Charter Challenges Of An Anti-Transgender Law

This is part of a series on potential paths of legal challenge for anti-transgender laws in Canada: 

1. Anti-Transgender Laws Are Jim Crow Laws
2. Legal Challenges of an Anti-Transgender Law

In the first post of this series, I claimed that anti-transgender laws are in many respects about segregation and humiliation much like the racist Jim Crow Laws were.  Yes, I realize that the US legal environment is quite different from Canada's - the point here is to draw a comparison that I think is broadly understood by most. 

In this post, I will explore several avenues through which the law can in fact be challenged, both in the presence of, and in the absence of, the invocation of the NotwithStanding Clause (S33).  

Anti-Transgender Laws Are "Jim Crow" Laws

This is part of a series of posts sketching out legal paths for challenging anti-transgender laws in Canada.

1. Anti-Transgender Laws Are Jim Crow Laws
2. Charter Challenges of an Anti-Transgender Law

Laws do not exist in a vacuum - the cleverest of legal arguments are often decoupled from the human experience and day to day lives of people.  Therefore, laws must be understood in the context of the society in which they exist, as well as the legal frameworks in place. 

"Jim Crow" laws were laws passed in various states to create a segregation between white people and people of colour in the United States.  These were the laws that forced black people to sit at the back of the public transit bus, or required them to use specific bathrooms (sound familiar?) or drinking fountains.  They also enabled businesses to refuse service to people based on such characteristics. 

I would hope, that in today's world, such laws are seen as the injustices they are - laws designed to target people based on characteristics - humiliating, segregating, and ultimately criminalizing their existence.  In today's Canada, S15 of The Charter specifically prohibits that kind of legislation.  

Anti-transgender laws are, in this writer's opinion, very much the "new Jim Crow" laws.  Largely they are based on ginned up fears of the "dangers" that the targeted group represents for society.  I'm going to walk through why these laws should be invalidated in Canada, and I will do so by deriving a possible test that could be used to objectively identify a "Jim Crow" law, regardless of whom is targeted. 

The Smith Referenda In October

Albertans face a daunting prospect on October 19 - not one, but 10 referendum questions that they will vote on.  On the agenda are a passel of manufactured issues ranging from "control over immigration" to "appointing judges", all topped off with a whipped turd froth of a separation question. 

There are good reasons to be skeptical of all of these referendum questions.  Not the least of which is the complexity of them.  Each one is lengthy reading on its own, and is crafted to confuse the average person reading them.  My intuitive reaction is to suggest that on the basis of the wording being less than clear, that it is utterly appropriate to vote 'No' on the first 9 questions and "A" on the separation question.   That is basically voting for status quo. 

The Formation of The UCP Sowed The Seeds of Its Failure

When Jason Kenney created the UCP he set up the preconditions for the party to get to where it is today, and its eventual demise.  What do I mean by this?  Kenney may have believed that he could control the extreme elements in the UCP in much the same way that Harper did so as leader of the CPC. 

Harper allowed the extremist factions in the CPC to exist and even to have something of a voice in the party, but at the moment that a given push looked like it would have a political cost for him, he would shut it down.  This was done through a combination of tools - Harper exercised considerable personal control over the party apparatus.  That meant that in large part, if you kept him happy, your career was secure.  The leader's office had the power to quash constituency decisions such as new nominees, and the "public face" of the party was carefully protected.  So, while the extremist wings of the CPC could make a certain level of noise - it was never enough to do more than keep their followers believing the party was aligned with them.  

However, Harper was able to do this because the Federal CPC is a much bigger entity than the UCP in Alberta - and although the Prairie Reform rump of the party clearly dominates it today, the party needs votes from outside the Prairies in order to have any hope of ever forming government.  Harper understood this, and was very careful to keep the extremes in check even though his own leadership depended on them. 

A party of the scale of the UCP is a much different animal, and that's where Kenney's choices failed. 

The Clarity Act and Alberta's Tricksy Question

This October, Albertans will vote on a referendum question that arguably rivals the word salad that René Levesque imposed on Quebeckers in 1980 for obfuscation and confusing wording: 

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

I have seen a number of people argue that because Alberta's question does not directly entertain separation, that the Clarity Act does not apply.  I beg to differ.  I think that not only does the Clarity Act apply, but that there is a compelling set of arguments the can be made that would require principles similar to The Clarity Act to apply to all referendums in Canada.

An Exhausting Week In Alberta Politics

This week has been a whirlwind in politics, especially in Alberta. On Thursday, the Premier of Alberta announced what I can only call a farce of a referendum on separating Alberta from Canada.  Then the next day, Premier Smith started talking about rewriting S35 of The Constitution.  

The referendum question Smith proposes is annoying in its obfuscating language, and I think Albertans should be incredibly angry about it.  The question reads: 

“Should Alberta remain a province of Canada or should the Government of Alberta commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada?”

Reasonably intelligent readers should have already noticed this isn't a "yes/no" kind of question, it's actually two conflicting questions slammed together.  Rumour has it this will be a "select option A or option B" thing on the ballot, but that is still misleading and disingenuous because the second option actively contemplates separation, while simultaneously trying very hard not to look like it does.

Separatists Lose In Court

Alberta's rump of separatists suffered a major setback last week, when a judge overturned the Chief Electoral Officer of Alberta (CEO-A) decision that set the signature gathering process for the "Stay Free Alberta" petition.   If you're interested, the full ruling is here (warning: it's lengthy, and full of legal technical language).

I'm not going to spend a pile of time here dissecting the ruling - while I understand most of what's written in it (I think), a deep dive would be tedious and relatively uninteresting.  At the end of it all, the ruling has the net effect of rendering the entire signature gathering process that has gone on since January this year to be a legal fiction which "never happened".  

How does that work?  Central to the judge's ruling is the declaration that the decision of the CEO-A to grant the petition was "unreasonable", and that the crown had failed to execute any kind of consultation with affected First Nations, therefore the decision itself was quashed.  In doing so, the judge effectively turned the next 4 months of signature gathering into a legal ghost - the paper exists, but the authorization to gather those signatures doesn't and therefore the signatures themselves cannot be considered. 

This is unlikely to be the last we hear of this nonsense though.