At Toronto Metropolitan University medical school, some students are more equal than others

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.

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Toronto cancels history, again: The irony and injustice of renaming Yonge-Dundas Square to Sankofa Square

Published on November 20, 2024

Todayville

From the Aristotle Foundation

By Greg Piasetzki

In 2022, Torontonians renamed Ryerson University to Toronto Metropolitan University, “to address the legacy of Egerton Ryerson.”¹ Rather than remember him as the founder of Ontario’s system of “free” public schools and libraries, Ryerson was “cancelled” for his suggestions regarding the curriculum for the Indian residential schools that were then being proposed. However, the schools themselves were not built until some 30 years later, after Ryerson was dead. Further, modern complaints about the schools are generally misconceived and have little to do with the curriculum.²

In 2024, Toronto is at it again. This time, the historical figure targeted for cancellation is abolitionist Henry Dundas, as city officials seek to wipe his name from Yonge-Dundas Square. The square is a notable city landmark and one of Canada’s most popular tourist destinations. Filled with brightly lit electronic advertisement billboards, the square serves as an iconic social hub and venue for events connected to Toronto’s cultural festivals. The city’s former mayor, John Tory, summarized the case for renaming the famous square – based on a report from city hall – as follows:

An objective reading of the history, the significance of this street which crosses our city, the fact that Mr. Dundas had virtually no connection to Toronto and our strong commitment to equity, inclusion and reconciliation make this a unique and symbolically important change.³

The new name, “Sankofa Square,” is taken not from anything Torontonian, Ontarian, or even Canadian – but from the Akan people of West Africa.

Ironically, city officials not only appear ignorant of Henry Dundas’ many contributions to Canada, and to the abolition of slavery, but are also blissfully unaware that the Akan people of Africa were notorious slave traders responsible for capturing and selling one to two million of their fellow Africans into slavery.⁴

The man: Who was Henry Dundas?

Henry Dundas was a Scottish lawyer, politician, and one of British Prime Minister William Pitt’s most trusted and powerful ministers who served during the French Revolution and the Napoleonic wars.

Critically, Dundas was also a staunch abolitionist, committed to ending slavery as an institution in the British Empire and elsewhere in the world.

As early as 1777, when he was in his thirties, Dundas publicly established his abolitionist position on slavery. When Joseph Knight, a slave from Jamaica, was taken to Scotland by his owner, he challenged his status as a slave under Scottish law. Dundas, then Lord Advocate (principal legal advisor to the government), took on Knight’s case in his private capacity as a lawyer. On the final appeal before Scotland’s highest court, Dundas argued passionately, and with some humour, against the inhumanity of slavery:

We may possibly see the master chastising his slave as he does his ox or his horse. Perhaps, too, he may shoot him when he turns old […]

[But] [h]uman nature, my Lords, spurns at the thought of slavery among any part of our species.⁵

The court agreed and declared that no slave could remain a slave once they arrived on Scottish soil.⁶

A decade later, a religiously-inspired Christian abolition movement began in Britain (most famously personified by William Wilberforce) with the goal of ending the Atlantic slave trade. Dundas was a supporter of the movement, but urged that its members go further and challenge not just the Atlantic slave trade but seek the abolition of slavery itself – a much bigger challenge since at that time slavery was practiced on every inhabited continent.

During the 300 or more years the transatlantic slave trade existed, estimates are that 10 million to 12 million Africans were captured, enslaved, and sold by their fellow Africans. The purchasers were largely British, Portuguese, and French traders who acted as intermediaries in shipping slaves to the Americas for re-sale. The destination for 50 percent of the slaves was South America, 45 percent went to the West Indies, and about four percent went to what would become the United States.^7,8 Dundas understood that, unless slavery itself was ended – with its unrelenting violence, forced labour, and premature death – slavery as an institution would continue for generations, since legally the children of slaves were considered chattel (like livestock) and were thus also slaves like their parents.

The controversy: Did Dundas’ abolitionism go far enough?

Dundas is criticized today for amending a motion in Britain’s Parliament in 1792.⁹ His original motion called for the immediate end to the slave trade. But outright abolition was unrealistic at the time, and thus historians agree that Dundas’ original motion would surely have failed.¹⁰ Moreover, Britain’s competitors – especially the Portuguese and French – would have simply picked up where Britain left off. Realizing this, Dundas made a strategic pivot and called for a gradual end to the slave trade. His strategy worked, and his amended motion succeeded with a significant majority.¹¹

Change would take time. Only about one percent of the adult population had the right to vote,¹² and many had at least an indirect financial interest in West Indian plantations (as did numerous Members of Parliament), and trade with the plantations generated income for businesses in England and tariff revenue for the Crown. Surmounting such entrenched interests would not happen overnight.

And this is why Dundas’ successful motion was key: it shifted the tenor of the public discourse. For the first time, ending the slave trade was up for debate. The British empire at this time was nearing its peak as the largest empire in history, with enormous influence, and thus this step was significant in the eventual abolition of slavery worldwide.

The Toronto connection: Dundas the humanitarian

For his role in abolishing slavery, Dundas ought to be celebrated. The same is true of his major influence on the colonies that would become Canada and, in particular, on what would become the province of Ontario and the city of Toronto. Importantly, that influence was wielded in support of issues that, today, would be described as relating to equity, inclusion, and reconciliation—ironically, the exact criteria (“commitments”) justifying the city’s condemnation of him.

Appointing Simcoe, the empire’s first legislator to outlaw slavery

Dundas was a close friend of John Graves Simcoe (another staunch abolitionist), and he appointed Simcoe as the first lieutenant-governor of Upper Canada in 1791. It was Simcoe who, two years later, would introduce the Act to Limit Slavery in Upper Canada, the very first legislation in the entire British empire to limit slavery.¹⁴

The legislation passed, beginning the abolition of slavery in the province. Although the legislation did not free slaves already present, it freed the children of such slaves at age 25, and made Upper Canada a safe haven for slaves fleeing the United States.¹⁵ Like the precedent Dundas set in Scotland, no slave could remain a slave on Upper Canadian soil. Over the next seven decades, more than 40,000 black men and women would risk their lives to escape slavery and find freedom in Upper Canada.

When Dundas appointed Simcoe, he knew about Simcoe’s abolitionist sympathies—and almost certainly anticipated the legislation he would propose.¹⁶ And thus, Dundas made possible what became known as the Underground Railroad.

Honouring black soldiers

Dundas also ordered the governors of Nova Scotia and New Brunswick to honour Britain’s promise of land grants to 4,000 former slaves who had fought for the British against the American Revolution, and to offer free passage – courtesy of the British navy – to any who preferred to return to Africa.¹⁷

Initiating official bilingualism

Upon the division of the then-province of Quebec into Upper Canada (present-day Ontario) and Lower Canada (present-day Quebec) in 1791, Dundas instructed the English governor of Lower Canada to allow French-speaking parliamentarians to pass laws in French.¹⁸ This was a serious point of disagreement in the newly formed legislative assembly, as the (powerful) English minority insisted all British subjects be governed in English. Dundas solved the impasse by ordering that legislation be passed in both languages, in what is the first example of official bilingualism in Canadian history. (For context, this occurred only months after England and France were, once again, at war; and thus this act was truly magnanimous.)¹⁹

Defending indigenous peoples

Finally, following American Independence, Yankee incursions into Canadian territory were a very real and constant threat. Dundas, as secretary of state for Home Affairs, instructed the Canadian governor Sir Guy Carleton to intervene against the Americans and protect the interests of the “Indian Nations”:

…securing to them the peaceable and quiet possession of the Lands which they have hitherto occupied as their hunting Grounds, and such others as may enable them to procure a comfortable subsistence for themselves and their families.²⁰

The irony: Replacing the abolitionist with slave traders

Given the evidence, Toronto city council’s treatment of Dundas is clearly not only ahistorical but shameful. Regrettably, so is their adoption of the replacement, the term “Sankofa” from the Akan language. Little needs to be said here, other than this: The Akan peoples of West Africa were notorious slave traders. During the transatlantic slave trade, the Akan captured, enslaved, and sold one to two million fellow Africans into slavery. In other words, the Akan were the source of 10 to 20 percent of all transatlantic slaves.

Conclusion

The Toronto city council narrative surrounding the renaming of Yonge-Dundas Square flies in the face of historical fact. Dundas was demonstrably ahead of his time as a humanitarian. And as a politician, he was not only principled and morally courageous but effective. Dundas was one of the key figures in abolishing the slave trade, opening up the Underground Railroad, and protecting minorities of various backgrounds—black, French, and indigenous. If the city really wants to promote the act of “reflecting on and reclaiming teachings from the past,”²¹ as it claims, it might do well to start with the truth about Henry Dundas’ legacy. There may be times to rename a place or landmark, but this is not one of them.

Endnotes

Please see references in PDF

About the author

Greg Piasetzki is a Toronto-based intellectual property lawyer, a senior fellow with the Aristotle Foundation for Public Policy, and a citizen of the Métis Nation of Ontario.

About the Aristotle Foundation for Public Policy

Who we are

The Aristotle Foundation for Public Policy is a new education and public policy think tank that aims to renew a civil, common-sense approach to public discourse and public policy in Canada.

Alberta

On gender, Alberta is following the science

Published on November 17, 2024

Todayville

By J. Edward Les, MD

Despite falling into disrepute in recent years, “follow the science” remains our best shot at getting at the truth of the physical sciences.

But science, if we are to place our trust in it, must be properly defined and understood; it is at its essence an ever-changing process, a relentless pursuit of truth that is never “settled,” and one that is unafraid to discard old hypotheses in the face of new evidence.

And it is in this light—in the unforgiving glare of honest science—that Alberta Premier Danielle Smith’s three new legislative initiatives around gender policy are properly understood, notwithstanding the opprobrium they’ve attracted from critics.

Bill 26, the Health Statutes Amendment Act, proposes to prohibit the prescription of puberty blockers and cross-gender hormones for the treatment of gender dysphoria to youth aged 15 and under. It would allow minors aged 16 and 17 to begin puberty blockers and hormone therapies for gender “reassignment” and “affirmation” purposes only with parental, physician, and psychologist approval. The bill also prohibits health professionals from performing sex reassignment surgeries on minors.

Bill 27, the Education Amendment Act, seeks to enshrine parents’ rights to be notified if their kids change their names/pronouns at school, and it gives parents the right to “opt in” to what sort of gender and sex education their kids are exposed to in school.

And Bill 29, the Fairness and Safety in Sports Act, is designed to protect females in sports by ensuring that women and girls can compete in biological female-only divisions, while supporting the formation of co-ed opportunities to support transgender athletes.

Each of these initiatives is entirely reasonable, given what we know of the science underpinning “gender care,” and of the undeniable advantages that a male physique confers upon biological males competing in sports.

The notion that the trifecta of puberty blockers, cross-gender hormones, and revisionist surgery is a pathway to good health was a hypothesis initially devised by Dutch researchers, who were looking to ease the discomfort of transgender adults struggling with incongruence between their physical appearance and their gender identities. As a hypothesis, it was perhaps reasonable.

But as the UK’s Cass Review exposed in withering detail last spring, its premises were wholly unsupported by evidence, and its implementation has caused grievous harm for youth. As Finnish psychiatrist Riittakerttu Kaltiala, one of the architects of that country’s gender program, put it last year, “Gender affirming care is dangerous. I know, because I helped pioneer it.”

It’s no accident, then, that numerous European jurisdictions have pulled back from the “gender affirming care” pathway for youth, such as Sweden, Finland, Belgium, the Netherlands, and the United Kingdom.

It makes perfect sense that Canadians should be cautious as well, and that parents should be apprised if their children are being exposed to these theories at school and informed if their kids are caught up in their premises.

Yet the Canadian medical establishment has remained curiously intransigent on this issue, continuing to insist that the drug-and-surgery-based gender-affirming care model is rooted in evidence.

Premier Smith was asked by a reporter last month whether decisions on these matters aren’t best left to discussions between doctors and their patients; to which she replied:

“I would say doctors aren’t always right.”

Which is rather an understatement, as anyone familiar with the opioid drug crisis can attest, or as anyone acquainted with the darker corners of medical history knows: the frontal lobotomy saga, the thalidomide catastrophe, and the “recovered memories of sexual abuse” scandal are just a few examples of where doctors didn’t “get it right.”

As physicians, we advocate strongly for self-regulation and for the principle that medical decisions are private matters between physicians and patients. But self-regulation isn’t infallible, and when it fails it can be very much in the interests of the public—and especially of patients—for others to intervene, whether they be journalists, lawyers, or political leaders.

The trans discussion shouldn’t be a partisan issue, although it certainly has become one in Canada. It’s worth noting that Britain’s freshly elected Labour Party chose to carry on with the cautious approach adopted by the preceding administration in light of the Cass Review.

Premier Smith’s new polices are eminently sensible and in line with the stance taken by our European colleagues. None of her initiatives are “anti-trans.” Instead, they are pro-child, pro-women, and pro-athlete, and it’s difficult to see how anyone can quibble with that.

Dr. J. Edward Les, MD, is a pediatrician in Calgary, senior fellow at the Aristotle Foundation for Public Policy, and co-author of Teenagers, Children, and Gender Transition Policy: A Comparison of Transgender Medical Policy for Minors in Canada, the United States, and Europe.