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David Clinton

Is Canada Abusing the Charter of Rights and Freedoms?

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The Audit

 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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Business

We’re paying the bills, why shouldn’t we have a say?

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  By David Clinton

Shaping Government Spending Choices to Reflect Taxpayer Preferences

Technically, the word “democracy” means “rule of the people”. But we all know that the ability to throw the bums out every few years is a poor substitute for “rule”. And as I’ve already demonstrated, the last set of bums you sent to Ottawa are 19 times more likely than not to simply vote along party lines. So who they are as individuals barely even matters.

This story isn’t new, and it hasn’t even got a decent villain. But it is about a universal weakness inherent in all modern, nation-scale democracies. After all, complex societies governed by hundreds of thousands of public servants who are responsible for spending trillions of dollars can’t realistically account for millions of individual voices. How could you even meaningfully process so many opinions?

Hang on. It’s 2025. These days, meaningfully processing lots of data is what we do. And the challenge of reliably collecting and administrating those opinions is trivial. I’m not suggesting we descend into some hellish form of governance by opinion poll. But I do wonder why we haven’t tried something that’s far more focused, measured, and verifiable: directed revenue spending.

Self-directed income tax payments? Crazy, no? Except that we’ve been doing it in Ontario for at least 60 years. We (sometimes) get to choose which of five school boards – English public, French public, English separate (Catholic), French separate (Catholic), or Protestant separate (Penetanguishene only) – will receive the education portion of our property tax.

Here’s how it could work. A set amount – perhaps 20 percent of the total federal tax you owe – would be considered discretionary. The T1 tax form could include the names of, say, ten spending programs next to numeric boxes. You would enter the percentage of the total discretionary portion of your income tax that you’d like directed to each program with the total of all ten boxes adding up to 100.

The specific programs made available might change from one year to the next. Some might appear only once every few years. That way, the departments responsible for executing the programs wouldn’t have to deal with unpredictable funding. But what’s more important, governments would have ongoing insights into what their constituents actually wanted them to be doing. If they disagreed, a government could up their game and do a better job explaining their preferences. Or it could just give up and follow the will of their taxpayers.

Since there would only be a limited number of pre-set options available, you wouldn’t have to worry about crackpot suggestions (“Nuke Amurika!”) or even reasoned and well-meaning protest campaigns (“Nuke Ottawa!”) taking over. And since everyone who files a tax form has to participate, you won’t have to worry about a small number of squeaky wheels dominating the public discourse.

Why would any governing party go along with such a plan? Well, they almost certainly won’t if that’s any comfort. Nevertheless, in theory at least, they could gain significant political legitimacy were their program preferences to receive overwhelming public support. And if politicians and civil servants truly believed they toil in the service of the people of Canada, they should be curious about what the people of Canada actually want.

What could go wrong?

Well the complexity involved with adding a new layer of constraints to spending planning can’t be lightly dismissed. And there’s always the risk that activists could learn to game the system by shaping mass movements through manipulative online messaging. The fact that wealthy taxpayers will have a disproportionate impact on spending also shouldn’t be ignored. Although, having said that, I’m not convinced that the voices of high-end taxpayers are less valuable than those of the paid lobbyists and PMO influencers who currently get all the attention.

Those are serious considerations. I’m decidedly less concerned about some other possible objections:

  • The risk that taxpayers might demonstrate a preference for short term fixes or glamour projects over important long term wonkish needs (like debt servicing) rings hollow. Couldn’t those words just as easily describe the way many government departments already behave?
  • Couldn’t taxpayer choices be influenced by dangerous misinformation campaigns? Allowing for the fact the words “misinformation campaign” make me nervous, that’s certainly possible. But I’m aware of no research demonstrating that, as a class, politicians and civil servants are somehow less susceptible to such influences.
  • Won’t such a program allow governments to deflect responsibility for their actions? Hah! I spit in your face in rueful disdain! When was the last time any government official actually took responsibility (or even lost a job) over stupid decisions?
  • Won’t restricting access to a large segment of funds make it harder to respond to time-sensitive emergencies? There are already plenty of political and policy-based constraints on emergency spending choices. There’s no reason this program couldn’t be structured intelligently enough to prevent appropriate responses to a genuine emergency.

This idea has no more chance of being applied as some of the crazy zero-tax ideas from my previous post. But things certainly aren’t perfect right now, and throwing some fresh ideas into the mix can’t hurt.

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Business

What if Canada’s Income Tax Rate Was Zero?

Published on

  By David Clinton

It won’t happening. And perhaps it shouldn’t happen. But we can talk.

By reputation, income tax is an immutable fact of life. But perhaps we can push back against that popular assumption. Or, to put it a different way, thinking about how different things can be is actually loads of fun.

That’s not to suggest that accurately anticipating the full impact of blowing up central economic pillars is simple. But it’s worth a conversation.

First off, because they’ve been around so long, we can easily lose sight of the fact that income taxes cause real economic pain. The median Canadian household earns around $85,000 in a year. Of that, some 13 percent ($11,000) is lost to federal income tax. Provincial income tax and sales taxes, of course, drive that number a lot higher. If owning a house is out of reach for so many Canadians, that’s one of the biggest reasons why.

Having said that, the $200 billion or so in personal income taxes that Canada collects each year represents around 40 percent of federal spending. In fact, in the absence of other policy changes, eliminating federal personal income tax would probably lead to significant drops in business tax revenues too. (I could see many small businesses choosing to maximize employee salaries to reduce their corporate tax liability.)

So if we wanted to cut taxes without piling on even more debt, we’d need to replace that amount either by finding alternate revenue sources or by cutting spending. If you’ve been keeping up with The Audit, you’ve already seen where and how we might find some serious budget savings in previous posts.

But for fascinating reasons, some of that $200 billion (or, including corporate taxes, $300 billion) shortfall could be made up by wiping out income tax itself. How’s that?

For one thing, many government entitlements and payouts essentially exist to make up for income lost through taxes. For example, the federal government will spend around $26 billion on child tax credits (CCB) in 2025. Since those payments are indexed to income, eliminating federal income tax would, de facto, raise everyone’s income. That increase would drop CCB spending by as much as $15 billion. Naturally, we’d want to reset the program eligibility thresholds to ensure that low-income working families aren’t being hurt by the change, but the savings would still be significant.

There are more payment programs of that sort than you might imagine. Without income taxes to worry about:

  • The $6.2 billion GST/HST credit would cost us around $3 billion less each year.
  • The Canada Workers Benefit (CWB) could cost $1.5 billion dollars less.
  • The Old Age Security (OAS) Clawback would likely generate an extra billion dollars each year in taxes.
  • The Guaranteed Income Supplement for low-income OAS recipients could save $4 billion a year.

Even when factoring in for threshold recalculations to protect vulnerable families from unintended consequences, all those indirect consequences of a tax cut could easily add up to $20 billion in federal spending cuts. And don’t forget how the cost of administering and enforcing the income tax system would disappear. That’ll save us most of the $11 billion CRA costs us each year.

Nevertheless, last I heard, $30 billion (in savings) was a long, long way from $300 billion (in tax revenue shortfalls). No matter how hard we look, we’re not going to find $270 billion in government waste, fraud, and marginal programs to eliminate. And adding more government debt will benefit exactly no one (besides bond holders).

Ok then, let’s say we can find $100 billion in reasonable cuts (see The Audit for details). That would get us close to half way there. But it would also generate some serious economic turbulence.

On the one hand, such cuts would require dropping hundreds of thousands of workers off the federal payroll¹. It would also exert powerful downward pressure on our gross domestic product (GDP).

On the plus side however, a drop in government borrowing of this scale would likely reduce interest rates. That, in turn, could spark private investment activities that partially offset the GDP hit. If you add the personal wealth freed up by our income tax cuts to that mix, you’d likely see another nice GDP bump from sharp increases in household spending and investments.

Precisely predicting how a proposed change might affect all these moving parts is hard. Perhaps the ideal scenario would involve 20 percent or 50 percent cuts to taxes rather than 100 percent. Or maybe we’d be better off by playing around with sales tax rates. But I’m not convinced that anyone is even seriously and objectively thinking about our options right now.

One way or the other, the impact of such radical economic changes would be historic. I think it would be fascinating to develop data models to calculate and rank the macro economic consequences of applying various combinations of variables to the problem.

But taxation is a problem. And it’d be an important first step to recognize it as such.

Although on the bright side, as least they wouldn’t have to worry about delayed or incorrect Phoenix payments anymore.

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