The Supreme Court of Canada has made it clear – if you are going to raise a s. 15 Charter discrimination claim, make sure that you have the evidence to substantiate your claim. Making claims on the basis of intuition, presumed facts or innuendo will not suffice. In Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, released on Thursday, May 28, 2015, Justice Abella, speaking for the Court, reinstated the judgment of the trial judge, Mr. Justice de Montigny of the Federal Court, Trial Division. She rejected the claim of former Chief Taypotat of the Kahkewistahaw First Nation that the First Nation’s Election Code’s education requirement that candidates for office hold a Grade 12 diploma or equivalent discriminated against him on the basis of his age and residence on the reserve. Her judgment focussed principally on the utter lack of evidence of the alleged discrimination as well as the fact that the grounds had not been expressly pled, at least not in the manner developed by the Federal Court of Appeal on its own initiative.

Justice Abella opened her reasons with a quote from the 1996 Report of the Royal Commission on Aboriginal Peoples that centred on the importance of education for First Nations. The quote she chose ended with the words:

Education is essential to hone the talents [of the aboriginal peoples and their self-governments] needed to assume the responsibilities of the present and future…

She noted that, in furtherance of this objective, the Kahkewistahaw First Nation had over the course of 13 years and multiple internal referenda developed its own Election Code, one of the provisions of which imposed a Grade 12 or equivalency education requirement for all candidates to stand for office within the First Nation government. Former Chief Taypotat (who had been chief for 27 years and who had helped oversee the development of the new Election Code) did not have a Grade 12 or equivalent education and thus, when he presented his papers to stand for election in 2011, the Electoral Officer rejected his candidacy. Former Chief Taypotat brought a challenge to the Electoral Officer’s decision, including a challenge brought under s. 15 of the Charter.

He alleged at first instance that the education requirement violated s. 15(1) because “educational attainment is analogous to race and age” for the purposes of s. 15(1). Mr. Justice de Montigny dismissed the claim because former Chief Taypotat had adduced no evidence to demonastrate that education attainment was an analogous ground of discrimination under s. 15(1).

Before the Federal Court of Appeal, the former chief articulated his claim differently, alleging that “residential school survivors without a Grade 12 education constituted an analogous group for the purposes of s. 15.” [para. 12]. The Federal Court of Appeal did not deal with this newly crafted claim but instead allowed the appeal on the basis that the education requirement had a discriminatory impact on the basis of age. This discriminatory impact had not been pled. As well, on its own initiative and without anyone having raised the issue, the Federal Court of Appeal found that the requirement discriminated on the basis of “residence on a reserve”.

Before the Supreme Court of Canada, the former chief recast his claim and argued that “the education requirement violate[d] s. 15(1) because it has a disproportionate effect on older community members who live on a reserve.” [para. 14]. Justice Abella stated [para. 15]:

While facially neutral qualifications like education requirements may well be a proxy for, or mask, a discriminatory impact, this case falls not on the existence of the requirement, but on the absence of any evidence linking the requirement to a disparate impact on members of an enumerated or analogous group.

Justice Abella reviewed the requirements for a s. 15(1) claim analysis. She pulled from the Court’s decision of two years ago, Quebec (Attorney General) v. A., 2013 SCC 5:

[16] The approach to s. 15 was most recently set out in Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 319-47. It clarifies that s. 15(1) of the Charter requires a “flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group”: para. 331 (emphasis added).

[17] This Court has repeatedly confirmed that s. 15 protects substantive equality: Quebec v. A, at para. 325; Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, at para. 2; R v. Kapp, [2008] 2 S.C.R. 483, at para. 16; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. It is an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities available to members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages. As McIntyre J. observed in Andrews, such an approach rests on the idea that not every difference in treatment will necessarily result in inequality and that identical treatment may frequently produce serious inequality: p. 164.

[18] The focus of s. 15 is therefore on laws that draw discriminatory distinctions — that is, distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual’s membership in an enumerated or analogous group: Andrews, at pp. 174-75; Quebec v. A, at para. 331. The s. 15(1) analysis is accordingly concerned with the social and economic context in which a claim of inequality arises, and with the effects of the challenged law or action on the claimant group: Quebec v. A, at para. 331.

[19] The first part of the s. 15 analysis therefore asks whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground. Limiting claims to enumerated or analogous grounds, which “stand as constant markers of suspect decision making or potential discrimination”, screens out those claims “having nothing to do with substantive equality and helps keep the focus on equality for groups that are disadvantaged in the larger social and economic context”: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 8; Lynn Smith and William Black, “The Equality Rights” (2013), 62 S.C.L.R. (2d) 301, at p. 336. Claimants may frame their claim in terms of one protected ground or several, depending on the conduct at issue and how it interacts with the disadvantage imposed on members of the claimant’s group: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 37.

[20] The second part of the analysis focuses on arbitrary — or discriminatory — disadvantage, that is, whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage:

The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed. If the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory. [Quebec v. A, at para. 332]

[21] To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group. At the second stage of the analysis, the specific evidence required will vary depending on the context of the claim, but “evidence that goes to establishing a claimant’s historical position of disadvantage” will be relevant: Withler, at para. 38; Quebec v. A, at para. 327.

Justice Abella observed that it was clear that, in certain circumstances, it could be demonstrated that educational requirements could be found to have a discriminatory impact and cited the US Supreme Court’s decision in Griggs v. Duke Power Company, 401 US 424 (1971) as such an example, where “employment requirements that are unrelated to measuring job capability can operate as “built-in headwinds” for minority groups” (p. 430). But in the case at bar, she found no evidence whatsoever to support the case for such headwinds [para. 24]:

In this case, however, there is virtually no evidence about the relationship between age, residency on a reserve, and education levels in the Kahkewistahaw First Nation to demonstrate the operation of such a “headwind”. Nor is there any evidence about the effect of the education provisions on older community members, on community members who live on a reserve, or on individuals who belong to both of these groups.

She noted that the Federal Court of Appeal had taken judicial notice of various statistical information, one from the 2006 census about educational levels of older Canadians and one from the C.D. Howe report on educational levels of all aboriginal groups in Canada. In relation to the Statistics Canada 2006 census, Justice Abella found that the Federal Court of Appeal had erred [para. 31]:

Census data can certainly be a useful evidentiary tool to demonstrate that a law has a disadvantaging impact. But this case is about a particular Election Code in a particular First Nations community. I find it difficult to draw even a weak inference about the correlation between age and education among the almost 2000 members of the Kahkewistahaw First Nation from census data about the Canadian population generally. As a result, in my respectful view, the Court of Appeal erred in taking judicial notice of this data as a key to its conclusion that the Kahkewistahaw First Nation’s Election Code would have a disadvantaging effect on older community members.

Justice Abella had similar complaints about the Federal Court of Appeal’s use of the C.D. Howe report [para. 32]:

But the data relates to all Aboriginal people in Canada, including the Métis, the Inuit, and First Nations. It is less helpful in shedding light on the relationship between age and education in the specific context of the members of the Kahkewistahaw First Nation. It captures a vastly larger, more diverse population than the community affected by the Code in this case and does not meaningfully illuminate whether and to what extent the Grade 12 education requirement functions to disadvantage older community members of the Kahkewistahaw First Nation.

Finally, Justice Abella dealt with the former chief’s restated claim made before the Supreme Court. She again noted that the evidence (and I would suggest, the pleadings) did not meet the standard [paras. 33-34]:

[33] Finally, in his submissions before this Court, Mr. Taypotat reframed the Federal Court of Appeal’s conclusion slightly, asserting that the education provisions discriminate against older community members who live on a reserve, rather than, as the Court of Appeal found, against both older community members and those who live on the reserve. On this issue, too, the record is silent and we are left only with Mr. Taypotat’s bare assertion. This is not to say that statistical evidence is invariably required to establish that a facially neutral law infringes s. 15. In some cases, the disparate impact on an enumerated or analogous group will be apparent and immediate. The evidence in this case, however, does not point to any such link between the education requirement and a disparate impact on the basis of an enumerated or analogous ground.

[34] I think intuition may well lead us to the conclusion that the provision has some disparate impact, but before we put the Kahkewistahaw First Nation to the burden of justifying a breach of s. 15 in its Kahkewistahaw Election Act, there must be enough evidence to show a prima facie breach. While the evidentiary burden need not be onerous, the evidence must amount to more than a web of instinct. The evidence before us, even in combination, does not rise to the level of demonstrating any relationship between age, residence on a reserve, and education among members of the Kahkewistahaw First Nation, let alone that arbitrary disadvantage results from the impugned provisions.

Justice Abella’s reasons stand as a stern warning to those who want to advance a claim of discrimination under the Charter. Indeed, I would suggest that they go beyond that and say that they constitute essential reading for anyone who wants to launch any sort of Charter challenge whatsoever. Before launching your claim, or at least before going to trial, ensure that you have cogent evidence to support the allegations of your constitutional challenge.

In the case of former Chief Taypotat, the appeal was allowed “with costs”. If, in the past, constitutional claimants could assume that, because they were acting for the public good, they might be able to shield themselves from costs, those days are gone (I do not think that those days ever really existed). But there is no doubt following the decision of the Court in Kahkewistahaw that constitutional litigants had better not arrive in the country’s highest court with claims for which the evidentiary basis is anything but fully developed. Some may argue that this will have the effect of chilling meritorious claims by persons who lack the financial means to advance their cases and that the sort of evidence required by the Court is expensive and difficult to amass. That may well be true. But expect every governmental defendant to be pointing to this decision at the trial and provincial/federal appellate levels and demanding that the courts require strong, reliable evidence of the claims. Claimants will have to clearly demonstrate that the “headwinds” are blowing.

I remain

Constitutionally yours

Arthur Grant

Postscript: Over the last couple of months, I have been involved in litigation that has limited the time that I have been able to dedicate to this blog. During that time, a number of decisions and developments have occurred that I normally would have commented on. Over the next few months, I hope to go back over them, even if it is a bit late.

Further postscript: Justice Yves de Montigny was my thesis advisor for my LL.M. It gave me great pleasure to see that his clearheaded thinking was supported by the Supreme Court. Et je dois dire “Bonjour Yves!”