Since Alberta has decided to make itself the beachhead in bringing an “American-Style” attack on transgender people through legislation that is largely unconstitutional in Canada unless the province invokes The Notwithstanding Clause (S33), I thought I would address some potential arguments that could be used where the Notwithstanding Clause remains an “escape hatch”.  

For the most part, the key parts of The Charter which anti-transgender laws violate would be S2, S7, and S15.  These all fall under the scope of S33.  For the purposes of this discussion, I am going to assume that the Supreme Court of Canada (SCC) has not expressed an opinion which substantively limits the ability of provinces to use S33.  

Argument 1:  Section 1 Extends Broadly To Encompass S33

S1 of The Charter enjoins the invocation of S33 is an extension reading of The Charter.  S1 is the so-called “reasonable limits” clause that allows the legislature to pass laws which infringe upon the rights guaranteed in the rest of The Charter, “within reason”.  

There is a key word in S1 that occurs 11 more times in The Charter, and that word is “Guarantee”.  I’ve argued before that this is a very important word in The Charter, and speaks to a purposefulness in the authoring of the document that we should absolutely not ignore.  What is the purpose of The Charter, if not to set out the fundamental rights law that applies to all Canadians?  The word Guarantee is hugely important in The Charter, and as such, there is reason to suggest that the invocation of S33 still requires some justification under S1.  The bar might be different than that set out in tests like Oakes, but still the notion of a Guarantee of rights demands that the use of S33 be constrained.  

Provinces largely argue that S33 is an all-purpose clobber clause that they should be able to use at will.  However, as we are seeing with legislation from several provinces, it’s being used for purposes that clearly undermine both The Charter, and to some extent the intent and purpose of a Constitution.  Provincial legislators have decided that using S33 enables them to write laws and place them outside the hierarchy of law in Canada, and that doing so exempts their laws from judicial review.  

Both of those points lead me to a context and purpose analysis which asks the question:  Does the word Guarantee in The Charter actually mean what most people understand it to mean?  If it does, then there is a purposive and contextual analysis that the terms of S1 can be applied to the use of S33.  If we fail to apply some kind of reasonability test to applications of S33, then we face a difficult problem as the guarantees in The Charter are reduced to being “legislative suggestions” at best. 

Provinces will argue that Ford v. Quebec (1988) negates the above analysis, however, Ford does not interrogate the broader question being asked here.  That ruling basically sets out rules for the form which an invocation of S33 must take, but does not establish any kind of analysis of the implications of S33 with respect to guarantees in The Charter. 

Argument 2:  Infringement on Mobility Rights

Mobility rights are S6 of The Charter.  Broadly speaking, mobility rights guarantee that as a citizen of Canada, you are able to leave and re-enter the country, and to take up residence anywhere in the country as you see fit. S6 is specifically not included in the scope of S33.  

So, how do anti-transgender laws infringe upon someone’s rights under S6?  This is where we get to look at the “unintended” or “perverse” consequences of laws.  A law may ensnare people in ways that on its face it was never intended to, or for reasons peripheral to the law itself.  Using the “reasonably foreseeable case” model that the SCC has introduced in its reading of S12 of The Charter we can identify a number of probable scenarios where these laws can be argued to infringe upon the rights of Canadians in significant and important ways. 

Consider the following scenarios: 

1.  Employment Related Moves

Let’s assume that a transgender person is living in another province, and in the process of seeking new employment receives a job offer from a business for a position in the Province of Alberta.  Knowing the laws in Alberta are overtly hostile to transgender people, the candidate may feel that the environment they would be moving into would be dangerous or at least unpleasant for them and that they must decline the position on that basis. 

In a similar vein, a person working within a company is informed that their position is being moved  to Alberta.  That person is either themselves transgender, or has a family member that is transgender.  In this scenario, the worker is unable to accept the position because those laws would make living in Alberta unbearable.  This essentially turns into a termination of employment because the worker cannot safely move to Alberta. 

Consider any potential move to Alberta for work if the person has a child who is receiving treatment for Gender Dysphoria, which is banned in Alberta – effectively for anyone under the age of 18.  That person would find themselves having to deal with a very serious conflict between their ability to make a living, and ensuring the safety and well-being of their child.  

Analysis

In both of the above scenarios, the individual is effectively being “shut out” of being able to move to Alberta not out of direct choice, but because the province has implemented laws which open them up to overt discrimination, if not direct punishment under those laws.  In effect, the province has instituted laws which specifically target an identifiable group for discrimination, and in doing so impairs the legitimate right of Canadians to take up residence in Alberta for the purposes of employment – a right guaranteed under S6(2)(b) of The Charter.  

2.  Family Estrangement / Isolation

A transgender person may find it necessary to move out of Alberta because of the political and legal environment that is being created.  This would be a move made on the grounds of personal safety, in response to laws which increasingly constrain their ability to function in society in the province. 

This means that person is no longer able to live with or near their family which resides in Alberta, creating an inverse problem where a person may wish to live in Alberta to be near family, perhaps to support an elderly or infirm relative.  But, at the same time, they feel constrained because living in Alberta could bring legal consequences that they would not face in other provinces. 

Analysis

Here, we are primarily talking about infringements on S6(2)(a) of The Charter, which is the freedom to take up residence anywhere in Canada.  The point here is that Alberta has passed laws which effectively isolate and punish transgender people, making it non-viable for transgender people to live in the province, or subject to a second standard of law that other residents are not subject to. 

Counter Arguments

I must emphasize that applying “reasonably foreseeable hypotheticals” will require convincing the courts that in fact such possibilities are valid in non-criminal law contexts.  I do not think that will be an insurmountable obstacle, but it is an important one to recognize.  The provinces would no doubt argue that the “reasonably foreseeable hypotheticals” can only be applied in situations where S33 has not been invoked.  Addressing this is a matter of persuading the court that perverse outcomes exist in more than just criminal matters.

I would expect the Province of Alberta to argue that they have a legitimate right to legislate as they see fit, and it is the responsibility of the individual to decide if they want to live under the laws of Alberta.  This is a deflection argument which does not address the implicit barriers that Alberta is erecting through its legislation.  

Frankly, there is little difference between Alberta’s anti-transgender laws and the Jim Crow Laws in the United States.  The purpose of these laws is to make it impossible for someone to be both transgender and to live publicly.  This is perhaps what differentiates these laws from any other laws a province may pass.  The point here is that Alberta is passing laws which serve to divide and segregate people based on characteristics which are beyond their control.  Doing so does not merely violate a person’s rights under S2 and S15 of The Charter, but in fact violates the person’s rights under other aspects of The Charter as well.