David Clinton
Is Canada Abusing the Charter of Rights and Freedoms?
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.
David Clinton
What Happens When Ministries Go Rogue?
Global Affairs Canada and the strange, wonderful world only they can see
This is an older (and longer) version of an article just published by the Macdonald-Laurier Institute.
Some may think of the people behind Global Affairs Canada (GAC – also known as Department of Foreign Affairs) as Canada’s brightest and best, executing a sophisticated and far-seeing foreign policy. They may be right. But the description that more readily comes to my mind is “completely out of control.” I may be wrong.
But if I am wrong, I’m not the only one. Vivian Bercovici – a former Canadian ambassador to Israel – quoted former Prime Minister Harper as saying “that in his 10 years in office, the most difficult department for his government to work with was Foreign Affairs.”
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What is it about GAC, and Western foreign services in general, that makes them so subversive? Bercovici puts it this way:
“In the postwar years, foreign-affairs bureaucracies in Western democracies ballooned in size. Foreign-service officers saw themselves as better-informed and -trained to manage diplomatic complexities than the elected officials they supposedly served. They also mastered the art of diffusing responsibility and outcomes among the many layers and offices engaged in any particular issue. As a practical matter, this means that neither success nor failure is attributed to individuals, resulting in a lack of accountability throughout the organization. It also means that internal sabotage of the will of government is more easily effected and concealed. Where authority and responsibility are blurred, accountability is impossible.”
All that’s well above my pay grade. But I’m perfectly capable of observing the work GAC actually does. So I’m going to discuss three specific GAC programs that seem to present some unhealthy processes and patterns. Perhaps they’ll help us reach useful conclusions.
GAC and the Global Fund
According to GAC’s Project Browser tool, between 2008 and 2022 Canada committed $3.065 billion to the Global Fund to Fight AIDS, Tuberculosis and Malaria. Which on the face of it is great. No one here is cheering for Team Malaria, right? But we should ask a couple of questions:
- Is the scale of the support appropriate given financial constraints back home?
- Was that money well spent?
I’m not going to even try to answer the first question: that’s something for Canadians to talk about as a society. For context though, GAC’s total annual budget for foreign aid funding seems to be in the neighborhood of $16 billion (of which around $2 billion goes to United Nations agencies). $16 billion would represent roughly 4 percent of total annual federal government expenditures.
However I do have a lot to say about question number two. First of all, the Global Fund to Fight AIDS, Tuberculosis and Malaria has been dogged by serious accusations of corruption and lack of transparency for more than a decade. That means there’s a good chance a substantial proportion of our money ended up moving through private Caribbean bank accounts on its way to cozy dachas in Sochi.
But I’m going to ignore that for now because we can’t be sure the funny business is still happening. And because if we canceled all government programs that were at risk of misuse we’d have to lay off the entire federal civil service. Which would be a very bad thing, because…well it just would.
Instead, I’ll focus on measuring the impact of our investment. What were the goals GAC set for its Global Fund contribution? Their own website fills us in:
“The expected results are defined by the “Global Fund Strategy 2017-2022”. This strategy includes the following targets, to be achieved by 2020: (1) 90% of persons living with HIV (PLHIV) know their status, 90% PLHIV who know their status and receiving treatment; and 90% of people on treatment have suppressed viral loads; (2) a 20% and 35% decline in TB incidence rate and TB deaths respectively, compared with 2015; and (3) at least a 40% reduction in malaria mortality rates and malaria case incidence, compared with 2015.”
The GAC planners obviously felt that spending $3 billion over five years or so was reasonable as long as, between 2015 and 2020, it contributed to a 35 percent decline in TB deaths, a 40 percent decline in malaria deaths, and the 90%-90%-90% formula for people with HIV. And I’ll admit that it’s a compelling argument.
The thing is though, that no one could have known whether we’d actually achieve those results. And given the built-in ambiguity of the program’s goals, it’s not we could ever know whether it was a success. The decision therefore was a gamble. And the table stakes were $3 billion belonging to Canadian taxpayers.
Should nameless, unelected planners have that much power over our money? Assuming that they’re genuine domain experts, then sure. Who else is better? But:
With great power comes great responsibility. (Nietzsche? Kant? Aristotle? Nope. Spiderman’s uncle)
Claiming to possess domain expertise isn’t free: if you break it, you own it. So if death rates happily fell during the program years then the planners should be rewarded for their service to humanity. But if they didn’t fall, or if they didn’t fall as much as predicted then, at the very least, people should lose their jobs.
Fortunately, with the hindsight allowed us by historical data, we can easily see how things worked out. Unfortunately, it looks like the fine folk at GAC stepped on a rake.
Our World in Data numbers give us a pretty good picture of how things played out in the real world. Tragically, Malaria killed 562,000 people in 2015 and 627,000 in 2020. That’s a jump of 11.6 percent as opposed to the 40 percent decline that was expected. According to the WHO, there were 1.6 million tuberculosis victims in 2015 against 1.2 million in 2023. That’s a 24.7 percent drop – impressive, but not quite the required 35 per cent.
I couldn’t quickly find the precise HIV data mentioned in the program expectations, but I did see that HIV deaths dropped by 16 percent between 2015 and 2019. So that’s a win.
But it’s clear that the conditions underlying the GAC wager were not met.
To be fair, GAC reporting in 2023 claims that: “Since 2002, (their) efforts have contributed to a significant decline in deaths caused by AIDS (‑70%), TB (‑21%) and malaria (‑26%).” – but those figures are unsourced, badly outdated, and completely fail to account for program spending subsequent to 2015.
The government gambled more than $3 billion of taxpayer funds and lost the bet. To date, they have yet to apologize, assure us that they’re busy reassessing their future commitments, or publicize their plans for the individuals who so carelessly lost our money.
For that matter, were those individuals even GAC employees? It’s possible that the decision was made by representatives of the uber-expensive contract consulting firm, McKinsey. When will that information become public?
GAC and the World Food Programme
The Global Fund deal was one bad multilateral bet. Were there others? Sure. Over the five years between 2016 and 2021 GAC entrusted a total of $125 million with the UN World Food Programme to provide emergency food aid. Africa represented 60 percent of the program’s target, and the one policy marker designated as a “significant objective” was gender equality. The programs expected results included:
- Improved access to food and nutrition assistance for food-insecure populations
- Increased ability of the World Food Programme to provide appropriate responses to humanitarian crises
Overall, the “expected ultimate outcome is the reduced vulnerability of crisis-affected people, especially women and children.” Unfortunately, here too, the numbers moved in the wrong direction. As the graph shows, numbers from Our World in Data show that the percentage of people across the African continent who lack the minimum daily caloric intake – despite years of declines – has been climbing steadily precisely through the GAC’s program timeline. Malnutrition went from 15 to 19.7 percent since 2013.
I’ll admit that I can’t be sure I’m not oversimplifying things here. There could well have been powerful geopolitical or macro economic changes behind surges in malaria and malnutrition. Perhaps those crises would have been even worse had Canadian funding not been in place. Global events seldom have easy explanations.
But what I can see is a fairly consistent pattern. GAC spends hundreds of millions and billions of dollars on multi-year agreements with multilateral organizations. Key success indicators are rarely met. Persistent rumors of corruption and incompetence (and worse) often hover above the largest aid organizations. But there’s never any evidence of comprehensive program and mandate assessments within GAC itself. They might happen, but they’re not telling us. And that’s a problem.
Note: I received no response to repeated efforts to reach GAC officials for comment on these programs.
GAC and the United Nations Relief and Works Agency
The government of Canada – through GAC – has long been among the major financial supporters of The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Leading up to the Hamas massacre on October 7, 2023, the 75 year-old United Nations agency had a yearly budget of more than 900 million U.S. dollars, and had long been accused of antisemitism, corruption, and complicity in war crimes.
At various points long before the current war, the Netherlands, Switzerland and the Unites States had all felt compelled to suspend payments to UNRWA over related concerns. The Harper government cut funding to UNRWA in 2010, but Prime Minister Trudeau restored it in 2016. Canada briefly froze funding to UNRWA in January 2024 due to the organization’s connections to the October 7 attacks but once again restored payments in March.
I’m curious to know what the quarter billion dollars that Canada has donated to UNRWA since 2016 was used for and what safeguards the government imposed to ensure we weren’t facilitating criminal or genocidal behavior.
In fact, the official record of Canada’s parliament includes the unanimous agreement of the Standing Committee on Foreign Affairs and International Development from Thursday, February 4, 2021, when they declared:
“That the committee express its deep concern about certain educational materials circulated to students by UNRWA during the pandemic in error that violates the values of human rights, tolerance, neutrality and non-discrimination, at a time when UNRWA is receiving funding from the Government of Canada, and report this motion to the House”
It’s noteworthy that the final version of the text included the phrase “in error”. That addition was not agreed to unanimously, because it would suggest that the copious educational material openly promoting extreme nationalism and violence against Jews somehow only found its way into classrooms by some weird accident. (Someone might have left a window open and the wind blew book-filled boxes in. Could of happened to anyone.)
In the end, only the four Conservative members of the committee opposed the “in error” phrasing.
The motion was originally inspired by a report published by the Institute for Monitoring Peace and Cultural Tolerance in School Education (IMPACT-se). That report documented many instances of the glorification and promotion of violent Jihad, martyrdom, and terrorism within UNRWA educational materials.
As it turns out, it’s now clear that not only was the content created by UNRWA and included in their curricula by design, but it’s still being printed and widely taught in UNRWA schools (when they’re operational). The agency’s only practical response to the criticism was to remove references from their public-facing website.
Further research by IMPACT-se in the aftermath of the October 7 attacks has revealed how, for instance, “13 UNRWA staff members have publicly praised, celebrated or expressed their support for the unprecedented deadly assaults on civilians.” The report also documents how at least 18 UNRWA graduates have “died carrying out acts of terror.”
Of course, our concerns go far beyond education. Since the start of Israel’s land offensive in Gaza, it’s become painfully obvious that UNRWA schools and hospitals have been used as rocket launching areas, weapons storage facilities, and access points for Hamas military tunnels – all clear war crimes. It’s difficult to imagine how a reasonable person could conclude that UNRWA officials – and those providing program oversight – were not aware of those violations.
More recently, the UN itself admitted that at least nine of its employees “might have” been involved in the October 7 massacres and will be fired.
GAC – at least in its public statements – hasn’t ignored the problem. In June of 2023, they announced that:
“Canada will remain closely engaged with UNRWA and continue to exercises (sic) enhanced due diligence for all humanitarian and development assistance funding for Palestinians. This work includes ongoing oversight, regular site visits, a systematic screening process and strong anti-terrorism provisions in funding agreements.”
The problem is that subsequent credible revelations have demonstrated that the “oversight” and “regular site visits” promised by GAC either never happened, were an embarrassing failure…or something much worse.
Canadians have a right to know how their money is spent. It would be helpful if the government, and Global Affairs Canada in particular, would at the very least tell us exactly how they’re going to fix these messes.
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The Health Research Funding Scandal Costing Canadians Billions is Parading in Plain View
Why Can’t We See the Canadian Institutes for Health Research-Funded Research We Pay For?
Right off the top I should acknowledge that a lot of the research funded by the Canadian Institutes for Health Research (CIHR) is creative, rigorous, and valuable. No matter which academic category I looked at during my explorations, at least a few study titles sparked a strong “well it’s about time” reaction.
But two things dampen my enthusiasm:
- Precious few of the more than 39,000 studies funded by CIHR since 2011 are available to the public. We’re generally permitted to see no more than brief and incomplete descriptions – and sometimes not even that.
- There’s often no visible evidence that the research ever actually took place. Considering how more than $16 billion in taxpayer funds has been spent on those studies over the past 13 years, that’s not a good thing.
If you’ve been reading The Audit for a while, you know that I’ll often identify systems that appear vulnerable to abuse. As a rule though, I’m reluctant to invoke the “s” word. But here’s one place where I can think of no better description: the vacuum where CIHR compliance and enforcement should be is a national scandal.
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I’ve touched on these things before. And even in that earlier post I acknowledged how:
…as a country, we have an interest in investing in industry sectors where there’s a potential for high growth and where releasing proprietary secrets can be counter productive.
So we shouldn’t expect access to the full results of every single study. But that’s surely not true for the majority of research. And there’s absolutely no reason that CIHR shouldn’t provide evidence that something (anything!) productive was actually done with our money.
Because a well-chosen example can sometimes tell the story better than huge numbers, I’ll focus on one particular study in just a moment. But for context, here are some huge numbers. What follows is an AI-powered breakdown by topic of all 39,751 research grants awarded by CIHR since 2011:
Those numbers shouldn’t be taken as anything close to authoritative. The federal government data doesn’t provide even minimal program descriptions for many of the grants it covers. And many descriptions that are there contain meaningless boilerplate text. That’s why the “Other – Uncategorized” category represents 72 percent of all award dollars.
Ok. Let’s get to our in-the-weeds-level example. In March 2016, Greta R. Bauer and Margaret L. Lawson (principal investigators) won a $1,280,540 grant to study “Transgender youth in clinical care: A pan-Canadian cohort study of medical, social and family outcomes”.
Now that looks like vital and important research. This is especially true in light of recent bans on clinical transgender care for minors in many European countries following the release of the U.K.’s Cass report. Dr. Cass found that such treatment involved unacceptable health risks when weighed against poorly defined benefits.
A website associated with the Bauer-Lawson study (transyouthcan.ca) provides a brief update:
As of December of 2021, we have completed all of our planned 2-year follow up data collection. We want to say thanks so much to all our participants who have continued to share their information with us over these past years! We have been hard at work turning data into research results.
And then things get weird. That page leads to a link to another page containing study results, but that one doesn’t load due to an internal server error.
Before we move on, I should note that I come across a LOT of research-related web pages on potentially controversial topics that suddenly go off-line or unexpectedly retire behind pay walls. Those could, of course, just be a series of unfortunate coincidences. But I’ve seen so many such coincidences that it’s beginning to look more like a pattern.
The good news is that earlier versions of those lost pages are nearly always available through the Internet Archive’s WayBackMachine. And frankly, the stuff I find in those earlier versions is often much more – educational – than whatever intentional updates would show me.
In the case of transyouthcan.ca, archived versions included a valid link to a brief PDF document addressing external stressors (which were NOT the primary focus of the original grant application). That PDF includes an interesting acknowledgment:
This project is being paid for by a grant from the Canadian Institutes of Health Research (CIHR). This study is being done by a team of gender-affirming doctors and researchers who have many years of experience doing community-based trans research. Our team includes people who are also parents of trans children, trans adults, and allied researchers with a long history of working to support trans communities.
As most of the participants appear to have financial and professional interests in the research outcome, I can’t avoid wondering whether there might be at least the appearance of bias.
In any case, that’s where the evidence trail stopped. I couldn’t find any references to study results or even to the publication of a related academic paper. And it’s not like the lead investigators lack access to journals. Greta Bauer, for example, has 79 papers listed on PubMed – but none of them related directly to this study topic.
What happened here? Did the authors just walk off with $1.2 million of taxpayer funding? Did they do the research but then change their minds about publishing when the results came in because they don’t fit a preferred narrative?
But the darker question is why no one at CIHR appears to be even mildly curious about this story – and about many thousands of others that might be out there. Who’s in charge?
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