Quotes from decision
All of the complaints about the funding levels or ineffectiveness of the federal agencies in question may be perfectly correct, but from a legal perspective the decision is nonsense.
Namely, the decision is that
because:
AND the service fails to meet this standard due to fundamental problems in procedure and implementation, and especially in underlying standards for determining operational funding; AND that because
AND because this prima facie discrimination violates the Canadian Human Rights Act,
then the programs and agencies need to be reformed and affected individuals paid compensation of $20,000 each.
My complaints follow.
The element given least attention or relevant treatment in the decision and proceedings (and so is taken for granted) is the matter of prima facie discrimination. The discrimination claim is that:
1. The First Nations are the target population of the programs
2. The First Nations constitute an ethnic or racial group.
3. Ethnic/racial groups are a protected category under the CHRA.
4. The programs do not extend
substantive equality to the target population in the particular services, in relation to the general Canadian population and its access to similar such services and the quality thereof.
But what are "adverse effects"? It is already precedent that comparative data in discrimination cases is unnecessary and even inappropriate in cases involving Indians, because
Yet given that discrimination claims are made based on broad social identity and relations between both groups and individuals, such solipsistic reasoning would seem to preclude the possibility of a discrimination case in the first place.
In the end, the decision is predicated upon comparison with the general population, given that
But the paradox goes even further when we revisit the following statements, now side-by-side:
So what this in fact entails is that the prohibited ground will
necessarily be a factor in any adverse impacts, and there will
necessarily be adverse impacts simply by dint of perpetuation of conditions.
What the Court has accomplished here is to technically make a priori discriminatory (and therefore illegal)
any policy or program aimed at
any protected group, including any reformed programs in redress that the court has ruled must be provided for by the legislature; it is very worrying that that nowhere did the Court acknowledge the vicious regressive nature of their logic, and the way it must bind their hands in a wide swath of future cases.
This is an egregious abuse of common law - judicial activism at its worst.
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