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.
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