In 1981, the government of Canada appointed a Commission under the
Inquiries Act led by Peter H. Pearse to examine
commercial fishing on the Pacific coast and make recommendations related to the condition, management and utilization of these fisheries. Pearse's final report made a number of recommendations including enhancing aboriginal involvement in commercial fishing, and noting the economic disadvantage of Aboriginal peoples due to a prohibition against selling fish. In 1992, in response to the Pearse Report and the legal case
R v Sparrow, the Canadian government established the Aboriginal Fisheries Strategy. This strategy aimed to increase Aboriginal participation in Canada's commercial fishery industry. The Aboriginal Fishing Strategy had three primary objectives: respecting the rights recognized in
Sparrow, providing a greater role in
fisheries management with the associated economic benefits, and minimizing disruption to non-aboriginal fisheries. However, a group of non-aboriginal commercial fishers including John Michael Kapp, organized a "protest" fishery with the intent of being charged by law enforcement and challenging the constitutional status of the exclusive aboriginal license. As a result, Kapp and the other protesters were subsequently charged with fishing during a prohibited time contrary to section 53(1) of the Pacific Fishery Regulations, 1993, an offence under Section 78 of the
Fisheries Act.
Provincial Court of British Columbia decision At his hearing in
provincial court, Kapp filed a Notice of Constitutional Question seeking a declaration stating that the communal fishing licenses and the provisions they were issued under violated Section 15 of the
Canadian Charter of Rights and Freedoms. On July 28, 2003, Judge W.J. Kitchen ruled the communal fishing licenses infringed upon the equality rights protected under Section 15 of the
Charter. Furthermore, he determined that these licenses could not be justified under Section 1 of the
Charter. As a result, Judge Kitchen decided to stay the charges against Kapp and the other protest fishers. In reaching this conclusion, Judge Kitchen applied the
Law test established in the 1999 case of
Law v Canada (Minister of Employment and Immigration). He relied on the testimony provided by the non-aboriginal fishers, who stated that they felt the program was offensive and demeaning, and resulted in a loss of human dignity. Additionally, Judge Kitchen found that the government had not made any efforts to assess the
economic benefits of the program or the needs of the Aboriginal bands. Based on these findings, he concluded that the program could not be justified under Section 1 of the Charter.
Supreme Court of British Columbia decision In the appeal to the
Supreme Court of British Columbia, Chief Justice
Donald Brenner reached a different conclusion than Judge Kitchen regarding the implementation of the
Law test. Chief Justice Brenner determined that Judge Kitchen had not properly applied the test, placing undue emphasis on the subjective perceptions of the witnesses rather than considering the objective reality of their situation. As a result of this ruling, Chief Justice Brenner allowed the appeal and entered convictions against the protesters. Kapp and the other protest fishers received a
suspended sentence of six months and a $100 fine. Upon evaluating the
Law test, Chief Justice Brenner found that all four aspects of the test weighed against the argument made by Kapp and the other non-aboriginal fishers that they had experienced discrimination. Additionally, Chief Justice Brenner recognized a strong connection between the pilot program and the needs of the Aboriginal bands. He concluded that the program partially served as an ameliorative measure by providing economic opportunities.
British Columbia Court of Appeal decision Kapp and the other convicted fishers proceeded to appeal Justice Brenner's decision to a five-member panel of the
British Columbia Court of Appeal. On June 8, 2006, the Court of Appeal dismissed the appeal, with each justice providing unique reasons that concurred with the findings of reached by Justice Richard T.A. Low. Justice Richard T.A. Low concluded that the Section 15 challenge put forth by Kapp and the fishers could not succeed. He reasoned that they had not been denied a legal benefit in a regular or discriminatory manner, instead Low emphasized that the general fisheries management system had provided the fishers with numerous benefits. Justice Low chose not to consider the applicability of Section 25, as he believed it was necessary to establish the existence of a
Charter violation before addressing the rights provided under Section 25. However, he expressed reservations about whether Aboriginal commercial fishing rights could be considered under Section 25. Justice Kenneth C. Mackenzie found that the Section 15 challenge could not succeed. He agreed largely with the opinion of Justice Brenner of the British Columbia Supreme Court, noting that the fishers were unable to satisfy the human dignity element of the
Law test. Chief Justice
Lance Finch concurred with the reasons of Low and Mackenzie on the applicability of Section 15 and agreed that Section 25 was not engaged. Justice Risa Levine concurred with the reasons of Justices Low and Mackenzie, but declined to consider Section 25 on the grounds it was introduced by the
intervener parties and the court had to give primary consideration to the arguments of the parties. Justice Pamela A. Kirkpatrick concurred with the reasons of Justices Low and Mackenzie that the Section 15 challenge be dismissed, however, she disagreed with the lower courts conclusion that Section 25 did not provide that a fishing licence is an
Aboriginal right. Justice Kirkpatrick argued that the protection afforded by Section 25 through the language "other rights or freedoms" provided that the content of the right was the significant factor (fishing), and not the manner it was acquired (licence). == Supreme Court of Canada ==