Right to Equality may Require Special Measures to Address Disadvantage

R v Kapp, 2008 SCC 41 (27 June 2008) In a significant recent decision, the Supreme Court of Canada held that proactive schemes which seek to ameliorate the conditions of disadvantaged groups do not contravene the guarantee of equality in the Canadian Charter of Rights and Freedoms.  In doing so, the Court re-emphasised the Canadian Charter’s concern with substantive equality.

Facts

To remedy low aboriginal involvement in commercial fishing, the Canadian federal government founded the Aboriginal Fisheries Strategy in 1992.  Under this scheme, the Aboriginal Communal Fishing Licences Regulations provided for the issuance of communal fishing licences to aboriginal bands.

Pursuant to these regulations, the government issued exclusive licences to three aboriginal bands to fish in a designated area for a period of 24 hours.  The appellants, who were commercial fishers, participated in a protest fishery in deliberate breach of the exclusive licence.  Charged with fishing at a prohibited time, the appellants claimed that the fishing license discriminated against them on the basis of race.

The respondents argued that s 15(2) of the Canadian Charter enabled the government to take pro-active measures to ameliorate the situation of aboriginal people.  Section 15(2) provides that the requirement for equality in s 15(1) ‘does not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

Decision

The Supreme Court unanimously upheld the validity of the exclusive licences.  However, the Court was divided as to which Canadian Charter provision was applicable.

The majority restricted their analysis to the operation of s 15.  Whilst s 15(1) prohibits measures which discriminate between individuals, s 15(2) enables the government to ‘pro-actively combat existing discrimination through affirmative measures.’  If the government is able to establish the applicability of sub-section (2), analysis under the prohibitory provision is not required.  This is because the two provisions work in unison to promote substantive equality, and s 15(2) ‘supports a full expression of equality, rather than derogating from it.’  The Court systematically analysed the requirements under s 15(2) but noted that the framework for deciding a s 15 issue is flexible — future cases may require further refinement.

The Court held that the phrase ‘has as its object’ in s 15(2) is concerned with the ‘legislative goal’ of the particular government initiative, as opposed to its actual effect.  Further, looking at legislative purpose does not require ‘slavishly’ accepting the government’s stated characterisation of its purpose: the court can, and should, examine legislation to see that the purpose is genuine.  In addition to examining statements made by the drafters of the programme, the Court suggested that there must be a ‘rational’ relationship between the ameliorative goal and the means chosen to reach that goal.  Though the ameliorative purpose must also correlate with the disadvantage of the individual or group, it need not be the sole goal of the programme.

The Court also noted that s 15(2) seeks to protect reform directed at specifically identifiable groups.  This does not import a requirement of individual disadvantage — the group as a whole must have experienced discrimination.

In light of these principles, the Court held that the ameliorative purpose of the programme was to provide economic opportunities to the aboriginal bands, thereby promoting self-sufficiency.  Granting aboriginal groups exclusive fishing rights was rationally related to this purpose and, given the ‘indisputable’ disadvantage of aboriginal people, there existed the necessary correlation between the programme and the disadvantage.

The majority expressed concern at the opinion of Bastarache J who came to the same result on the basis of s 25 of the Canadian Charter.  This provision notes that rights and freedoms in the Canadian Charter ‘shall not be construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples ofCanada’.  The majority disagreed with Bastarache J’s finding that the issuing of licences amounts to a relevant right; in the majority’s opinion, s 25 is concerned with rights of a constitutional character.  Furthermore, they suggested that s 25 may function as an interpretive provision, rather than an absolute bar to bringing an action under s 15.

By contrast, Bastarache J suggested that s 25 operates as a shield.  Further, it must be interpreted carefully to ensure that there is no suggestion that ‘there are distinct Charter rights for aboriginal individuals and non-aboriginal individuals’.  Given the grant of fishing licences fell under s 25, the provision operated to eliminate the claim of the appellants under s 15.

Relevance to the Victorian Charter

This decision may aid in the interpretation of s 8 of the Victorian Charter which similarly provides for equality before the law without discrimination (s 8(3)), whilst recognising that ‘[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination’ (s 8(4)).

Under the Canadian interpretation, these two provisions operate to promote substantive equality.  If it can be shown that s 8(4) is in operation, then analysis under the prohibitory s 8(3) will not be required.  Section 8(4) of the Victorian Charter specifically provides that the court must consider the ‘purpose’ of the measure.  R v Kapp suggests that analysis of legislative purpose for genuineness and rationality of approach is appropriate.

The Victorian Charter also provides that Aboriginal persons ‘must not be denied’ their ‘distinct cultural rights’ (s 19(2)).  On the minority’s interpretation of s 25 of the Canadian Charter in R v Kapp, s 19 in the Victorian Charter operates as a shield — that is, the cultural rights of Aboriginal persons must not be denied even by operation of other Charter provisions.  However, the absence of express reference to Charter rights and freedoms in s 19(2) may mean that the provision needs to be interpreted in light of the whole Charter.  This is supported by the fact that, unlike the Canadian Charter, similar protection is provided to all persons with a particular cultural background (s 19(1)).

The decision is available at http://www.canlii.org/en/ca/scc/doc/2008/2008scc41/2008scc41.pdf.

Rebecca Pereira and Claire Agius, Mallesons Human Rights Law Group

Right to Equality may Require Special Measures to Address Disadvantage

R v Kapp, 2008 SCC 41 (27 June 2008)

In a significant recent decision, the Supreme Court of Canada held that proactive schemes which seek to ameliorate the conditions of disadvantaged groups do not contravene the guarantee of equality in the Canadian Charter of Rights and Freedoms.  In doing so, the Court re-emphasised the Canadian Charter’s concern with substantive equality.

Facts

To remedy low aboriginal involvement in commercial fishing, the Canadian federal government founded the Aboriginal Fisheries Strategy in 1992.  Under this scheme, the Aboriginal Communal Fishing Licences Regulations provided for the issuance of communal fishing licences to aboriginal bands.

Pursuant to these regulations, the government issued exclusive licences to three aboriginal bands to fish in a designated area for a period of 24 hours.  The appellants, who were commercial fishers, participated in a protest fishery in deliberate breach of the exclusive licence.  Charged with fishing at a prohibited time, the appellants claimed that the fishing license discriminated against them on the basis of race.

The respondents argued that s 15(2) of the Canadian Charter enabled the government to take pro-active measures to ameliorate the situation of aboriginal people.  Section 15(2) provides that the requirement for equality in s 15(1) ‘does not preclude any law, programme or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

Decision

The Supreme Court unanimously upheld the validity of the exclusive licences.  However, the Court was divided as to which Canadian Charter provision was applicable.

The majority restricted their analysis to the operation of s 15.  Whilst s 15(1) prohibits measures which discriminate between individuals, s 15(2) enables the government to ‘pro-actively combat existing discrimination through affirmative measures.’  If the government is able to establish the applicability of sub-section (2), analysis under the prohibitory provision is not required.  This is because the two provisions work in unison to promote substantive equality, and s 15(2) ‘supports a full expression of equality, rather than derogating from it.’  The Court systematically analysed the requirements under s 15(2) but noted that the framework for deciding a s 15 issue is flexible — future cases may require further refinement.

The Court held that the phrase ‘has as its object’ in s 15(2) is concerned with the ‘legislative goal’ of the particular government initiative, as opposed to its actual effect.  Further, looking at legislative purpose does not require ‘slavishly’ accepting the government’s stated characterisation of its purpose: the court can, and should, examine legislation to see that the purpose is genuine.  In addition to examining statements made by the drafters of the programme, the Court suggested that there must be a ‘rational’ relationship between the ameliorative goal and the means chosen to reach that goal.  Though the ameliorative purpose must also correlate with the disadvantage of the individual or group, it need not be the sole goal of the programme.

The Court also noted that s 15(2) seeks to protect reform directed at specifically identifiable groups.  This does not import a requirement of individual disadvantage — the group as a whole must have experienced discrimination.

In light of these principles, the Court held that the ameliorative purpose of the programme was to provide economic opportunities to the aboriginal bands, thereby promoting self-sufficiency.  Granting aboriginal groups exclusive fishing rights was rationally related to this purpose and, given the ‘indisputable’ disadvantage of aboriginal people, there existed the necessary correlation between the programme and the disadvantage.

The majority expressed concern at the opinion of Bastarache J who came to the same result on the basis of s 25 of the Canadian Charter.  This provision notes that rights and freedoms in the Canadian Charter ‘shall not be construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples ofCanada’.  The majority disagreed with Bastarache J’s finding that the issuing of licences amounts to a relevant right; in the majority’s opinion, s 25 is concerned with rights of a constitutional character.  Furthermore, they suggested that s 25 may function as an interpretive provision, rather than an absolute bar to bringing an action under s 15.

By contrast, Bastarache J suggested that s 25 operates as a shield.  Further, it must be interpreted carefully to ensure that there is no suggestion that ‘there are distinct Charter rights for aboriginal individuals and non-aboriginal individuals’.  Given the grant of fishing licences fell under s 25, the provision operated to eliminate the claim of the appellants under s 15.

Relevance to the Victorian Charter

This decision may aid in the interpretation of s 8 of the Victorian Charter which similarly provides for equality before the law without discrimination (s 8(3)), whilst recognising that ‘[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination’ (s 8(4)).

Under the Canadian interpretation, these two provisions operate to promote substantive equality.  If it can be shown that s 8(4) is in operation, then analysis under the prohibitory s 8(3) will not be required.  Section 8(4) of the Victorian Charter specifically provides that the court must consider the ‘purpose’ of the measure.  R v Kapp suggests that analysis of legislative purpose for genuineness and rationality of approach is appropriate.

The Victorian Charter also provides that Aboriginal persons ‘must not be denied’ their ‘distinct cultural rights’ (s 19(2)).  On the minority’s interpretation of s 25 of the Canadian Charter in R v Kapp, s 19 in the Victorian Charter operates as a shield — that is, the cultural rights of Aboriginal persons must not be denied even by operation of other Charter provisions.  However, the absence of express reference to Charter rights and freedoms in s 19(2) may mean that the provision needs to be interpreted in light of the whole Charter.  This is supported by the fact that, unlike the Canadian Charter, similar protection is provided to all persons with a particular cultural background (s 19(1)).

The decision is available at http://www.canlii.org/en/ca/scc/doc/2008/2008scc41/2008scc41.pdf.

Rebecca Pereira and Claire Agius, Mallesons Human Rights Law Group