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The Supreme Court of Canada (“SCC”) in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, has emphasized that individuals challenging First Nations’ laws for failing to comply with the equality provision in the Charter will have to bring forward specific evidence of the law’s discriminatory effects.

The SCC concluded that in this case there was insufficient evidence to show that the Kahkewistahaw Election Act (“Act”), which required candidates for Chief and Council to have a grade 12 education, actually discriminated against and had a disproportionate impact on individuals who did not have this level of education, or on older community members who live on reserve.

Facts

In 2011, after many years of development, the Kahkewistahaw First Nation (“KFN”) in Saskatchewan enacted its own election act. The Act requires candidates for Chief and Council to have a grade 12 education. It also requires that the Chief and three of the four councillors reside on reserve during their term.

Louis Taypotat challenged the Act’s education requirement as violating the equality rights contained in s. 15(1) of the Charter. Mr. Taypotat, who was 76 years old at the time of the challenge, had been Chief for most of the previous three decades. He had achieved a grade 10 education, and was therefore prevented under the Act from again running for Chief.

Federal Court and Federal Court of Appeal Decisions

To prove that a law is discriminatory and violates s. 15(1) of the Charter, an individual must show that the discrimination is based on “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” or on an analogous ground (a ground that is not specifically listed in s. 15, but that is similar to those listed).

In his judicial review before the Federal Court, Mr. Taypotat argued that the Act discriminated based on education, and that this was analogous to discrimination based on race and age. The Federal Court dismissed Mr. Taypotat’s challenge on the basis that he had not produced evidence showing that education was an analogous ground for the purposes of s. 15(1).

Mr. Taypotat appealed. The Federal Court of Appeal allowed Mr. Taypotat’s appeal, finding that the education requirement had a discriminatory impact on the basis of age and on the basis of residence on a reserve.

KFN appealed to the SCC.

Supreme Court of Canada Decision

To prove that a law is discriminatory and thus establish a violation of s. 15(1) of the Charter, an individual must show two things:

• the law (on its face or in its impact) creates a distinction on the basis of race, age, sex, religion, or on an analogous ground; and

• the law imposes burdens or denies benefits in a way that reinforces, perpetuates or exacerbates disadvantage and discrimination.

The analysis is on whether the law creates a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group. The burden is on the person challenging the law to bring forward evidence showing the disadvantage and disproportionate effect.

In this case, there was some discussion about on which analogous ground the Act was said to discriminate. Was it discrimination based on: age? residence on reserve? age and residence on reserve? In addition, the SCC questioned the Federal Court of Appeal’s finding that “residence on a reserve” was an analogous ground (a finding it had made relying on Corbiere, which held that residence off-reserve was an analogous ground). Here, the SCC was reluctant to go that far without evidence and arguments demonstrating the unique disadvantages facing members living on reserve.

The SCC recognized that a condition like the grade 12 education requirement may have discriminatory impacts. But in this case, the SCC concluded Mr. Taypotat had failed to bring forward sufficient evidence of the disparate impact of the education requirement on elders living on the KFN reserve. In particular, the SCC was looking for evidence about the relationship between age, residency on a reserve, and education levels of KFN members to demonstrate that the education requirement operated as a “built-in headwind.” General information compiled from census data about the educational attainments of Canadians at large was insufficiently specific to allow the SCC to draw conclusions about KFN’s members. Similarly, aggregate data about the education levels of all Aboriginal people was too broad to allow the SCC to reach conclusions about KFN. The SCC noted that individuals challenging laws for failure to comply with the Charter need not always provide statistical evidence, but the evidence must amount to more than a “web of instinct.”

Potential Implications

The decision serves as a reminder that First Nations’ laws must comply with the Charter. It also reinforces that individuals seeking to challenge a First Nation’s law for violating s. 15 of the Charter need to produce evidence, specific to the circumstances of the case, showing the discriminatory impacts created by the law.

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.