A Web of Instinct: Kahkewistahaw First Nation v Taypotat
Kahkewistahaw First Nation v Taypotat, 2015 SCC 30, is the Supreme Court of Canada’s (“SCC”) most recent decision on equality. Coming in at a brief 35 paragraphs, this decision does not alter the law of section 15 of the Charter in any substantial way. Using the test laid out in Quebec v A,  1 SCR 61, Justice Abella holds that the education requirements of the Kahkewistahaw Election Code [“Code”] do not infringe section 15 of the Charter. However, the case raises some interesting questions about the nature of evidence in section 15 cases, and the role of the courts in dealing with this evidence.
Louis Taypotat may be qualified for Chief, but he is not eligible
As of the writing of this commentary, Louis Taypotat is 76 years old. He has been elected chief of the Kahkewistahaw First Nation (“KFN”) on three separate occasions, serving in the position for 27 years in total. If experience is any indication, Taypotat is certainly qualified for the role.
Unfortunately for Taypotat, the KFN recently established a new community election code which changes the eligibility requirements for both chiefs and councillors. According to the Code, a prospective chief must have a minimum Grade 12 education to be eligible for the position. Taypotat went through the residential school system until the age of 14, completing Grade 10. While Taypotat may be qualified for the role of chief, he is no longer eligible.
Louis Taypotat challenged the Code’s education requirement, arguing that it infringed section 15 of the Charter, which proclaims that every individual is equal before and under the law. The grounds on which Taypotat built his submissions (and had his submissions built for him) changed on subsequent appeals, shaping and altering the judicial analysis of section 15 engagement as the case made its way through the courts.
Why would an education requirement infringe section 15, anyway?
At trial, in Taypotat v Taypotat, 2012 FC 1036, the Federal Court analyzed section 15 through the lens of Taypotat’s claim that “educational attainment is analogous to race and age” (para 54). Citing Andrews v Law Society of British Columbia,  1 SCR 143, the Federal Court concluded that no such analogy exists because education deals with “personal attributes rather than characteristics based on association with a group” (para 59). The Federal Court questioned why Taypotat made no attempt to “upgrade” his education – they conceded that educational attainment may be “more difficult as one grows older” (para 59), but did not see how education was an immutable characteristic like race or gender, or the other enumerated grounds in section 15. Accordingly, the Federal Court dismissed Taypotat’s claim.
On appeal, Taypotat took a different tack. Taypotat reformulated his submission, claiming that the analogous group in question was “residential school survivors without a Grade 12 education”. In Taypotat v Taypotat, 2013 FCA 192 [Taypotat, FCA] the Federal Court of Appeal (“FCA”) ignored Taypotat’s reformulation, but nonetheless found the education requirements did infringe section 15. Justice Mainville of the FCA took a different route to get to this conclusion: he held that the education requirements of the Code were discriminatory as they excluded people based on age (an enumerated ground) and Aboriginality-residence (recognized as an analogous ground in Corbiere v Canada,  2 SCR 203). Justice Mainville stated that although education is not an analogous ground, it can still create a distinction that results in discrimination based on an enumerated or analogous ground. Legislation that does not discriminate in purpose may still discriminate in effect.
Justice Mainville went on to explain the well-documented education gap between older and younger people, citing federal numbers from Statistics Canada. According to the 2006 Census, 50% of on-reserve Indians, aged 25-64, did not complete high school. Using these statistics, Justice Mainville found that the education requirements in the Code “disenfranchise[d] a very large segment of the electors of the Kahkewistahaw First Nation from elected public office” (para 53), and adversely impacted older community members and those residing on the reserve. Additionally, the education requirements perpetuated stereotypes that did not correspond to the actual abilities of those seeking public office. The position Louis Taypotat fought for was a “political selection as to whom the electors deem most suitable and able to represent and lead them” (para 58) – education requirements do not reflect the actual requirements of the position. For these reasons, Justice Mainville ordered a new election.
The Supreme Court’s evidentiary “web of instinct”
And now here we are, with the SCC, facing the difficulty of figuring out just what the appropriate enumerated or analogous group may be.
Right off the bat, the SCC is perturbed by the fact that the FCA changed the issues at hand. The FCA did not address Taypotat’s reformulation regarding residential school survivors. They spoke instead of how the education requirement had a discriminatory impact on the basis of age – which was not pleaded. They argued that the education requirement discriminated on the basis of “residence on a reserve” – which was not raised. The FCA effectively raised new issues, which Justice Abella, writing for the majority, finds “particularly troubling” (para 26). Justice Abella notes that the basis of the FCA’s judgement declaring residence on a reserve as an analogous ground was based on the precedent set in Corbiere – except Corbiere did not, in fact, recognize ‘residence on a reserve’ as an analogous ground, but rather ‘off-reserve residence’.
What is even more problematic with the FCA’s choice to change the nature of the claim is that, consequently, the SCC has limited access to any evidence that could be helpful with their decision. Because appeal courts cannot engage in fact-finding, they are reliant on the lower courts for evidence. If at any point the issues change, the evidence will change accordingly. The FCA changed the issues on appeal, limiting the opportunities of the SCC to use the evidence and facts provided at trial in any meaningful way. Here, the evidence on record deals generally with education and residence on a reserve as it applies to all First Nations persons in Saskatchewan between the ages of 20-24. It does not address the education levels of other groups.
And yet, Justice Abella wonders how successful the arguments from the FCA would have been even if they had been properly raised and argued. Education has never been recognized as an analogous ground in section 15 jurisprudence, and it was not recognized in this case. Justice Abella argues that the education requirements hardly discriminate against community members living on a reserve, since the Code specifically requires the Chief and three of the four councillors to reside on the reserve during their term.
As for the use of age as a grounds for discrimination, the SCC similarly counters by pointing to the evidentiary vacuum. Drawing an inference from census data about Aboriginal populations in general to the 2000 members of a specific First Nation group is an error of statistical analysis, according to Justice Abella.
So what kind of data would be enough? What evidence is required? Justice Abella does not say. Justice Abella instead alludes that in some cases, the disparate impact on an enumerated or analogous group will be “apparent and immediate” (para 33). That is not the case here. Justice Abella does not see even enough evidence to show a prima facie breach, stating that, “While the evidentiary burden need not be onerous, the evidence must amount to more than a web of instinct” (para 34). The lack of any evidence describing the relationship between age, residency on a reserve, and education makes it difficult to meet even this definition.
A dearth of evidence may be the downfall of many an adverse impact claim
Justice Abella’s focus on evidence may be systemic of a larger pattern in SCC jurisprudence, a pattern that imposes increasingly burdensome evidentiary requirements and undue assumptions about choice on section 15 cases dealing with adverse effects discrimination. Adverse effects discrimination, as opposed to direct discrimination, acknowledges that a law neutral on its face may in fact have a negative impact on some disadvantaged groups, or may be applied equally but still may disproportionately and negatively affect one group.
Law professors Jonette Watson Hamilton and Jennifer Koshan provide a compelling argument that the SCC has taken some wrong turns in their section 15 approach. Their article Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter describes the SCC’s approach to adverse effects discrimination (see also their analysis of Kahkewistahaw v Taypotat itself here).
In Withler v Canada,  1 SCR 396, the SCC outright stated that claimants in adverse effects discrimination cases will have “more work to do at the first step” (para 64). Because the discriminatory legislation or rule appears neutral, it is more difficult to show that the adverse effect was ‘because’ of a particular trait – i.e. it is more difficult for Taypotat to show that an education requirement does, in fact, discriminate against the fact that he is 74 years old, or the fact that he has suffered through the horrors of residential school.
Hamilton and Koshan argue that “if a rule is shown to contribute to or worsen a group’s disadvantaged position, this should be sufficient to establish the necessary connection between the rule and the disadvantage” (page 7). Taypotat and other Kahkewistahaw First Nation members who have not achieved a Grade 12 education have been disadvantaged by the Code. Indeed, Justice Mainville argued that the education requirements “impede full political membership … perpetuates prejudice against these persons and attacks their sense of self-worth” (Taypotat, FCA, para 57). While it may not be that way for everyone, the educational requirements certainly worsen the position of Louis Taypotat, a qualified candidate who is no longer eligible.
And yet, this is the nature of our adversarial process
Justice Abella does agree with Justice Mainville that some facially neutral qualifications – like education requirements – may mask a discriminatory impact. In fact, Justice Abella has shown sensitivity to the issues surrounding adverse effects discrimination in the past – in Quebec v A, she minimized the role of prejudice and stereotyping, and acknowledged that ‘choice’ as it involves the analogous grounds of section 15 (for example, the ‘choice’ to ‘upgrade’ Taypotat’s education) was complicated and required more factual analysis.
Unfortunately, in the case at hand, Justice Abella is restricted from addressing any of these issues properly because the evidence is simply not there for her to examine. While this may be a problematic and systemic issue for adverse effects discrimination claims, it is also reflective of the nature of our adversarial system. To this end, I am reminded of the words of Justice Doherty in the 2002 Ontario Court of Appeal decision Rodaro v Royal Bank of Canada, 2002 OJ No 1365. There, Justice Doherty wrote:
We rely on the adversarial process to get at the truth. That process assumes that the truth best emerges after a full and vigorous competition amongst the various opposing parties. A theory of liability that emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process. We simply do not know how Spence J.’s lost opportunity theory would have held up had it been subject to the rigours of the adversarial process (para 62).
In the same way, it is impossible to know whether Justice Mainville’s arguments of age and Aboriginality-residence would have held up. Louis Taypotat had his work cut out for him, facing the higher burden that is placed on all adverse-effects discrimination cases, which scholars like Hamilton and Koshan would argue have plagued our highest court since the early days of section 15 jurisprudence. Perhaps evidence gathered in the fact-finding process would have worked in Taypotat’s favour. Perhaps not.
For now, what we know is this: Evidence must amount to more than just a web of instinct.
This is not a high burden. Presumably any fact that casually connects the discriminatory effect with traits exhibited by the marginalized group will do. It will be interesting to see how the ‘web of instinct’ is applied and interpreted in future adverse effects discrimination cases.