As we move from the summer doldrums to the fall political season in Alberta (and Canada in general), there are some things we need to talk about. Specifically, we need to talk about the concept of rights - both as they exist in legislation and the spirit of that legislation in contrast with the legislative plans of certain politicians.
When we talk about rights, we tend to think about legislation that enumerates those rights for us. In Canada, that is primarily the Charter of Rights and Freedoms (The Charter), although there is also an older Bill of Rights that is now subservient to the Charter, and a range of court rulings that build upon the framework of the Charter of Rights and Freedoms. Similarly, provincial legislatures have often implemented their own rights legislation frameworks, such as Alberta’s Human Rights Act.
The first point is that these acts all make provision for Individual rights. That is to say, they set out the boundaries of what we can reasonably assume to be true both in practice and in legislation in terms of our interactions with the state, and to some degree our interactions with each other. The Charter is an interesting document for several reasons - first, it doesn’t describe “absolute rights”, but instead its first clause stipulates that the rights may be circumscribed by “reasonable limits” as set out in legislation. In terms of understanding the Charter, this is hugely important because it tells us that rights in Canada have limits and we can expect those limits to be set out in legislation. Second, it also hints at the idea that our individual rights exist in a degree of tension with each other. So, for example, while we have a right to “Freedom of Expression”, that right exists only to the degree that its exercise does not unreasonably impinge upon the rights of another individual.
The Charter does not establish a clear hierarchy of rights. That is to say, the order in which rights appear in the Charter does not inform us in any way whether any one right supersedes or can override a later right - they are all “equal”. The only thing the Charter establishes in terms of “hierarchy of rights” is the notion of individual rights being more important than collective or group rights.
Attacks On Rights
Recently, we have seen numerous proposals to legislatively attack the rights of minorities. Specifically, transgender youth, and drug addicts here in Alberta. In January 2024, Premier Smith proposed a sweeping group of policy and legislation that attacks transgender youth on numerous fronts. Further to that, the proposals being made for a “recovery focused” addictions treatment program which includes forced treatment.
In both cases, you might look and argue that these are “reasonable limits” on rights. After all, how can a youth or child “consent” to something as life changing as gender reassignment, right? I have seen arguments that addicts cannot provide consent when they are in the throes of active addiction. To the extent that such statements are true, one can see them as “reasonable limits”. The issue is that the extent to which they are true is very limited.
The fact that the Alberta Government is already talking about using the “Notwithstanding Clause” (S.33) to insulate its legislation from Charter scrutiny is a clue that they already know that it won’t stand up to a court challenge. Invoking S.33 is essentially an admission that they know that these laws are invalid under The Charter, and they open those who are being targeted by them to discriminatory treatment not merely within the framework of the legislation, but in other aspects of their lives as well.
What Happens If These Laws Stand?
This is where the slope becomes very slippery indeed. If provinces (or the Federal Government) are allowed to slap S.33 on anything they please, they will effectively render The Charter moot. It suddenly becomes trivial to revoke or severely restrict rights simply by invoking S.33 to “protect” any piece of legislation that the legislature passes.
If a legislature decides that it doesn’t like the idea of women being able to vote, they can simply pass a piece of legislation that revokes that right, or makes it much harder for women to meet the criteria to be eligible to vote. Invoke S.33 to protect it, and presto! Your rights have just disappeared back to the 19th Century.
It’s easy to set the precedent with small, poorly understood populations like transgender people or drug addicts. Once the precedent has been set, it’s very easy to extend it to other topics. Poilievre has already alluded to doing similar things in the realm of criminal justice at the Federal level.
An attack on the rights of one group can very quickly expand into being the erasure of rights for all. Just because you aren't affected doesn't mean that you won't be.
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