The analysis comes from Tabitha Ewert, who’s completing a year of articling as a law student with ARPA and WeNeedaLAW.
LN: So the Canada Summer Jobs Program – right around Christmas time – they came out with a new criterion for the application. There’s some history here. Last year, there were three pro-life groups that were denied funding; they went to court. They got an out-of-court settlement. They got their funding in November.
Now the government has put together a more clear list of policy criteria in terms of who can apply for the funding, and that’s going to court.
Talk to me a little bit about the history, and sort of the legal perspective on this.
TE: Yeah, well it’s interesting that you say it’s a more clear requirement. I think that’s what they intended it to be, but it’s actually a very vague requirement. I just want to read the actual requirement here for the listeners. It says “both the job and the organization (that are applying – their) core mandate must respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights.”
Now that statement may sound good, but it doesn’t mean a lot legally. The “individual human rights” – there’s no standard that they’re suggesting there (unless they’re suggesting that’s the Charter), and they have this nebulous sort of “as well as other rights” at the end, which… how can a business know whether they respect these “other rights” that they don’t even define what they are? So it’s a very vague requirement that’s rather nonsensical.
They go on to explain that it includes what they call “reproductive rights”, and their explanation [in the application guide] is that includes access to abortion. That also brings up the question “How is a business supposed to ‘respect’ these rights?” Especially if a business has nothing to do with abortion. If you are, you know, doing tours in the Rockies, how do you “respect reproductive rights”? If you’re working in a research field, how does this affect the business? And they don’t really explain how a business is even supposed to “respect” these rights.
And then of course the next problem is the Charter includes a lot more than the elements listed, such as freedom of religion, freedom of expression, freedom of association. These are freedoms that are really built into the Charter; they’re not just “values underlying” the Charter, and yet this policy doesn’t allow any room for that; any room for disagreement on the issue of abortion, so it’s very concerning.
LN: There’s a lack of balance here. John Ivison – and I’m sure you read the piece in the National Post – John Ivison talks about the notion (and I’m going to quote here), that “(Justin) Trudeau is turning the Charter into a constitutional buffet – and in direct contradiction to his explanation for the… payout to Omar Khadr. ‘There is no picking and choosing,’ he said at the time. Except, it seems, when it is politically expedient to do so.”
I mean yes, there’s a Supreme Court ruling that says abortion is legal in Canada; it’s not necessarily a Charter right (the Court ruled there has to be equal access to whatever the rules are), and yet there’s also a Charter right to freedom of religion and freedom of association and those kinds of things. And we’re into that sort of tension between the “competing rights piece,” and that’s not being acknowledged in this policy.
Is that kind of the basis, you think, for perhaps a successful court challenge on this thing?
TE: Well it is very interesting, because this mandate says that you have to respect the Charter. One of the interesting things about the Charter is that the Charter only applies to the government. An individual business doesn’t have to respect the Charter. They have to be in compliance with Human Rights Codes. But it’s the government, right, who’s not supposed to infringe on other people’s freedoms and other people’s rights.
And what they’re doing here is they’re saying “What we are subject to – as the government, we are subject to the Charter – now we’re saying ‘You also have to be subject to it.'”
It’s actually interesting, because it doesn’t just say “you have to comply with the Charter”, it says that you have to “respect” the Charter. I actually find that very concerning, because in Canada we expect people to obey the law, but we don’t need people to “respect” it. I mean imagine you know, next time you were to get your driver’s licence, and you had to sign something not only that you would “obey” the speed limits, but that you would “respect” the speed limits. It’s an absurd requirement that goes well beyond what the government can do here. So I do think that the vagueness in the requirement of “respecting” and compelling sort of this affirmation of the law is an infringement of the freedom of expression that we have under the Charter.
LN: And yet the flip side to this – and I do think we need to address it – the flip side to this is (that) there’s not a constitutional right for any organization to get government funding to run its operations and to subsidize student wages in the summer time. I mean, that’s not what’s being argued here, is it?
TE: That’s going to be an interesting one, and I’m looking forward to hearing what the pro-life group argues in that setting. One of the things that you do have a right to is “equal treatment” by the government. I would imagine that’s the route they would go. So it’s not so much that you have a right to the money; but you have a right not to be discriminated against in – sort of – the application process. When you have an application process that singles out one particular belief and says “we don’t want that”, that’s not an equal treatment under the law.
LN: So at the end of the day, do you see – I mean, this lawsuit is going to be interesting to watch, (and) I hesitate to ask for a prediction – but at the end of the day, do you think this is going to go somewhere? I mean, they’ve won once, but that was based on the fact that there was no policy in place; no clarity, it was kind of an ad-hoc decision the government made. Can they win this one?
TE: Yeah, I’m always hesitant to predict what the courts will do. A legal challenge takes a long time. A lot can happen in the meantime. I’m actually really hoping it becomes a moot case. I’m hoping that the government reverses this policy. I’m hoping that we can apply pressure; email your MP.. (And with) the media feedback on this, I’m hoping the government realizes that it’s a bad policy so we don’t even have to figure out what’s going to happen with this legal case.
LN: The deadline for applications for the funding as I recall is sometime in early February. That’s not a lot of time to get this turned around. Do we have an EasyMail campaign and things going already at ARPA?
TE: Yeah, absolutely. Go to the website and you should be able to send an EasyMail letter to your MP.