A New Canada Summer Jobs Attestation for 2019: The Good, the (Potentially) Bad, and the Unknown

Derek Ross, CLF Executive Director & General Counsel

The federal government has announced changes to the eligibility requirements for the Canada Summer Jobs program. Specifically, the controversial attestation introduced last year has been replaced. Overall, the changes reflect a welcomed step in the right direction. However, a number of questions and potential concerns remain.

What has changed?

Last year, employers had to “attest” to the following:

“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 “rights” and “values” were never clearly defined, but the 2018 Applicant Guide made it clear that they included “sexual and reproductive rights” and the “right to access safe and legal abortions”.

Christian Legal Fellowship’s legal team raised concerns about the constitutionality of the attestation requirement. An alliance of faith groups, including CLF, urged the government to reconsider its position, and suggested alternative approaches that would affirm all Charter rights, including religious equality, freedom of religion and conscience, and freedom of expression. Those suggestions were not adopted in 2018; however, the government has recently revised the eligibility criteria for next year’s iteration of the program.

For 2019, employers must now “attest” to the following:

“Any funding under the Canada Summer Jobs program will not be used to undermine or restrict the exercise of rights legally protected in Canada.”

The government has defined “undermine or restrict” as meaning “to weaken or limit the ability to exercise rights legally protected in Canada.”

The good

The new wording removes any reference to the organization’s “core mandate”, and places the focus of the attestation on the specific projects or job activities for which funding is sought. It also removes references to “values” and speaks only to “rights legally protected in Canada”.

Undoubtedly, many organizations will welcome this clarification. Concerns surrounding the scope and meaning of the term “core mandate” were central to many of the objections raised in 2018. For example, some organizations expressed that, while they did not regularly engage the issue, they could not in good conscience attest that their “core mandate” respected a free-standing right to access abortion.

Similarly, the emphasis in 2018 on “values” indicated that the government was concerned not only with what an organization was doing but also with what it believed – this was supported by the government’s assertion that it did not want students “exposed” to “positions that are contrary to the values enshrined in the Charter”.

While the government posted supplementary guidance in 2018 in an attempt to clarify that “core mandate” simply meant “activities”, the attestation itself was never revised. Many felt that the government’s approach defied plain language, and also reflected a poor understanding of how the ethos of an organization permeates, motivates, and informs all of its activities. A Christian ministry devoted to serving refugees or the homeless, for example, is a manifestation of the belief that all lives are sacred, created by God, and deserving of equal affirmation and protection; this same religious belief would inform the organization’s understanding of the pre-born child, regardless of whether they actively engage in pro-life work.

To the extent that the new 2019 attestation is concerned only with the nature of an organization’s activities, and not their lawful beliefs, convictions, or teachings, the 2019 revision is indeed a welcome improvement from last year’s policy. However, much will turn on how the new attestation is interpreted, and whether it is applied in a truly neutral manner.

The (potentially) bad

While the 2019 attestation itself refers generally to “rights”, the 2019 Application Guide singles out only one example: “access to sexual and reproductive health services.” Those services are defined as “including comprehensive sexuality education, family planning, prevention and response to sexual and gender-based violence, safe and legal abortion, and post-abortion care.”

The government’s preoccupation with promoting access to abortion, seemingly to the exclusion of all other rights, is peculiar. Does this mean that other rights that are “legally protected in Canada” – including freedom of religion, conscience, expression, and association – must always give way to what the government has seemingly prioritized as its core policy? Will the government be even-handed in ensuring that groups do not seek to undermine these other rights? Or is it only access to abortion that is to be ardently protected?

A critical question is how the term “undermine or restrict” is to be interpreted and applied. Strictly speaking, no private group seeking funding from the CSJ program can “restrict” the rights of others in a legal sense, since only government can pass, repeal, or change laws in this regard. On an individual level, any attempts to physically interfere with access to abortion would already be prohibited by the Criminal Code. If the purpose of the attestation is simply to ensure that these laws are complied with, and that no group obstructs someone from accessing legally available services, then it may be unobjectionable.

It remains to be seen, however, whether the attestation is intended to apply more broadly. Will it be used, for example, to suppress any and all attempts to dissuade abortions, e.g. through promoting adoption, or education on the medical and philosophical considerations encompassed by bio-ethics? One might argue that the government is within its rights to decline to fund such activities, provided it doesn’t legally prohibit them, but how far will this logic be extended? Will a summer camp that holds a Bible study on the sanctity of life of an unborn child be perceived as “undermining” things like “comprehensive sexuality education” or access to abortion? What about a message at a youth group on Catholic teaching about abortion, marriage, or sexuality? Even if a charity does not seek funding for such activities, will they otherwise render the work environment ‘discriminatory’ or ‘un-inclusive’ (see below)?

By prioritizing abortion as one of the only interests specifically protected, without any reference to reconciling or balancing other rights, the 2019 policy risks the continued stigmatization and marginalization of pro-life Canadians, suggesting that their views are unwelcome in public discourse. In the words of the Supreme Court of Canada in Saguenay, the government seems to be “creating a hierarchy of beliefs and casting doubt on the value of those it does not share”; by rejecting a pro-life individual’s “views and values, [the state] is denying his or her equal worth” (para 73).

It is hoped that these are purely hypothetical concerns, and that the government will administer the program in a manner that does not detract from the fundamental freedoms of all Canadians (pro-life or otherwise), including “the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination” (Big M Drug Mart, para 94).

The unknown

The 2019 Guide also indicates that projects or job activities are ineligible for funding if, among other things, they “advocate intolerance, discrimination and/or prejudice.” Eligible projects, on the other hand, “provide a work experience in an inclusive non-discriminatory work environment that respects the rights of all Canadians”.

On their face, these requirements are unobjectionable, even laudable– but the challenge will again turn on how they are interpreted. Some commenters have already questioned, for example, whether churches which hold traditional beliefs in marriage might be considered “intolerant” or “prejudicial”, or as otherwise failing to maintain an “inclusive non-discriminatory work environment.”

Hopefully, this will not be the approach adopted by those responsible for administering the program. While the fight against intolerance and discrimination has been increasingly politicized in order to advance certain ideologies, it is, properly understood, fully compatible with – and championed by– Christian organizations. The CSJ administrators would do well to define “tolerance” as the Supreme Court of Canada did in Chamberlain v Surrey School District No. 36. As Chief Justice McLachlin wrote for the majority of the Court:

“[T]he demand for tolerance cannot be interpreted as the demand to approve of another person’s beliefs or practices. When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions.” (para 66).

In that same case, Supreme Court Justices Gonthier and Bastarache made a similar observation:

[I]t is a feeble notion of pluralism that transforms “tolerance” into “mandated approval or acceptance” [...] Language appealing to “respect”, “tolerance”, “recognition” or “dignity” [must] reflect a two-way street in the context of conflicting beliefs, as to do otherwise fails to appreciate and respect the dignity of each person involved in any disagreement, and runs the risk of escaping the collision of dignities by saying “pick one”. But this cannot be the answer (paras 132, 134).

Tolerance does not require religious communities to abandon their beliefs as a pre-condition to equal treatment; true tolerance affords space for respectful moral dissonance on issues such as abortion, sexuality, and marriage.

Closing thoughts

The 2018 attestation was constitutionally and philosophically problematic, and rightly drew the ire of the Canadian public and media. The 2019 revisions represent an improvement, to be sure, but questions and concerns remain. However, credit should be given to the government for acknowledging, even if only implicitly, that the 2018 language was problematic and attempting to remedy the issue.

Whether the government’s response is sufficient will very much turn on the new requirements’ interpretation and application. Several faith groups have encouraged their constituent members to apply for funding in 2019, to afford the government an opportunity to administer the program as it should: by allowing law-abiding employers to provide students with meaningful work, regardless of religious convictions or moral viewpoints.

Some faith groups may disagree on whether the restructured eligibility requirements are appropriate, and the extent to which they should ever look to public programs for funding. Those are important theological questions to explore, but the legal principle here, which all faith communities can hopefully support, is this: no individual or organization should be denied equal access to a public program or service – be it grant funding, charitable tax status, or a zoning permit – because of their religion and the lawful exercise thereof.

A New Canada Summer Jobs Attestation for 2019