The judges didn’t argue from a written and enumerated law. That isn’t how things work in Canada outside of Quebec. We don’t have a constitution like what you ar

The judges didn’t argue from a written and enumerated law. That isn’t how things work in Canada outside of Quebec. We don’t have a constitution like what you are thinking. With the Charter they rule on balances and tests based on fundamental rights, freedoms, and limits. It is more heuristic with a growing common law jurisprudence. Therefore the judges can and do make new rules and apply their own opinions. However, it’s simultaneously true the math test didn’t pass the Oakes test because the math test is not really about testing for competent math instruction and therefore unjustifiable; and the judges did not simply "rule on the law" or rather the Charter. At various points in the ruling the 3 judges just hotrodded right over Section 15 of the Charter by treating race as a real trait that could be ascribed to individuals by them. Part of the s15 meaning of race is that it is a social construct and therefore Canadians deserve protection from this ascribed categorization and decisions made thereby; and such kith and kin identifications can only be self-decided and self-described. Anyone appointed to the Superior Court should know this. The judges even blithely decided and declared the race of a witness after a lengthy enumeration of the witness’s self-description. I was floored. The judges make an argument that relies on a premise that some races are better at math than others. They had to make an argument like that to invoke Oakes because the evidence entered was statistics by race showing some “races” did worse. It is a simple logical error that s15 is meant to protect against. If you racialize the statistical analysis you will conclude racial causes. Section 15 says those arguments are disallowed. It is more likely there are better explanations that are not based on race. Such better explanations would have equally caused the math test to fail Oakes. It would have been better to force the litigants to find true sociological data by denying the evidence presented. However that would be difficult to achieve. Anyway now we have a ruling that appears to invert Section 15 of the Charter completely. This encourages more racialization. If race is decidable, ascribable, and causal enough to win rulings then race becomes an effective legal construct. It was a very strange and bad ruling. It is clear from the rest of the ruling the judges think racially. It makes me sad and frustrated.