R v Kapp

Autor: Sonia Lawrence
Rok vydání: 2018
Předmět:
Zdroj: Canadian Journal of Women and the Law. 30:268-291
ISSN: 1911-0235
0832-8781
DOI: 10.3138/cjwl.30.2.04
Popis: This judgment of the Women's Court of Canada takes issue with the reasons, but not the result, in the Supreme Court of Canada's treatment of R v Kapp. It concludes that the Supreme Court was wrong to accept the argument that there was discrimination on the ground of race. Discrimination under section 15 has three required parts: differentiation on an enumerated or analogous ground that is discrimination. Noting that the meaning of “race” is little discussed in jurisprudence of the Supreme Court, the judgment demonstrates that the arguments made in Kapp and the nature of the impugned regulations do not support a conclusion of differentiation on the ground of race (although they may support differentiation on the ground of Band membership). If Kapp is not a case in which the appellants had all of the elements of a section 15 claim, then it was not an appropriate case in which to provide guidance on the doctrine of section 15(2) and section 25. Sections 35 and 25 resist the racialization of Indigenous peoples in Canada, and together with case law, they offer a solid constitutional basis—indeed, requirement—for the recognition of Indigenous sovereignties. Kapp, though it ultimately provides a safe haven for ameliorative programs, ignores the constitutional position of the Musqueam, Tsleil-Waututh (Burrard), and Tsawwassen Nations affected by the regulations at issue. The Supreme Court should not have considered section 15(2), as there was no prima facie case under section 15(1) of discrimination on the basis of race, and the claim should have failed on that basis.
Databáze: OpenAIRE
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