Concrete challenge: Another fight over the Canada Summer Jobs attestation

By Beverley Baines June 29, 201829 June 2018

Concrete challenge: Another fight  over the Canada Summer Jobs attestation

 

The constitutionality of the Canada Summer Jobs attestation requirement returns to the Federal Court in Sarnia Concrete Products Ltd’s application for judicial review after Service Canada denied it a grant to fund one student job. That was because the corporation refused to make the attestation that it respects the Charter of Rights and Freedoms, as well as other rights, including “reproductive rights, and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation or gender identity or expression.”

Instead, Sarnia Concrete attached a letter claiming the attestation requirement violated its Charter rights to the freedoms of conscience, opinion, belief, thought and expression. The contention is almost identical to the one made unsuccessfully in January when the Right to Life Association of Toronto applied for an interlocutory injunction to stay the addition of the new attestation requirement. The only difference is the association also claimed equality rights.

Failing to claim equality rights is an interesting and significant omission on the part of Sarnia Concrete, though it gives the government uncontested access to the Charter’s protection of equality as the justification for the attestation requirement.

Still, it clearly frames the controversy as freedom versus equality.

There are three major issues the Federal Court may have to address. First, does Sarnia Concrete, a for-profit corporation, have standing to claim the Charter rights to freedoms of conscience, opinion, belief, thought and expression?

Certainly, the jurisprudence does not support a s. 2(a) conscience claim, which is likely why the Right to Life Association of Toronto also included two named men as applicants.

Having a conscience, like having a religion, requires the exercise of human capacities, as does having opinions, beliefs, and thoughts.

But what about expression? Does the phraseology of s. 2(b) “freedom of thought, belief, opinion and expression” permit judges to sever expression from the three preceding human capacities?

To date the Supreme Court of Canada has affirmed this severance in the commercial advertising cases – Irwin Toy, RJR MacDonald, and JTL MacDonald. While commercial advertising is directly relevant to how corporations conduct business, is Sarnia Concrete’s position distinguishable because it is a claim for freedom of expression about “moral, ethical or social issues that are unrelated to the business in which it is engaged”? If Sarnia Concrete does not connect its expression to its business conduct, how can its standing be justified? If there is a link, is it significantly less visible and hence more tenuous to check an attestation box on the CSJ application to hire 1 student than to advertise toys or tobacco to young people?

Perhaps it is timely for courts to re-assess the attribution of standing to corporate entities that seek to bring Charter challenges. As Wade Rowland asked after the tobacco cases: “Why should corporations, which are essentially machines for making money, have access to human rights protections at all?”

The second issue before the Federal Court will be the question of whether the Attestation requirement is compelled speech. Courts are reluctant to sanction compelled expression, as the tobacco advertising cases show. However, there are precedents that display ways to avoid this issue. In Lavigne the Court held payment of union dues was not expression and by analogy another court might take the same position about the attestation requirement. In McAteer the Ontario Court of Appeal held the oath of allegiance was to Canada’s constitutional institutions, not to the person of the Queen, suggesting another court might find attestation is to Canada’s constitutional law, not to illustrations of this law.

Finally, if the Federal Court were to decide that expression is infringed, who would win? The freedom-seekers or the equality seekers? Although Sarnia Concrete seeks accommodation, this outcome is unlikely in a zero-sum controversy where the options are either to sign or not to sign the attestation. Unlike reservations which are available to countries that refuse to commit to entire international instruments such as CEDAW, there is no way to cherry-pick our Charter rights, waiving some (those that protect women, LGBTQ2 and transgender Canadians) and subscribing to others (hiring young people).

That leaves the question of which justificatory test the Court will apply: the Oakes test or the proportionate balancing test from Dore/Loyola/TWU?

Either way the issue is harm. The harm Sarnia Concrete claims is principled, namely that it “intentionally does not engage in moral, ethical or social issues that are unrelated to the business in which it is engaged.” To sustain this claim should require validation in its incorporating document. The harms the government claims are pragmatic: the experiences of last summer’s CSJ students who were required to distribute graphic anti-abortion pamphlets or who were LGBTQ2 students not hired by summer camps.

Practically speaking, the proportionality between the deleterious effects on the employer’s freedom of expression and the salutary effects on the students’ equality rights seems to come down on the side of protecting youthful labour rather than entrenched capital.

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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