University of Windsor Faculty of Law professor Joshua Sealy-Harrington. (CHERRY THERESANATHAN/University of Windsor)
By Lindsay Charlton
We’re living in a time when inequality is at the centre of political controversy, says Faculty of Law professor Joshua Sealy-Harrington, which makes it all the more important to clarify what the term means in a legal context.
While chair of Equality Law at the University of Windsor, Sealy-Harrington co-authored a chapter on equality rights for the Canadian Constitutional Law Open Access Casebook.
The chapter aims to define equality rights and show how Canadian courts have interpreted them over time.
“There are very few people who profess a political commitment against equality, but the substance of equality is very contested,” he said. "So I think academics play an important role in clarifying, both legally and politically, how we navigate that contestation.”
Co-written with his mentor, University of Calgary law professor Jennifer Koshan, the chapter draws on landmark court rulings, case examples, and excerpts to illustrate what substantive equality looks like in Canada and how it connects to the foundations of constitutional law.
“Identifying key cases and having students read them in succession — and then engage with guiding questions — helps them reflect on the core controversies in equality law — not whether equality in Canada is understood substantively or systemically, but rather, the scope of substantive and systemic inequality recognized by the courts,” Sealy-Harrington said.
Canadian courts emphasize substantive equality — the idea that achieving meaningful equality may require different treatment to address systemic inequalities — as a guiding principle, he noted.
The chapter includes guiding questions to help readers engage with debates around equality rights.
“Anyone can make a claim of inequality, but some claims are stronger than others,” he said. “When you look at the history of equality rights jurisprudence, there’s a clear affirmation that inequality is about systemically marginalized groups.”
One persistent issue in equality today, he added, is failing to understand the importance of systemic marginalization.
“You have people claiming inequality from a position of power,” Sealy-Harrington said.
He points to a guiding question from the chapter on equality rights for unhoused people, noting that those who seek to oppress a marginalized community often use their own claimed vulnerabilities to justify oppressive practices.
“We reference the B.C. Civil Liberties Association’s campaign against encampment evictions of unhoused people, where some encampment opponents pleaded that we must ‘Think Of The Children’: that encampments rob children of scarce park space, such that encampment defenders become ageist opponents of children’s leisure.” Sealy-Harrington said.
This framing monumentally obscures relative vulnerability. All children — whether or not their families participate in gentrification — do indeed have vulnerabilities. But in the context of violent encampment evictions, housed children are not the central group under a principled equality rights analysis — they’re not the central victims of capitalism, which is the material system of exclusion here.”
Cases like this, Sealy-Harrington said, show how acts of discrimination can be repackaged by the state as liberatory or justice-oriented, when in fact they are oppressive. Using established principles of equality law and jurisprudence helps make that clear.
“By combining a number of landmark decisions with guiding questions, the chapter helps students, practitioners and even judges reflect more carefully on how these boundaries have been negotiated and, some would argue, how others are seeking to erode those principles in the current political moment,” he added.
The casebook is open access, meaning it’s freely available — something Sealy-Harrington believes is essential.
“Open source is really important, both in the classroom and beyond. People have different levels of access to legal resources, so having an open-source casebook that covers central issues in Canadian constitutional law is crucial,” he said.
“Constitutional law is for everyone. It provides protections for citizens, but also for refugees, for migrant workers, and even for people outside of Canadian territory. Everyone, in different ways and in different contexts, is a rights bearer and should have access to resources that help them understand the scope and application of their own rights.”
The chapter is written to be accessible to both practitioners and claimants, providing an overview of equality law along with key authorities and arguments that can be applied in practice.
Sealy-Harrington said this approach reflects the values at Windsor Law, where social justice is a core in both teaching and scholarship.
“I see both the commitment to advancing equality and social justice and the effort to bridge legal theory and practice as really emblematic of what we’re trying to do at Windsor Law,” he said.
“Those values are reflected in publications like this one.”
Read Sealy-Harrington’s full chapter on equality rights in Open Constitutional Law: Volume 2, available online at www.canlii.org.