Research publications

Section 15 of the Canadian Charter of Rights and Freedoms sets out the right to equal protection and equal benefit of the law without discrimination. The Supreme Court of Canada has consistently interpreted this right as protecting substantive equality. This means that laws – as well as government activities and policies – must not simply treat people the same. Instead, the effect that a law has on different groups must be considered. A law will be found to be unconstitutional under section 15 if it further disadvantages groups based on certain characteristics. These characteristics include race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. These are referred to as “enumerated grounds” because they are explicitly listed in section 15. In addition, “analogous grounds” of discrimination, such as citizenship and sexual orientation, have also been recognized by the courts. Since 1985, when section 15 came into full effect, courts have tried to find a way to assess section 15 claims consistently and fairly in order to protect substantive equality. The Court’s guidance on how to apply section 15 has changed over time. This HillStudy outlines the historical development of this test and related issues in the Supreme Court’s section 15 jurisprudence.

This HillStudy is the first of a two-part examination of how the Supreme Court of Canada (the Supreme Court or the Court) has interpreted federal environmental law in light of Canada’s constitutional division of powers. It is a companion piece to the HillStudy entitled The Constitution and the Impact Assessment Act, which reviews the Court’s opinion with respect to the constitutionality of the Impact Assessment Act. The focus of this paper is to examine the Court’s advisory opinion that the federal government’s attempt to regulate greenhouse gas emissions through the Greenhouse Gas Pollution Pricing Act was a constitutional exercise of federal authority under the national concern doctrine of the peace, order and good government power set out in section 91 of the Constitution. The Court’s advisory opinions in these two reference cases offer insight into what is, and is not, constitutionally acceptable and why. These are significant decisions that arrive at their conclusions via different routes, and both are likely to inform the development of environmental legislation at the federal and provincial levels for years to come.

This HillStudy is the second of a two-part examination of how the Supreme Court of Canada (the Supreme Court or the Court) has interpreted federal environmental law in light of Canada’s constitutional division of powers. It is a companion piece to the HillStudy entitled The Constitution and Carbon Pricing, which reviews the legal challenges to the Greenhouse Gas Pollution Pricing Act in References re Greenhouse Gas Pollution Pricing Act. The focus of this paper is the Supreme Court’s 2023 decision in Reference re Impact Assessment Act, which sets out a scheme for determining whether specified major natural resource and infrastructure projects require an impact assessment and, if so, the components of that impact assessment. Together, these two HillStudies explore two Supreme Court decisions on environmental law. Each decision was arrived at through a different approach, and each offers insight into what is and is not constitutionally acceptable, and why.