There’s been a major development in a federal policy on student employment funding. Shortly before they went home for Christmas, Members of Parliament were briefed on changes to the rules for the Canada Summer Jobs program for 2018. The biggest change is that any organization looking for government subsidies to hire students this summer will need to sign on to an attestation which says:

“Both the job and the organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. 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.”

This policy change comes after three pro-life groups won a major out-of-court settlement in late November with regard to last year’s Summer Jobs Program. One of those groups was the Canadian Centre for BioEthical Reform, which was initially approved for funding last year, and then had that funding revoked. The group’s communications director Jonathon VanMaren says that was a clear case of the government changing the rules in the middle of the game. He says a lawyer for the Justice Department contacted his organization, and confirmed that the reason the government was settling the suit was that they had already been approved to get funding, and after the Canadian Abortion Rights Coalition launched a campaign on the issue, the government “interfered” in the process and denied the grant funding based on criteria that were not in place when they initially applied.

One of the other groups on the winning side in that settlement was the Toronto Right to Life Association. The group’s Blaise Alleyn says they’ve launched a legal challenge against the new rules. He says it’s “not illegal to hold a different belief than the government on a social issue, and we don’t think the government has the jurisdiction to compel speech that would violate our conscience rights, (or) to treat us unequally and discriminate against us and punish us by withholding benefits of an unrelated program.” The legal challenge asks for a judicial review of the new attestation policy, asking that it be declared unconstitutional under the Charter guarantees of freedom of religion, freedom of conscience, and equality rights. Alleyn says with this attestation policy, the government is manufacturing a so-called “right” to abortion, while ignoring other rights that are clearly in the Charter.

“Reproductive rights are not necessarily Charter rights,” he says. “The Morgentaler decision struck down Canada’s abortion law on procedural grounds, but it encouraged Parliament to legislate” on the issue of abortion. He says while the Court recognized an explicit right to abortion, there are explicit rights spelled out in the Charter on freedom of conscience, religion, and expression. “There are a whole host of Charter rights that the government doesn’t seem to be paying appropriate attention to in this attestation,” he says, adding that the new policy “boldly goes against the Charter.”

ARPA legal intern Tabitha Ewert has also analyzed the new policy, and she says the requirement to “respect” the Charter and the values underlying it is “nebulous, nonsensical, vague.”

“How is a business supposed to ‘respect’ these rights?”, she asks. “Especially if a business has nothing to do with abortion.”

Ewert says, “in Canada we expect people to obey the law, but we don’t need people to ‘respect’ it. Imagine,” she adds, that the “next time you were to get your driver’s licence, 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.”

The deadline for applications for funding under this program is February 2^nd. ARPA has launched an EasyMail campaign to lobby MP’s to rescind the new regulation before then. You can access that campaign and send your own customizable letter here.

Cardus released a survey over the Christmas break, measuring the level of public support for government funding to separate and independent schools. The survey can be found here. It was done with the Angus Reid survey company as part of an overall assessment on the place of religion in Canada during our 150th birthday year.

Dr. Beth Green oversees education policy at Cardus, and she says the survey results showed 61 percent of respondents across the country are in favour of partial or even full government funding for private religious schools. She says independent school supporters can take heart from those survey results. “Parents who are setting up schools or continuing to support those schools can use these sorts of figures in the conversations that they’re having.”

She concedes the survey is representative of attitudes “at one point in time”, and she’d like to see more data. Cardus Education will be targeting those policy issues this year at the provincial level, so we can expect to see a lot more data coming out.

Green also wrote an op-ed about the funding issue in the National Post back in December. You can find that article here.

The pro-life group “Right Now” is out with some suggested ranked ballots for political party leadership races. In Saskatchewan, members of the governing Saskatchewan Party will be voting on January 27^th to replace their retiring leader, Brad Wall, while in BC, members of the provincial Liberal Party will vote next month on a replacement for Christy Clark, who lost a provincial election last year.

Right Now surveyed the contenders in both leadership races. In Saskatchewan, they ranked Ken Cheveldayoff as the candidate most in line with pro-life views, while in BC, their pick was Michael Lee.

But Lee actually appeared to back away from some of the pro-life commitments he had articulated in his answer to the survey.

The organization’s Scott Hayward says Lee’s about-face is “disappointing”, but it’s important to keep perspective, because Lee did not disavow his pledges on several key points including late-term abortion, sex-selective abortion, or the notion that abortion statistics should be publicly available. Hayward says the fact that the issue is on the radar in the leadership races is a positive development. “We have to recognize that when we’re participating in a political process, we aren’t going to win all the time on our issues, but if we’re winning more than we’re losing, then we’re still going in a forward direction.”

You can find the ranked ballot for the Saskatchewan Party leadership race here, and the one for the BC Liberal race here.

On the feature this week, an analysis of the legal principles underlying the federal government’s decision to change the eligibility criteria for the Canada Summer Jobs Program.

The analysis comes from Tabitha Ewert, who’s completing a year of articling as a law student with ARPA and WeNeedaLAW.

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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.