Thursday, March 24, 2016

Was Justin Trudeau's selection of the Cabinet of Canada unconstitutional?

Justin Trudeau, the Prime Minister of Canada, prides himself for having appointed a Cabinet of Canada with "equal representation", which means that half of the members are women and half are men. This was not just coincidence, but his political agenda for years, and his full purposeful intent.

But consider that from 184 current MP's, only 50 are women. In other words, the Cabinet has not the same male-female representation as the parliament. Which means that many of the members of the cabinet were deliberately chosen due to their gender, which means that other potential candidates were discriminated against. To my knowledge, Trudeau has never claimed that the Cabinet was chosen purely based on merit and expertise; the only message that Trudeau has ever given is that the Cabinet was deliberately chosen to have 50-50 representation (implying that expertise and personal merit was only a secondary factor.)

When you elect, or don't elect, people based on their gender as a primary factor, considering competence for the position only a secondary factor, that's textbook preferential treatment and gender-based discrimination.

But is it unconstitutional, according to the Constitution of Canada? This is actually a more difficult question than one might at first imagine.

The relevant clauses are in Act 15:
Equality before and under law and equal protection and benefit of law
15. (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.

Affirmative action programs
(2) Subsection (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.
Personally I consider subsection 2 to be at the very least borderline contradictory with subsection 1, but that's not here nor there. We will simply accept the Canadian Constitution as it is.

Note, however, that subsection 2 allows for "affirmative action" for individuals who are "disadvantaged". The question thus becomes: Can those female MP's be objectively considered "disadvantaged" in the sense that the Constitution refers to? Were they disadvantaged in a manner that made them deserving of affirmative action (and thus, consequently, causing potential gender-based discrimination against some male MP's)?

How exactly were these female MP's "disadvantaged"? "All women are disadvantaged" is not a good-enough argument. These particular women were clearly not. After all, they were elected to parliament, ie. some of the highest positions in the country. Quite clearly they are not very "disadvantaged". One could quite well say, if we use feminist terminology, that they are quite privileged.

It would be interesting to see a legal case made against Trudeau, where he would have to make an actual solid argument of why those female MP's were "disadvantaged" and thus in need of affirmative action. Unfortunately, I don't think we will see this in a million years.

Personally, I think that Trudeau's actions were discriminatory and thus in breach of the Constitution of Canada. Favoritism based on gender, regarding competence only as a secondary factor, is not acceptable in a free equal society. It is the very definition of sexism.

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