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

Abstract

The Supreme Court of Canada has to date delivered eight Charter equality decisions in an Aboriginal context. In the most recent case, Kahkewistahaw First Nation v Taypotat, the Court unanimously dismissed Louis Taypotat’s challenge to his community’s election code requirement that members of the First Nation running for election as Chief or Band Councillor have a Grade 12 education or its equivalent.

We contend that the absence of a section 25 analysis in Taypotat was a missed opportunity, particularly because Taypotat is the only section 15(1) decision of the Supreme Court with an Aboriginal government as respondent. In the following part, we review the Court’s approach to section 25 and the potential application of section 25 in Taypotat. We conclude with a plea to litigators and the courts to move section 25 jurisprudence forward.