In response to Royal Commission Report on Aboriginal Peoples that identified education as top priority for promoting collective and individual well-being in Aboriginal communities, Kahkewistahaw First Nation spent 13 years developing Election Code which included Grade 12 education requirement for Chief or Band Councillor candidates. LT, aged 76, had Grade 10 education and was chief for almost three decades, challenged constitutionality of Grade 12 requirement. He claimed educational requirement violated s. 15(1) of Canadian Charter of Rights and Freedoms. LT’s application for judicial review was dismissed in Federal Court, but Federal Court of Appeal allowed LT’s appeal, basing its decision on age and residence on a reserve, which were not pleaded. Appeal of Kahkewistahaw First Nation was allowed. Section 15 Charter analysis requires flexible and contextual inquiry into whether distinction has effect of perpetuating arbitrary disadvantage on claimant because of membership in enumerated or analogous group. Section 15 protects substantive equality; it is aimed at laws that draw discriminatory distinctions and have effect of perpetuating arbitrary disadvantage based on individual’s membership in enumerated or analogous group. While education requirements for employment could, in certain circumstances, have discriminatory impact in violation of s. 15, in this case there was absence of evidence linking education requirement to disparate impact on members of enumerated or analogous group. There was virtually no evidence about relationship between age, residency on reserve and education levels in Kahkewistahaw First Nation. Nor was there any evidence about effect of education provision on older community members, on community members who live on reserve or on individuals who belong to both of these groups. Court of Appeal erred in concluding that education provisions in Kahkewistahaw Election Act constitute prima facie violation of s. 15 Charter rights of community members who live on reserve. Evidence must amount to more than web of instinct; it must show prima facie breach. Education provisions in Kahkewistahaw Election Act do not violate s. 15 of Charter.
Kahkewistahaw First Nation v. Taypotat (May. 28, 2015, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35518) Decision at 230 A.C.W.S. (3d) 623 was reversed. 252 A.C.W.S. (3d) 696.