H.R.R. D/466; R. v. Nicholas, [1989] 2 C.N.L.R. 131; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Oakes, [1986] 1 S.C.R. 103; Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, 2004 SCC 74; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 505.
Statutes and Regulations Cited
Aboriginal Communal Fishing Licences Regulations, SOR/93‑332, s. 2 “aboriginal organization”.
Canadian Bill of Rights, R.S.C. 1985, App. III, s. 2.
Canadian Charter of Rights of Freedoms, ss. 1, 2, 3, 15, 16(3), 21, 25, 27, 28, 29, 32(1)(a).
Constitution Act, 1867, ss. 91(24) , 93 .
Constitution Act, 1982, s. 35 .
Constitution Amendment Proclamation, 1983, R.S.C. 1985, App. II, No. 46.
Fisheries Act, R.S.C. 1985, c. F‑14 .
Indian Act, R.S.C. 1985, c. I‑5, ss. 81 , 83 , 85.1 , 88 .
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APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Mackenzie, Low, Levine and Kirkpatrick JJ.A.) (2006), 56 B.C.L.R. (4th) 11, 271 D.L.R. (4th) 70, [2006] 10 W.W.R. 577, 227 B.C.A.C. 248, 374 W.A.C. 248, 24 C.E.L.R. (3d) 99, [2006] 3 C.N.L.R. 282, 141 C.R.R. (2d) 249, [2006] B.C.J. No. 1273 (QL), 2006 CarswellBC 1407, 2006 BCCA 277, affirming a decision of Brenner C.J.S.C. (2004), 31 B.C.L.R. (4th) 258, [2004] 3 C.N.L.R. 269, 121 C.R.R. (2d) 349, [2004] B.C.J. No. 1440 (QL), 2004 CarswellBC 1607, 2004 BCSC 958, lifting a stay of proceedings by Kitchen Prov. Ct. J., [2003] 4 C.N.L.R. 238, [2003] B.C.J. No. 1772 (QL), 2003 CarswellBC 1881, 2003 BCPC 279. Appeal dismissed.
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 intervener the Attorney General of Ontario.
Isabelle Harnois and Brigitte Bussières, for the intervener the Attorney General of Quebec.
Richard James Fyfe, for the intervener the Attorney General for Saskatchewan.
Robert J. Normey, for the intervener the Attorney General of Alberta.
Joseph J. Arvay, Q.C., and Jeffrey W. Beedell, for the intervener the Tsawwassen First Nation.
Allan Donovan and Bram Rogachevsky, for the intervener the Haisla Nation.
Robert J. M. Janes and Dominique Nouvet, for the interveners 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 interveners the Heiltsuk Nation and the Musqueam Indian Band.
F. Matthew Kirchner and Lisa C. Glowacki, for the intervener the Cowichan Tribes.
J. Keith Lowes, for the interveners 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 intervener the Japanese Canadian Fishermens Association.
Kevin O’Callaghan and Katey Grist, for the intervener the Atlantic Fishing Industry Alliance.
Ryan D. W. Dalziel, for the intervener the Nee Tahi Buhn Indian Band.
Hugh M. G. Braker, Q.C., and Anja P. Brown, for the intervener the Tseshaht First Nation.
Bryan P. Schwartz and Jack R. London, Q.C., for the intervener the Assembly of First Nations.
The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. was delivered by
The Chief Justice and Abella J. —
A. Introduction
[1] The appellants are commercial fishers, mainly non-aboriginal, who assert that their equality rights under s. 15 of the Canadian Charter of Rights and Freedoms were violated by a communal fishing licence granting members of three aboriginal bands the exclusive right to fish for salmon in the mouth of the Fraser River for a period of 24 hours on August 19-20, 1998.
[2] The appellants base their claim on s. 15(1) . The essence of the claim is that the communal fishing licence discriminated against them on the basis of race. The Crown argues that the general purpose of the program under which the licence was issued was to regulate the fishery, and that it ameliorated the conditions of a disadvantaged group. These contentions, taken together, raise the issue of the interplay between s. 15(1) and s. 15(2) of the Charter. Specifically, they require this Court to consider whether s. 15(2) is capable of operating independently of s. 15(1) to protect ameliorative programs from claims of discrimination — a possibility left open in this Court’s equality jurisprudence.
[3] We have 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 is furthered, and the claim of discrimination must fail. As the communal fishing licence challenged in this appeal falls within s. 15(2) ’s ambit — one of its objects being to ameliorate the conditions of the participating aboriginal bands — the appellants’ claim of a violation of s. 15 cannot succeed. While the operation of s. 15(2) is sufficient to dispose of the appeal, these reasons, in addition to examining the respective roles of s. 15(1) and s. 15(2) , will comment briefly on s. 25 of the Charter, in view of the reasons of Bastarache J. on this point.
B. Factual and Judicial History
[4] Prior to European contact, aboriginal groups living in the region of the mouth of the Fraser River fished the river for food, social and ceremonial purposes. It is no exaggeration to say that their life centered in large part around the river and its abundant fishery. In the last two decades, court decisions have confirmed that pre-contact fishing practices integral to the culture of aboriginal people translate into a modern-day right to fish for food, social and ceremonial purposes: R. v. Sparrow, [1990] 1 S.C.R. 1075. The right is a communal right. It inheres in the community, not the individual, and may be exercised by people who are linked to the ancestral aboriginal community.
[5] The aboriginal right has not been recognized by the courts as extending to fishing for the purpose of sale or commercial fishing: R. v. Van der Peet, [1996] 2 S.C.R. 507. The participation of Aboriginals in the commercial fishery was thus left to individual initiative or to negotiation between aboriginal peoples and the government. The federal government determined that aboriginal people should be given a stake in the commercial fishery. The bands tended to be disadvantaged economically, compared to non-Aboriginals. Catching fish for their own tables and ceremonies left many needs unmet.
[6] The government’s decision to enhance aboriginal involvement in the commercial fishery followed the recommendations of the 1982 Pearse Final Report, which endorsed the negotiation of aboriginal fishery agreements (Turning the Tide: A New Policy For Canada’s Pacific Fisheries). The Pearse Report recognized the problematic connection between aboriginal communities’ economic disadvantage and the longstanding prohibition against selling fish — a prohibition that disrupted what was once an important economic opportunity for Aboriginals. Policing the prohibition was also problematic; the 1994 Gardner Pinfold Report addressed the serious conservation issue stemming from a fish sales prohibition “honoured more in the breach than the observance” (An Evaluation of the Pilot Sale Arrangement of Aboriginal Fisheries Strategy (AFS), p. 3). The decision to enhance aboriginal participation in the commercial fishery may also be seen as a response to the directive of this Court in Sparrow, at p. 1119, that the government consult with aboriginal groups in the implementation of fishery regulation in order to honour its fiduciary duty to aboriginal communities. Subsequent decisions have affirmed the duty to consult and accommodate aboriginal communities with respect to resource development and conservation; it is a constitutional duty, the fulfilment of which is consistent with the honour of the Crown: see e.g. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
[7] The federal government’s policies aimed at giving aboriginal people a share of the commercial fishery took different forms, united under the umbrella of the “Aboriginal Fisheries Strategy”. Introduced in 1992, the Aboriginal Fisheries Strategy has three stated objectives: ensuring the rights recognized by the Sparrow decision are respected; providing aboriginal communities with a larger role in fisheries management and increased economic benefits; and minimizing the disruption of non-aboriginal fisheries (1994 Gardner Pinfold Report). In response to consultations with stakeholders carried out since its inception, the Aboriginal Fisheries Strategy has been reviewed and adjusted periodically in order to achieve these goals. A significant part of the Aboriginal Fisheries Strategy was the introduction of three pilot sales programs, one of which resulted in the issuance of the communal fishing licence at issue in this case. The licence was granted pursuant to the Aboriginal Communal Fishing Licences Regulations, SOR/93-332 (“ACFLR”). The ACFLR grants communal licences to “aboriginal organization[s]”, defined as including “an Indian band, an Indian band council, a tribal council and an organization that represents a territorially based aboriginal community” (s. 2). The communal licence cannot be granted to individuals, but an aboriginal organization can designate its use to individuals.
[8] The licence with which we are concerned permitted fishers designated by the bands to fish for sockeye salmon between 7:00 a.m on August 19, 1998 and 7:00 a.m. on August 20, 1998, and to use the fish caught for food, social and ceremonial purposes, and for sale. Some of the fishers designated by the bands to fish under the communal fishing licence were also licensed commercial fishers entitled to fish at other openings for commercial fishers.
[9] The appellants are all commercial fishers who were excluded from the fishery during the 24 hours allocated to the aboriginal fishery under the communal fishing licence. Under the auspices of the B.C. Fisheries Survival Coalition, they participated in a protest fishery during the prohibited period, for the purpose of bringing a constitutional challenge to the communal licence. As anticipated, they were charged with fishing at a prohibited time. In defence of the charges, they filed notice of a constitutional question seeking declarations that the communal fishing licence, the ACFLR and related regulations and the Aboriginal Fisheries Strategy were unconstitutional.
[10] The Provincial Court of British Columbia (Judge Kitchen) found that the communal fishing licence granted to the three bands was a breach of the equality rights of the appellants under s. 15(1) of the Charter that was not justified under s. 1 of the Charter . The court stayed proceedings on all the charges under s. 24 of the Charter: [2003] 4 C.N.L.R. 238, 2003 BCPC 279.
[11] The Supreme Court of British Columbia (Brenner C.J.S.C.) allowed a summary convictions appeal by the Crown: (2004), 31 B.C.L.R. (4th) 258, 2004 BCSC 958. It held that the pilot sales program did not have a discriminatory purpose or effect because it did not perpetuate or promote the view that those who were forbidden to fish on the days when the pilot sales program fishery was open are less capable or worthy of recognition or value as human beings or as members of Canadian society. Brenner C.J.S.C. lifted the stay of proceedings and entered convictions against the appellants.
[12] The British Columbia Court of Appeal, in five sets of reasons concurring in the result, dismissed the appeal: (2006), 56 B.C.L.R. (4th) 11, 2006 BCCA 277. Low J.A. concluded that the pilot sales program did not constitute denial of a benefit under s. 15 when the matter was viewed in a contextual rather than formalistic way. Mackenzie J.A. rejected the claim of discrimination on the basis that a discriminatory purpose or effect had not been established, endorsing the view of Brenner C.J.S.C. on the summary convictions appeal. Kirkpatrick J.A. dismissed the s. 15 claim on the basis that s. 25 of the Charter, which protects rights and freedoms pertaining to the aboriginal peoples of Canada, insulated the scheme from the discrimination charge. Finch C.J.B.C. concurred with both Low J.A. and Mackenzie J.A. on the s. 15 issue, and found that s. 25 was not engaged. Finally, Levine J.A. agreed with Finch C.J.B.C. on the s. 15 issue, but declined to express a view on whether s. 25 was engaged.
C. Analysis
[13] Section 15 of the Charter provides:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) do