Changes recently announced by the Liberal government to crack down on anti-abortion groups’ use of the Canada Summer Jobs program to get thousands of dollars in public funds has turned the program into a lightning rod over where the line lies between freedom of expression, government overreach, and the reproductive rights of Canadian women.
For most folks who don’t use it, the Canada Summer Jobs program likely never crosses their minds.
Designed to subsidize the cost to employers of hiring students for summer work, the program has existed for years largely outside the realm of hyper-partisan political maneuvering and generally only gets talked about when there are changes to how much money it will or will not get — until now.
No need to be. Here is everything you need to know to understand what’s going on — from how we got here to whether the change is legal, and where the issue will go next.
What is changing?
The Canada Summer Jobs program operates by allowing MPs to set local priorities and allocate funding to groups in their ridings that submit applications asking for funds to hire students.
These jobs can range from doing things like working at summer camps or planting trees to working with various advocacy and community groups.
Generally speaking, groups that were approved once are often approved again.
But on Dec. 15, Global News reported the government was changing the rules around who can qualify for federal grants through the Canada Summer Jobs program.
Under the new rules, organizations must check off a box in their online application that contains an attestation stating that both their core mandate and the job they want to use federal funds to fill, both respect the Canadian Charter of Rights and Freedoms as well as other rights and associated case law.
“These 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,” reads the attestation on the application form.
Because of that phrase — and its explicit mention of reproductive rights — some faith groups and anti-abortion groups say ticking the box would require them to betray their beliefs and that requiring them to do so is a violation of their constitutional rights to freedom of religion and freedom of expression.
How did we get here?
Over the past five years, anti-abortion groups including Campaign Life Coalition and the Canadian Centre for Bio-Ethical Reform have used the Canada Summer Jobs program to secure roughly $3.5 million in public funds.
Most of that has come from Conservative MPs but as was reported in April 2017, Liberal MP Iqra Khalid also approved a grant through the program worth $56,695 to the Canadian Centre for Bio-Ethical Reform, which is known for using gory placards and pamphlets in its efforts to try and convince Canadians that abortion should be banned.
Unlike Conservative MPs though, Khalid had run under the pro-choice banner of Prime Minister Justin Trudeau’s Liberals.
Trudeau said in 2014 that everyone who runs for the Liberal Party would be required to vote in support of reproductive choice in any votes that could come up in Parliament on the matter of abortion.
In that context, Khalid’s approval of the grant drew fierce condemnation from pro-choice groups and prompted the government to announce that the move had been an “oversight” and that no such funding would be allowed to go to such anti-abortion groups in ridings held by Liberals.
It also said it would look at how to permanently change the program to prevent any MPs from allocating public funds to anti-abortion groups in the future.
Roughly eight months later, the attestation requirement was implemented.
Who is challenging the change?
While advocates for reproductive choice praised the move, critics quickly accused Trudeau of attacking free speech and trampling over religious freedom.
Conservative MPs took to Twitter to raise the alarm and faith-based groups quickly followed suit.
One group, the Toronto Right to Life Association, also filed a lawsuit against the government in Federal Court.
The group’s office is located in the riding of Liberal MP Arif Virani.
The Toronto Right to Life Association had mailed in an application for the 2018 Canada Summer Jobs program and stated in a letter attached to their application that they “support all Canadian law, including Charter and human rights law,” but stating that on a “basis of conscience” they could not “express the words that the Minister has required in the Attestation Guide.”
In a notice of application filed with the court on Jan. 4, 2017, the group states they then received a denial of their request for funding on April 27, 2017, even though they had received funding the year before worth $10,800.
“Unfortunately, although your application is considered eligible, we are unable to offer you Canada Summer Jobs funding, since the demand for funding has exceeded the budget available in your constituency.”
The program website does not state what the budget is per riding.
The court documents state several other groups located in Liberal ridings were also given the same explanation for why their applications were denied.
As a result, the three groups that had funding requests denied sued the government because a spokesperson for Employment Minister Patty Hajdu — whose portfolio includes the Canada Summer Jobs program — said in an April 13 article that “no such organizations will receive funding from any constituencies represented by Liberal MPs.”
On Nov. 23, 2017, the government settled with the three groups and said in court documents that the decision came because the groups were denied funding based on criteria not listed in the application guide for 2017.
Following the announcement of the attestation, Toronto Right to Life Association filed its suit asking for the decision to implement the attestation to be quashed, for an urgent interim injunction to stay the application of the attestation requirement, and for a prohibition from the court of any funding through the Canada Summer Jobs program being denied as a result of the attestation.
The group alleges the attestation requirement breaches Section 2 and Section 15 of the Charter of Rights and Freedom.
Section 2 lays out the rights to freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press; freedom of peaceful assembly; and freedom of association.
Section 15 states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.
Subsection 2 of Section 15 also states that a law, program or activity seeking to improve the conditions of disadvantaged individuals or groups does not violate the rights of other members not of that group to be free from discrimination.
Is the change legal?
Here is where it gets complicated.
The Canadian Charter of Rights and Freedoms places obligations on the government to govern its interactions with Canadians — not the other way around.
Individuals who engage in private business have the protection of the Charter but are not actually bound by it in their interactions with government.
Because the Charter covers such a wide range of rights, it also relies on what is known as the practice of balancing rights.
That essentially means that judges weigh competing rights against each other in cases where individuals claim infringements.
It does not appear an attestation such as the one in the Canada Summer Jobs program has ever been applied by the federal government before and because of that, the Federal Court will have to weigh several core questions.
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First will be the question of what kinds of actions governments can require from individuals.
For example, requiring the signing of certain contracts or agreements to abide by specific employment and human rights is allowed, but how far does that ability extend when it comes to attestations over other rights and values?
The next part of that question will be whether requiring an attestation of values infringes on the right to freedom of expression or religion — and if so, whether that infringement is reasonable.
Compounding that question is the legal precedent that while individuals have the right to free expression and belief, they do not have the right to public funds to advocate those views.
One government official, speaking on background, pointed to the 2015 Federal Court of Appeal case of the Canadian Arab Federation v. the Minister of Citizenship and Immigration as supporting that precedent.
That case was brought after the CAF alleged that a decision by the government not to renew a funding contract with the group violated its freedom of expression because the concerns raised in the decision not to enter into a new contract centred around statements the group had made that the government said were hateful, anti-Semitic and supportive of terrorism.
The Federal Court of Appeal ruled that was not the case and that there is no inherent right for organizations to obtain public funding.
Carissima Mathen, a constitutional law professor at the University of Ottawa, said there is a decent chance that the group behind the lawsuit could make the argument their rights have been infringed on — but that the government could also argue those are entirely reasonable infringements given the attestation is in regards to funding that is entirely discretionary rather than a core service like health care.
“I think there are probably good arguments on either side,” said Mathen.
What comes next?
The first question is whether an interim injunction against the attestation will be granted.
That is expected to be determined by teleconference on Jan. 19 but a decision has not yet been announced.
Generally speaking, filings before the Federal Court move relatively quickly, with complaints often heard within a year to two years.
In the meantime, the government will continue to defend its decision while faith groups and Conservative MPs will likely continue their criticism that the attestation violates their rights under the Charter.
But one thing is certain: this hot topic is unlikely to cool down anytime soon.