Kahkewistahaw First Nation v. Taypotat – Whither Section 25 of the Charter?

Constitutional Forum, Forthcoming

9 Pages Posted: 5 Oct 2016

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Date Written: October 4, 2016

Abstract

In the Supreme Court of Canada’s most recent equality rights decision, Kahkewistahaw First Nation v Taypotat, the Court unanimously dismissed a section 15(1) Charter challenge to a community election code requirement that members of the First Nation running for Chief or Band Councillor have a Grade 12 education or its equivalent. Rejecting Taypotat’s argument that the election code was discriminatory, the Court focused on the objectives of adopting the education requirement. The requirement could have been seen as a matter to be shielded by section 25 of the Charter, which requires Charter rights to be interpreted so as not to derogate from Aboriginal, treaty or other rights. However, section 25 was not argued before nor addressed by the Supreme Court in Taypotat. The Court has not considered section 25 since its 2008 decision in R v Kapp, and only the concurring judgment of Justice Bastarache in Kapp fully explored its implications. We argue that the failure to consider section 25 in Taypotat was a missed opportunity, especially because it is the only Supreme Court section 15(1) decision to date with an Aboriginal government as respondent (out of a total of eight Charter equality rights decisions in an Aboriginal context). Our paper reviews the potential application of section 25 in Taypotat, and concludes with a plea to litigators and the courts to move section 25 jurisprudence forward.

Keywords: Aboriginal Rights, Equality Rights

Suggested Citation

Koshan, Jennifer and Hamilton, Jonnette Watson, Kahkewistahaw First Nation v. Taypotat – Whither Section 25 of the Charter? (October 4, 2016). Constitutional Forum, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2847926

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

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

Jonnette Watson Hamilton

University of Calgary - Faculty of Law ( email )

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

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