Wednesday, January 17, 2018

In a commentary in the Toronto Star, Prof. Anna Su analyzes the complexities of a case where a private non-profit group was denied federal student jobs funding because of a requirement applicants affirm respect for human rights, including reproductive rights ("Court to weigh conflicting rights in grant case," January 17, 2018).

Read the full commentary below.

Court to weigh conflicting rights in grant case

By Anna Su

January 17, 2018

With unconstitutional strings attached: That is what the non-profit, private group Toronto Right to Life Association (TRLA) says, in its lawsuit against the government over its application to the Canada Summer Jobs grant program that funds about 70,000 placements for students who volunteer throughout the country.

Last summer, the federal government revised the eligibility criteria for groups applying for funds from the program. Under the new provisions, eligible organizations must affirm their respect for individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms.

That includes an “attestation” that the group’s core mandate respects those values and rights, including reproductive rights.

As a result, the TRLA was denied funding last year. Under a settlement, however, they were eventually given the same amount as the previous year.

According to employment minister Patty Hadju, faith-based groups should have no problem receiving grant money, so long as their core mandate does not violate the Charter.

She added that the government has declared its own values and it is up to the churches to decide whether they could sign the attestation.

There are no easy answers.

This problem raises many deep issues, legal as well philosophical - especially the conflict between liberty and equality. From the standpoint of the private group, they certainly have the Charter rights to be treated equally, like other groups, and to conduct their activities in accordance with their own religious beliefs.

But Hadju is also right. From the government’s perspective, it has every right, and is even duty-bound, to defend the general values of freedom, equality or any other value it deems beneficial to public welfare.

In a 1991 landmark case, the U.S. Supreme Court upheld government regulations that prohibited doctors receiving federal funding from a program aimed at encouraging natural family planning, in counselling patients regarding abortion. This ruling has been affirmed in a number of later cases.

American courts decided these cases using a legal doctrine called “government speech.” That doctrine is justified on the grounds that government needs to speak, either by words or by the grant of public funds, in order to carry out its functions.

But this doctrine is not without problems. Conditions on government funding can create an unconstitutional burden on the freedoms of its citizens. Hence, in a more recent case, the American high court struck down a federal requirement that requires government funding recipients to say explicitly that they oppose prostitution. The court ruled that requirement violated their free speech rights because it amounted to “compelled speech.”

How will the Toronto Right to Life Association’s case fare? On the one hand, government is not legally obliged to fund all sorts of expression. On the other hand, it cannot exclude particular groups based on their identities and beliefs. Indeed, as a liberal democracy, pluralism is a value that government should foster.

The Canada Summer Jobs program is not only part of a government effort to provide valuable work experience for young Canadians, but also part of a government effort to inculcate in them what the government considers the civic values necessary to promote a healthy, rights-respecting democracy. A crucial legal question then is whether the required attestation is indispensable or inseparable to the scope and objectives of the grant program.

Canada is now entering a new frontier in terms of the forthcoming legal battles over the Charter rights of freedom of religion and equality rights. How does public money affect private rights?

In its decision involving the legality of medically assisted dying, the SCC acknowledged that individual physician decisions to participate in these procedures are a matter of conscience and religion, but left open the question as to whether institutions such as hospitals and other faith-based facilities would have similar rights. That issue is now front and centre as various groups contend that institutions receiving public funds should not be able to refuse offering medically assisted dying.

A blanket rule of “get government money, follow government conditions” is not a good idea and is, simply put, unconstitutional.

In any case, the courts should take advantage of this golden opportunity to articulate a more sophisticated legal standard that will allow the government to promote its message and conduct its affairs, but at the same time protect the rights enumerated under the Charter.