Canadian Lawyer by Karen Busby 29 January 2018
Religious organizations and editorial writers have sown confusion about new eligibility criteria for organizations that want to hire students under the Canada Summer Jobs program. They would have readers believe that the federal government is violating individual and organizational Charter-protected rights to freedom of religion and freedom of expression.
A careful reading of the criteria — now more explicit since the federal government issued supplementary information — reveals that these concerns are groundless. Missing from the debate is the related issue of whether and when governments should fund advocacy projects, through job creation programs or otherwise.
The Canada Summer Jobs program website says that applications are welcome from small businesses, not-for-profit employers, public sector and faith-based organizations. In past years, many organizations have used program funds to hire students to work at emergency shelters and meal programs for the homeless, homes for people living with mental disabilities, refugee resettlement programs and organizations supporting former prison inmates. In addition to front-line service work, some students are engaged in research, including program review and policy development.
Late last year, the eligibility requirements were altered. The program will no longer fund summer student positions with organizations having a core mandate that is focused on removing or actively undermining existing women’s reproductive rights or other recognized rights. There is no indication that advocacy groups focused on other issues are ineligible for funding.
According to the program website, “core mandate” refers only to the primary activities undertaken by the organization and not its beliefs, values or peripheral activities. Faith-based organizations broadly opposed to, for example, abortion or same-sex marriage are still eligible to apply for grants to hire summer students. No individual is required to make a declaration about personal values or beliefs. Supervisors and student employees who hold pro-life or anti-gay opinions will be free to hold and to continue to express them. By the new criteria, only a handful of previously successful applicants, such as the Canadian Centre for Bio-Ethical Reform, which has a singular focus to re-enact criminal abortion laws in Canada, will become ineligible.
Applicant organizations must now also warrant that they will not use hiring practices that are contrary to the human rights codes enforced across the country, such as refusing to hire or provide services to certain types of people. (Apparently, some summer camps refused to hire applicants who identified as LGBTQ+.) Religious preferences in hiring can only be exercised in narrow circumstances, which are unlikely to be present for many summer positions. For example, case law has established that if the group served is comprised mainly of non-adherents, religious affiliation cannot be a factor in hiring.
Likewise, discrimination in service provision is also highly constrained. All employers and service providers, including faith-based organizations, are already bound by these codes to non-discriminatory hiring and service provision, so this requirement does not impose new obligations.
The Charter-protected rights to religious and expressive freedom are, for the most part, negative rights. The government can neither compel nor impede expression of religious belief or religious practice unless such action can be justified in a free and democratic society. As the new eligibility criteria for the Canada Summer Jobs program neither compels nor impedes expression or religious practices, a Charter challenge is bound to fail. The jurisprudence is also clear that the Charter does not require governments to support expressive or religious rights. Governments can, unbound by the Charter, choose the advocacy projects it wishes to support.
For decades, ideology has dictated federal government decisions — both Liberal and Conservative —about funding advocacy groups. In 1978, the then-Liberal federal government established a program, which later evolved into the Court Challenges Program, to provide funding for public interest groups to participate in human rights litigation that challenged federal laws. While both the Mulroney and Harper governments took steps to dismantle this program, it was quickly reinstated by the Chrétien and Trudeau governments. In contrast to the Canada Summer Jobs program where local MPs effectively chose the successful applicants, an arms-length expert panel adjudicates Court Challenges Program funding applications.
Not surprisingly, the Harper government made other decisions about what types of advocacy it would and would not support. It forbade any funding of women’s organizations if their mandate included any hint of “advocacy” and threatened funding loss should an organization’s work slip into advocacy. We were faced with an absurd situation where front-line, anti-violence organizations could not give expert advice on law reform or policy development without running the risk of losing funding. In contrast, faith-based organizations in receipt of federal funds were not saddled with de-funding threats if they engaged in advocacy. That government also eliminated the capacity of Status of Women Canada to fund research by women’s organizations that could be used to inform policy making because that activity looked too much like advocacy. Much of this money had been used to hire summer students as researchers — yet few pundits cried “Charter violation” when these projects were no longer eligible for funding.
Refusal to fund feminist advocacy groups and constraining the advocacy activities of service providers decimated the capacity of feminist organizing in Canada. If in doubt, take this pop quiz: Name one feminist organization in Canada and describe the position it has taken on any law reform issue in the last five years.
The Trudeau government’s approach to funding advocacy projects is nowhere near as ham-handed as the approach taken by the previous government. Its impacts will be minimal. So, why all the fuss?
Karen Busby is a law professor and director of the Centre for Human Rights Research at the University of Manitoba