Canadians have constitutional right to unequal treatment, new report argues

Equity, not equality, is a constitutionally protected right in Canada, argues a new report published by a Calgary-based think tank.

“Canadians have been sold a bill of goods,” Bruce Pardy, the author of the report and a Queen’s University law professor, told National Post by email. “Many of them think that they have a right to equal treatment under the law. They think that discrimination is illegal. But nothing could be further from the truth. In Canada, discrimination is lawful as long as it is committed against the right groups — and in particular against straight white men.

“This isn’t just the law, but part of the Canadian Constitution. Unequal treatment is embedded as a constitutional standard — and in some situations, a constitutional requirement.”

In Canada, the principle of equity — seeking to achieve identical group outcomes — has made judicial inroads across the country, Pardy argues in a report published this week by the Aristotle Foundation for Public Policy.

“Equal treatment and equity are opposites,” writes Pardy, who is a senior fellow with the Aristotle Foundation. “The law cannot simultaneously apply the same laws and standards to everyone and also adjust them depending upon the group. Equal treatment and equity are mutually exclusive and cannot co-exist.”

This issue should be particularly concerning to young Canadians who could be “squeezed out of opportunities because of their identity,” Pardy told the Post. Front of mind for him was the recent announcement by Toronto Metropolitan University’s (TMU) new medical school that three-quarters of its seats would be allotted to “equity-deserving groups.”

“This kind of thing has become widespread, with job openings and government programs excluding people who are not the preferred race or gender,” Pardy said.

The paper centres the discussion around equity versus equality by comparing the Canadian Charter of Rights and Freedoms to America’s Constitution, arguing that the latter has truly enshrined the principle of equality for all.

The report uses the June 2023 U.S. Supreme Court ruling on race-based university admissions, otherwise known as affirmative action, as a jumping-off point. Pardy cites the landmark decision to show how America’s constitutional protections of equality are anchored in the fifth (due process) and 14th (equal protection of the law) amendments.

While the American constitution sets out limits on the powers of legislatures, Pardy writes, “For most of its history, Canada did not have an equivalent.” In 1974, the Canadian Supreme Court underscored this point by saying that while citizens are entitled to the application of law “in a neutral way,” lawmakers are not curtailed from drafting unequal laws.

“This kind of equality meant only that courts applied laws as written, even if those laws treated people differently,” Pardy writes.

Pardy points to a 2008 Supreme Court ruling, R. v. Kapp, as an example of how unequal treatment in the name of addressing historic discrimination became ingrained in Canadian law.

The case revolved around a federal government policy aimed at boosting Aboriginal representation within the commercial fishing industry. The Aboriginal Fisheries Strategy permitted Indigenous Canadians to fish the Fraser River in British Columbia and sell their catch, but barred others from doing the same. When a group of non-Aboriginals sought to apply for the same fishing licence, they were denied. Several of them decided to fish anyway and were ticketed.

The group challenged the ruling, but the Supreme Court defended the policy, citing carve-outs to Section 15 of the Charter, the equality provision, that permitted “substantive equality.”

The concept of equity was further entrenched over a decade later, in Fraser v. Canada, Pardy writes, following debates over a job-sharing program where two or three people could “split the duties of one full-time position.” Each individual would be entitled to their proportional share of the role’s pension. Because women with children more often enrolled in the program doing a smaller share of the overall job, compared to men, the Supreme Court deemed the program unconstitutional.

Though the justices acknowledged the program was not discriminatory, the results were uneven between men and women. In their view, the program thus perpetuated “a long-standing source of economic disadvantage for women.” As Pardy writes, “In Fraser, the Supreme Court found that a voluntary program available to everyone on the same terms violated the equality guarantee. In the name of equity, section 15(1) does not now merely allow discrimination but may require it.”

Pardy told the Post that while similar discriminatory practices are “happening in the United States,” the affirmative action ruling last year has given the country “some chance of sorting themselves out in time.”

By comparison, “in Canada, unequal treatment has become the constitutional standard. So we are stuck with a big problem,” he said in an email.

“Our Supreme Court is largely to blame, but of course our foolish politicians and woke bureaucracies have had a big hand in fostering it as well.”

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