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.
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Business
Chainsaws and Scalpels: How Governments Choose
Javier Milei in Argentina, Musk and Ramaswamy in the US.. What does DOGE in Canada look like?
Under their new(ish) president Javier Milei, Argentina cut deeply and painfully into their program spending to address a catastrophic economic crisis. And they seem to have enjoyed some early success. With Elon Musk now primed to play a similar role in the coming Trump administration in the U.S., the obvious question is: how might such an approach play out in Canada?
Sure. We’re not suffering from headaches on anything like the scale of Argentina’s – the debt we’ve run up so far isn’t in the same league as the long-term spending going on in South America. But ignoring the problems we do face can’t be an option. Given that the annual interest payments on our existing national debt are $11.7 billion (which equals seven percent of total expenditures), simply balancing the budget won’t be enough.
The underlying assumption powering the question is that we live in a world of constraints. There just isn’t enough money to buy everything we might want, so we need to both prioritize and become more efficient. It’s about figuring out what can no longer be justified – even if it does provide some value – and what’s just plain wasteful.
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Some of this may seem obvious. After all, when there are First Nations reserves without clean water and millions of Canadians without access to primary care physicians, how can we justify spending hundreds of millions of dollars funding arts projects that virtually no one will ever discover, much less consume?
Apparently not everyone sees things that way. Large governments operate by reacting to political, social, and chaos-driven incentives. Sometimes those incentives lead to rational choices, and sometimes not. But mega-sized organizations tend to lack the self-awareness and capacity to easily change direction.
And some basic problems have no obvious solutions. As I’ve written, there’s a real possibility that all the money in the world won’t buy the doctors, nurses, and integrated systems we need. And “all the money in the world” is obviously not on the table. So the well-meaning bureaucrat might conclude that if you’re not going to completely solve the big problems, you might as well try to manage them while investing in other areas, too.
Still, I think it’s worth imagining how things might look if we could launch a comprehensive whole-of-government program review.
How Emergency Cuts Might Play Out
Imagine the federal government defaulted on its debt servicing payments and lost access to capital markets. That’s not such an unlikely scenario. There would suddenly be a lot less money available to spend, and some programs would have to be shut down. Protecting emergency and core services would require making fast – and smart – decisions.
We would need to take a long, hard look at this important enumeration of government expenditures. There probably wouldn’t be enough time to bridge the gap by looking for dozens of less-critical million-dollar programs. We would need to find some big-ticket items fast.
Our first step might be to pause or restructure larger ongoing payments, like projects funded through the Canada Infrastructure Bank (total annual budget: $3.45 billion). Private investors might pick up some of the slack, or some projects could simply go into hibernation. “Other interest costs” (total annual budget: $4.6 billion) could also be restructured.
Reducing equalization payments (total annual budget: $25.2 billion) and territorial financing (total budget: $5.2 billion) might also be necessary. This would, of course, spark parallel crises at lower levels of government. Similarly, grants to settle First Nations claims (total budget: $6 billion) managed by Crown-Indigenous Relations and Northern Affairs Canada would also be at least temporarily cut.
All that would be deeply painful and trigger long-term negative consequences.
But there’s a far better approach that could be just as effective and a whole lot less painful:
What an All-of-Government Review Might Discover
Planning ahead would allow you the luxury of targeting spending that – in some cases at least – wouldn’t even be missed. Think about programs that were announced five, ten, even thirty years ago, perhaps to satisfy some passing fad or political need. They might even have made sense decades ago when they were created…but that was decades ago when they were created.
Here’s how that’ll work. When you read through the program and transfer spending items on that government expenditures page (and there are around 1,200 of those items), the descriptions all point to goals that seem reasonable enough. But there are some important questions that should be asked about each of them:
- When did these programs begin?
- What specific activities do they involve?
- What have they accomplished over the past 12 months?
- Is their effectiveness trending up or down?
- Are they employing efficiency best-practices used in the private sector?
- Who’s tasked with monitoring changes?
- Where are their reports published?
To show you what I mean, here are some specific transfer or program line items and their descriptions:
Department of Employment and Social Development
- Workforce Development Agreements ($722 million)
- Indigenous Early Learning and Child Care Transformation Initiative ($374 million)
- Payments to provinces, territories, municipalities, other public bodies, organizations, groups, communities, employers and individuals for the provision of training and/or work experience, the mobilization of community resources, and human resource planning and adjustment measures necessary for the efficient functioning of the Canadian labour market ($856 million)
Department of Industry
- Contributions under the Strategic Innovation Fund ($2.4 billion)
Department of Citizenship and Immigration
- Settlement Program ($1.13 billion)
Department of Indigenous Services
- Contributions to provide income support to on-reserve residents and Status Indians in the Yukon Territory ($1.05 billion). Note that, as of the 2021 Census, there were 9,150 individuals with North American Indigenous origins in Yukon. Assuming the line item is accurately described, that means the income support came to $114,987/person (not per household; per person).
Each one of those (and many, many others like them) could be case studies in operational efficiency and effectiveness. Or not. But there’s no way we could know that without serious research.
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Crime
Despite recent bail reform flip-flops, Canada is still more dangerous than we’d prefer
Our Criminal Justice System Is Changing
58 percent of individuals sentenced to community supervision had at least one prior conviction for a violent offence. 68 percent of those given custodial sentences were similarly repeat offenders. In fact, 59 percent of offenders serving custodial sentences had previously been convicted at least 10 times.
Back in 2019, the federal Liberals passed Bill C-75, “An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts”. Among other things, the law established a Principle of Restraint that required courts to minimize unnecessary pre-trial detention. This has been characterized as a form of “catch and release” that sacrifices public safety in general, and victims’ rights in particular on the altar of social justice.
I’m no lawyer, but I can’t see how the legislation’s actual language supports that interpretation. In fact, as we can see from the government’s official overview of the law, courts must still give serious consideration to public safety:
The amendments…legislate a “principle of restraint” for police and courts to ensure that release at the earliest opportunity is favoured over detention, that bail conditions are reasonable, relevant to the offence and necessary to ensure public safety, and that sureties are imposed only when less onerous forms of release are inadequate.
So unlike in some U.S. jurisdictions, Canadian courts are still able use their discretion to restrict an accused’s freedom. That’s not to say everyone’s always happy with how Canadian judges choose to use such discretion, but judicial outcomes appear to lie in their hands, rather than with legislation.
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Arguably, C-75 did come with a “soft-on-crime” tone (in particular as the law relates to certain minority communities). But even that was mostly reversed by 2023’s Bill C-48, which introduced reverse onus for repeat offenders and required judges to explicitly consider the safety of the community (whatever that means).
Nevertheless, the system is clearly far from perfect. Besides the occasional high-profile news reports about offenders committing new crimes while awaiting trials for previous offences, the population-level data suggests that our streets are not nearly as safe as they should be.
As far as I can tell, Statistics Canada doesn’t publish numbers on repeat offences committed by offenders free while waiting for trial. But I believe we can get at least part of the way there using two related data points:
- Conviction rates
- Repeat offender rates
Between 2019 and 2023, conviction rates across Canada on homicide charges for adults averaged 42 percent, while similar charges against youth offenders resulted in convictions in 65 percent of cases. That means we can safely assume that a significant proportion of accused offenders were, in fact, criminally violent even before reaching trial.
We can use different Statistics Canada data to understand how likely it is that those accused offenders will re-offend while on pre-trial release:
58 percent of individuals sentenced to community supervision (through either conditional sentences or probation) had at least one prior conviction for a violent offence. 68 percent of those given custodial sentences were similarly repeat offenders. In fact, 59 percent of offenders serving custodial sentences had previously been convicted at least 10 times.
Also, in the three years following a term of community supervision, 15.6 percent of offenders were convicted for new violent crimes. For offenders coming out of custodial sentences, that rate was 30.2 percent.
In other words:
- Many – if not most – people charged with serious crimes turn out to be guilty
- It’s relatively rare for violent criminals to offend just once.
Together, those two conclusions suggest that public safety would be best served by immediately incarcerating all people charged with violent offences and keeping them “inside” either until they’re declared innocent or their sentences end. That, however, would be impossible. For one thing, we just don’t have space in our prisons to handle the load (or the money to fund it). And it would also often trample on the legitimate civil rights of accused individuals.
This is a serious problem without any obvious pull-the-trigger-and-you’re-
- Implement improved risk assessment and predictive analytics tools to evaluate the likelihood of re-offending.
- Improve the reliability of non-custodial measures such as electronic monitoring and house arrest that incorporate real-time tracking and immediate intervention capabilities
- Improve parole and probation systems to ensure effective monitoring and support for offenders released into the community. (Warning: expensive!)
- Optimize data analytics to identify trends, allocate resources efficiently, and measure the effectiveness of various interventions.
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