In December 2017, the Canadian government announced changes to its Canada Summer Jobs (“CSJ”) program that sparked debate over the program’s constitutionality. CSJ is a funding subsidy designed to provide students with summer work opportunities. Under the program’s new changes, organizations applying for the funding—small businesses, non-profits, and other community organizations—were required to check a box online that attested that both their core mandate and proposed summer job respected the Canadian?Charter of Rights and Freedoms?[Charter]?as well as “other rights.” These “other rights” explicitly included reproductive rights. Though the government emphasized that the attestation targeted organizations’ “actions” rather than their “beliefs,” it sparked pushback among religious groups in Canada, who offered to sign alternative, narrower attestations and argued that they would otherwise be excluded from the CSJ program.
A number of constitutional challenges were launched against the attestation requirement. The first, filed in Federal Court in January 2018 by the Right to Life Association of Toronto, alleged that the requirement infringed s. 2(a), s. 2(b) and s.15(1) of the?Charter (see?Right to Life Association of Toronto v Canada (Employment, Workforce and Labour), 2018 FC 102). Since then, Power to Change, a Christian organization, and a handful of private businesses, have filed applications for judicial review alleging that the attestation violates their?Charter?rights.
This post will focus on a panel discussion that the Osgoode Charity Law Association and the Osgoode Constitutional Law Society convened on October 17, 2018, to consider some of the constitutional and other legal issues surrounding the CSJ program. Two legal practitioners and two legal academics participated in the panel discussion: Shelina Ali of Iler Campbell LLP, Derek Ross of Christian Legal Fellowship, and professors Jamie Cameron and Adam Parachin of Osgoode Hall Law School. They discussed whether the CSJ attestation requirement is valid public policy or an unconstitutional infringement of the Charter. They also considered the scope of fundamental freedoms protected by s. 2, the role of “Charter?values” in the case, and the appropriate balancing of s. 2 freedoms of religion and expression, reproductive rights, and s. 15 equality guarantees. Three of the panelists considered the attestation’s wording and expression as either ill-advised or an unconstitutional overreach of government policy, while a fourth panelist understood the purpose of the CSJ program and its attestation in more narrow terms.
According to the official government of Canada website about the CSJ program, the rules state: “government recognizes that women’s rights are human rights. This includes sexual and reproductive rights and the right to access safe and legal abortions.” These rights, the website says, are “at the core of the Government of Canada’s foreign and domestic policies.” The website goes on to say that in order to qualify for CSJ funding, applicants must “attest that both the job and the organization’s core mandate respect individual human rights in Canada, including the values of the Canadian?Charter of Rights and Freedoms?as well as other rights [emphasis added].” These “other rights” include “reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.” The program says that it “welcomes applications from small businesses, not-for-profit employers, public sector and faith-based organizations.”
The website lists three objectives for CSJ: to provide work experience for students; to support organizations, including those that provide important community services; and to recognize that “local circumstances, community needs, and priorities vary widely.” The CSJ program also prioritizes funding consistently with its stated policy preference to address inequalities on protected grounds. Regarding the new attestation requirement, the website says that the “objective of the [attestation] is to prevent Government of Canada funding from flowing to organizations whose mandate or projects?may not respect individual human rights, the values underlying the Charter of Rights and Freedoms and associated case law [emphasis added].” In pursuing the objectives of the CSJ program, the government “seeks to ensure” that it provides funding in a way that “respects the rights of?all Canadians.”
It is with these last objectives that questions over the constitutionality of the attestation arise. The obvious question is: which Canadians? They are men, women, young and old, homosexual and heterosexual, of various ethnic, racial and national origin, colour, and physical and mental abilities, and gender non-conforming and religious minorities. Canadians have notoriously different and often conflicting interests. While the?Charter does not apply to private individuals—including small businesses, religious associations, and non-profits—it?does bind the federal government, which?must serve Canadians equally, according to the?Constitution. The government argues that the attestation is simply an expression of prioritizing organizations whose work aligns with the government’s public policy positions. But depending on how broadly or narrowly the attestation is understood, it may be an infringement of constitutional guarantees under the?Charter.
Charter Infringement or Valid Public Policy??
At the panel, Professor Parachin and Professor Cameron argued that the CSJ attestation is too broad to be justifiable as a valid expression of public policy. Professor Cameron expressed that she does not think it is “appropriate or constitutional to create a general employment program and then to target certain groups for exclusion based on content criteria.” The?Charter affords protection to expression regardless of content (within limits—Charter protection does not extend to hate speech and incitement to violence, for example). Professor Cameron emphasized that, unless the government can justify the attestation under s. 1 of the?Charter, it will be unconstitutional. In light of the objectives of the CSJ program, Professor Cameron said she does not see how the attestation is a minimally-impairing and a necessary part of achieving its stated objectives; the attestation is therefore unlikely to be justifiable under s. 1. Panelists also cited case law that establishes that, while there is no freestanding right to accessing government funding, once a government has chosen to provide a program, it must do so within the bounds of the?Charter. In other words, once a government implements a program, it can restrict the number of people who benefit from it, but it cannot do so by discriminating between people on prohibited grounds (in this case, religion).
The Canadian government has argued that the attestation is not directed at organizations’ “beliefs” but rather at their “activities,”?though Professor Parachin pointed out that the two are often difficult to disentangle. In other words, because the attestation attacks?action?that runs contrary to public policy, rather than organizations’ expressive?content,?the attestation is a legitimate expression of a public policy preference (in this case, the federal government’s preference for no limits on abortion).
Derek Ross said he interprets the government’s?intentions in implementing the attestation more narrowly than the government’s wording of it. He said he does not think that the government necessarily intended to “target all organizations that happen to have pro-life convictions.” Instead, Mr. Ross said the purpose of the attestation was seemingly intended to target specific organizations that were engaged in pro-life advocacy or anti-abortion activism. If so, according to Mr. Ross, the government could have introduced a requirement that funding not be used for any activities related to public policy advocacy or political activism. This narrower delineation of action captured by an attestation could create a stronger argument for its constitutionality, according to Mr. Ross. As he puts it, “certain formulations” of an attestation “may survive?Charter scrutiny.” The problem is that the term “core mandate” casts the net of action captured by the current attestation “very broadly.” Some organizations said that they were denied CSJ funding even after they offered alternative attestations that they believed achieved the program’s policy objectives. The organizations were?nonetheless denied funding because they did not check the appropriate box in their online applications. Mr. Ross suggested that this approach to the attestation “is too broad and inflexible and captures too much activity” to survive?Charter scrutiny.
Mr. Ross also pointed out that, even when it comes to organizational?activities, rather than expression, there is a broad scope of behaviours that the attestation may capture. For example, there is a difference between hypothetical bible study groups gathering to discuss the sanctity of life and groups obstructively protesting outside of abortion clinics. Mr. Ross accepted that freedom of religion is not absolute and may not be exercised in a way that unduly interferes with other people’s rights and freedoms. But Mr. Ross questions “whether anyone else’s rights are being violated” in every activity captured by the attestation. A group engaged in a?bible study or peaceful expression is a “different thing than an organization putting up barricades and blocking people from receiving healthcare […]. But simply allowing organizations to teach and promulgate their religious beliefs—whose rights are [being violated] on the other side of that equation?” Mr. Ross argued that the facts will be important in pending litigation, when it comes to assessing whether a denial of CSJ funding infringed?Charter rights.
For some of the panelists, there was a further problem with the attestation, specifically with its reliance on?Charter values to justify its constitutionality. Both Professor Parachin and Professor Cameron agreed that the scope of constitutionally-protected abortion rights remains unresolved. According to Professor Parachin, by framing reproductive rights as crystallized and absolute rights under the?Charter, and therefore as fully-formed and clearly-defined constitutional rights, the government is in effect lending its position on abortion the stamp of the?Charter. As Professor Parachin and Professor Cameron pointed out, it has not yet been resolved what kind of limit on abortion could conceivably survive?constitutional scrutiny. (R v?Morgentaler, sbobet แจกเครดิตฟรี 1 SCR 30,?established what kinds of?limits?will not survive constitutional scrutiny.) The argument that the attestation is an expression of conformity with the Constitution is therefore, he says, “misleading” in the sense that it “mischaracterizes the current Federal Government’s position on abortion as a fully-settled constitutional right.”
Shelina Ali, on the other hand, expressed an understanding of “equality and accessibility [as the] primary purpose” of the CSJ program. She framed the debate over the constitutionality of the CSJ attestation as a conflict between two rights protected by the?Charter: s. 15 equality rights and s. 2 rights to freedom of expression and freedom of religion. She said she did not consider “one right [as] more important or more engaged than the other” and that the attestation provided an “opportunity for the court to engage in an appropriate balancing,” akin to what the Supreme Court of Canada did in?the recent?Trinity Western University, 2018 SCC 33?[TWU]?decision.
Charter Values: A Useful Principle to Build Upon?
Few people disagree in principle with the rights and freedoms enshrined in the?Charter. As Professor Parachin pointed out, “the?Charter is not controversial.” What?has?proven controversial, however, is the concept of “Charter values.”
As a reminder, to qualify for CSJ funding, applicants must “attest that both the job and the organization’s core mandate [will] respect individual human rights in Canada, including?the values of the Canadian Charter of Rights and Freedoms.” Since?Doré v Barreau du Québec,?2012 SCC 12,?legal scholars have expressed anxiety over whether?“Charter values” are too broad of a concept to be a useful tool in legal analysis. At least one of the panelists expressed the concern that?Charter values, at their worst, may be dangerous when used in court because “reasonable people can agree to disagree on the meaning of?Charter rights and their application to any given set of facts.” Judges do disagree on the meaning of?Charter values—the diverging judgments in?TWU being just one example—and there is a legitimate concern that the concept may be construed broadly enough to justify various policy preferences. Furthermore, reliance on?Charter values may not help adjudicate disputes when there are two or more conflicting?Charter rights at stake, as in the cases of?TWU and the CSJ program.
Lorne Sossin, a Professor at Osgoode Hall Law School, is more optimistic about?Charter values. In a recent blog post, he argued that the concept of?Charter?values may be inducing anxiety within the legal community because it is new, and the common law has not yet had the time to develop a predictable framework. He argues that?Charter values may provide a useful principle that decision-makers can use and develop within the bounds of their discretion.
In the case of the CSJ litigation, the current formulation of the attestation is more broad than may likely be justified under the program’s stated objectives. A more minimally-impairing solution could be that the government considers alternative attestations, and reviews these CSJ applications on an individual basis. It is a strong argument that an organization that runs a shelter and also holds meetings about the sanctity of life (that do not directly affect its work in running the shelter) does not infringe on others’?Charter rights in a way that would justify an infringement on that organization’s freedom of religion by denying it CSJ funding. On the other hand, it may be easier to justify the denial of funding for organizations that actively campaign against reproductive rights. The most difficult decisions, however, will likely lie between these two situations. Overall, it will be an important finding of fact for courts to establish the specific actions of applicant-organizations that the attestation captures.
The outcomes of CSJ litigation may offer hints at the approach the courts will take to other ongoing?Charter?challenges that explore whether s. 2(a) or s. 2(b) can be infringed by laws or policies that deny financial benefits to claimants, like?Canada Without Poverty v AG Canada, 2018 ONSC 4147 (under appeal), or that explore the extent to which “compelled expression” can infringe the?Charter, such as the challenge to the Law Society of Ontario’s new “statement of principles” requirement (see Alford v Law Society of Upper Canada, 2018 ONSC 4269, which will soon be heard by the Ontario Divisional Court). However different study groups on the sanctity of life and groups picketing outside of abortion clinics are,?I would argue that lawyers working to help people access the legal system are a different matter entirely. While both the CSJ program and the Law Society are subject to the?Charter, the former’s service is directed at allowing private individuals create summer employment opportunities for students. The latter works as a gatekeeper between Canadians and the justice system. Comparatively, if the latter failed to adequately balance competing?Charter rights, the repercussions would extend much further.