Challenging Discrimination on the Ground of Social Condition

Commentary on the SCC Decision - May 28, 2015

Reason to Fear for Equality Rights at the Supreme Court of Canada

Louis Taypotat held the position of Chief of Kahkewistahaw First Nation in Saskatchewan for 27 years between 1973 and 2007. He had a wealth of experience and knowledge but had not completed a high school education. In 2011 the band adopted an Election Code that required a Grade 12 education for candidates who wished to be Chief or a Band Councillor. Taypotat challenged the constitutionality of the Grade 12 requirement, arguing that it violated s. 15(1) of the Canadian Charter of Rights and Freedoms. He argued that "educational attainment" is an analogous ground for the purposes of s. 15(1). The Federal Court dismissed the application but the Federal Court of Appeal allowed Taypotat's appeal, finding that the Grade 12 requirement constituted adverse effect discrimination on the grounds of age and residence on a reserve.

With the support of the claimant, CWP and CCPI sought leave to intervene before the SCC in the case to clarify the importance of distinguishing between "level of education" per se, which has not been held to be an analogous ground under section 15, and level of education as a component of broader socio-economic disadvantage, generally referred to in Canadian human rights legislation as "social condition" and in international human rights law as socio-economic status or situation. Socio-economic condition has been widely recognized under both domestic and international human rights law as a prohibited ground of discrimination and has been understood to include level of education. The Supreme Court denied CWP and CCPI leave to intervene.

We can see from the decision released today that CCPI/CWP's arguments were sorely missed, or perhaps more accurately, we can see why this Court did not wish to hear them. Abella J. wrote a unanimous decision for the Court that failed to consider how the socio-economic disadvantage of Aboriginal people in Canada can be relevant to the question of applying educational level as a bar to political participation. The Court restricted itself to questioning the barren and scant statistical evidence of the relationship between age, residency on a reserve, and education levels in the Kahkewistahaw First Nation. At no point did the Court engage meaningfully with the question of whether patterns of socio-economic disadvantage more generally mean that education level ought to be recognized as part of the ground of "social condition" and recognized under section 15 as an analogous ground of discrimination in that context.

Had the Court heard CWP/CCPI's submissions, it might have recalled that in R. v. Ipeelee [2012] 1 S.C.R. 433 the SCC had recognized that "Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples." It is within this broader context that the Court should have considered whether barring access to elected offices on the basis of formal levels of education may constitute discrimination on the analogous ground of social condition, and undermine the values that section 15 is meant to promote and protect. The question in this case was not one of statistics - it was about how socio-economic disadvantage and colonization socially constructs formal education requirement in this context as precisely the kind of distinction that section 15 is designed to protect against.

It is also extremely worrying to see repeated references in Justice Abella's decision to a standard of "arbitrary disadvantage." Equality claimants have not generally been required in s.15 to establish that the disadvantage imposed by discriminatory provisions is "arbitrary." The inquiry should be much more effects- based and purposive. Justice Abella cites the Andrews decision to support her new formula for discrimination under section 15 as addressing "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." But arbitrariness was never suggested as a component of s.15 analysis in Andrews. As my friend Vince Calderhead said to me today, the concept will, at best, conflate the section 1 analysis with the test for discrimination within section 15 itself, giving the government two kicks at the can instead of one. What is worse, the first kick may be a vicious one that will evict from section 15 the claims that most closely conform with the broader purposes of equality and the amelioration of disadvantage.

Bruce Porter

Executive Director

Social Rights Advocacy Centre

NB: Thanks to Professor Martha Jackman at the University of Ottawa and Sacha Paul and Andrew Sain for providing excellent pro bono legal representation to CWP and CCPI in the motion to intervene.