It’s not about women’s constitutional right to abortion

By Beverley Baines February 27, 201827 February 2018

It’s not about women’s constitutional right to abortion

 

Does the constitutionality of the Canada Summer Jobs attestation requirement depend on whether the Canadian Charter of Rights and Freedoms protects women’s right to abortion or more generally to reproductive freedom? The answer is no.

The federal Liberal government imposed the attestation requirement on not-for-profit, public-sector, and small business employers who apply for wage subsidies to hire secondary and post-secondary students for summer jobs. Liberals had received complaints about previous summer job funding going to summer camps that refused to hire LGBTQ staff and to groups that distribute graphic anti-abortion pamphlets.

The coming summer could also see complaints from students working in faith-based hospitals and long-term care homes that refuse to comply with new assisted dying laws. To protect women, LGBTQ, and differently abled students from employment discrimination, the Liberals require employers to sign an attestation requirement asserting they respect human rights, that is, that they do not seek to remove or actively undermine these rights.

This attestation requirement applies both to the job responsibilities the students will perform and to the core mandate of the entity seeking the funding. When faith-based entities objected to being forced to choose between their spiritual values and funding jobs that have nothing to do with abortion or LGBTQ individuals, Liberals modified the core mandate attestation requirement to apply only to the entities’ primary activities and not to their beliefs and values.

For example, if a faith-based entity with anti-abortion beliefs provides numerous community programs, they could meet the attestation requirement to be eligible for funding if they proposed to hire students to serve meals to the homeless. On the other hand, entities whose primary activities are focused on removing or undermining access to abortion would not be eligible for funding to hire students to promote these activities.

Changing the core mandate attestation requirement has not stopped faith-based entities from proposing to launch a Charter challenge based on their right to religious freedom. Whether launched before or after the Liberals deny them funding, faith-based entities who refuse to meet the attestation requirement face procedural hurdles, including whether corporations qualify as having a religion, and whether the Charter applies to the Canada Summer Jobs program or administrative decisions about it.

If those hurdles are overcome, faith-based entities must prove the core mandate attestation requirement infringes their religious freedom. To succeed faith-based entities must argue that their core mandates, that is their primary activities, are religious practices and not the objects of their religions because recently the Canadian Supreme Court decided the Charter does not protect the latter.

Moreover, Liberals will justify the attestation requirement by arguing it protects women and LGBTQ students, as well as differently abled students (given assisted dying laws) from discriminatory employment practices. A court could decide the attestation requirement is over-inclusive because students need protection only for their job responsibilities and not from the core mandates of faith-based entities.

Or, a court could decide to balance the deleterious effects of the attestation requirement on the religious freedom of faith-based employers against its salutary effects of preventing discrimination against women, LGBTQ, and differently abled student employees. Long ago former Chief Justice Dickson pre-empted the outcome when he wrote: “In interpreting and applying the Charter I believe the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.” 

Both sides of the summer jobs attestation requirement controversy wield the Charter to promote their own selfish economic interests. At no point is it ever relevant to question whether women have a constitutionally protected Charter right to abortion.

Beverley Baines is a Professor of Public and Constitutional Law at Queen’s University. The views expressed here are her own.

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