Asher Honickman

Democracy also requires that all Canadians have a say when a fraction of the electorate in one part of the country tries to break Confederation. And democracy requires that in the event of an actual attempted separation, the parts of the province that don’t want to leave Canada, such as, oh, say, the cities of Calgary and Edmonton, remain part of Canada. If Canada is divisible, then Alberta is divisible. But none of this is about democracy. Democracy is not a free floating concept. It operates within existing institutions and social constructs. Separatists aren’t engaged in a democratic project, they are proposing a revolutionary act of constituent power. Democracy is the wrong lens through which to view attempts to break up a country in the absence of genuinely inhumane conditions or systemic oppression. And as much as I agree enthusiastically with many separatists’ grievances with Ottawa (and other provincial governments), this is not that.

Democracy is not an enemy. Our democracy requires our elected officials tell us what they actually believe and what they plan to do in office before putting those beliefs into action. Our democracy demands separatists generate real democratic legitimacy to hold a secession referendum. Democracy demands a separatist party declare itself as such before it is elected to power. Democracy demands that an explicitly separatist party defend itself in debate during a writ period; to be honest with the voters about the benefits and risks of holding a secession referendum. Democracy demands that a separatist party win power in the legislature in a free and fair election prior to holding a referendum. Albertans deserve this. Anything short of it isn't "democracy." It's an abuse of democracy by process. It's a betrayal of the trust of the voters of the highest order.

There are certain enumerated grounds in s.15 of the Charter that are potentially impermanent - notably religion and disability. But each is truly immutable while it lasts. One cannot simply will an altered conscience or a healed injury. But a core aspect of our entire constitutional order - indeed one of the reasons why individuals are entitled to be treated with dignity in the first place - is that we have the free will and agency to affect our material circumstances. This does not mean that people can simply pull themselves up by their bootstraps; but nor are we slaves to determinism. Every aspect of our Constitution - from the rights and freedoms guaranteed by the Charter, to the punishment of criminals, to our representative democracy itself - is premised on this idea. It is therefore crucial that our courts be able to distinguish between those characteristics that were not chosen and are truly immutable with those that may be inflexible, but which individual agency can help prevent or change. Only the former should be considered a protected class for the purposes of s.15 of the Charter. This is consistent both with the text of s.15 and with the philosophical principles undergirding our Constitution.

BIG news out of Kitchener-Waterloo: the Ontario Superior Court has ruled that homelessness is an analogous ground for discrimination under s.15 of the Charter. This is a BIG step toward recognizing homeless people as an equity-seeking group under the law. Governments take note!

Another day, another insane judicial ruling, and a good response from Premier Ford. An Ontario court has ruled that the Region of Waterloo cannot clear a 30-person tent encampment from a parking lot it owns to build a major transit hub. Buried in the decision is that the court declared homelessness an analogous ground under s.15 of the Charter. A "constructively immutable characteristic." A "discrete and insular minority." This argument has been tried before and failed, including in this very case, three years ago. If this holds, every municipal bylaw that differentially affects homeless people faces Charter equality scrutiny. The court went further, ruling the region cannot use its own land unless it first provides an alternative legal encampment or "tenting protocol" with equivalent services. Elected officials passed a bylaw, amended it, dropped fines and offered housing plans. None of it mattered. A single judge overrode all of it and made himself the region's chief housing policy-maker. The Charter has become not a shield against state overreach but a sword by which courts dictate municipal governance on questions that belong to elected governments.