Simon's Legal Resources

Bill of Rights - Bill of Rights v. Charter

. Chalifour-Racine v. Canada (Attorney General)

In Chalifour-Racine v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allows a Charter s.15 ['discrimination'] JR, this brought against a ruling by the Appeal Division of the Social Security Tribunal supporting provisions of the EI Act which require that claimants "are not entitled to receive some or all of the regular employment insurance (EI) benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves".

Here the court considers the purpose of Charter s.15, contrasting it with the Canadian Bill of Rights:

(1) General Principles

[92] Section 15 of the Charter guarantees equality before and under the law and equal protection and benefit of the law without discrimination based on several grounds, including sex; it provides as follows:

"Equality before and under law and equal protection and benefit of law"

"Égalité devant la loi, égalité de bénéfice et protection égale de la loi"

"15 (1) 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

"15 (1)"" La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques."

"Affirmative action programs"

"Programmes de promotion sociale"

"(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or" "ethnic origin, colour, religion, sex, age or mental or physical disability."

"(2)"" Le paragraphe (1) n’a pas pour effet d’interdire les lois, programmes ou activités destinés à améliorer la situation d’individus ou de groupes défavorisés, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe," "de leur âge ou de leurs déficiences mentales ou physiques"

[93] The protection afforded under section 15 of the Charter is broader than that afforded under the Canadian Bill of Rights as, in addition to equality before the law, section 15 of the Charter also guarantees equality under the law and equal protection and benefit of the law. Thus, case law decided under the Canadian Bill of Rights, like the Supreme Court’s decision in Bliss, is not determinative in a discrimination claim under section 15 of the Charter. As the majority noted in Kanyinda at paragraph 35:

The approach to equality under s. 15(1) of the Charter marks a departure from how it was previously interpreted and applied under the Canadian Bill of Rights, S.C. 1960, c. 44. While the Canadian Bill of Rights provided only for equality before the law, our Court noted in Andrews that s. 15(1) provides “a much broader protection”, including equality under the law, equal protection of the law, and equal benefit of the law (p. 170). ... Prior Canadian Bill of Rights jurisprudence had interpreted the equality right narrowly and in a formalistic manner (ibid.; see Attorney General of Canada v. Lavell, 1973 CanLII 175 (SCC), [1974] S.C.R. 1349; Bliss v. Attorney General of Canada, 1978 CanLII 25 (SCC), [1979] 1 S.C.R. 183). By contrast, with its earliest s. 15(1) jurisprudence, this Court rejected the “rigid formalism” used to interpret the Canadian Bill of Rights in favour of a more purposive approach (Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 3; Andrews, at p. 170).

[94] In contrast to the Canadian Bill of Rights, section 15 of the Charter guarantees substantive equality, and the Supreme Court has stated on numerous occasions that a formalistic approach to assessing whether a provision or governmental action violates section 15 is inappropriate: Kanyinda at para. 35; R v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147 [Sharma] at para. 52; Fraser at para. 40; Withler at para. 37. Thus, in assessing whether section 15 of the Charter has been breached, a court must consider the impact of the law or governmental action, "“…taking full account of social, political, economic and historical factors concerning the group”": Withler at para. 39. In other words, the Court cannot stop at determining whether the impugned provision or action is facially neutral and treats all in the same way; instead, the Court is required to consider whether the impugned provision or actions disproportionately impact a protected group in a negative way that reinforces, perpetuates, or exacerbates the disadvantage experienced by that group. Turning again to Kanyinda, the majority noted at paragraph 37:

Intended to promote substantive equality, s. 15(1) protects individuals not only from laws which explicitly or intentionally discriminate but also from laws which are facially neutral and yet discriminate through their impact on certain groups. This indirect discrimination is known as adverse effects discrimination (Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at p. 551; McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 279; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22, at p. 41; see also Fraser, at para. 45). Substantive equality is distinct from formal equality, which would treat everyone identically, regardless of their differences. When applied to people in unequal circumstances, formal equality can result in injustice.

. Canada (Attorney General) v. Canadian Civil Liberties Association

In Canada (Attorney General) v. Canadian Civil Liberties Association (Fed CA, 2026) the Federal Court of Appeal dismissed a federal AG JR, this brought against "the Federal Court’s finding that the declaration of a public order emergency was unreasonable and that some provisions of the Regulations and of the Economic Order violated the Charter", here where the emergency order was made under the federal Emergencies Act.

Here the court, citing the lower court's decision, illustrates the weakness of the Canadian Bill of Rights (which has statutory status), as opposed to the Charter (which has constitutional status):

[95] Lastly, while the Federal Court found that the Canadian Bill of Rights, S.C. 1960, c. 44 (Bill of Rights), applies to the Emergencies Act, the Regulations and the Economic Order, it rejected the respondents’ position that the Bill of Rights’ due process provisions required the special measures to be put on hold while counsel and courts were engaged and the hearing conducted. In its view, this would be contrary to the very purpose of the Emergencies Act and an unnecessary burden on the justice system given the temporary nature of the special measures.

. Goodman v. Canada (Public Safety and Emergency Preparedness)

In Goodman v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2022) the Federal Court of Appeal considered a rare Canadian Bill of Rights case. The Canadian Bill of Rights is a pre-Charter statutory (not constitutional) attempt at the same sort of 'rights and freedoms' that the Charter later picked up on. It is rarely used these days, but is still 'on the (statute) books'. The case is short so I link it all here.