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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Based mostly on their 2024 budget, the federal government has promised $2.4 billion in support of artificial intelligence (A.I.) innovation and research. Given the potential importance of the A.I. sector and the universal expectation that modern governments should support private business development, this doesn’t sound all that crazy.
But does this particular implementation of that role actually make sense? After all, the global A.I. industry is currently suffering existential convulsions, with hundreds of billions of dollars worth of sector dominance regularly shifting back and forth between the big corporate players. And I’m not sure any major provider has yet built a demonstrably profitable model. Is Canada in a realistic position to compete on this playing field and, if we are, should we really want to?
First of all, it’s worth examining the planned spending itself.
- $2 billion over five years was committed to the Canadian Sovereign A.I. Compute Strategy, which targets public and private infrastructure for increasing A.I. compute capacity, including public supercomputing facilities.
- $200 million has been earmarked for the Regional Artificial Intelligence Initiative (RAII) via Regional Development Agencies intended to boost A.I. startups.
- $100 million to boost productivity is going to the National Research Council Canada’s A.I. Assist Program
- The Canadian A.I. Safety Institute will receive $50 million
In their goals, the $300 million going to those RAII and NRC programs don’t seem substantially different from existing industry support programs like SR&ED. So there’s really nothing much to say about them.
And I wish the poor folk at the Canadian A.I. Safety Institute the best of luck. Their goals might (or might not) be laudable, but I personally don’t see any chance they’ll be successful. Once A.I. models come on line, it’s only a matter of time before users will figure out how to make them do whatever they want.
But I’m really interested in that $2 billion for infrastructure and compute capacity. The first red flag here has to be our access to sufficient power generation.
Canada currently generates more electrical power than we need, but that’s changing fast. To increase capacity to meet government EV mandates, decarbonization goals, and population growth could require doubling our capacity. And that’s before we try to bring A.I. super computers online. Just for context, Amazon, Microsoft, Google, and Oracle all have plans to build their own nuclear reactors to power their data centers. These things require an enormous amount of power.
I’m not sure I see a path to success here. Plowing money into A.I. compute infrastructure while promoting zero emissions policies that’ll ensure your infrastructure can never be powered isn’t smart.
However, the larger problem here may be the current state of the A.I. industry itself. All the frantic scrambling we’re seeing among investors and governments desperate to buy into the current gold rush is mostly focused on the astronomical investment returns that are possible.
There’s nothing wrong with that in principle. But “astronomical investment returns” are also possible by betting on extreme long shots at the race track or shorting equity positions in the Big Five Canadian banks. Not every “possible” investment is appropriate for government policymakers.
Right now the big players (OpenAI, Anthropic, etc.) are struggling to turn a profit. Sure, they regularly manage to build new models that drop the cost of an inference token by ten times. But those new models consume ten or a hundred times more tokens responding to each request. And flat-rate monthly customers regularly increase the volume and complexity of their requests. At this point, there’s apparently no easy way out of this trap.
Since business customers and power users – the most profitable parts of the market – insist on using only the newest and most powerful models while resisting pay-as-you-go contracts, profit margins aren’t scaling. Reportedly, OpenAI is betting on commoditizing its chat services and making its money from advertising. But it’s also working to drive Anthropic and the others out of business by competing head-to-head for the enterprise API business with low prices.
In other words, this is a highly volatile and competitive industry where it’s nearly impossible to visualize what success might even look like with confidence.
Is A.I. potentially world-changing? Yes it is. Could building A.I. compute infrastructure make some investors wildly wealthy? Yes it could. But is it the kind of gamble that’s suitable for public funds?
Perhaps not.
Rising CO2 levels have, in fact, been instrumental in promoting an ongoing planet-wide increase in vegetation cover. This is thanks to enhanced photosynthesis and water use efficiency and has contributed to higher agricultural yields. It turns out that, whatever acidification may be happening, there appears to be no serious impact on marine life.
The Climate Working Group at the U.S. Department of Energy recently published “A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate“. Of note, that group includes University of Guelph’s very own Professor Ross McKitrick.
The authors conclude that while climate change is real and influenced by human emissions, its risks are often exaggerated. Instead:
- Published models have consistently and aggressively overestimated warming
- Extreme weather trends are not worsening as claimed
- Aggressive mitigation policies may cause more harm than good
Rising CO2 levels have, in fact, been instrumental in promoting an ongoing planet-wide increase in vegetation cover. This is thanks to enhanced photosynthesis and water use efficiency and has contributed to higher agricultural yields. It turns out that, whatever acidification may be happening, there appears to be no serious impact on marine life.
To be sure, there’s been vocal push back against the report’s findings. But that just highlights the complexity, volatility, and intense political stakes of the issues involved.
Despite my own stellar academic publishing history (see my high school paper from 45 years ago on CO2 emissions and the acidification of lakes in Ontario for full details), it turns out that I’m not qualified to express an opinion here. After all, I lack the necessary combined expertise in natural sciences, applied sciences, social sciences, and so on.
But I suspect that the people in Ottawa who make related policy decisions aren’t necessarily all that better prepared than I am. Which makes me wonder just how much of our money has been spent through the past ten years based on assumptions that are far from universally accepted in the scientific community.
The short answer is: many billions of dollars. Here are some highlights:
- $28.7 billion for the public transit envelope from the Investing in Canada Plan
- $26.9 billion for the Green Infrastructure Investments envelope from the Investing in Canada Plan
- $2 billion for the Low Carbon Economy Fund
- $8 billion for the Net Zero Accelerator
- $103 billion for the Clean-economy Investment Tax Credits (although that won’t all be spent before 2035)
- $3 billion in EV purchase rebates from the Incentives for Zero-Emission Vehicles
- $2.6 billion for Canada Greener Homes Grants
- $2.75 billion for the Zero-Emission Transit Fund (school buses and municipal ZEV fleets)
- $1.5 billion to support low-carbon fuel production and adoption
- $964 million for the Smart Renewables and Electrification Pathways Program (renewable projects, storage, and grid modernization)
- $680 million for Zero-Emission Vehicle Infrastructure Program (charging stations and hydrogen refuelling)
Granted, some of that funding will address other policy needs besides just climate change mitigation, and nearly all of it is designed to be paid out over multiple years. And of course, not all funds that were allocated have been spent yet. Two thumbs up for inertia!
But it’s still an awful lot of money considering no one really knows for sure whether any of this is helpful. Not to mention that, while it’s complicated, after a decade of trying, Canada’s actual emissions haven’t necessarily dropped.
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