A dead letter law is one that remains on the books but can be ignored because it is not enforced; this includes legislation that has not been repealed but has fallen into disuse or irrelevance with the passage of time. However, a recent study by the Aristotle Foundation suggests that Section 15(1) of Canada’s Charter of Rights and Freedom may be comparable to dead letter law in university appointment processes because individual equality and freedom from discrimination are sidelined in the interests of affirmative action.
Sec. 15(1) sets out the leading constitutional principle, one that is also found in provincial human rights codes: “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.”
On Jan. 29, the Aristotle Foundation released its report on academic hiring in Canada. The foundation reviewed 489 job advertisements from 10 universities including the largest public university in each province. The report found that 477 of these “employed some kind of DEI requirement or strategy in filling academic vacancies.” These fell into one of three categories: restricted hiring, where all applicants must belong to a preferred identity group; preferential hiring, which does not restrict applications but preference is given to applicants in preferred identity groups; and a third category that requires applicants to pledge support for DEI and state how they would support and advance it.
These requirements or strategies discriminate against individuals whose identities are not included in the target or preferred groups, including — though not only — white males who are neither LGBTQ2S nor suffering a disability, and the numbers tell us that the discrimination is not one-off or incidental; it is pervasive and bespeaks an ideological commitment, widespread in our universities, that overrides individual equality and freedom from discrimination as set out in Sec. 15(1). In this sense, the refusal to apply and enforce 15(1) in hiring decisions renders it inoperative in those decisions.
Supporters of this discrimination would say it is permissible because of Sec. 15(2) of the Charter which provides that 15(1) does not preclude affirmative action. This writer was a law professor when Sec. 15 became law in 1985 and can say that neither its framers nor its advocates articulated a potential for the sweeping affirmative action recorded in the Aristotle Foundation report. Then and I believe now, Canadians would resist an interpretation of Sec. 15(2) that would restrict the application of 15(1) to such an extent; they would have said, and would say today, that Sec. 15(1) does not preclude affirmative action. It does not give universities carte blanche to do anything they like in its name.
Universities are unlikely to willingly change course and end their discriminatory practices, but the governments that fund them can require them to do so. And we might hope for judicial engagement on the issue, whether by reference case, or by an aggrieved party who, because of race, has been excluded from a search, applying to the courts for a remedy under Sec. 24(1) of the Charter. While the courts cannot end affirmative action (as they have in the United States), they can delineate its permissible reach and thereby restore the primacy of Sec. 15(1) in protecting equality and preventing discrimination.
National Post
Peter MacKinnon has served as the president of three Canadian universities and is a Senior Fellow of the Macdonald-Laurier Institute.