Charter rights: Equality rights

The Charter of Rights and Freedoms is part of Canada’s Constitution and protects a broad range of rights and freedoms. Among the rights guaranteed by the Charter are equality rights.

Section 15 of the Charter says everyone is equal before the law and has the right to equal protection of the law, without discrimination. The section highlights the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The wording of section 15 gives equality rights to “every individual." As such, the equality rights under the Charter protect people, not companies or other artificial persons.

Section 15 of the Charter does not apply to every possible inequality in life. The Charter controls laws and government actions. It doesn’t control private citizens, businesses, or organizations. Before you can claim the protection of section 15, you must show you are being treated unequally by a law or by the action of government, or some agency very closely connected to government, such as a school board or labour relations board.

If a private individual, organization, or company violates your rights, you may be able to assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC Human Rights Code or the Canadian Human Rights Act. For more, see our information on human rights and discrimination protection, and protection against job discrimination.

To show your equality rights under section 15 of the Charter are being violated, there are three central issues.

First, you must show that a law or government action treats you differently from others.

Second, you must show that one of the grounds of discrimination in section 15 are the basis for the differential treatment. Section 15 prohibits discrimination because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It also prohibits discrimination on “analogous” grounds — meaning comparable grounds not listed in section 15. The courts have said that something “analogous” is a personal characteristic you can’t change at all, or you can’t change without great personal cost or difficulty — like sexual orientation or citizenship.

Third, you must show the law or government action has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The courts have said a central purpose of section 15 is to promote “substantive equality” by fighting discrimination. So the courts focus on whether the law or government action is discriminatory in creating a disadvantage by prejudice or stereotyping.

In certain cases, disadvantaged groups may need more services or programs. For example, courts have ruled that to ensure equal access to medical care, someone born deaf should be provided a sign language interpreter to be able to effectively communicate with their doctor.

Section 15 itself protects affirmative action programs. It says that laws or programs designed to improve the conditions of disadvantaged individuals or groups do not violate section 15. So governments can set up programs to help people or groups disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Charter rights are not absolute. The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a reasonable limit under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society."

If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at whether the law has an important objective, and whether the government chose a proportionate way to meet that objective — a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating equality rights? Does the law do more harm than good?

Section 1 applies only to written laws. It does not apply to government actions. An example of a government action is a decision by a government official to deny benefits. Where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional.

If you prove your equality rights under the Charter have been violated, and the government cannot justify the violation as a reasonable limit under section 1, the next question is what kind of remedy is appropriate. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.

Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. Different kinds of remedies apply to different types of cases. In some cases, a court may decide to declare that a law is unconstitutional. This is often referred to as ”striking down a law." For example, if the government passed a law that discriminated based on gender, the court could strike down the law. In this way the remedy helps everyone affected by the law. In such a case, a court may “suspend” its declaration to give the government time to pass a new law that will be valid.

In other cases, the remedy might be to "read in" wording to a law that violates equality rights, in order to address the inequality. For example, the phrase “same-sex couples” might be read in to the definition of “spouse” in a law, to clarify that the law does not discriminate based on sex.