What does the Charter say about equality before the law?

Section 15 of the Canadian Charter of Rights and Freedoms guarantees that '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'. Section 15(1) lists specific protected grounds: race, national or ethnic origin, colour, religion, sex, age, and mental or physical disability. The Supreme Court of Canada has read in additional analogous grounds, most notably sexual orientation in Egan v. Canada (1995) and Vriend v. Alberta (1998).

Section 15 entered into force on April 17, 1985, three years after the rest of the Charter, to give Parliament and the legislatures time to bring statutes into compliance with the new equality guarantee. The delay was negotiated during the 1981 patriation talks at the request of the provinces. Hundreds of federal and provincial laws were amended in those three years, including the Indian Act, the Income Tax Act, family-law statutes, and pension legislation.

The current test for a section 15 breach was set out in Andrews v. Law Society of British Columbia (1989), refined in Law v. Canada (1999), and consolidated in R. v. Kapp (2008) and Withler v. Canada (2011). The court asks two questions: does the law create a distinction based on a protected or analogous ground, and does the distinction create a disadvantage by perpetuating prejudice or stereotyping. Major cases include M. v. H. (1999, same-sex spousal benefits), Eldridge v. British Columbia (1997, sign-language interpretation in healthcare), Auton v. British Columbia (2004, autism funding), and Quebec v. A. (2013, common-law spousal support).

Section 15(2) protects ameliorative programmes designed to improve the conditions of disadvantaged groups, including affirmative-action initiatives and Indigenous rights protections. The Federal Employment Equity Act of 1995 and the various provincial pay-equity statutes operate under this constitutional shelter. Section 28 of the Charter additionally guarantees that all rights and freedoms apply equally to male and female persons, providing a separate gender-equality anchor that operates regardless of section 33's notwithstanding clause.