Kahkewistahaw First Nation v. Taypotat: An Arbitrary Approach to Discrimination

Supreme Court Law Review, Forthcoming

23 Pages Posted: 6 Oct 2016

See all articles by Jonnette Watson Hamilton

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Jennifer Koshan

University of Calgary - Faculty of Law

Date Written: October 4, 2016

Abstract

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

Suggested Citation

Hamilton, Jonnette Watson and Koshan, Jennifer, Kahkewistahaw First Nation v. Taypotat: An Arbitrary Approach to Discrimination (October 4, 2016). Supreme Court Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2847911

Jonnette Watson Hamilton

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

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