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EQUALITY UNDER THE CANADIAN BILL OF RIGHTS (1960–1982) AND EQUALITY UNDER THE CHARTER (1982–2026)
1960: THE CANADIAN BILL OF RIGHTS
In 1960, Parliament enacted the Canadian Bill of Rights.
Unlike the Charter that would follow twenty-two years later, the Canadian Bill of Rights did not begin by granting rights. It began by recognizing rights that already existed.
The Bill states:
“It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex…”
Among the rights recognized was section 1(b):
“the right of the individual to equality before the law and the protection of the law.”
This distinction is important.
The Canadian Bill of Rights did not present rights as creations of government.
It recognized that rights already existed and would continue to exist.
The focus was the individual.
Not groups.
Not categories.
Not classifications.
The individual.
The Bill of Rights recognized broad protections belonging to every individual, including:
• Life
• Liberty
• Security of the person
• Enjoyment of property
• Equality before the law
• Protection of the law
• Freedom of religion
• Freedom of speech
• Freedom of assembly
• Freedom of association
The language of the Bill of Rights reflected a traditional common-law understanding that rights belong to individuals and that government exists under the law rather than above it.
1960–1982: THE PERIOD OF THE GREATEST DECLINE IN STRUCTURAL DISCRIMINATION
Between 1960 and 1982, Canada experienced the greatest reduction in structural discrimination in its modern history.
During this period:
• Human rights legislation expanded across Canada.
• Human rights commissions were established.
• Employment discrimination protections increased.
• Housing discrimination protections increased.
• Barriers affecting women were removed in many professions and occupations.
• Political participation expanded.
• Public acceptance of discriminatory treatment declined.
• Access to legal remedies expanded.
The trend throughout the period was clear.
Structural discrimination declined substantially.
Formal legal barriers declined substantially.
Equality protections expanded substantially.
The twenty-two years following the enactment of the Canadian Bill of Rights produced the most significant reduction in institutional discrimination that Canada had experienced.
THE BILL OF RIGHTS IN THE COURTS
The Canadian Bill of Rights was not limited to a checklist of protected groups.
Its protections extended to questions of equality before the law, procedural fairness, due process, property rights, and the protection of the law.
R. v. Drybones (1970)
This landmark Supreme Court decision struck down a federal law because it denied equality before the law.
It remains the most famous Canadian Bill of Rights case and demonstrated that Parliament could not simply ignore the equality protections recognized in section 1(b).
R. v. Curr (1972)
The Court considered the effect of the Bill of Rights on criminal proceedings and individual legal protections.
The case reinforced the importance of individual rights within the justice system.
Lowry and Lepper v. The Queen (1974)
The case dealt with equality before the law and government treatment of individuals.
The focus was not membership in a particular protected group but the equal application of law.
Singh v. Minister of Employment and Immigration (1985)
Although decided after the Charter came into force, the Supreme Court relied in part on section 2(e) of the Canadian Bill of Rights, recognizing the importance of fair hearings and procedural justice.
Authorson v. Canada
The litigation highlighted continuing questions concerning property rights, government power, and due process principles recognized by the Canadian Bill of Rights.
These cases illustrate an important point.
The Bill of Rights was not limited to protecting certain groups.
It recognized broad individual rights applicable to all Canadians.
The question was often whether a person had been denied equality before the law or the protection of the law—not whether they fit within a particular category.
1982: THE CHARTER INTRODUCES A DIFFERENT MODEL
In 1982, Canada adopted the Canadian Charter of Rights and Freedoms.
The Charter begins very differently from the Canadian Bill of Rights.
Section 1 states:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it…”
Unlike the Canadian Bill of Rights, the Charter does not begin by recognizing rights that already exist.
Instead, it guarantees the rights and freedoms set out within the Charter itself.
Section 1 then immediately provides that those rights and freedoms are subject to:
“such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
This means that every Charter right is expressly subject to limitation.
SECTION 33: THE NOTWITHSTANDING CLAUSE
The Charter also contains section 33, commonly known as the notwithstanding clause.
Section 33 permits Parliament or a provincial legislature to declare that specified legislation shall operate notwithstanding certain Charter rights.
Such declarations remain in force for up to five years and may be renewed.
As a result, certain Charter protections can be overridden through legislative action.
This represents a significant departure from the structure of the Canadian Bill of Rights, which contains no equivalent override provision.
SECTION 15: EQUALITY UNDER THE CHARTER
The Charter’s principal equality provision is section 15.
It states:
“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…”
The section then identifies specific grounds:
• Race
• National origin
• Ethnic origin
• Colour
• Religion
• Sex
• Age
• Mental disability
• Physical disability
This differs from the approach taken by the Canadian Bill of Rights.
The Bill of Rights begins by recognizing rights that exist without discrimination and guarantees equality before the law and protection of the law generally.
Section 15 approaches equality through identified categories and protected grounds.
As a result, many forms of unequal treatment are not expressly listed within section 15, including:
• Income level
• Property ownership
• Occupation
• Social class
• Educational status
• Political belief
• Financial status
• Government benefit status
• Other forms of differential treatment not connected to recognized equality grounds
The result is a different framework for analyzing discrimination claims.
WHEN EQUALITY CLAIMS FAIL
Many Canadians assume that unequal treatment automatically results in a successful Charter equality claim.
The courts have repeatedly demonstrated otherwise.
Law v. Canada (1999)
The Supreme Court rejected an equality challenge involving Canada Pension Plan survivor benefits.
Gosselin v. Quebec (2002)
The Supreme Court rejected an equality challenge involving reduced welfare benefits for persons under thirty.
Auton v. British Columbia (2004)
The Supreme Court rejected a claim seeking public funding for autism therapy.
Taypotat v. Canada (2015)
The Supreme Court rejected an equality challenge involving educational requirements for First Nations band elections.
Numerous Economic Claims
Canadian courts have repeatedly held that section 15 does not operate as a general guarantee against every form of unequal treatment, economic disadvantage, occupational restriction, property-related grievance, or government policy distinction.
Consequently, many individuals who believe they have been treated unfairly discover that their circumstances do not fit within the Charter’s equality framework.
1982–2026: A DIFFERENT TREND
By 1982, many of the major legal barriers that existed in earlier decades had already been removed.
As a result, structural discrimination continued to decline after 1982, but the decline was much smaller than the dramatic changes that occurred between 1960 and 1982.
At the same time, reports and claims of discrimination increased significantly.
• Human rights complaints increased.
• Tribunal proceedings increased.
• Equality litigation increased.
• Survey respondents increasingly reported experiences of discrimination.
• Public discussion of discrimination expanded dramatically.
The result was a period characterized by increasing reports of discrimination despite comparatively smaller reductions in structural discrimination.
THE RISE OF DIVERSITY, EQUITY, AND INCLUSION
The post-1982 period also coincided with the growth of diversity, equity, and inclusion frameworks throughout governments, universities, corporations, professional organizations, and international institutions.
Increasing emphasis was placed upon:
• Diversity
• Equity
• Inclusion
• Representation
• Group outcomes
• Systemic barriers
• Identity-based analysis
These frameworks increasingly evaluate outcomes among identified groups and seek to address disparities in representation and results.
This approach differs from the Canadian Bill of Rights model, which begins with universal rights belonging equally to every individual.
The Canadian Bill of Rights focuses on the individual and equality before the law.
Modern diversity, equity, and inclusion frameworks increasingly focus on group characteristics, representation, outcomes, and systemic analysis.
These represent different approaches to the pursuit of equality.
CONCLUSION
The historical record shows that Canada’s greatest reduction in structural discrimination occurred during the period from 1960 to 1982.
The Canadian Bill of Rights recognized that rights already existed and would continue to exist without discrimination.
It recognized equality before the law and the protection of the law as rights belonging to every individual.
During the twenty-two years that followed, Canada experienced substantial reductions in legal and institutional discrimination and significant expansion of equality protections.
In 1982, Canada adopted a different constitutional framework.
The Charter guarantees the rights and freedoms set out within it, subjects those rights to section 1 limitations, permits legislative override through section 33 in specified circumstances, and defines equality through section 15 and its enumerated grounds.
The result was a shift from a framework that recognizes pre-existing rights belonging equally to all individuals to a framework based upon constitutionally guaranteed rights interpreted and applied through the Charter structure.
Yet one important fact is frequently overlooked.
The Canadian Bill of Rights was never repealed.
It remains valid federal law.
It continues to apply to federal legislation, federal departments, federal agencies, federal boards, federal commissions, and federal decision-makers.
The Charter is not the only source of rights protection in Canada.
The Canadian Bill of Rights remains in force today.
It still recognizes that rights “have existed and shall continue to exist.”
It still recognizes equality before the law and the protection of the law.
And it remains available to Canadians who choose to invoke it.
The Canadian Bill of Rights is not a historical artifact.
It is still part of the law of Canada.
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