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Aristotle Foundation

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

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READ THE REALITY CHECK

By Bruce Pardy

 

 

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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Aristotle Foundation

Efforts to halt Harry Potter event expose the absurdity of trans activism

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By J. Edward Les, MD

The Vancouver Park Board hasn’t caved to the anti-J.K. Rowling activists, but their campaign shows a need for common sense

This November, Harry Potter is coming to Vancouver’s Stanley Park. And some people aren’t happy.

The park will host Harry Potter: A Forbidden Forest Experience, an immersive exhibit that’s been staged around the world, prompting outrage from the gay and trans community. Why? Because J.K. Rowling, the creative genius behind the Harry Potter franchise, has been deemed a heretic — a “transphobe” — for her publicly stated view that men are men and women are women.

Rowling’s journey into so-called heresy began almost six years ago when she dared to publicly support Maya Forstater, a British tax expert who lost her job for asserting on social media that transgender women remain men.

“Dress however you please,” Rowling posted on Twitter in 2019. “Sleep with any consenting adult who’ll have you. Live your best life in peace and security. But force women out of their jobs for stating that sex is real? #IStandWithMaya #ThisIsNotADrill.”

It seemed to me and many others a rather benign tweet. But it was enough to generate global outrage from the trans community and its supporters. Rowling’s books have been boycotted and burned, with even the actors who portrayed Harry Potter characters on screen — most notably Daniel Radcliffe, Emma Watson and Rupert Grint — turning against the author who made them famous.

And yet Rowling has stuck to her guns, defending women and their right to enjoy spaces free of biological males in shelters, prisons, sports and so on. And she has stood against the “gender-affirming care” model that transitions children; in an X post last December, she said, “There are no trans kids. No child is ‘born in the wrong body.’”

It is — or should be — fair game to debate Rowling’s views. But in the hyper-polarized world of transgenderism, debate isn’t permitted. Only cancellation will suffice. Hence the angry response to the Vancouver Park Board’s greenlighting of the “Forest Experience” exhibit.

Vancouver city councillors Lucy Maloney and Sean Orr have called for the park board to reverse its decision.

“The trans and two-spirit community have made their voices heard already about how upset they are that this is happening,” Maloney said. “J.K. Rowling’s actions against the trans community are so egregious that I think we need to look at changing our minds on this.”

Orr concurred. “This is a reputational risk for the park board right now,” he said. “If there’s a way we can get out of this, we should consider this.

Thus far, thankfully, most park board commissioners have stood their ground. The exhibit is scheduled to go ahead as planned.

It’s worth emphasizing that since Rowling began her public defence of biological reality, much has changed. In 2024, the final report of the United Kingdom’s Cass Review exposed the shocking lack of evidence for the “gender-affirming” model of care; this led to a ban on puberty blockers in that country. Multiple European jurisdictions have done the same, enacting safeguards around transitioning youth. Major sports organizations have begun formally excluding biological males from female competitions. And in April 2025, the British Supreme Court decreed that “woman” and “sex” refer to biological sex assigned at birth, not gender identity.

Suffice it to say that Rowling has been vindicated.

Yet, as shown by a report published last year by the Aristotle Foundation (which I co-authored), Canada is increasingly an outlier in doubling down on transgender ideology. The Canadian Medical Association, the Canadian Pediatric Society and the Canadian Psychological Association continue to endorse the “gender-affirming” model of care. Even Canada’s Gordon Guyatt, hailed as one of the “fathers” of evidence-based medicine, has been cowed into distancing himself from his own research, which laid bare the scant amount of evidence supporting “gender-affirming” care.

It’s hard to know what it will take to set Canada back on a path of common sense and scientific rationality. Some Potter-style magic, perhaps. Or failing that, a return to good old-fashioned tolerance for open discussion and an honest exchange of views.

Dr. J. Edward Les is a pediatrician in Calgary and a senior fellow at the Aristotle Foundation for Public Policy. Photo: WikiCommons

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Aristotle Foundation

B.C. Supreme Court takes an axe to private property rights

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By Caroline Elliott

Native rights are constitutionally guaranteed; property rights are not. When courts recognize Aboriginal title, it’s easy to see who will win

Think you own your private property? Well think again, as a recent court decision has thrown the entire basis of property ownership into chaos in British Columbia.

In the ultimate “land acknowledgement,” the B.C. Supreme Court released a bombshell judgment last week declaring Aboriginal title for the Cowichan Tribes of Vancouver Island to around 325 hectares on the mainland, in the city of Richmond.

This is the first time a court has declared Aboriginal title over private land in the province, setting a deeply concerning precedent if the ruling is not successfully overturned following an appeal promised by B.C.’s attorney general.

In another troubling precedent, the court also declared that fee simple land titles — the typical form of private property ownership in Canada — in the area are “defective and invalid,” on the basis that the Crown had no authority to issue them in the first place.

As constitutional law professor Dwight Newman points out, if past fee simple grants in areas of Aboriginal title claims are inherently invalid, “then the judgment has a much broader implication that any privately owned lands in B.C. may be subject to being overridden by Aboriginal title.”

The only thing preventing the judge from making a similar declaration over privately held land in the new Aboriginal title area is the fact that the Cowichan did not ask for a declaration to this effect.

But nothing prevents that from happening in the future if the judgment stands. The judge actually contemplates this very scenario, writing that, “Fee simple interests … will go unaffected in practice when Aboriginal title is recognized over that land, unless or until the Aboriginal title holder successfully takes remedial action in respect of the fee simple interests.”

In short, while most private landowners assume their title to their own land is bulletproof, the ruling states: It “cannot be said that a registered owner’s title under the (Land Title Act) is conclusive evidence that the registered owner is indefeasibly entitled to that land as against Aboriginal title holders and claimants.”

It’s worth noting that the claim was contested by two mainland Indigenous groups, the Musqueam and Tsawwassen First Nations, both of whom lay claim to the same land. This highlights the issue of competing claims in a province where the vast majority of the land mass is claimed as traditional territory by one or more of B.C.’s 200-plus Indigenous groups.

While two previous decisions by the Supreme Court of Canada recognized Aboriginal title in British Columbia (Tsilhqot’in in 2014 and Nuchatlaht in 2024), neither declared it over privately held lands as this one does.

Even as the B.C. government has promised to appeal the decision, it has been pursuing similar policies outside the courts. The province controversially overlaid Aboriginal title on private land with its problematic Haida Nation Recognition Act in 2024. The act was specifically referenced by the plaintiffs in the Cowichan case, and the judge agreed that it illustrated how Aboriginal title and fee simple can “coexist.”

This is a questionable assertion given the numerous legal concerns. As one analysis explains, private property interests and the implementation of Aboriginal title are ultimately at odds: “The rights in land which flow from both a fee simple interest and Aboriginal title interest … include exclusive rights to use, occupy and manage lands. The two interests are fundamentally irreconcilable over the same piece of land.”

While the government claims it adequately protected private property rights in the Haida agreement, Aboriginal title is protected under the Constitution, while private property rights are not. When these competing interests are inevitably brought before the courts, it’s easy to imagine which one will prevail.

The fact that B.C. Premier David Eby said last year that he intended to use the Haida agreement as a “template” for other areas of B.C. stands in marked contrast with his sudden interest in an appeal as a means of preserving clear private property titles in the wake of this politically toxic ruling.

Indeed, Eby’s government continues to negotiate similar agreements elsewhere, including with the shíshálh Nation on B.C.’s Sunshine Coast, even as government documents admit that Aboriginal title includes the right to “exclusively use and occupy the land.”

Eby’s commitment to an appeal suggests he may have learned from his costly refusal to appeal a 2021 B.C. Supreme Court decision, which found that excessive development had breached the treaty rights of the Blueberry River First Nation. Eby’s government chose to pay out a $350-million settlement to avoid further litigation, a move that ultimately backfired when the two parties ended up back in court.

But for now, the consequences of the Cowichan decision have created considerable uncertainty for property owners, businesses and general market confidence. The judge’s own words sum it up: “The question of what remains of Aboriginal title after the granting of fee simple title to the same lands should be reversed. The proper question is: what remains of fee simple title after Aboriginal title is recognized in the same lands?”

If there’s one positive aspect to this decision, it’s that it is so extreme, it will force the Eby government’s radical Indigenous policies onto the public agenda as awareness builds over what’s at stake.

From its incessant land acknowledgements, to MLAs referring to non-Indigenous British Columbians as “uninvited guests,” to its embrace of the United Nations Declaration on the Rights of Indigenous Peoples and its land back policies, to undemocratic land use planning processes and the overlaying of Aboriginal title on private lands, B.C. government policy has long been headed in exactly this direction.

Now, a reckoning is coming, and it’s of the government’s own creation. The broader issue will soon overtake all others in the public eye, and the premier must decide now whether he’ll start walking things back, or double down on his disastrous course.

Caroline Elliott is a senior fellow with the Aristotle Foundation for Public Policy and sits on the board of B.C.’s Public Land Use Society. 

Photo: WikiCommons.
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