The Charter Is Far More Complex Than This

So, over at Macleans, we have an opinion writer who thinks the Notwithstanding Clause (S33) is a "Good Thing". 

The author largely is making the argument that "too much power is concentrating in the courts", and that a tool to mitigate that is necessary, lest we have judges "legislating from the bench".  Predictably, the author eventually arrives at the language of "judicial overreach".  

Here is the problem with that kind of reasoning on the author's part:  What they consider to be "judicial overreach" is basically matters where it doesn't affect their rights directly.  Whether or not the author likes a court ruling, or a particular piece of legislation that limits rights if they are not directly affected by it.

I doubt very much that the author is directly affected by Saskatchewan's "pronoun law", nor Alberta's laws attacking transgender people (which the UCP government is expected to table legislation invoking S33 on imminently).  

The problem isn't "judicial overreach" here, it's conservative governments which have taken an overtly authoritarian stance regarding rights guaranteed under The Charter.  Smith is basically saying "people I like get their rights recognized, but because I don't like transgender people, their rights can be curtailed, or even outright erased.

Were conservative governments using S33 in rare, but reasonable ways, the author might have a point.  They aren't - they are using them to push forward legislative hobby-horse agendas that have been imported from abroad and to extinguish rights and public participation by those affected.  

Is there a reasonable case for using S33?  Yes, there are - but they are exceptionally rare, and deservedly so.  If The Charter makes writing legislation more difficult for legislators, then the application of S33 should be orders of magnitude more difficult specifically because it can be used to extinguish rights. 

The author complains about one or two rulings, but only in the most pithy of ways, making it clear that they have neither read the rulings, nor bothered to take the time to understand how precedent law influences the courts in interpreting The Charter.  

Further, unlike the US Constitution and its Bill of Rights, the Canadian Charter of Rights and Freedoms contains language which is interestingly written to be inclusive - not merely in the moment of writing, but in fact is intended to be very much a living document.  The authors of The Charter weren't so arrogant as to believe that they knew all the topic areas which it might be called upon to address in the future, so they included carefully written language that makes it absolutely clear that things can, and will, be "read in" in the future. 

Allow me to bring to your attention the wording of S15(1) of The Charter: 

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.

The phrase highlighted above reads "and, in particular ...".  This is probably one of the most important phrases in the entire document because what follows are a list of prohibited grounds of discrimination.  However, that phrase makes it abundantly clear that the writers of the document fully anticipated that other grounds of discrimination would be identified, and would need to be encompassed by this clause.  

What it is not, is an exclusive phrase - the list which follows is not intended to be the sole list of prohibited grounds.  

Does this make writing legislation more difficult?  For legislators like Alberta's Premier Danielle Smith, it most certainly does because much of the legislation her "base" in the UCP are demanding is clearly intended to attack rights for purely political reasons.  Whether this is the rights of transgender people, or the rights of teachers is irrelevant to me.  Curtailing rights guaranteed under The Charter should be hard.  Giving legislators too lazy to do the hard work of writing good legislation a sledgehammer is a horrible idea. 

The author would do well to remember that just as Danielle Smith likes to argue, that the legislature has supremacy (it does - it is the only body empowered with writing laws), the Constitution of Canada and The Charter itself are also the result of legislative supremacy.  So, before we allow legislators to arbitrarily curtail rights, we should absolutely insist that doing so be the hardest task a legislator faces. 

The Premier Who Would Be Queen

Danielle Smith wants to promote herself to monarch.  She's discovered that she can magick your rights away at a whim with The Notwithstanding Clause (S33).  Smith has in the last week or two started justifying her actions both invoking the ghost of Peter Lougheed, and claiming that legislators invoking S33 is "more democratic" than "unelected judges striking a law down".

It appears to me that Danielle Smith and her backers in the UCP need a bit of remedial education in the structures and features of Canada's system of government.  Let's talk about that, shall we? 

Wherein Colin Wright Takes A Victory Lap

Over in The Wall Street Journal, author Colin Wright takes a victory lap declaring that transgender youth are in fact the result of "social contagion".  

As you might expect, he's fallen all the way down the Gender Critical rabbit hole, making some of the most ridiculous claims possible, and citing material from the "Society for Evidence-based Gender Medicine" (SEGM) - a notoriously anti-transgender group which is more a collection of cranks than practitioners of legitimate science.  

The dominant counterargument to the social-contagion theory, repeated endlessly by the media and activists, is that the sharp rise in transgender identification over the past decade simply reflects liberation: People today are more comfortable expressing their authentic selves. The favored analogy compares this rise to the historic increase in left-handedness once schools stopped discouraging it. As transgender activist and biologist Julia Serano put it in a 2017 article, “there wasn’t really a rise in left-handedness so much as there was a rise in left-handed acceptance” that allowed its true natural prevalence to emerge. John Oliver popularized this analogy on “Last Week Tonight” in 2022, insisting that the surge in trans identification was simply a sign that “people were free to be who they f— were.”

If transgender identity were an innate trait, like left-handedness, we would expect identification rates to rise at first when it became socially acceptable, then plateau and remain stable at a fixed level. If the phenomenon were instead driven by social contagion, we might expect a boom-and-bust pattern: a spike followed by a rapid decline once the social forces driving it weaken.

As both a transgender person and a left-handed person, I cannot tell you how completely misguided this really is.  In order for Wright's hypothesis to stand up, we have to turn a blind eye to the last 5 years or more of increasingly hate-filled anti-transgender _LEGISLATION_ and rhetoric coming from the political right, especially in the US and UK.  These laws are draconian, they are hurtful, and yes, they are profoundly damaging. 

If Mr. Wright thinks that transgender youth identities are "just social contagion", he is implying strongly that those youth are too stupid to understand the world around them - that they only follow the lead of others.  Reality is quite different.  Youth are in fact very sensitive to the social signals in their environment, and it would be hard for transgender youth not to be aware of the increasingly hostile legislative environment.  Nor can they ignore the hostility that they hear on a daily basis coming from religious leaders in church, or even their families.  

Mr. Wright has engaged in one of the most serious errors in research and analysis:  Correlation Fallacy.  He is assuming that the reduction being observed indicates a "reduction" in the number of transgender people.  This is, in my experience, likely false in the long run.  Transgender youth are clever - they know the signals they are receiving and will decide to transition later when they feel it's safer to do so.  That may mean getting out from the family home, or given current circumstances, may mean emigrating to another country where being transgender isn't being actively criminalized.  To claim as he does, without serious evidence, is sloppy at best.

Such as it is, the "evidence" for "social contagion" theory regarding gender identity is at best sparse, and most of it is so methodologically flawed as to qualify as junk science.  As an example, many "Gender Critical" arguments reference Littman's 2017 paper proposing "Rapid Onset Gender Dysphoria".  It was pure junk science.  Methodologically flawed, it proceeded to draw conclusions about transgender youth without even talking to a single transgender youth!  Learn to recognize junk science, people. 

Now, who the heck is Colin Wright?  The byline for him posted with his article reads:  "Mr. Wright is an evolutionary biologist and a fellow at the Manhattan Institute."

The Manhattan Institute? Oh - another conservative "think tank" - you'll pardon me while I ignore that - partisan think tanks are at best disinformation sources, and being affiliated with one doesn't help.  Being affiliated with SEGM is in my view another strike - SEGM is a key purveyor of junk science and misinformation about transgender people.

Doing a brief search on Google Scholar, I see no evidence that Mr. Wright has ever engaged in significant study of transgender people, either as a primary researcher, or as a contributor.  So, basically, we have another case of "I have a PhD, therefore, I can opine on any subject, regardless of whether I know anything about it".  This is sadly, an all too common state of affairs.  People with no actual background or study in the area manage to acquire an audience, and presto, they are "experts".  

There's a reason we don't go to a mechanic to diagnose medical issues, and we don't ask our physicians to repair our cars.  They are very different domains with different training and knowledge.  It would be nice if Mr. Wright had some actual expertise in the area of gender identity, but aside from writing opinion articles in newspapers, he has none.

Reserve Powers, The Notwithstanding Clause, and Unjust Laws

Since the Smith-led UCP government in Alberta saw fit to invoke The Notwithstanding Clause (S33) of The Charter of Rights and Freedoms (The Charter) to order teachers back to work (Bill 2), I have seen some discussion in various forums arguing that once S33 is invoked, there is very little anybody can do.  

I propose that this is not entirely true.  Certainly, Bill 2 imposes onerous, if not excessive, fines for any "labour action" over the next 4 years which would make most teachers hesitant to act directly, like all of us, they have families to support and generally have to pay the bills, the penalties aimed at the ATA are clearly designed to bankrupt the ATA very quickly.  

I've argued in other posts that Bill 2 is exceptionally bad legislation, and as such presents a clear danger to Canadian democracy and our legal system.  It is not the only legislation that the UCP has passed which is of dubious value, but it finally seems to have galvanized people's attention on the potential for abusing S33.  

Broadly speaking, I contend that laws which require the government to invoke S33 should be subject to much greater scrutiny, for the government's invocation of S33 is essentially an admission that the law not only curtails rights guaranteed under The Charter, but that they acknowledge that the law would not stand scrutiny with respect to The Reasonability Clause (S1).  In other words, the application of S33 must be of the most urgent nature, and for circumstances that the government could not reasonably mitigate with other statutory tools.  

Alberta Bill 2 and The Notwithstanding Clause

So, Alberta has used S33 as part of its “Back To Work” legislation for ending the teachers strike. There will be many pixels of virtual ink spilled over this.  Much of that will go on breathlessly about how this is “unprecedented”, “shocking”, and so on.  Rest assured, none of this is shocking.  The UCP has been looking for an excuse to use S33 for quite some time - going back to Jason Kenney, if you have been paying attention.  Kenney’s Bill 1 would have become that bill - except the excuse for Bill 1 vaporized.

The UCP is being purposeful.  They started musing about S33 to buttress their anti-trans legislation a while ago, but I think they also realized that outside their base, the broader public has little appetite for such a move.  This application of it is “temporary”, and addresses events that are directly affecting families (often an easy sell for conservatives who love to spout off about family values). 

Conservatism Is Dead

Conservatism in Canada is no longer a coherent political philosophy.  It has become a hybrid of a business that sells access to power, and a collection of people who have been drawn into utterly paranoid conspiracy theories.  The slide into this place has been a long, slow process, and I don’t think it’s necessarily all intentional.

Let me explain why I think this is the case, and then we can get into how we got here in the first place.

Parasitic Capitalism (Oilpatch Edition)

I have little love for the oil & gas industry in Alberta.  Having grown up here, worked in and adjacent to the industry for years, I have become increasingly disillusioned, and then angry with both the industry and the government.  At this point in our history (2025), I'm pretty much at the point of saying that not only has the industry captured the UCP government, but it has become a parasite on the Alberta and Canadian economies.  

"Oh, but what about the billions it brings in?" proponents say.  Those billions mean nothing if they leave the people holding the bag with billions more in costs after projects are shut down.  We have a massive problem with oil companies leaving their industrial wastelands lying about and simply doing nothing to clean up after they are done with production on a site. 

Further, they refuse to pay municipal taxes to municipalities because they know they can ignore it and the government will do nothing, and they can tie any legal actions up in courts until the municipality runs out of money to pursue the matter with.  Landowners are supposed to be paid money for access to the surface area where they put wells down, and companies ignore those obligations too - often for the same reasons. 

All of this makes me quite furious - both with the government and with industry - however, my ire is focused much more on industry because they are the ones making profits off the resources, and ignoring their responsibilities beyond those profits.