Regina v. Kapp, et al.




2004 BCSC 958













Registry:  Vancouver


Oral Reasons for Judgment
The Honourable Chief Justice Brenner
July 12, 2004













Counsel for Appellant

C.J. Tobias
A.J. Semple
S.J. Berezowskyj


Counsel for Named Respondents

C. Harvey, Q.C.
C. Watson


Counsel for Intervenor Cowichan Bands

J.R. Rich
F.M. Kirchner


Counsel for Intervenors Musqueam and Heiltsuk Bands

M.R. Storrow, Q.C.
R.W. Millen
C. Hardcastley


For Sto:Lo Nation

No appearance

Counsel for Intervenor Tseshaht First Nation


H.M. Braker, Q.C.
A.P. Brown


Counsel for Intervenor Tsawwassen

First Nation

J.J. Arvay, Q.C.
R.J. Gage


Counsel for Intervenors Sport Fish Defence Alliance, B.C. Seafood Alliance, Pacific Salmon Harvesters Society, Aboriginal Fishing Vessel Owners Association and United Fishermen and Allied Workers Union


J.K. Lowes

Place and Date of Hearing:

Vancouver, B.C.

July 12, 2004


[1]            THE COURT:  This appeal concerns the constitutional validity of the Aboriginal Communal Fishing Licences Regulations (SOR/93-332) (the “A.C.F.L.R.”), and in particular the communal licence under the pilot sales program issued under those regulations to the Musqueam, Burrard and Tsawwassen First Nations (the “M.B.T.”).  In these reasons I use the term “P.S.P.” to describe the pilot sales program as well as the fisheries agreements and licences associated with it.

[2]            The communal licence authorized persons designated by the bands to fish salmon for sale purposes for a 24-hour period in an area of the Fraser River near the reserves as well as to fish for food, social and ceremonial purposes.  At the time the area was closed to all others, including commercial fishermen holding valid salmon licences for the area.

[3]            The accused were charged with unlawfully fishing for salmon with a gillnet during a closed time, contrary to s. 53(1) of the Pacific Fishery Regulations, 1993, thereby committing an offence contrary to s. 78 of the Fisheries Act, R.S., 1985, c. F-14 and amendments thereto.  Each of the accused admitted committing the actus reus charged and having the necessary mens rea, but sought a stay of proceedings on the basis that the impugned scheme violated their constitutional rights. 

[4]            The court below concluded that the provisions infringed s. 15(1) of the Canadian Charter of Rights and Freedoms on the basis that they discriminated against those who were not able to fish under a communal licence designation, particularly those who, in all other respects as commercial fishermen, were properly licenced and qualified.  The court also held that such infringement was not justified under s. 1 of the Charter and that a judicial stay of proceedings was the appropriate remedy.

Earlier Cases 

[5]            The case at bar is but the latest in a number of protest fisheries undertaken by commercial fishermen to challenge the validity of the P.S.P.  In R. v. Huovinen, G.E., et al, (2000), 140 B.C.A.C. 260, the accused commercial fishermen were charged under the Fisheries Act with fishing for salmon in the Fraser River during a close time.  The accused applied for stay of proceedings on the ground that the prosecutions were an abuse of process because the government was exercising a policy of charging non-aboriginal people but not aboriginal people fishing under aboriginal communal fishing licences.  The accused contended this was an illegal dispensing of the law in favour of a particular race or group.  The provincial court granted a judicial stay.  An appeal to the Supreme Court was allowed and a further appeal to the Court of Appeal was dismissed. 

[6]            In discussing the validity of the A.C.F.L.R, the Court of Appeal referred to the Supreme Court of Canada’s discussion of the breadth of ministerial discussion in Comeau’s Seafoods Limited v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12.  In Comeau’s Seafoods, Mr. Justice Major for the court stated at paragraph 36:

It is my opinion that the Minister’s discretion under s. 7 to authorize the issuance of licences, like the Minister’s discretion to issue licences, is restricted only by the requirement of natural justice, no regulations currently being applicable.  The Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. 

[7]            At paragraph 24 of its decision, the Court of Appeal stated:

The discretionary power that has been given to the Minister by Parliament may be exercised for all types of reasons, including the carrying out of social, cultural or economic goals and policies: Gulf Trollers Assn. v. Min. of Fisheries & Oceans, [1987] 2 W.W.R. 727 .... Thus, generally speaking, a decision to grant a licence or vary the fishery closure is an allocation of the fishery resource among competing users, a political choice. It is not an adjudication of individual ... rights. In Gulf Trollers the allocation was ... between sports fishers and commercial fishers.  In this case, it is between aboriginal fishers and commercial fishers.  The fact that aboriginal fishers are involved cannot turn a political choice into an adjudicative decision.  Nor can the allocation of the fish among competing users by a Ministerial act be interpreted as a colourable attempt to bypass the Pacific Fishery Regulations, 1993.

[8]            Huovinen establishes that the A.C.F.L.R.:

…confers on the Minister the power to issue communal licences and to specify in those licences conditions respecting, inter alia, the method of designation of persons entitled to fish.  When the aboriginal organizations who receive the communal licence designate which persons will fish on behalf of the community, they are exercising the privilege conferred on the community by the Minister by the grant of the communal licence. 

(See paragraph 29). 

[9]            The facts in both Huovinen and in the case at bar are identical.  Both prosecutions arose out of protests against the pilot sales program component of the A.C.F.L.R.  The only distinction is that here the accused have defended on the basis of the distinction inherent in the A.C.F.L.R. regulatory scheme violated their s. 15 Charter rights, hence entitling them to a judicial stay of proceedings.

[10]        As noted, the learned Provincial Court judge did conclude that the accused’s s. 15 rights had been violated, that the scheme was not saved by s. 1 and that a judicial stay was the only appropriate remedy.  The correctness of that decision, as well as an argument based on s. 25 of the Charter advanced by a number of First Nations Intervenors, are the sole issues on this appeal.

[11]        In the court below, the accused also advanced a number of other defences attacking the vires of the scheme in accordance with paragraphs (b) through (f) of their Notice of Constitutional Question.  On this appeal, both the appellant and the respondents agree that the Court of Appeal’s decision in Huovinen is dispositive of those defences.  Counsel agreed that only the Charter issues were for determination and that the P.S.P. was, for all other purposes, to be considered valid.  Counsel for the respondents advised the court that argument on the other defences would have to await the hearing of this case in the Court of Appeal, at which time that Court would likely be asked to reconsider its earlier decision in Huovinen.

[12]        Notwithstanding the limitations on this appeal, I did hear extensive submissions on behalf of the respondents and the Intervenor Sport Fishing Alliance, that touched on the constitutional and administrative validity of the scheme.  These were advanced as part of the “context” those parties urged the court to use in its s. 15 analysis. 

The Trial Decision

[13]        In his reasons for judgment, the learned trial judge reviewed the legal history and legislation involving the fishery.  Historically, since Magna Carta, the fishery has always been a common property resource.  Title to the fishery is not vested in the Crown.  Rather, the Crown has the legislative right and duty to manage the resource for the benefit of all Canadians.

[14]        Generally, aboriginals have historically been restricted to fishing for food, social and ceremonial purposes for themselves.  They have also been restricted in the fishing methods they have been allowed to employ.  Apart from the right of aboriginals to participate as individuals in the commercial fishery as all other Canadians are entitled to do, no aboriginal right to fish salmon for commercial or sale purposes has as yet been recognized in Canada. 

[15]        At paragraphs 25 through 62, the learned trial judge set out the legislative scheme and described the background of the A.C.F.L.R. 

[16]        After R. v. Sparrow, [1990] 1 S.C.R. 1075, the Department of Fisheries and Oceans (“D.F.O.”) in June 1992 introduced the aboriginal fishing strategy to facilitate the management of aboriginal fisheries in a manner that it saw as being consistent with aboriginal rights and consistent with D.F.O.’s objective of increasing the role of aboriginal groups in the management of their fisheries.  The D.F.O. saw the A.F.S. as being responsive to the urgings of the courts generally in this area to attempt to reach negotiated agreements with the aboriginal communities on fisheries management issues.

[17]        The learned trial judge correctly relied on the Supreme Court of Canada decision in Law v. Canada, [1999] 1 S.C.R. 497 for the framework for his s. 15 analysis.  After setting out the test in that case for s. 15 discrimination, the learned trial judge dealt with the question of the claimant and comparative groups.  At paragraph 85 of his reasons he observed that defence counsel had characterized the claimant group as all persons:

... eligible to obtain a fishing licence and participate in the Fraser gillnet salmon fishery.

[18]        He correctly pointed out that this would include all of Canadian society.  However, he narrowed this considerably by going on to say:

...but for practical purposes at the present time is that group of fishers holding Area "E" licences.

[19]        Dealing with the definitive of the comparator group he said:

The comparator group includes those persons who as a result of a bloodline connection to the Musqueam, Burrard and Tsawwassen Indian Bands are eligible to receive designations to participate in the aboriginal pilot sales fishery.

[20]        The learned trial judge concluded that the P.S.P. violated the respondents’ rights under s. 15 of the Charter.  In the course of his analysis of the application of s. 15, he concluded that:

1.    D.F.O. has drawn a distinction on grounds analogous to race between:

(a)   Aboriginals who by bloodline connection to the Musqueam, Burrard or Tsawwassen are eligible to be designated by them as participants in the pilot sales fishery, (his “comparator group”); and,

(b)   the rest of Canadian society, particularly the Area “E” commercial fishermen who are eligible to obtain a licence for the Fraser River gillnet salmon fishery, (his “claimant group”).

2.    The distinction was that D.F.O. withheld opportunities from the latter group afforded to the other group, denying them the general equal right of every citizen to participate in the fishery. 

3.    The distinction was discriminatory and thus a violation of s. 15 because:

(a)   The P.S.P. promotes the view that the members of the claimant group are less capable or less worthy of recognition as members of Canadian society equally deserving of concern, respect and consideration.

(b)   Pre‑existing disadvantage, stereotyping or prejudice is not really a concern for the claimant group.  Although it is a concern for the comparator three bands, this is more appropriately considered in relation to whether the program was ameliorative.

(c)   The P.S.P. does not correspond to the circumstances of the claimant or others because it fails to take into account the right of commercial fishermen to participate in the public fishery.

(d)   The P.S.P. has severe consequences to the interest of the commercial fishermen and has generated further racial discrimination and discord.

(e)   The P.S.P. has no ameliorative purpose or effect in that:

(i)   The P.S.P. produces only financial rewards and on the evidence, financial disadvantage is not a consideration with either the Musqueam or the Tsawwassen.

(ii)  The Musqueam and Tsawwassen are over-represented in their involvement of the commercial fishery.  Aboriginal people are at an advantage in their ability to participate in the commercial fishery due to government incentives not available to the rest of society.

(iii) There is no rational connection between the non-financial disadvantages experienced by the Musqueam and Tsawwassen and the preferential treatment of the fishery.  The result is that their members receive an unjustifiable benefit at the expense of the commercial fishermen, which makes it “grossly unfair”.

[21]        In reaching these conclusions, the learned trial judge relied on the evidence of 14 defence witnesses with extensive experience in the commercial fishing industry.  He concluded that they were representative of the claimant group, that they provide an accurate picture of the claimant group’s background and experience in the Fraser River gillnet fishery and were well-placed to make observations about the fishery.  On the basis of their evidence, he found that:

1.    The commercial fishermen have formed a distinctive community.  They view commercial fishing as part of their heritage and identity.  They consider their right to fish as vital as any other right and regard the pilot sales program as inconsistent with it.

2.    Although for various reasons there have traditionally been wide fluctuations in income from gillnet salmon fishing, the evidence of the defence witnesses established that the pilot sales program adversely affected their usual income from Fraser River sockeye gillnet fishing.

3.    The P.S.P. attacked their worthiness as fishermen because it created a group of “chosen ones” from which they were excluded and because the timing of the pilot sales fishery before the commercial fishery meant the commercial fishermen got the leftovers, creating an impression of a racial hierarchy.  Although the perception may not have been accurate, it was more important than the facts.

4.    Other than a period when restrictions were placed on Japanese fishermen, there was respect between individuals in the fishery of different racial backgrounds, but since the pilot sales program, the situation has deteriorated.

[22]        The learned trial judge concluded that the A.C.F.L.R. and the P.S.P. of the A.F.S. were invalid insofar as they:

... discriminated among commercial fishers on the basis of a bloodline connection to three Native bands.

[23]        On the day after his judgment was released, D.F.O. cancelled not only the M.B.T. P.S.P. licence but also the only other similar P.S.P. licence which had been issued to the Tseshaht and Hupacasath First Nations.  The latter had enjoyed P.S.P. licencing in each year since 1992 with the exception of 2002.  The trial judge found that the infringement was not justified under s. 1 and he imposed a stay of proceedings as, “the only remedy that deals with [the validity] of the P.S.P. and effectively condemns the program.”


[24]        (1) To what extent does s. 25 of the Charter limit or preclude any s. 15 review of the P.S.P? 

(2) Does the pilot sales program infringe s. 15 of the Charter

(3)  If so, is it saved by s. 1?

(4) If not, is a stay of proceedings a just and appropriate remedy within the meaning of s. 24 of the Charter?

The Section 25 Issue

[25]        A number of the First Nation Intervenors say that the first step in the court’s analysis in the case at bar should be to determine the extent to which s. 25 of the Charter limits or indeed precludes any s. 15 Charter review of the P.S.P.  Section 25 of the Charter provides:

25.   The guarantee in this Charter of certain rights and freedoms 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 of Canada including

(a)   any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

(b)   any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

(emphasis added)

[26]        Because this case involves ss. 15 and 25 of the Charter, the Musqueam Indian Band and Heiltsuk First Nation say that the proper analytical approach is to first consider and define the alleged Charter breach.  The next step is to consider whether there is an “asserted or proven right pertaining to aboriginal peoples which is at stake and if so, define the ambit of that right.”  The next steps are to determine whether the vindication of the Charter right would abrogate or derogate from the aboriginal right and if so, limit the construction of the Charter right to as to avoid the extent of any such abrogation or derogation.  In short, they say that s. 25 is triggered when a Charter remedy is sought which might threaten a right, “that pertains to aboriginal people but before the court determines whether the Charter has been breached.” 

[27]        The Tsawwassen First Nations say s. 25 affords a complete defence to any s. 15 attack on the P.S.P.  They say the impugned scheme is s. 91(24) law, that it is directly tied to the social and economic circumstances of aboriginal people, that it features limitations on gear, boat size and catch reporting.  Most significantly, say the Tsawwassen, the P.S.P. was a negotiated arrangement between Canada and the First Nation.  It was a response to the continuing contention of the Tsawwassen that they have an aboriginal right to fish for sale as well as to the repeated entreaties from the courts for the parties to negotiate First Nations issues.

[28]        Section 25 was applied in Campbell v. B.C. Attorney General, [2000] BCSC 1123.  In that case, the applicants argued that certain provisions of the Nisga’a Final Agreement violated s. 3 of the Charter, which provides that every Canadian citizen has the right to vote for members of, or to run for office in the House of Commons or Legislative Assembly of a province.  Under the Nisga’a treaty, only Nisga’a citizens and others designated by the Nisga’a government may vote in Nisga’a elections. 

[29]        After reviewing s. 3, Mr. Justice Williamson turned to s. 25 and observed that s. 25:

... is only triggered when aboriginal or treaty rights are challenged on the basis of the Charter and the outcome of that challenge might abrogate or derogate from "rights or freedoms that pertain to the aboriginal peoples of Canada".

He went on to conclude:

This case being one involving treaty rights, s. 25 is triggered and must be given effect.

(See paragraphs 156 and 157).

[30]        In my view, the analysis followed by Williamson, J. in Campbell is correct when dealing with aboriginal or treaty rights.  But in the case at bar, the P.S.P. is clearly neither an aboriginal nor a treaty right.  Accordingly, s. 25 can only be triggered if the P.S.P. falls within the meaning of “other rights or freedoms” as set out in that section. 

[31]        Since no aboriginal right to fish salmon for commercial purposes has yet been established, the question is whether the existence of an asserted right pertaining to aboriginal people or a licence benefit negotiated as part of a contract between aboriginal people and the government rises to the level that would trigger s. 25 protection.

[32]        I accept the submission that the P.S.P. was likely entered into, at least in part, under the s. 91(24) power.  It is clearly a most significant program for those involved.  Insofar as it generally relates to the fishery, it arises from and is directly linked to aboriginal distinctiveness and culture.  The urgings of the courts to negotiate also played an important role in the P.S.P. 

[33]        I am also mindful of the practical difficulty in setting the bar too high.  Proving an aboriginal right in the courts is a long and expensive exercise.  If such proof is a condition precedent to s. 25 protection (in the absence of a treaty right), the protection may be too restrictive.

[34]        Judicial caution with respect to the breadth of s. 25 is seen in the concurring judgment of Madam Justice L’Heureux-Dubé in Corbiere v. Canada (Minister of Indian and Northern Affairs) at [1999] 2 S.C.R. 203 at paragraph 52.  In that case, dealing with the effect of a statute, she left open the scope of “other rights and freedoms” in the following words:

Section 25 is triggered when s. 35 Aboriginal or treaty rights are in question, or when the relief requested under a Charter challenge could abrogate or derogate from "other rights or freedoms that pertain to the aboriginal peoples of Canada".  This latter phrase indicates that the rights included in s. 25 are broader than those in s. 35, and may include statutory rights.  However, the fact that legislation relates to Aboriginal people cannot alone bring it within the scope of the "other rights or freedoms" included in s. 25.

[35]        Of fundamental significance is that s. 25 is a constitutional provision.  As such, it seems to me that something more than an “asserted right” or a negotiated agreement in the context of an asserted right is necessary. 

[36]        In this case, the P.S.P. licence was issued and could have been cancelled at any time in the Minister’s absolute discretion.  It was valid for a period of only 24 hours.  The licence contained numerous restrictions and conditions. 

[37]        Whatever the intention of our framers when they added the words “other rights or freedoms” to s. 25, I do not believe that this type of licence, even if interpreted generously and liberally, would fall within that definition and enjoy the types of constitutional protection as contended.  Accordingly, I conclude that s. 25 is not available to defeat the s. 15 claim advanced by the respondents.

The Section 15 Issue

[38]        Section 15 of the Charter reads:

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) does not preclude any law, program 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.

[39]        Law now stands as the leading authority on the meaning of the equality guarantee under s. 15 of the Charter.  To establish a breach of s. 15(1), a claimant must meet a three-part test and show that:

1.    The impugned law imposes differential treatment between the claimant and others in purpose or effect;

2.    The differential treatment is based on an enumerated or analogous ground of discrimination; and

3.    The law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

[40]        When considering these three issues, the court’s analysis is to be carried out in a purposive and contextual manner.  That is to say at each stage of the inquiry the court must examine the legislative, historical and social context of any distinction made and the reality and experiences of the individuals affected by it.  The main focus of the inquiry is to determine whether a conflict exists between the purpose or effect of an impugned law and the purpose of s. 15(1).

[41]        Given the requirement for a contextual and purposive approach at each stage of the s. 15 analysis, the court must also consider the context of the claim and the purpose of s. 15 at the outset of its analysis.  However, as the court embarks upon its outset analysis, the first issue is frequently the wide divergence between the views of the parties as to just what that macro-context is really about.  This case provides an example.

[42]        The appellant says that, “The most important aspect of the context of the claim in this case is that it involves a program and regulations relating to aboriginal people.  The P.S.P. and the A.C.F.L.R. under which it is administered are specifically directed at aboriginal organizations as defined in s. 2 of the A.C.F.L.R.”  Conversely, the respondents say that the most important aspect of this case is that it features improper interference by the government with a common property resource vested since the time of Magna Carta in all citizens.

[43]        The fishery cannot be compared to other Crown holdings such as, for example, land or forest tenures.  While the latter are vested in the Crown for the benefit of the public, the fishery has never been so vested.  By contrast, the fishery is managed and controlled by the Crown pursuant to the Crown’s legislative obligation and duty to administer and regulate the fishery on behalf of all Canadians. Quoting Holdsworth, A History of English Law, volume 2, page 209, the respondents say that, “The constitutional and societal significance of the interest affected (the fishery) is of the highest order.” 

[44]        So the appellant says the context of this case concerns aboriginal people.  The respondents counter that the context is about improper governmental interference with the public fishery. 

[45]        However, the respondents also say that, for the purpose of this appeal, the P.S.P. is not to be taken as contravening any constitutional or administrative public fishing right.  In particular, the respondents are reserving their right to argue points (b) through (f) in their Notice of Constitutional Question in the higher courts.  On this appeal, I am limited to dealing exclusively with the s. 15 defence. 

[46]        This restriction restricts somewhat the contextual analysis.  While I can recognize that the P.S.P. does affect the common property resource that has been in existence since the time of Magna Carta, I must also assume that it does not contravene any constitutional public fishing rights. 

[47]        It is also an important aspect of this claim that it involves aboriginal people.  The P.S.P. and the A.C.F.L.R. under which it is administered are specifically directed at aboriginal organizations as defined in s. 2 of the A.C.F.L.R.  The fact that the program and regulatory provisions relate to aboriginal people means that the analysis requires consideration of and respect for the distinctiveness of aboriginal people and the importance of aboriginal values and history.

[48]        As stated by Madam Justice L'Heureux-Dubé in Corbiere at paragraph 54:

I emphasize, however, that as I will discuss below, the contextual approach to s. 15 requires that the equality analysis of provisions relating to Aboriginal people must always proceed with consideration of and respect for Aboriginal heritage and distinctiveness, recognition of Aboriginal and treaty rights, and with emphasis on the importance for Aboriginal Canadians of their values and history.

[49]        The distinctiveness of Indians and Inuit people has, since Confederation, been reflected in s. 91(24) of the Constitution Act 1867, which grants exclusive legislative authority to Parliament to enact laws relating to Indians and lands reserved for Indians.  While for the purposes of this case I do not have to decide whether the P.S.P. was made pursuant to the s. 91(24) power as opposed to the 91(12) power, the constitutionally recognized distinction between Indians and non-Indians can form part of the context for the court’s analysis.

[50]        This distinction was more recently recognized and affirmed when the current Constitution Act was enacted in 1982.  Section 35 of the Constitution Act and s. 25 of the Charter affirm existing aboriginal rights and provide a degree of Charter immunity which clearly constitutionally distinguishes Indians from non-Indians in Canada. 

[51]        An additional contextual factor is the fact that this case involves fishing.  Since no commercial aboriginal right to fish for salmon has as yet been established, I assign somewhat less weight to this factor than has been urged upon me.  However, it is appropriate for the court to consider the continuing historic and cultural value of the fishery to aboriginal people. 

[52]        An important aspect of the context in this case is the general and historic disadvantage of aboriginal people in Canadian society. As the Supreme Court of Canada found in Lovelace v. Ontario, [2000] 1 S.C.R. 950 at paragraph 69:

... all aboriginal peoples have been affected "by the legacy of stereotyping and prejudice against Aboriginal peoples" (Corbiere, at para 66).  Aboriginal peoples experience high rates of unemployment and poverty, and face serious disadvantages in the areas of education, health, and housing.

[53]        An additional contextual factor is that the impugned P.S.P. is simply one relatively minor component of a much larger program of the D.F.O.  By adding a sales component to the traditional food fishery, the P.S.P. was aimed by D.F.O. at improving economic opportunities for aboriginal people and properly managing the fishery while addressing the traditional importance of the fishery to aboriginal people in a manner sensitive to the aboriginal perspective.  Given ongoing treaty negotiations with First Nations, the P.S.P. also allowed the D.F.O. to add this sales component on a limited and test basis.

[54]        The legislative regime governing fishery is an other significant contextual factor.  While the fishery is a common property resource belonging to all Canadians, one can only fish if one has a licence and even then, only if the fishery is open.  As stated by the Court of Appeal in Huovinen, licences are issued in the absolute discretion of the Minister and the opening of any particular fishery is also discretionary.  Further, the Minister may allocate the fishery amongst competing users for all types of reasons, including the carrying out of social, cultural or economic goals and policies.

[55]        While a s. 15(1) infringement was not argued in Huovinen, the case nevertheless demonstrates the broad discretion granted to the Minister of Fisheries, and most significantly, as found by the Court of Appeal, the exercise of that discretion involves the:

... allocation of the fishery resource among competing users, a political choice.   It is not an adjudication of individual or group rights.

Purpose of Section 15

[56]        Critical to the s. 15 equality analysis is a consideration of its purpose.  Clearly not all differential treatment is discrimination under s. 15(1).  In Law, the Supreme Court of Canada, after analyzing the development of the s. 15(1) jurisprudence, that court stated at paragraph 51:

It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice .... Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.

[57]        The court also set out the meaning of human dignity at paragraph 53:

Human dignity means that an individual or group feels self-respect and self-worth .... Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits .... Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. 

This is the judicial lens through which the facts as found by the learned trial judge in this case must be viewed.

Composition of Claimant and Comparator Groups 

[58]        The application of s. 15 requires a comparison of the condition of the claimant group with the condition of others in the social and political setting in which the question arises.  In order for a proper comparison to be carried out, it is critical that the claimant group and the comparator group be accurately defined. 

[59]        As noted in paragraph 85 of his reasons, the learned trial judge decided that the claimant group in this case:

... for practical purposes at the present time is that group of fishers holding Area "E" licences.

[60]        However, in my view defence counsel’s trial submission was correct.  The claimant group is more accurately described as:

... that group, including the accused, eligible to obtain a fishing licence and participate in the Fraser gillnet salmon fishery.

[61]        Recognizing the common property nature of the fishery resource, that group would include all members of Canadian society including aboriginal individuals.  Excluded would be aboriginal groups.  Any other composition of the claimant group would be based on artificial distinctions.  For example, the claimant group cannot be defined as Area “E” gillnet licence holders because whether or not one has an Area “E” licence is irrelevant.  It was not only Area “E” gillnet licence holders who were excluded from the P.S.P. and in any event, having a commercial licence does not disqualify the holder from participation in a pilot sales fishery.  In fact, some Area “E” gillnet licence holders were designated to fish under the communal licence.  Likewise the claimant group could not be commercial fishermen as a whole because some of those designated to fish under the communal licence were commercial fishermen.

[62]        In my view, it is not appropriate when conducting a s. 15 analysis to narrow a claimant group “for practical purposes.”  This is particularly important since the designation of the claimant and comparator groups can have such a strong influence on the outcome of the analysis. 

[63]        This is seen in the case at bar.  After restricting the composition of the claimant group “for practical purposes” to Area “E” licenced commercial fishermen, the learned trial judge relied on the evidence of the 14 defence witnesses from this group who testified at trial.  While I accept the learned trial judge’s findings of facts arising from their evidence, it is also clear that their subjective feelings and perceptions about the P.S.P. played a significant role in the outcome.

[64]        When addressing the comparator group, the learned trial judge decided that it included those who:

... as a result of a bloodline connection to the [M.B.T.] are eligible to receive designations to participate in the aboriginal pilot sales fishery.

[65]        However in my view it is not a question of who is eligible to be designated to fish under a communal licence but rather who is eligible to receive a communal licence under the A.C.F.L.R.  The A.C.F.L.R. authorized the granting of communal licences to “aboriginal organizations.”  These are defined in the regulation as including:

... an Indian band, an Indian band council, a tribal council and an organization that represents a territorially based aboriginal community;

Licences under the scheme were not granted to individuals.

[66]        Indeed, the communal nature of the licence is one of its most significant characteristics for aboriginals.  The groups receiving such a licence in turn made the individual designations. 

[67]        Therefore the recipients of the differential treatment under the legislation were the aboriginal communities and not specifically identified individuals.  The manner in which the benefits from the communal licencing flowed out to all of the individual members of the community in the case of the Hupacasath is seen in the trial testimony of Chief Judith Sayers. 

[68]        Since the s. 15 analysis is intended to determine whether a regulatory scheme violates equality rights, the recipients of the differential treatment must form the comparator group, not the individuals chosen by the comparator group to exercise the privileges of the communal licence. 

[69]        I conclude that defence counsel at trial was correct.  The claimant group in this case is comprised of all members of Canadian society with the exception of aboriginal communities.  The essence of the respondent’s claim is that the P.S.P. discriminates against all members of Canadian society other than aboriginal communities.  It is on this basis that the s. 15 analysis should proceed.

Law Three-Stage Inquiry

[70]        If the comparator group is aboriginal communities and the claimant group the rest of Canadian society, then the first two steps of the Law test are met.  The scheme clearly draws:

... a formal distinction between the claimant and others on the basis of one or more personal characteristics ...

It also subjects the claimant group to:

... differential treatment on the basis of one or more of the enumerated and analogous grounds.

[71]        The real issue in this case is whether the scheme constitutes discrimination under the third and final portion of the test in Law.  This requires the court to consider just how, in the context of the legislation and Canadian society, any particular differential treatment impacts upon the people affected by it.  Law tells us that the question to be asked is:

Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[72]        So the analysis at this stage requires that the court consider whether the legislation conflicts with the purposes of s. 15 to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice. 

[73]        The court is also required to examine this question from both a subjective and an objective perspective.  The question the court must consider is how:

... a person legitimately feels when confronted with a particular law.

Corbiere, paragraph 63.

[74]        The question that must be asked is whether or not a reasonable person, dispassionate and fully apprised of the circumstances and possessed of similar traits to the claimant (Law, paragraph 60) would find that the impugned legislation or program:

... discriminates by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.

(Law, paragraph 88).

[75]        In this case the court must determine whether, from the perspective of a reasonable, dispassionate and fully informed person the P.S.P. has the effect of demeaning the dignity of these respondents as members of the claimant group.  In my view, in the court below the claim was not assessed from the perspective of a reasonable, fully informed and dispassionate person.  Rather, the claim was assessed from the perspective of a number of defence witnesses.  In fact, their perception was accorded more weight than the reality.


[76]        In addition to the contextual consideration required at the outset of a s. 15 analysis, the Supreme Court of Canada has also held that in determining whether s. 15 has been violated in any particular case, the court should examine a number of more specific contextual factors.  These are factors that, when considered together, may indicate the presence of substantive discrimination.  The list is neither absolute nor exhaustive and in any particular situation one or more of these contextual factors may play a more important role than the others or indeed they may overlap.  These contextual factors are enumerated in Law:

1.    Pre-existing disadvantage;

2.    Correspondence between grounds and need, capacity and circumstances;

3.    Ameliorative purpose; and

4.    The nature and scope of the interest affected. 

Under this part of the analysis the question in the case at bar is the extent to which this more micro-examination of the relevant contextual factors demonstrates that the P.S.P. resulted in substantive discrimination.

Pre-Existing Disadvantage

[77]        This factor involves a consideration by the court of whether the claimant group has experienced pre-existing disadvantage, stereotyping, prejudice or vulnerability.  It is the most compelling factor supporting a finding that differential treatment imposed by legislation is truly discriminatory.  If the claimant group already suffers from unfair circumstances or treatment, further differential treatment will exacerbate their disadvantaged situation and consequently will have a more severe impact upon them; (see Law, paragraph 63).

[78]        In addition, the Supreme Court of Canada has made it clear that a central consideration in the s. 15(1) analysis is the protection of individuals and groups who are vulnerable, disadvantaged or members of discrete and insular minorities; (see Law, paragraph 68).

[79]        Here, the claimant group suffers from no pre-existing disability.  Even as narrowed by the learned trial judge, the claimant group is clearly not a “discrete and insular minority,” nor is it a group that suffers from any pre-existing disadvantage, vulnerability, stereotyping or prejudice.  Rather, the claimant group is a disparate group, diverse in ancestry, background, politics and level of engagement in the fishery.  While individual members of the claimant group, such as those of Japanese-Canadian ancestry may have historically experienced racial prejudice, that clearly does not extend across the entire group. 

[80]        On the other hand, the aboriginal community is a discrete and insular minority in our country that, as numerous courts have found, has suffered and continues to suffer substantial discrimination and is deserving of and in need of the protection offered by s. 15(1). 

[81]        The learned trial judge found the members of the M.B.T. to be relatively financially advantaged.  However, in my view it is the circumstances of the broader aboriginal community that must be considered here, not just the M.B.T.  While the M.B.T. may be relatively better off when compared with other aboriginal communities, the comparator group is made up of the broader aboriginal community whose members do not enjoy the relative advantages said by the respondents to arise from the fact that the M.B.T. members live in such close proximity to a major urban area.  An example in this case are the Tseshaht and Hupacasath First Nations, who were directly affected by the P.S.P. cancellation and yet who do not share the geographical advantages said to be enjoyed by the M.B.T.

[82]        In my view, the learned trial judge erred in his consideration of this most compelling of the contextual factors.  While correctly finding that pre-existing disadvantage was not a concern for the claimant group, he failed to properly consider the pre-existing disadvantage of the comparator group, except in relation to its ameliorative effect.  In part that resulted from his identification of the comparator group as the aboriginal fishermen designated under the M.B.T. communal licence.  He may also have been influenced by evidence that individual fishermen so designated enjoyed, at least to outward appearances, a relatively comfortable lifestyle.

[83]        However, had the learned trial judge designated the comparator group as eligible aboriginal communities and had he gone on to consider the clear relative disadvantage of the comparator group at this stage of the analysis, it would likely have been very difficult for him to conclude that a separate regime for the disadvantaged group could violate the human dignity of members of an advantaged group.

Correspondence to Needs, Capacity or Circumstances

[84]        This contextual factor involves a consideration of the correspondence between the grounds on which the claim is based and the actual need, capacity or circumstances of those affected.  The court must consider not only the needs, capacity and circumstances of the claimant group, but also and equally importantly, the needs, capacity and circumstances of the comparator group, that is aboriginal communities. 

[85]        In considering this contextual factor, the purpose of any impugned program is relevant insofar as it would affect the perception of a reasonable person in the claimant’s position; (see Gosselin, paragraph 112).  Perfect correspondence between the program and the actual needs and circumstances of those to whom the program is directed is not required.  In creating a program, the legislative branch is entitled to proceed on informed general assumptions provided those assumptions are not based on arbitrary and demeaning stereotypes; (see Gosselin, paragraphs 55 and 56.)

[86]        The appellant says that the purpose of the impugned scheme is a particularly relevant factor in the case at bar.  The Crown submits that the A.F.S. was “specifically designed to respond to a number of complex fishery issues in a manner respectful of, not only the unique needs, capacity and circumstances of aboriginal communities, but also of the needs, capacity and circumstances of the rest of Canadian society, including commercial fishers.”

[87]        Specifically the appellant says that when the A.F.S. was created, it was faced with a number of factors influencing the D.F.O.’s ability to conserve, manage and develop the fishery resource.  Those factors included the importance of the fishery to aboriginal peoples and their unique and traditional relationship to the fishery.  While no court has as yet concluded that there exists an aboriginal right to fish salmon for commercial purposes, the possibility of that right arising, either in a future judicial decision or as part of a negotiated treaty, cannot be said to be foreclosed.

[88]        At the time of the Sparrow decision in 1990, which immediately preceded the development of the A.F.S. and the P.S.P., over 90 bands comprising some 20,000 aboriginal people were obtaining food fish from the Fraser River.  Some or all of those bands were claiming aboriginal rights to fish in the Fraser River and some or all of those bands may have had and possibly still could establish rights to fish in the Fraser River, either commercially or for food, social and ceremonial purposes.  This possibility was clearly one of the factors motivating D.F.S. to institute the P.S.P. on a pilot basis. 

[89]        Other relevant factors are said by the Crown to have been:

(a)   A long history of conflict with aboriginal peoples over the regulation of the aboriginal fishery;

(b)   Numerous admonitions from the courts to negotiate rather than litigate aboriginal claims;

(c)   The possibility of the inclusion of fishery access, including commercial access, into treaties;

(d)   Serious problems in fisheries management leading to conservation concerns; and

(e)   Declining participation by aboriginals in the commercial fishery.

[90]        I would ascribe rather less weight to the foregoing list as contextual factors.  While the courts have consistently recommended negotiation, they have never suggested that these negotiations could override Charter rights.  The need to address conservation concerns by bringing in a separate aboriginal fishery is also a somewhat questionable premise.  Conservation and regulatory problems in the fishery could well have been addressed by stepped up enforcement efforts rather than creating a separate fishery.  Finally, the participation rate of aboriginals in the commercial fishery appears to have increased significantly since the Pearse Report was released in 1982.  Michelle James, a former D.F.O. statistician, testified at trial that aboriginal participation in the fishery increased in the 1980s and 1990s and that by 2002, 47 percent of the salmon seiners were owned by aboriginal fishermen.  This increased penetration of aboriginals into the commercial fishery has been aided in part, no doubt, by the licence buyback program component of the A.F.S.

[91]        In my view the most fundamental correspondence between the A.F.S. and the needs, capacity and circumstances of aboriginal communities is that it facilitates a commercial component of aboriginal access to the fishery in a manner consistent with and respectful of the unique relationship between British Columbia aboriginal communities and the fishery. 

[92]        Since before contact aboriginal people in British Columbia have relied upon the fishery to sustain their communities.  Indeed, this reliance and the importance of the fishery to coastal aboriginal communities is reflected in the reserve system in coastal British Columbia where, as noted by Mr. Justice Binnie in Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 at paragraph 11:

The multiplicity of relatively small reserves is characteristic of coastal British Columbia, where strategic access to plentiful fishing and other resources was thought to be more important than simple acreage.

[93]        The A.F.S. represented an attempt to reconcile this unique relationship with the need for regulation of the fishery by providing for a separately regulated fishery respectful of and sensitive to traditional aboriginal values.  This was achieved through the negotiation of such matters as co-management of the fishery, allocation of fish and other matters of importance to aboriginal groups.  It also provided an opportunity for communal licencing, which is of particular and unique importance to aboriginal communities.

[94]        The impugned P.S.P. went one step further in that it allowed the relevant aboriginal communities an opportunity to negotiate arrangements for the sale of fish caught under the communal licences.  This aspect of the A.F.S. addresses the needs of those aboriginal communities by providing economic opportunity, training, jobs and participation in fisheries management.  In addition, by being a separate fishery and as explained by Chief Sayers, the P.S.P. allows those members of the relevant communities who are unable to obtain commercial fishing licences and/or who do not have the physical capacity in the way of appropriate fishing equipment and vessels to nonetheless participate in the fruits of the fishery. 

[95]        In a broader sense the argument can also be made that A.F.S. and P.S.P. also correspond to the needs, capacity and circumstances of not only aboriginal communities but also of Canadian society as a whole in that through these programs aboriginal communities are able to negotiate a number of important fishery issues.  The D.F.O. believes this enables it to better manage the fishery.  If D.F.O. is right, this is a benefit to Canadian society as a whole, since as noted in Comeau’s Seafoods, the fishery is a common property resource belonging to all the people of Canada and is to be managed, conserved and developed on behalf of Canadians in the public interest.

[96]        Also as noted above, one important purpose of the P.S.P. is to test manage arrangements for possible inclusion in treaties and self-government arrangements.  The resolution of treaty and self-government issues is unquestionably in the interests of Canadian society as a whole.  In my view, the A.F.S., including the P.S.P. does correspond to the needs and circumstances of the claimant group as well as aboriginal communities.

Ameliorative Purpose Effect of the P.S.P. 

[97]        At this stage of the analysis, the court must consider the purpose or effects of the impugned law upon a relatively more disadvantaged person or group in society.  As noted in Law at paragraph 131:

An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation.  This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.

[98]        The foregoing passage from Law is particularly apt in this case.  The P.S.P. is a program aimed in part at providing economic opportunity for aboriginal people and for enhancing aboriginal participation in the fishery.  It is trite law that aboriginal people are a disadvantaged group (Lovelace paragraph 69, Corbiere, paragraph 66).  On the other hand, the respondents are part of a more advantaged group, being the rest of Canadian society.  Arguably the respondents enjoy an even greater advantage than the rest of Canadian society in that they are among the very few who are able to obtain a commercial salmon fishing licence.

[99]        As set out in paragraphs 42 to 45 of the statement of facts, the evidence at trial demonstrates that the A.F.S. and the P.S.P. in particular have provided economic opportunities in aboriginal communities by increasing aboriginal participation in the fishery, creating new jobs and training and generating revenue.  The Federal Court of Appeal has recently considered the A.F.S. and found that the A.F.S. has an ameliorative aspect which must be considered when a s. 15 Charter challenge is advanced; (see Chippewas of Nawash First Nation v. The Queen, 2002 FCA 485, paragraph 58).

[100]    In his s. 15 analysis, the learned trial judge restricted his consideration of amelioration to financial disadvantage.  After finding that “it is likely” that the Musqueam and Tsawwassen experience disadvantages in the area of education, health and housing and also experience high rates of unemployment and poverty, he then concluded:

It is unlikely that financial disadvantage is one of their problems.

(Reasons for judgment, paragraph 2002).

[101]    In assessing what he termed the “rational connection” between the P.S.P. and the disadvantage suffered by the M.B.T. bands, the learned trial judge set too restrictive a standard.  Perfect correspondence between a program and the actual needs and circumstances of those at whom the program is aimed is not required; (Gosselin, paragraphs 55 and 56). 

[102]    In addition, participation in the P.S.P. was never limited to the M.B.T. bands.  Although the learned trial judge appears to have struck down only the M.B.T. P.S.P., in my respectful view, he ought to have at least considered the ameliorative effect on the other communities actually holding pilot sales authority under the A.C.F.L.R., such as the Tseshaht and Hupacasath First Nations, as well as other aboriginal communities that were eligible.

Nature and Scope of the Interest Affected

[103]    At this stage of the analysis, the court is to consider the nature and scope of the interest affected by the impugned law.  As noted in Law at paragraph 88:

The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).

[104]    In the case at bar, the nature and scope of the interest affected is minimal.  There is no empirical evidence that the P.S.P., rather than the other influences noted by the trial judge at paragraphs 153 and 154 of his reasons, caused any reduction in the profitability of the salmon fishery.  In any event, much of the impact of the P.S.P. on the commercial fishing fleet was likely reduced by the licence retirement program instituted by the D.F.O. to offset the impact of the introduction of the A.F.S. pilot sales fisheries. 

[105]    While commercial fishermen are not permitted to participate in the pilot sales fishery, they are not without similar opportunity.  All of the relevant fisheries agreements provide that there can be no pilot sales fishery without a commercial opening.  The impact on the interest of the claimant group in this case is simply that they may have to fish at a different time.  While the commercial fishery followed the M.B.T. P.S.P. fishery in the lower Fraser, it preceded the opening of the Tseshaht and Hupacasath P.S.P. fishery in the Alberni inlet and Somass River area. 

[106]    The fact that the commercial fishery in Area “E” typically followed the P.S.P. opening had a relatively minor impact in terms of catch numbers.  The aboriginal take-up under the P.S.P. was much smaller than that of the commercial fishery.  In 1998, the year the complaint at issue arose, there were two pilot sales fisheries on the Fraser River in which the total number of fish taken for sale was 57,892.  Each of the pilot sales fisheries was immediately followed by a commercial opening.  The combined amount of fish taken in the two commercial openings was 268,000 in Area “E”.

[107]    However, the salmon taken in the Fraser River is only a small portion of the Fraser River sockeye salmon taken over all.  When one considers the Fraser River sockeye salmon fishery as a whole, the relative impact of the P.S.P. is reduced even further.  In the 1998 season, in excess of 2.2. million Fraser River sockeye salmon were taken.  In my view, the taking of less than 60,000 P.S.P. fish did not have a significant impact on the claimant group.  In any event, it was far from the “severe consequences” referred to in Law.

[108]    The respondents submit that the contextual factors are not dispositive and that they are meant to be an aid in determining borderline cases.  They further say, and on this point I agree, that a micro-examination of each contextual factor should not be allowed to obscure the essential question which is, “Whether a reasonable claimant would perceive that an impugned distinction infringes his or her dignity.” 

[109]    So I conclude by asking this question.  Can it really be said that the P.S.P. has “the effect of perpetuating or promoting the view that those who cannot fish on those days when the P.S.P. fishery is open are less capable or worthy of recognition or value as human beings or as members of Canadian society.”  Since the s. 15(1) analysis is to be contextual, that really means addressing this fundamental question: is the type of differentiation that we see in the P.S.P. the type of differentiation that can truly be said to be discrimination under s. 15(1)?  Is this really the type of governmental action intended to be caught by the equality provisions of our Charter?

[110]    In my view, whether one examines the relevant contextual factors or whether one asks the essential question posed by the respondents in their argument, the answer is the same.  The P.S.P. does not result in any denial or demeaning of human dignity for the claimant group.  The claimant group is neither a “discrete and insular minority” nor has it experienced pre-existing disadvantage, stereotyping, prejudice  or vulnerability.  On the contrary, the claimant group is a group that is clearly advantaged in relation to the comparator group.  There is correspondence between the impugned program and the needs, capacity and circumstances of both the claimant group and more importantly, the comparator group.

[111]    With respect to the claimant group, the impugned program assists D.F.O. in its management of the fishery which in turn benefits Canadian society as a whole. 

[112]    I recognize that to the extent that the salmon fishery is a zero sum resource, that P.S.P. does have an economic impact on those licenced to fish commercially and as found by the learned trial judge, that the commercial fishermen could well have been embarrassed by being excluded from the P.S.P. fishery.

[113]    However, to the extent that the P.S.P. assisted in the proper management of fishery, a benefit would have been realized by the respondents who, to some degree at least, rely upon the fishery.  The P.S.P. also corresponds to the needs of the respondents by requiring that no pilot sales opening occur unless there is a corresponding commercial opening.  This ensures that while an individual pilot sales opening may precede a commercial opening, it will never displace it. 

[114]    With respect to the comparator group, the impugned program also corresponds to the needs, capacity and circumstances of aboriginal people with respect to the fishery.  Finally, the impugned program has an ameliorative purpose and effect and the consequences of the impugned program upon the claimant group are minimal.

[115]    Hence I answer the question I posed at the outset of this section.  In my view, a purposive reading and application of s. 15(1) in accordance with the applicable principles results in the conclusion that the pilot sales program did not constitute discrimination within the meaning of the Charter

[116]    In view of my conclusion that the P.S.P. did not infringe upon the rights of the claimant group, it is not necessary for me to deal with the submissions on s. 1 or whether a stay of proceedings was appropriate in the case at bar. 


[117]    In these reasons, I deal with whether the A.F.S. and the P.S.P. infringed s. 15 Charter rights.  In concluding that they do not, I would not want these reasons to be interpreted as an endorsement by this court of the wisdom of such a policy.  I have found only that there is no Charter breach.

[118]    That being the case and since the P.S.P. was suspended the day after the trial judgment was released, the Minister will no doubt have to consider whether to reinstate the program. 

[119]    I heard many submissions during the appeal from all sides, reminding the court that the overall strategic objective for both the aboriginal and the non-aboriginal communities in our country is to achieve a reconciliation.  The P.S.P. was clearly designed by the D.F.O. as a tactical instrument within the framework of that strategic objective. 

[120]    In many respects, the pilot sales program has had an unfortunate history.  It has generated much ill will between those who work in the two fisheries.  It has also generated ill will amongst aboriginals who work in the commercial fishery and those who work in the P.S.P. fishery.  This stands in contrast to the positive acceptance of other A.F.S. measures such as a licence buy-back program.  This has seen government repurchased commercial licences redistributed to aboriginal fishermen to increase the aboriginal participation rate in the commercial fishery.

[121]    In view of my conclusion that there has been no s. 15 breach, the Minister, subject to further decisions of the higher courts, is left with the absolute discretion described in Huovinen to re-institute the P.S.P.  However, before doing so and perhaps in giving consideration to other methods, or to changes in the P.S.P. that might be employed to accomplish the same objective, it would be this court’s hope that the Minister would consider the history of the P.S.P. and would further consider the extent to which it has enhanced or diminished the overall strategic objective of reconciliation between aboriginals and non-aboriginals in our country. 


[122]    The appeal is allowed and convictions are entered in respect of each respondent. 

Counsel has applied to have this court conduct the sentencing under s. 686(4)(ii) of the Criminal Code.  Accordingly, counsel may contact the registry to arrange a convenient date for the sentencing hearing.

“D.I. Brenner, C.J.S.C.”
The Honourable Chief Justice D.I. Brenner