Is Canada Abusing the Charter of Rights and Freedoms?

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2 weeks ago

7 minute read

David Clinton

Canadians have no absolute right to equal treatment under the law.

Monitoring the intersection between equality and equity

Let me explain that. Section 15 of the Charter of Rights and Freedoms was, from the perspective of the Charter’s creators, an exceedingly difficult needle to thread. The tension between its two subsections carries the potential for confusion and even abuse. Here’s the text itself:

(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.

(2) Section (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.

15(1) guaranteed the equal treatment of all individuals. That’s something I can’t imagine any reasonable-minded person opposing. The problem was that, at the same time, the authors also wanted to leave room for unfair treatment for select groups through affirmative action programs. That’s the purpose of 15(2).

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If 15(2) didn’t exist, challenges to, say, hiring practices targeting historically disadvantaged racial groups could be launched based on the rights found in 15(1). Imagine people who didn’t technically qualify as disadvantaged but who might be better suited for and in greater immediate need of an advertised job. If the “affirmative action” candidate was nevertheless hired, couldn’t the others argue that they’d just suffered Charter-level discrimination? 15(2) is designed to ensure such challenges don’t happen.

Such state-imposed inequality may or may not be justifiable. That’s a debate that doesn’t interest me right now. Instead, my primary focus is on how the principle could be widely abused.

I should clarify that these rules only apply to government programs and agencies. While private companies might be bound by other areas of related law, the Charter was only written for government operations. But it’s nevertheless worth remembering that 4.4 million Canadians work for one level or another of government (when you include hospitals and public schools). That’s around 21 percent of all Canadian workers. And many more of us interact with governments regularly.

What kinds of abuse are possible? Well, consider how so many equality-related decisions are highly subjective and rely on the good faith and clarity of mind of the policy makers and public officials in positions of power. In that context:

How can we know that factors like “ameliorative”, “disproportionate”, or “disadvantaged” are accurately and appropriately defined?
How can we know that favoring one group won’t cause deep and irreparable harm to others?
How can we know that even good-faith decisions aren’t made based on outdated assumptions or inaccurate stereotypes?

Easy-to-imagine practical examples of abuse could include:

Provincial scholarship programs that target low-income students from only certain ethnic groups while excluding members of other groups who might currently experience even greater financial hardship.
Seats in highly competitive university programs that are restricted to only candidates expressing specified identities without objective evidence that such individuals are currently meaningfully underrepresented in those programs or professional fields.
Government-funded employment programs that subtly target communities likely to share particular political beliefs.
Internal career advancement policies that prioritize identity and ethnicity over competence that lead to reduced organizational capacity.
Social disruption due to arbitrary official favoritism for some ethnicities and identities over others.

Of course, misuse of 15(2) can always be tested in court. Programs are, after all, expected to pass the Oakes Test (for objectives that are pressing and substantial) and the Kapp Test (for goals that are truly ameliorative and appropriately targeted).

But that requires someone who notices the problem and has the considerable means necessary to launch a court challenge. There aren’t many people like that running around.

A government that felt that misuse of the law was causing significant damage to society could choose to by-pass 15(2) altogether by invoking the Notwithstanding Clause or by amending the constitution itself. But…well, good luck surviving either attempt.

More realistically, the government could write new legislation that guides the interpretation or application of 15(2). That could mean carefully defining what constitutes an “ameliorative program” or setting clear eligibility criteria for such programs. There would be no need to change the constitution, simply to properly define it.

Alternatively, governments could govern by example. This might mean tailoring their own policies and programs to reflect a more constrained interpretation of 15(2). They could actively participate in court cases to advocate for particular interpretations and present compelling arguments to influence how courts understand and apply the provision.

Finally, of course, they could appoint judges to the Supreme Court and federal courts who are more aligned with values associated with absolute equality under the law.

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Related Topics:#CharterOfRightsAndFreedoms #DavidClinton 15.1vs15.2 EqualityVSEquity EqualTreatmentUnderTheLaw Section15.1 Section15.2 TheAudit

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CBC’s business model is trapped in a very dark place

Published on November 21, 2024

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David Clinton

I Testified Before a Senate Committee About the CBC

I recently testified before the Senate Committee for Transport and Communications. You can view that session here. Even though the official topic was CBC’s local programming in Ontario, everyone quickly shifted the discussion to CBC’s big-picture problems and how their existential struggles were urgent and immediate. The idea that deep and fundamental changes within the corporation were unavoidable seemed to enjoy complete agreement.

I’ll use this post as background to some of the points I raised during the hearing.

You might recall how my recent post on CBC funding described a corporation shedding audience share like dandruff while spending hundreds of millions of dollars producing drama and comedy programming few Canadians consume. There are so few viewers left that I suspect they’re now identified by first name rather than as a percentage of the population.

Since then I’ve learned a lot more about CBC performance and about the broadcast industry in general.

For instance, it’ll surprise exactly no one to learn that fewer Canadians get their audio from traditional radio broadcasters. But how steep is the decline? According to the CRTC’s Annual Highlights of the Broadcasting Sector 2022-2023, since 2015, “hours spent listening to traditional broadcasting has decreased at a CAGR of 4.8 percent”. CAGR, by the way, stands for compound annual growth rate.

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Dropping 4.8 percent each year means audience numbers aren’t just “falling”; they’re not even “falling off the edge of a cliff”; they’re already close enough to the bottom of the cliff to smell the trees. Looking for context? Between English and French-language radio, the CBC spends around $240 million each year.

Those listeners aren’t just disappearing without a trace. the CRTC also tells us that Canadians are increasingly migrating to Digital Media Broadcasting Units (DMBUs) – with numbers growing by more than nine percent annually since 2015.

The CBC’s problem here is that they’re not a serious player in the DMBU world, so they’re simply losing digital listeners. For example, of the top 200 Spotify podcasts ranked by popularity in Canada, only four are from the CBC.

Another interesting data point I ran into related to that billion dollar plus annual parliamentary allocation CBC enjoys. It turns out that that’s not the whole story. You may recall how the government added another $42 million in their most recent budget.

But wait! That’s not all! Between CBC and SRC, the Canada Media Fund (CMF) ponied up another $97 million for fiscal 2023-2024 to cover specific programming production budgets.

Technically, Canada Media Fund grants target individual projects planned by independent production companies. But those projects are usually associated with the “envelope” of one of the big broadcasters – of which CBC is by far the largest. 2023-2024 CMF funding totaled $786 million, and CBC’s take was nearly double that of their nearest competitor (Bell).

But there’s more! Back in 2016, the federal budget included an extra $150 million each year as a “new investment in Canadian arts and culture”. It’s entirely possible that no one turned off the tap and that extra government cheque is still showing up each year in the CBC’s mailbox. There was also a $93 million item for infrastructure and technological upgrades back in the 2017-2018 fiscal year. Who knows whether that one wasn’t also carried over.

So CBC’s share of government funding keeps growing while its share of Canadian media consumers shrinks. How do you suppose that’ll end?

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Chainsaws and Scalpels: How Governments Choose

Published on November 17, 2024

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David Clinton

Javier Milei in Argentina, Musk and Ramaswamy in the US.. What does DOGE in Canada look like?

Under their new(ish) president Javier Milei, Argentina cut deeply and painfully into their program spending to address a catastrophic economic crisis. And they seem to have enjoyed some early success. With Elon Musk now primed to play a similar role in the coming Trump administration in the U.S., the obvious question is: how might such an approach play out in Canada?

Sure. We’re not suffering from headaches on anything like the scale of Argentina’s – the debt we’ve run up so far isn’t in the same league as the long-term spending going on in South America. But ignoring the problems we do face can’t be an option. Given that the annual interest payments on our existing national debt are $11.7 billion (which equals seven percent of total expenditures), simply balancing the budget won’t be enough.

The underlying assumption powering the question is that we live in a world of constraints. There just isn’t enough money to buy everything we might want, so we need to both prioritize and become more efficient. It’s about figuring out what can no longer be justified – even if it does provide some value – and what’s just plain wasteful.

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Some of this may seem obvious. After all, when there are First Nations reserves without clean water and millions of Canadians without access to primary care physicians, how can we justify spending hundreds of millions of dollars funding arts projects that virtually no one will ever discover, much less consume?

Apparently not everyone sees things that way. Large governments operate by reacting to political, social, and chaos-driven incentives. Sometimes those incentives lead to rational choices, and sometimes not. But mega-sized organizations tend to lack the self-awareness and capacity to easily change direction.

And some basic problems have no obvious solutions. As I’ve written, there’s a real possibility that all the money in the world won’t buy the doctors, nurses, and integrated systems we need. And “all the money in the world” is obviously not on the table. So the well-meaning bureaucrat might conclude that if you’re not going to completely solve the big problems, you might as well try to manage them while investing in other areas, too.

Still, I think it’s worth imagining how things might look if we could launch a comprehensive whole-of-government program review.

How Emergency Cuts Might Play Out

Imagine the federal government defaulted on its debt servicing payments and lost access to capital markets. That’s not such an unlikely scenario. There would suddenly be a lot less money available to spend, and some programs would have to be shut down. Protecting emergency and core services would require making fast – and smart – decisions.

We would need to take a long, hard look at this important enumeration of government expenditures. There probably wouldn’t be enough time to bridge the gap by looking for dozens of less-critical million-dollar programs. We would need to find some big-ticket items fast.

Our first step might be to pause or restructure larger ongoing payments, like projects funded through the Canada Infrastructure Bank (total annual budget: $3.45 billion). Private investors might pick up some of the slack, or some projects could simply go into hibernation. “Other interest costs” (total annual budget: $4.6 billion) could also be restructured.

Reducing equalization payments (total annual budget: $25.2 billion) and territorial financing (total budget: $5.2 billion) might also be necessary. This would, of course, spark parallel crises at lower levels of government. Similarly, grants to settle First Nations claims (total budget: $6 billion) managed by Crown-Indigenous Relations and Northern Affairs Canada would also be at least temporarily cut.

All that would be deeply painful and trigger long-term negative consequences.

But there’s a far better approach that could be just as effective and a whole lot less painful:

What an All-of-Government Review Might Discover

Planning ahead would allow you the luxury of targeting spending that – in some cases at least – wouldn’t even be missed. Think about programs that were announced five, ten, even thirty years ago, perhaps to satisfy some passing fad or political need. They might even have made sense decades ago when they were created…but that was decades ago when they were created.

Here’s how that’ll work. When you read through the program and transfer spending items on that government expenditures page (and there are around 1,200 of those items), the descriptions all point to goals that seem reasonable enough. But there are some important questions that should be asked about each of them:

When did these programs begin?
What specific activities do they involve?
What have they accomplished over the past 12 months?
Is their effectiveness trending up or down?
Are they employing efficiency best-practices used in the private sector?
Who’s tasked with monitoring changes?
Where are their reports published?

To show you what I mean, here are some specific transfer or program line items and their descriptions:

Department of Employment and Social Development

Workforce Development Agreements ($722 million)
Indigenous Early Learning and Child Care Transformation Initiative ($374 million)
Payments to provinces, territories, municipalities, other public bodies, organizations, groups, communities, employers and individuals for the provision of training and/or work experience, the mobilization of community resources, and human resource planning and adjustment measures necessary for the efficient functioning of the Canadian labour market ($856 million)

Department of Industry

Contributions under the Strategic Innovation Fund ($2.4 billion)

Department of Citizenship and Immigration

Settlement Program ($1.13 billion)

Department of Indigenous Services

Contributions to provide income support to on-reserve residents and Status Indians in the Yukon Territory ($1.05 billion). Note that, as of the 2021 Census, there were 9,150 individuals with North American Indigenous origins in Yukon. Assuming the line item is accurately described, that means the income support came to $114,987/person (not per household; per person).

Each one of those (and many, many others like them) could be case studies in operational efficiency and effectiveness. Or not. But there’s no way we could know that without serious research.