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David Clinton

Is Canada Abusing the Charter of Rights and Freedoms?

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The Audit

 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).

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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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COVID-19

Vaccines: Assessing Canada’s COVID Response

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The Audit David Clinton's avatar David Clinton

I planned to be “first in line” for the shots as soon as my age cohort became eligible. By early March however, COVID itself dropped by the house, leading to the most uncomfortable (although non life-threatening) week of my life.

It’s been five years since COVID hit and one part of me wants to stuff it all in a closet somewhere and forget about it. But perhaps certain events – and especially government errors and overreach – should be documented. So this post will identify actions at all levels of government from those early days that, given our understanding of the threat available through the benefit hindsight, were both misguided and damaging.

I haven’t completely forgotten the mood through the early months in 2020. Politicians faced near-unanimous public demand for an aggressive response. Much of that sentiment was the result of messaging coming from foreign governments (mostly in the U.S.). But the local sentiment was definitely there.

To be fair, Governments got some things right and, taking into account the chaos and uncertainty of those early months, even some of their mistakes were understandable. But it’s the job of government to lead. And to avoid making choices – even popular choices – that will lead to predictable harms.

Vaccine mandates starting in 2021 were a case in point. Federal authority largely stemmed from the 2005 Quarantine Act and the Contraventions Act that allowed officials to issue tickets for non-compliance with the Quarantine Act. Provincial mandates were based on laws like Ontario’s Emergency Management and Civil Protection Act. The question isn’t whether the mandates and their enforcement were legal, but whether they caused more harm than good.

As the first vaccines started arriving in Canada around February 2021, I planned to be “first in line” for the shots as soon as my age cohort became eligible. By early March however, COVID itself dropped by the house, leading to the most uncomfortable (although non life-threatening) week of my life.

After recovering, my family doctor advised me to wait three months before getting the shots so my body could get back to normal. During those months, I got access to preprint results from the Israeli study into natural immunity which showed that:

Natural immunity confers longer lasting and stronger protection against infection, symptomatic disease and hospitalization caused by the Delta variant of SARS-CoV-2, compared to the BNT162b2 two-dose vaccine-induced immunity

Those results were later confirmed by CDC and NEJM studies, among others.

Given that context, I didn’t see any justification for exposing myself to even minimal health risks associated with vaccines. Which meant that, despite demonstrably posing no threat to public health, I would (at various times) be unable to:

  • Board domestic commercial flights, VIA Rail, Rocky Mountaineer trains, and cruise ships within Canada
  • Board international flights or trains departing Canada
  • Freely return to Canada through an overland point of entry
  • Upon return to Canada, bypass the 14 day quarantine under the Quarantine Act
  • Upon return to Canada via air, bypass the three day quarantine in (expensive) government-approved hotels
  • Engage in ‘non-essential” activities like restaurants, gyms, events (details varied from province to province)
  • Enter Parliament
  • Seek employment in federally regulated air, rail, and marine sectors

What should Canadian governments have done? Remove restrictions on individuals with natural immunity, obviously. Which, by the way, would have come with the valuable bonus of entirely avoiding the truckers protest and consequent confrontations.

If authorities were reluctant to take us at our word on immunity, they could have followed the European Union’s lead by emulating their Digital COVID Certificate for proof of recovery. Were they worried about people without immunity creating fake certificates? Hard to take that one seriously. There were more fake vaccine passports littering the streets of Ontario than abandoned Toronto Maple Leafs car window flags in a normal early May.

In the end, my own suffering was negligible. I didn’t really want to visit family in the U.S. all that much anyway. But for millions of other Canadians, the real-world stakes were far higher. And all that’s besides the billions of dollars wasted during those years’ government policies.

To be sure, resisting unscientific street-level calls for vaccine mandates would have required courage. But shouldn’t acts of courage be a source of pride for public officials?

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Business

Is Government Inflation Reporting Accurate?

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The Audit David Clinton's avatar David Clinton

Who ya gonna believe: official CPI figures or your lyin’ eyes?

Great news! We’ve brought inflation back under control and stuff is now only costing you 2.4 percent more than it did last year!

That’s more or less the message we’ve been hearing from governments over the past couple of years. And in fact, the official Statistics Canada consumer price index (CPI) numbers do show us that the “all-items” index in 2024 was only 2.4 percent higher than in 2023. Fantastic.

So why doesn’t it feel fantastic?

Well statistics are funny that way. When you’ve got lots of numbers, there are all kinds of ways to dress ‘em up before presenting them as an index (or chart). And there really is no one combination of adjustments and corrections that’s definitively “right”. So I’m sure Statistics Canada isn’t trying to misrepresent things.

But I’m also curious to test whether the CPI is truly representative of Canadians’ real financial experiences. My first attempt to create my own alternative “consumer price index”, involved Statistics Canada’s “Detailed household final consumption expenditure”. That table contains actual dollar figures for nation-wide spending on a wide range of consumer items. To represent the costs Canadian’s face when shopping for basics, I selected these nine categories:

  • Food and non-alcoholic beverages
  • Clothing and footwear
  • Housing, water, electricity, gas and other fuels
  • Major household appliances
  • Pharmaceutical products and other medical products (except cannabis)
  • Transport
  • Communications
  • University education
  • Property insurance

I then took the fourth quarter (Q4) numbers for each of those categories for all the years between 2013 and 2024 and divided them by the total population of the country for each year. That gave me an accurate picture of per capita spending on core cost-of-living items.

Overall, living and breathing through Q4 2013 would have cost the average Canadian $4,356.38 (or $17,425.52 for a full year). Spending for those same categories in Q4 2024, however, cost us $6,266.48 – a 43.85 percent increase.

By contrast, the official CPI over those years rose only 31.03 percent. That’s quite the difference. Here’s how the year-over-year changes in CPI inflation vs actual spending inflation compare:

As you can see, with the exception of 2020 (when COVID left us with nothing to buy), the official inflation number was consistently and significantly lower than actual spending. And, in the case of 2021, it was more than double.

Since 2023, the items with the largest price growth were university education (57.46 percent), major household appliances (52.67 percent), and housing, water, electricity, gas, and other fuels (50.79).

Having said all that, you could justifiably argue that the true cost of living hasn’t really gone up that much, but that at least part of the increase in spending is due to a growing taste for luxury items and high volume consumption. I can’t put a precise number on that influence, but I suspect it’s not trivial.

Since data on spending doesn’t seem to be the best measure of inflation, perhaps I could build my own basket of costs and compare those numbers to the official CPI. To do that, I collected average monthly costs for gasolinehome rentals, a selection of 14 core grocery items, and taxes paid by the average Canadian homeowner.¹ I calculated the tax burden (federal, provincial, property, and consumption) using the average of the estimates of two AI models.

How did the inflation represented by my custom basket compare with the official CPI? Well between 2017 and 2024, the Statistics Canada’s CPI grew by 23.39 percent. Over that same time, the monthly cost of my basket grew from $4,514.74 to $5,665.18; a difference of 25.48 percent. That’s not nearly as dramatic a difference as we saw when we measured spending, but it’s not negligible either.

The very fact that the government makes all this data freely available to us is evidence that they’re not out to hide the truth. But it can’t hurt to keep an active and independent eye on them, too.

1 After all, taxes are certainly a major part of our cost of living, right? And even though you could argue that tax payments deliver benefits like “free” healthcare, well transportation expenses also deliver benefits (like the ability to get to work).

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