Constitutionality of the Canada Summer Jobs Attestation

5 June 2018 – Senator Wallin’s speech in the Chamber on the constitutionality of the Canada Summer Jobs Attestation

I won’t be quite as short as some of my colleagues here, but I promise I won’t keep you much longer.

Honourable senators, I rise to discuss this inquiry, which is focused on the constitutionality of the Canada Summer Jobs attestation, an issue I’ve raised in this chamber several times.

Senator Harder, I’m so glad you’re here, because I know you are very familiar with my questions. Perhaps you can chime in about whether a Charter test was ever rendered and whether there’s an obligation on the part of government to present evidence that their policy to ensure some Charter rights will not deny the Charter rights of others.

The Summer Jobs attestation was introduced by the current government for the 2018 program. It appeared to come out of nowhere. It required employers to check a box indicating that both the job and the organization’s core mandate respects individual human rights in Canada as defined by the government, including the values underlying the Charter of Rights and Freedoms and other rights, including reproductive rights.

The check box was almost immediately met with opposition from various groups, most notably faith-based groups. They argued that signing it meant they were forgoing their constitutional rights to freedom of belief, speech, expression and religion. Over 1,500 applications were denied by the government for their refusal to sign the attestation. I’m sure many others with genuine concerns were very reluctantly signed.

The minister later clarified the new rule, stating that core mandate only referred to the primary activities and respect meant that the activities were not seeking to remove or actively undermine these existing rights, again raising questions about how summer camp activities undermine the Charter of Rights and Freedoms.

There is now a Federal Court challenge arguing that the government has acted in bad faith. The BC Civil Liberties Association, self-described as “resolutely pro-choice,” has joined the case against the government. I too am “resolutely pro-choice,” but to me that means people have a choice, including the right to disagree with me.

At the core of this issue is whether the attestation is constitutional when it asks people to respect the rights of others but forfeit their own. The Charter’s intent is meant to balance competing rights. It’s also meant to protect the public from overreaching governments.

On April 25, the Prime Minister stood in Question Period in the other place and defended funding activist anti-pipeline organizations, saying his government defends freedom of speech and expression, but he offered no such defence for faith-based organizations. The government is fully within its right to hold the belief that access to abortion is a human right, but others have a right to disagree.

The Charter ensures the rights of Canadians are respected, not only the rights of the government of the day. So for the government to impose its beliefs on Canadians through access or lack of it to a publicly funded program is certainly unfair and quite possibly unconstitutional.

While no one is automatically entitled to public funds, the state has, in this case, offered funds to the public. The Charter therefore requires the state to make that offer in a manner that is open, fair and respects the fundamental freedoms of all Canadians. People are allowed to march on Parliament Hill as pro-lifers or pro-choicers. They’re also allowed to hold those beliefs when they apply for public funds to help a kid earn a few dollars during the summer.

Has the government received the advice that these actions are constitutional? In this chamber on May 22, Minister Hajdu stated in response to my honourable colleague Senator Joyal:

I appreciate the question and the irony in asking for a Charter analysis on upholding the Charter . . . .

The minister ought to reflect on that comment.

If the Charter’s intent is to provide a mechanism to balance competing rights, that was also highlighted by Liberal member of Parliament, John McKay. In a letter, he stated:

It is my view that the current government has inadvertently fallen into the trap of preferencing one right over another and of using the Charter to protect itself from perceived abuse by citizens.

It is the “preferencing one right over another” part of Mr. McKay’s words that I find compelling, because it seems the government is doing just that.

The Summer Jobs attestation specifically mentions reproductive rights as one of the rights that should be respected should applicants wish to receive funding.

The government, in laying this out, is actually picking a fight with faith-based groups, yet controversial organizations such as Dogwood Initiative, LeadNow and Tides are getting public funds from the summer jobs program.

Senators, I truly believe that the government has a double standard here, treating faith-based groups unfairly, possibly unconstitutionally, while supporting groups that share an environmental or political agenda.

This attestation was not the right way to go. It caught unknowing groups in the crosshairs of a poorly executed plan that should have been presented and debated before being implemented. The government should have looked at the potential implications of imposing its particular values, beliefs and priorities on Canadians through the process of withholding or granting public funds.

The government needs to remove the attestation for next year and find another constitutionally certain way to deal with what they have identified as a political problem. In the meantime, over 1,500 kids in this country have lost out on the experience of a great summer job.

Thank you. Senator Joyal has asked that debate be adjourned in his name, if I’m allowed to do that.