Section Twenty-five of The Canadian Charter of Rights and Freedoms - Case Law

Case Law

Scholar Celeste Hutchinson remarks in an article that little has been done with section 25 by the courts. However, she points to the British Columbia Court of Appeal case R. v. Kapp as one that discusses section 25's application. She argues Kapp failed to resolve the issue of whether section 25 is only applied when the Charter is violated, or if applies earlier, when a Charter challenge is raised. Nevertheless, Hutchinson did feel Kapp provided some significant discussion of section 25. In Kapp, Justice Kirkpatrick endorsed the view that section 25 is first considered when a Charter challenge is raised, and made a three-step test asking (1) is the right in question a treaty, Aboriginal or other right related to Aboriginals? (2) if it falls in the "other" category, does it relate to a part of Aboriginal life? (3) would the remedy possibly given by the Charter limit Aboriginal rights?