Substantive Equality in Service Delivery

Why Treating Everyone the Same Is Not Enough

The Canadian Charter guarantees that all individuals are entitled to equality in their treatment by the state. This includes equality in how laws are applied, as well as equal access to the benefits and protections those laws are intended to provide. In practice, equality requires more than uniform rules: it demands freedom from discrimination and from government actions that entrench existing inequities. This principle takes on particular significance in the design and delivery of federal programs and services affecting Indigenous peoples.

For First Nations, Inuit, and Métis communities, inequality is rooted in longstanding structural conditions. As highlighted by the Royal Commission on Aboriginal Peoples and affirmed by decades of subsequent research, colonialism has led to intergenerational trauma, systemic discrimination, and socio-economic marginalization. These effects persist today and are fundamentally incompatible with the equality guarantees embedded in Canada’s constitutional and human rights framework.

Decades of jurisprudence and public policy experience have shown that treating everyone the same does not necessarily lead to equal outcomes. This insight lies at the heart of substantive equality which is a legal concept that has profound impacts on how the federal government should design programs and deliver services particularly in relation to Indigenous peoples.

This post provides a practical overview of substantive equality: where it comes from, how it has been defined by courts and tribunals, and why it matters for government decision-making today.

From Formal Equality to Substantive Equality

At its simplest, formal equality means treating everyone the same. Substantive equality, by contrast, recognizes that people and groups do not start from the same place. Historical disadvantage, systemic discrimination, and structural barriers mean that identical treatment can actually perpetuate inequality.

Canadian courts have consistently rejected formal equality as an adequate standard. Beginning with the Supreme Court of Canada’s landmark decision in Andrews v. Law Society of British Columbia (1989), equality has been understood as a results-oriented concept. The Court held that equality requires attention to real-world impacts and not just neutral rules.

Substantive equality therefore allows, and sometimes requires, different treatment in order to achieve genuinely equal outcomes.

For federal government services and programs, substantive equality is the idea that people are treated differently so that the final results of the federal action are the same for everyone.  Hence, substantive equality is achieved through the provision of services and programs that meet the unique needs and circumstances of disadvantaged groups so that they are supported in achieving the same results as the majority group. 

What the Courts Have Said

The Supreme Court of Canada has repeatedly affirmed substantive equality as the governing norm under section 15 of the Canadian Charter of Rights and Freedoms. Several principles emerge clearly from this jurisprudence:

• Governments may adopt ameliorative programs that target disadvantaged groups without violating equality rights (R. v. Kapp, 2008).

• Equality analysis must consider context, impact, and systemic disadvantage, not just whether a distinction exists (Withler v. Canada, 2011).

• Programs must not reinforce or worsen existing disadvantage, even unintentionally (Fraser v. Canada, 2020).

Taken together, these decisions establish that equality law is not about symmetry.  Rather, it is about fairness in outcomes.

Equality is not about symmetry in service delivery.  It is about fairness in outcomes.

The Role of the Canadian Human Rights Tribunal

Substantive equality has also been firmly embedded in the interpretation of the Canadian Human Rights Act. The Canadian Human Rights Tribunal (CHRT) has played a particularly important role in applying the concept to federal service delivery.

In its 2016 ruling on First Nations child and family services, the Canadian Human Rights Tribunal determined that the federal government is required, under the Canadian Human Rights Act, to apply a substantive equality lens in both service delivery and the implementation of Jordan’s Principle. This means that Indigenous Services Canada must ensure its role in funding and administering child and family services does not sustain or reinforce the historic disadvantages experienced by First Nations children and families.

The Tribunal has since applied this same understanding of substantive equality in other policy areas. In its review of federal funding for First Nations policing, the CHRT concluded that the program failed to account adequately for the realities of the communities it was intended to serve. In particular, the Tribunal found that Public Safety had not sufficiently considered social and historical factors, such as elevated crime rates, the nature of policing demands, and overall service workloads. As a result, the level of funding and the structure of the program were found to be insufficient to meet community needs, meaning the program fell short of addressing discrimination to the degree required to achieve substantive equality.

Why This Matters for Policy and Program Design

For the federal government, substantive equality is not an abstract legal idea.  It is a practical standard against which programs and services are measured.  I would argue that all federal programs aimed at supporting Indigenous individuals and communities must be adequately funded and tailored to the needs of this specific group considering the systemic discrimination to which they have been subjected since colonization. 

Applied properly, substantively equality requires:

• analysis of how different populations experience programs in practice,

• willingness to tailor services to distinct needs, and

• attention to whether funding levels and delivery models actually close gaps rather than reproduce them.

For Indigenous policy in particular, substantive equality should function as both a legal obligation and a policy roadmap guiding efforts to close socio-economic gaps while supporting Indigenous control and self-determination.

For Indigenous policy, substantive equality should function as a legal obligation and a policy roadmap to close socio-economic gaps while supporting Indigenous self-determination.

Moving from Principle to Practice

Substantive equality is now firmly established as a cornerstone of Canadian jurisprudence and should be treated as an equally central principle of public administration. It requires governments to move beyond fragmented or one-size-fits-all approaches and to reconsider how programs and services for Indigenous peoples are designed, governed, and delivered. Incremental adjustments to existing models are often insufficient to address deeply rooted and systemic inequities.

When applied meaningfully, substantive equality is not simply a legal constraint on government action; it is a practical tool for improving policy effectiveness, service quality, and long-term outcomes. One of the most direct and effective ways for the federal government to advance substantive equality is to devolve program design and delivery to Indigenous-led organizations. Indigenous governments and service providers are best positioned to define priorities, tailor services to community realities, and respond to changing needs in culturally grounded ways.

Devolution, however, must be accompanied by adequate, stable, and flexible funding. Without sufficient resources, transferring responsibility risks reproducing the very inequities substantive equality seeks to eliminate. When authority and funding are aligned, devolved program delivery can move governments closer to achieving equal outcomes, while also advancing Indigenous self-determination and more sustainable public policy results.

Finally, another level of complexity in achieving substantive equality for First Nations, Inuit, and Métis peoples with respect to program delivery lies in the intergovernmental nature of certain programs. Although this article addresses only federal obligations, the fact remains that some programs are jointly funded by the federal, provincial, and territorial governments—for example, the First Nations Policing Program. The different levels of government do not always share the same understanding of how to properly apply substantive equality, and although Supreme Court decisions require them to move in this direction, bodies such as the Canadian Human Rights Tribunal do not have jurisdiction over the provinces and territories.