READ THE REALITY CHECK

By Bruce Pardy

A new Aristotle Foundation Reality Check from Queen’s University law professor Bruce Pardy details how Canada’s courts reinterpreted even the clear equality clause in the constitution to read in anti-individual “equity.” That hollowed out a founding Canadian principle of equality before the law.

Canada’s newest medical school will select students not for their ability, but their identity. Great, as if Canada’s healthcare system wasn’t bad enough already. The school, which opens next fall at Toronto Metropolitan University, will reserve 75 per cent of its seats for Indigenous, Black, and other “equity-deserving” groups including 2SLGBTQ+. These students will need an undergraduate GPA of only 3.3 on a 4-point scale, and maybe not even that; for comparison, the University of Toronto medical school’s average accepted GPA is 3.95. Able-bodied straight white students can’t apply for these seats. It’s TMU’s affirmative action school for doctors who can’t get in on their merits. Canada now has full-blown racial and gender discrimination. How did we get here? The Supreme Court of Canada is largely to blame. Last year, the U.S. Supreme Court brought race-based admissions at American universities to an end. Harvard University, among others, preferred Black and brown students to Asian and white ones in the name of “diversity.” That practice, the court declared, violated the Equal Protection Clause of the U.S. Constitution. Equal protection “cannot mean one thing when applied to one individual and something else when applied to a person of another color.” In the United States, equal treatment under the law is a constitutional requirement. But not in Canada. “Every individual is equal before and under the law,” says the Canadian Charter of Rights and Freedoms, “and has the right to the equal protection and equal benefit of the law without discrimination …” But the Supreme Court of Canada has long insisted that the clause does not mean equal treatment but equity. Equity, also known as “substantive equality” or “equality of outcome,” means treating different groups differently. It means applying standards and granting rights to compensate for perceived advantages, disadvantages, strengths, and weaknesses. Equity is a right granted not to individuals as individuals, but to members of groups. Equal treatment and equity are opposites. The law cannot apply the same laws and standards to everyone and also adjust them depending upon the group. As Friedrich Hayek put it, “From the fact that people are very different, it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in conflict with each other; and we can achieve either the one or the other, but not both at the same time.” So what happened? The Supreme Court of Canada did not decide its first case under the equality provision, section 15(1), until 1989. In the interim, the federal government established a Royal Commission on Equality in Employment, also known as the Abella Commission after its commissioner Rosalie Abella. Abella, now retired, would later become the most activist judge on the court. The commission’s report, released in 1984, recommended employment equity policies in the federal government and in federally regulated companies, and led to the passage of the federal Employment Equity Act in 1986, which required affirmative action programs that gave preference to candidates from some groups over others. The Act did not bind the Supreme Court’s interpretation of the Charter, but it was newly in place when the Supreme Court heard the case of David Mark Andrews, a British citizen and permanent resident of Canada, and a qualified lawyer, who challenged a British Columbia requirement that lawyers be Canadian citizens. In its 1989 decision, the court struck down the requirement. Justice William McIntyre wrote, “… a law which treats all identically and which provides equality of treatment between “A” and “B” might well cause inequality for “C,” depending on differences in personal characteristics and situations. To approach the ideal of full equality before and under the law… the main consideration must be the impact of the law on the individual or the group concerned…” The court has been doubling down on equity ever since. Unlike the American Constitution, the Charter contains an exception to its equality guarantee. Section 15(2) allows for programs of affirmative action that discriminate against members of some groups to promote the fortunes of others. It was meant to be an exception, but the Supreme Court has made it the general rule. In Canada, the Charter may not even apply to university admission policies (because universities are not governments), but human rights codes do. Like section 15(1) of the Charter, human rights codes promise a right to equal treatment. But in accordance with the Supreme Court’s equality jurisprudence, human rights have come to mean equity too. In 2022, the Ontario Human Rights Tribunal said that white people cannot claim discrimination. “An allegation of racial discrimination or discrimination on the grounds of colour,” it wrote, “is not one that can be or has been successfully claimed by persons who are white and non-racialized.” Thanks to the Supreme Court, equality rights have become weapons wielded by preferred groups to demand more lenient standards and advantageous outcomes. In Canada, some people are more equal than others. Remember that next time you’re waiting to see your newly minted doctor. Bruce Pardy is executive director of Rights Probe, professor of law at Queen’s University, senior fellow with the Aristotle Foundation for Public Policy, and author of the new report “A Right to Unequal Treatment”.

Know about the Dorchester Review? You should. Our friends at the Dorchester Review have printed excerpts of The 1867 Project—Why Canada Should Be Cherished, Not Cancelled. In addition to such fine selections, their quarterly has other terrific historical work. Check them out here.

From the Aristotle Foundation for Public Policy

By Collin May

Arrests linked to terrorism reveal concerns over both imported and homegrown radicalization

Recently, Canada’s immigration system has come under scrutiny due to a series of arrests of individuals alleged to be planning terrorist attacks. The first arrests came in July when a father and son, Ahmed Fouad Mostafa Eldidi and Mostafa Eldidi, were charged with a number of terrorism-related offenses after their arrest near Toronto. The pair immigrated to Canada, where the father obtained his citizenship, prompting a review of immigration screening processes.

This was followed earlier this month by the arrest of Muhammad Shahzeb Khan, who was alleged to be planning a mass shooting at a Jewish center in New York City. Kahn, a Pakistani citizen, was in Canada on a student visa. He was arrested in Quebec on his way to New York.

While these two cases playing out in eastern Canada have drawn the most media attention, we need to look to western Canada, specifically to the province of Alberta, to find several examples of homegrown Canadian terrorism. Earlier this month, Zakarya Rida Hussein, a Canadian citizen living in Calgary, Alberta, was sentenced to six years in prison on terrorism-related charges, including plans to bomb Calgary’s Pride Parade in 2023.

Even more problematic for Canada’s international reputation were two Alberta residents exporting Islamist terrorism to the United Kingdom and Israel. In July of this year, a London jury found Anjem Choudary, the notorious leader of the radical Al-Muhajiroun group, guilty of directing a terrorist group. However, Choudary was not alone in the dock. Khaled Hussein, originally from Edmonton, Alberta, was also convicted of holding membership in the same banned terror organization.

Similarly, in Israel, radicalized Alberta teacher Zachareah Adam Quraishi was killed earlier this summer when he attempted to attack an Israeli security post at Netiv Ha’asara. Quraishi was educated at the University of Alberta.

These incidents suggest a growing problem as it relates to both the importation of terrorists into Canada and the radicalization of Canadian Muslim citizens with the added concern that Canada is now exporting Islamist terror to our allies in the US, Europe, and Israel. This raises the question of what Canadian governments, at the national and provincial level, are doing to counter the importation and domestic growth of terror.

Immigration is primarily a federal responsibility, and opposition Conservative deputy leader Melissa Lantsman has been attempting to hold the Canadian government’s feet to the fire. Over the past few months, Lantsman has been demanding answers as to how the father-son duo was able to immigrate to Canada, and why a student visa was issued to Khan, allowing him to use Canada as a staging ground for attacks in New York.

In terms of the domestic radicalization of Canadian citizens in the province of Alberta, there has been little discussion regarding how this is occurring or what the federal and provincial governments are doing to stem the tide. In Canada, for instance, education is a provincial responsibility, but nothing has been said by the conservative Alberta government about the proliferation of Islamist ideologies in the province or if anything is being done through the education system to counter their impact.

This silence is coming at a time when Canada’s federally-appointed special representative on combating Islamophobia, Amira Elghawaby, recently sent a letter to college and university administrators in Canada recommending the hiring of more Muslim, Arab, and Palestinian professors. Far from expressing concern over the growing Islamist terror threats emanating from Canada, Elghawaby highlighted an alleged dangerous climate on Canadian campuses for pro-Palestinian protesters.

The province of Quebec, no friend of Elghawaby, called for the federal Islamophobia representative to resign, citing her interference with Quebec’s provincial jurisdiction and its stance that academic hiring in the province should be based on principles of secularism rather than religious affiliation. No such call has come from the Alberta government.

That the Alberta government has had nothing to say on these matters should not surprise Canadians given that Alberta’s minister responsible for advanced education, Rajan Sawhney, was the only member of the Alberta provincial government to publicly call for my own resignation as chief of the Alberta Human Rights Commission in 2022.

My crime, in Sawhney’s eyes, was having written an academic review of a book on historic Islamic imperialism penned by renowned British-Israeli historian Efraim Karsh and published by Yale University Press in 2006. Ms. Sawhney’s initial statement condemning my review has since been removed from her Facebook page.

To date, there is little evidence that most Canadian governments, federally or provincially, are overly concerned about Canada’s new reputation, and especially that of Alberta, as exporters of Islamist terrorism. However, as governments grapple with the potential negative blow-back from our allies, this attitude may undergo a rather abrupt change.

Collin May is a lawyer in Calgary, a senior fellow with the Aristotle Foundation for Public Policy, an adjunct lecturer in community health sciences at the University of Calgary, a former chief of the Alberta Human Rights Commission, and the author of numerous articles on the psychology, philosophy, and social theory of cancel culture.