Kahkewistahaw First Nation v. Taypotat: An Arbitrary Approach to Discrimination
Supreme Court Law Review, Forthcoming
23 Pages Posted: 6 Oct 2016
Date Written: October 4, 2016
The unanimity of the Supreme Court of Canada’s decision in Kahkewistahaw First Nation v. Taypotat facilitates an examination of the Court’s latest restatement of the proper analytical approach to equality claims under section 15(1) of the Charter. In determining the constitutionality of a First Nation’s educational requirement in its election code, the Court’s welcome shift from a narrow focus on prejudice and stereotyping to a more flexible and contextual inquiry into historic disadvantage was confirmed. However, their failure to take an intersectional approach to grounds and their grant of a significant role to arbitrariness in their understanding of discrimination were detrimental to Taypotat’s claim and may be problematic for future equality challenges. The Court’s decision ultimately rested on a number of evidentiary deficiencies, raising issues about the ability of courts to take judicial notice of social context evidence and whether statistical proof is needed to establish adverse effects.
Keywords: Equality, Discrimination, Aboriginal Peoples
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