Chief Sheldon Taypotat, et al. v. Louis Taypotat, 2015 SCC 30 (Charter of Rights and Freedoms - Right to Equality - Elections)

On appeal from a judgment of the Federal Court of Appeal (2013 FCA 192), setting aside a decision of de Montigny J. (2012 FC 1036)

In the 1996 Report of the Royal Commission on Aboriginal Peoples, education was identified as a top priority for promoting collective and individual well‑being in Aboriginal communities, and for helping those communities prepare to assume the complete range of responsibilities associated with self‑government. In response to these goals — promoting good governance and encouraging education — the Kahkewistahaw First Nation in Saskatchewan spent 13 years developing an Election Code which included a Grade 12 education requirement for candidates who wished to be Chief or a Band Councillor. Louis Taypotat, who had been Chief for most of the previous three decades, was 76 years old and had a Grade 10 education. Despite the fact that he was Chief for much of the consultation process that led to the development of the new Election Code, he challenged the process, his disqualification and the constitutionality of the Grade 12 requirement. Only the constitutional issue is before this Court. His argument was that the Grade 12 educational requirement violated s. 15(1) of the Canadian Charter of Rights and Freedoms because “educational attainment is analogous to race and age” for the purposes of s. 15(1). In the Federal Court, de Montigny J. dismissed the application. The Federal Court of Appeal allowed the appeal. The grounds on which it based its decision, age and residence on a reserve, were not pleaded.

Held (7:0): The appeal should be allowed and the decision of de Montigny J. restored.

The approach to s. 15 was most recently set out in Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 319‑47. It requires a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group. It is an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages. The focus of s. 15 is on laws that draw discriminatory distinctions — that is, distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual’s membership in an enumerated or analogous group. The s. 15(1) analysis is accordingly concerned with substantive equality.

The first part of the s. 15 analysis asks whether a law creates a distinction on the basis of an enumerated or analogous ground. The second part of the analysis focuses on arbitrary — or discriminatory — disadvantage, that is, whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.

To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group. At the second stage of the analysis, the specific evidence required will vary depending on the context of the claim.

While facially neutral qualifications like education requirements may well be a proxy for, or mask, a discriminatory impact, this case falls on the absence of any evidence linking the requirement to a disparate impact on members of an enumerated or analogous group. There is virtually no evidence about the relationship between age, residency on a reserve, and education levels in the Kahkewistahaw First Nation. Nor is there any evidence about the effect of the education provisions on older community members, on community members who live on a reserve, or on individuals who belong to both of these groups. Most significantly, the record is silent about the education levels of members of the Kahkewistahaw First Nation who live on a reserve.

Statistical evidence is not always required to establish that a facially neutral law infringes s. 15. In some cases, the disparate impact on an enumerated or analogous group will be apparent and immediate. The evidence in this case, however, does not point to any such link between the education requirement and a disparate impact on the basis of an enumerated or analogous ground. While the evidentiary burden need not be onerous, the evidence must amount to more than a web of instinct. Accordingly, the education provisions in the Kahkewistahaw Election Act do notrepresent a prima facie violation of s. 15.

Reasons for decision of the Court delivered by Abella J.

Neutral Citation: 2015 SCC 30. Docket No. 35518