David Clinton
Is Canada Abusing the Charter of Rights and Freedoms?
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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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David Clinton
Are We Winning the Patient-to-Doctor Ratio War?
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The fact that millions of Canadians lack primary healthcare providers is a big deal. The grand promise of universal healthcare rings hollow for families forced to spend six hours waiting in a hospital emergency room for a simple ear infection diagnosis.
Just how big a deal is it? Statistics Canada data from 2021 ranks provinces by their ability to provide primary health providers. As you can see from the chart, New Brunswick and Ontario were doing the best, with doctors for nearly 90 percent of their residents. Quebec, able to find providers for just 78.4 percent of their population, landed at the bottom. But even just 10-15 percent without proper coverage is a serious systemic failure.
Since healthcare is administered by the provinces, it makes sense to assume that provincial policies will influence results. So comparing access to primary care practice results over time might help us understand what’s working and what isn’t.
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To that end, I pulled Statistics Canada data tracking total employment in offices of physicians (NAICS code 621111) by province. The data covers all employees (including nurses, office managers, and receptionists) in all non-hospital medical offices providing services that don’t include mental health.
I originally searched unsuccessfully for usable data specific to doctors. But as it turns out, such data would have included surgeons and other hospital-based specialties when I’m really looking for general (family) care providers. So I think what we got will actually act as a better proxy for primary care access.
Do keep in mind that staffing levels in the sector represent just one of many statistical signals we could use to understand the healthcare universe. And it’s just a proxy that’s not necessarily a perfect map to reality.
In any case, I adjusted the numbers by provincial populations so they’d make statistical sense. The chart below contains ratios representing how many residents there are per worker between 2010 and 2023:
You might notice that PEI is missing from that chart. That’s because the reported numbers fell below Statistics Canada’s privacy threshold for most of the covered years.
Alberta, with a ratio of just 282:1 is the current champion, while Newfoundland (438:1) has the worst record. But changes over time are where things get interesting. BC’s performance declined by more than 11 percent. And Quebec improved by more than 40 percent!
As you can see for yourself in that chart, Quebec’s most dramatic growth took place between 2016 and 2019. What was going on around that time? Well, both Bill 10 and Bill 20 were introduced in 2015.
- Bill 10 restructured the healthcare system by reducing the number of administrative regions and centralizing governance to streamline services and improve efficiency.
- Bill 20 established patient quotas for doctors, mandating a minimum number of patients they were required to see. Physicians who did not meet these quotas faced penalties, such as reduced compensation.
I don’t need to speak French to assume that those measures must have inspired an awful lot of anger and push back from within the medical profession. But the results speak for themselves.
Or do they? You see there’s something else about Quebec we can’t ignore: Chaoulli v. Quebec (2005). That’s the Supreme Court of Canada case where the Canada Health Act’s ban on private delivery of healthcare was ruled unconstitutional (for Quebec, at any rate).
As a direct result of that decision, there are now more than 50 procedures that can be performed in private surgical clinics in the province. The number of private clinics nearly doubled between 2014 and 2023.
Predictably, wait times for surgeries fell significantly over that time. But the numbers of non-hospital employees would probably have climbed at the same rate. That could possibly go further to explain Quebec’s steady and consistent improvements in our data.
What about the other provinces? There have been structural changes to delivery policies in recent years, but they’re mostly too new to have produced a measurable impact. But here’s a brief overview of what’s being tried:
- This Toronto Star piece describes efforts in both Ontario and BC involving plans among some smaller municipalities to build and manage family health practices and pay their doctors as employees. The idea is that many doctors will prefer to avoid the headaches of starting and running their own businesses and would prefer instead to work for someone else. The obvious goal is to attract new doctors to underserved communities. It’s still way too soon to know whether they’ll be successful in the desperate race for the shrinking pool of family physicians.
- Both Ontario and Alberta have championed Family Health Groups (FHGs), where physicians receive additional incentives for providing comprehensive care. Ontario’s Family Health Networks (FHN) and Family Health Organizations (FHO) also compensate physicians based on the number and demographics of enrolled patients.
- British Columbia and Nova Scotia have implemented variations of a Longitudinal Family Physician (LFP) Payment Model. LFPs compensate family physicians based on factors like time spent with patients, patient panel size, and the complexity of care. They claim to promote team-based, patient-partnered care.
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Addictions
So What ARE We Supposed To Do With the Homeless?
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David Clinton
Involuntary confinement is currently enjoying serious reconsideration
Sometimes a quick look is all it takes to convince me that a particular government initiative has gone off the rails. The federal government’s recent decision to shut down their electric vehicle subsidy program does feel like a vindication of my previous claim that subsidies don’t actually increase EV sales.
But no matter how hard I look at some other programs – and no matter how awful I think they are – coming up with better alternatives of my own isn’t at all straightforward. A case in point is contemporary strategies for managing urban homeless shelters. The problem is obvious: people suffering from mental illnesses, addictions, and poverty desperately need assistance with shelter and immediate care.
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Ideally, shelters should provide integration with local healthcare, social, and employment infrastructure to make it easier for clients to get back on their feet. But integration isn’t cost-free. Because many shelters serve people suffering from serious mental illnesses, neighbors have to worry about being subjected to dangerous and criminal behavior.
Apparently, City of Toronto policy now requires their staff to obscure from public view the purchase and preparation of new shelter locations. The obvious logic driving the policy is the desire to avoid push back from neighbors worried about the impact such a facility could have.
As much as we might regret the not-in-my-back-yard (NIMBY) attitude the city is trying to circumvent, the neighbors do have a point. Would I want to raise my children on a block littered with used syringes and regularly visited by high-as-a-kite – and often violent – substance abusers? Would I be excited about an overnight 25 percent drop in the value of my home? To be honest, I could easily see myself fighting fiercely to prevent such a facility opening anywhere near where I live.
On the other hand, we can’t very well abandon the homeless. They need a warm place to go along with access to resources necessary for moving ahead with their lives.
One alternative to dorm-like shelters where client concentration can amplify the negative impacts of disturbed behavior is “housing first” models. The goal is to provide clients with immediate and unconditional access to their own apartments regardless of health or behaviour warnings. The thinking is that other issues can only be properly addressed from the foundation of stable housing.
Such models have been tried in many places around the world over the years. Canada’s federal government, for example, ran their Housing First program between 2009 and 2013. That was replaced in 2014 with the Homelessness Partnering Strategy which, in 2019 was followed by Reaching Home.
There have been some successes, particularly in small communities. But one look at the disaster that is San Francisco will demonstrate that the model doesn’t scale well. The sad fact is that Canada’s emergency shelters are still as common as ever: serving as many as 11,000 people a night just in Toronto. Some individuals might have benefited from the Home First-type programs, but they haven’t had a measurable impact on the problem itself.
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Where does the money to cover those programs come from? According to their 2023 Financial Report, the City of Toronto spent $1.1 billion on social housing, of which $504 million came in funding transfers from other levels of government. Now we probably have to be careful to distinguish between a range of programs that could be included in those “social housing” figures. But it’s probably safe to assume that they included an awful lot of funding directed at the homeless.
So money is available, but is there another way to spend it that doesn’t involve harming residential neighborhoods?
To ask the question is to answer it. Why not create homeless shelters in non-residential areas?
Right off the top I’ll acknowledge that there’s no guarantee these ideas would work and they’re certainly not perfect. But we already know that the current system isn’t ideal and there’s no indication that it’s bringing us any closer to solving the underlying problems. So why not take a step back and at least talk about alternatives?
Good government is about finding a smart balance between bad options.
Put bluntly, by “non-residential neighborhood shelters” I mean “client warehouses”. That is, constructing or converting facilities in commercial, industrial, or rural areas for dorm-like housing. Naturally, there would be medical, social, and guidance resources available on-site, and frequent shuttle services back and forth to urban hubs.
If some of this sounds suspiciously like the forced institutionalization of people suffering from dangerous mental health conditions that existing until the 1970s, that’s not an accident. The terrible abuses that existed in some of those institutions were replaced by different kinds of suffering, not to mention growing street crime. But shutting down the institutions themselves didn’t solve anything. Involuntary confinement is currently enjoying serious reconsideration.
Clients would face some isolation and inconvenience, and the risk of institutional abuses can’t be ignored. But those could be outweighed by the positives. For one thing, a larger client population makes it possible to properly separate families and healthy individuals facing short-term poverty from the mentally ill or abusive. It would also allow for more resource concentration than community-based models. That might mean dedicated law enforcement and medical staff rather than reliance on the 9-1-1 system.
It would also be possible to build positive pathways into the system, so making good progress in the rural facility could earn clients the right to move to in-town transition locations.
This won’t be the last word spoken on this topic. But we’re living with a system that’s clearly failing to properly serve both the homeless and people living around them. It would be hard to justify ignoring alternatives.
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