Dalhousie Law Journal


substantive equality, foundational constitutional principle, Canada, Canadian Charter of Rights and Freedoms, Supreme Court of Canada, democracy, federalism, minority rights, judicial independence


The author proposes that substantive equality be recognized as a foundational constitutional principle. The foundational principles--or underlying constitutional norms-which constitute the constitutional framework have become more important as Canada matures as a regime governed by constitutional supremacy. Most prime social and political values have been recognized as underlying constitutional norms, including democracy, federalism, protection of minority rights, political speech and judicial independence. Although section 15 of the Charter has been interpreted as encompassing substantive equality, which has been identified as a significant social value by the Supreme Court of Canada, the Court has yet to include it among the foundational constitutional principles. The author explains why it should be included, discusses why the explicit guarantee under section 15 is inadequate for this purpose, addresses alternative approaches to a separate identification of substantive equality and outlines some of the elements which should be included in a foundational constitutional principle of substantive equality.