Micmac Nation of Gespeg v. Canada (2009)

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In February 2009, LEAF was granted leave to intervene by the Federal Court of Appeal in the case of Micmac Nation of Gespeg v. Canada. The appeal is signifcant in that it raises emerging questions of constitutional law with respect to the treatment of affirmative action programs under s. 15(2) of the Charter. The appeal involved a s. 15(1) Charter challenge by the Micmac Nation of Gespec to a federal government Elementary / Secondary Education Program. The Program offers financial assistance, including for housing, meals, books, and supplies, to students who attend schools off reserve. The Program is only available to students who ordinarily live on reserve (or Crown land).

The Micmac Nation of Gespeg is a landless band. They argue that their exclusion from the Program constitutes discrimination on the basis of their landlessness. LEAF's proposed intervention is focused on the interpretation and application of s. 15(2) of the Charter to cases where an ameliorative (affirmative action) program is challenged by a disadvantaged group on the basis of under-inclusion. LEAF argues that the recently modified approach to s. 15(2) developed by the Supreme Court of Canada in R. v. Kapp in June 2008 (a case involving a reverse discrimintion challenge to an aboriginal fisheries license by a largley privileged non-native group of appellants) does not apply to under-inclusive affirmative action programs. For more information on R. v. Kapp see Cases of Interest to LEAF on this website. LEAF's intervention in Micmac also addresses the role to be played by "human dignity" in s. 15(1) equality rights analysis following the Supreme Court of Canada's decision in R. v. Kapp.

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