David Clinton

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).

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.