Canadian Court strikes down minimum education requirement in voting legislation

Taypotat v Taypotat 2013 FCA 192 (13 August 2013)

Summary

The Canadian Federal Court of Appeal determined that a minimum education requirement under voting legislation breached the Canadian Charter of Rights and Freedoms by discriminating against the elderly and aboriginal peoples.

Facts

The appellant, Louis Taypotat, had been the Chief of the Kahkewistahaw First Nation for 27 years. He was 74 years old. In 2009 the new Kahkewistahaw Election Act was introduced. Section 9.03 of that Act provided that a candidate must have attained a minimum Grade 12 education or equivalent to be eligible to run in an election.

Having attended an Indian residential school (a government-Christian educational system forced upon the children of aboriginal peoples until the mid-20th century), the appellant was evaluated as having the equivalent of a Grade 10 education and was consequently ineligible to run in the 2011 election. The respondents – comprising his nephew Sheldon Taypotat and others elected as councilors – won the election as a result.

The appellant brought an action in the Federal Court to challenge the validity of the education requirement in the Act. Among other things, he argued that the relevant provision violated the right to equality before the law under section 15 of the Canadian Charter.

At first instance, the Federal Court found that the impugned provisions of the Act were not invalidated as a result of section 15 of the Charter. This was because section 9.03 did not discriminate against a particular group based upon their characteristics, but rather specified the capacities and merits required of an individual candidate.

Issue on appeal

There were a number of issues considered by the Federal Court of Appeal, but the primary focus was placed upon the issue of whether the impugned provisions were inconsistent with section 15 of the Charter.

Reason

The appellant argued that the impugned provisions offended section 15(1) of the Charter, which reads as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Charter applies to the Act

The Court first considered the question of whether the Charter applied to the Act. It found that the Charter has been held to apply, not only to the Federal and Provincial governments themselves, but to all matters within the governments' authority, such as universities, transit authorities, and private entities implementing government policies.

In this case, the Court found that the Council of the Kahkewistahaw First Nation (the Council) operated under the Indian Act 1985 and other federal legislation. Moreover, the Court found that the election process itself is subject to Charter scrutiny.

Do the impugned provisions violate Charter rights?

The Court referred to the Supreme Court of Canada decision in R v Kapp [2008] 2 SCR 483, which assessed discrimination according to two questions:

• Does the law create a distinction based on a ground enumerated in section 15(1) or another analogous ground?
• Does this distinction create a disadvantage by perpetuating prejudice or stereotyping?

The lower court found that an individual's level of education in not an enumerated or analogous ground. Rather, it was a personal characteristic based on merit.

However, on appeal, the Court found that discrimination based upon education can, in certain situations, discriminate on the basis of age, (which is an enumerated ground), and on the basis of one's aboriginality, (which is an analogous ground). It stated that the impugned provisions:

create a distinction that discriminates on the basis of both age and of Aboriginality-residence. The education gap within the on-reserve aboriginal population of Canada is well documented ... Moreover, the education gap between older and younger Canadians is also well-known. As noted in the Appellant’s Affidavit at para. 14, “[t]he analysis of Statistics Canada data contained in this paper from the 2006 census shows that in Saskatchewan, only 39% of First Nations persons living on reserve have graduated from high school. The percentage is higher for persons who are older.”

The Court referred to Supreme Court authority permitting courts to take into account census information in determining whether discrimination has occurred.

The Court concluded that the impugned provision in the Act targeted a large proportion of electors in the First Nation and restricted their participation in public office. The impugned provisions:

substantially affect the human dignity and self-worth of the affected individuals and perpetuate prejudice or stereotyping towards those members of the community who are elders or who reside on the reserve and who have not had the same opportunities and advantages with respect to education...

The Court finally noted that elders have a wealth of knowledge, wisdom and practical experience, and that it is demeaning to exclude them from office simply because they have no formal (ie Euro-Canadian) credentials.

Is the impugned provision a 'reasonable limit' on the rights and freedoms in the Charter?

The respondents submitted that the impugned provisions constituted a 'reasonable limit' on the rights and freedoms guaranteed by the Charter because they addressed the lack of education among aboriginal people by encouraging them to complete secondary schooling.

The Court rejected this argument and referred to R v Oakes [1986] 1 SCR 103, in which the Supreme Court of Canada set out four requirements which must be met for a law to constitute a reasonable limit on a protected right or freedom:

• the objective of the law must be pressing and substantial;
• there must be a rational connection between the pressing and substantial objective and the means chosen by the law to achieve the objective;
• the impugned law must be minimally impairing; and
• there must be proportionality between the objective and the measures adopted by the law, and more specifically, between the salutary and deleterious effects of the law.

The Court found that there was no rational connection between encouraging education and excluding a portion of the community from public office.

The Court ultimately found that the impugned provisions were void and ordered a re-election.

Commentary

This case demonstrates a particular approach to identifying discrimination and assessing its lawfulness in a jurisdiction with a constitutional guarantee of equality before the law.

The Court took a very practical approach when considering whether the law, in substance, was discriminatory, moving beyond its mere text and examining its likely impact in real terms.

The case also required the Court to confront the systemic disadvantage faced by aboriginal peoples in Canada. Recognition of that systemic disadvantage underpinned the Court’s determination that what was ostensibly a merit-based requirement was in fact unlawful discrimination.

The full decision can be found here: http://canlii.ca/en/ca/fca/doc/2013/2013fca192/2013fca192.html

Neil Thomson is a lawyer at DLA Piper.