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There’s no Charter problem with Canada Summer Jobs

It seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students. And yet, the guide for the Canada Summer Jobs program—which requires applicants to attest that the proposed job and their organization’s core mandate respect reproductive rights—has caused an outcry.

Back of woman's hair

It’s even prompted an application for judicial review by Toronto Right to Life (TRTL) on the basis that it may infringe the Charter-protected “freedom of conscience and religion of organizations that consider abortion to be immoral” and potentially the Charter’s freedom of expression and equality guarantees as well (to the extent that organizations even have Charter rights, which is debatable

But the attestation’s opponents are minimizing an essential question: what about the Charter rights of women, like the right to autonomy over their own bodies?

Opponents like Brian Bird emphasize that the Supreme Court of Canada’s landmark decision in R v Morgentaler — a ruling long celebrated as a victory for Canadian women — did not “constitutionally guarantee unrestricted access to abortion in Canada”, as if that provides a complete answer to the question. It doesn’t.

As with most court cases, Morgentaler involved a narrower issue: whether the therapeutic abortion provisions in the Criminal Code, which required those seeking abortion to get approval from a therapeutic abortion committee at an accredited hospital, were contrary to section 7 of the Charter. The Supreme Court said yes. The state-imposed barriers to abortion access at issue in Morgentaler, which criminalized women if the Criminal Code criteria weren’t met, impermissibly interfered with bodily integrity and caused unjustifiable psychological stress for women.

More recent Supreme Court decisions have also found that state-imposed barriers to medical treatment may violate constitutional rights (including Carter v Canada, the Supreme Court’s 2015 decision striking down the ban on physician-assisted dying).

From cases like Morgentaler, Carter and others, we know that the Charter protects autonomy over fundamental medical decisions, including reproductive decisions like abortion.

If we know that the Charter prevents governments from enacting unreasonable barriers to abortion access, surely that means the federal government cannot give program funds to an anti-abortion organization for summer jobs or otherwise. Freedom of conscience or religion does not guarantee an entitlement to federal funds to share your views with others. The Supreme Court has said the Charter “prohibits gags, but does not compel the distribution of megaphones.”

Groups like TRTL are free to promote their views on social media, fundraise from private donors, and advocate against abortion in certain spaces to those willing to listen. But make no mistake: the goal of TRTL is not just to talk about fetuses. They want those conversations to have the specific result of eliminating abortion, an outcome that would of course contravene the Charter-protected rights that enable abortion access in this country.

(It helps to stop and ask, Would there be a similar debate if an organization refused to check the “I attest” box because their core mandate was, say, racial segregation, or the denunciation of homosexuality?)

While it’s certainly possible a court could find that the attestation is a prima facie limit on freedom of conscience or another Charter right, the analysis would not end there. The government would have the opportunity to justify any such limit by showing it is proportionate when considered in light of the competing rights and interests at stake. The Charter mandates that when rights compete, they have to be reconciled in a fair and balanced way.

The government should be easily able to justify the attestation.

Distributing federal funds to a group devoted to chipping away at the Charter rights of women would be disproportionate when the rights are balanced together. The government’s current approach is more proportionate: it leaves a group like TRTL free to advocate against abortion, but it doesn’t give them government support to do it. The government shouldn’t be funding activism against constitutional rights when the Constitution is the supreme law of Canada.

Luckily, the arc of Canadian politics is bending towards reproductive justice. In 2016, the government of Prince Edward Island, faced with a Charter challenge to its policy of prohibiting abortion services on the Island, agreed that the policy was unconstitutional. Island women can now access abortion in their home province. Last year, the Nova Scotia government admitted that it, too, had a problematic policy for surgical abortion, namely the requirement for patients to first have a referral from a family doctor (the only province in Canada with that pre-requisite). The government has removed the referral requirement, and promised to cover medical abortions as well.

The federal government’s commitment to reproductive rights as reflected in the Canada Summer Jobs program guide is part of this welcome trend – and, most importantly, it’s consistent with the Charter. Women and allies in this country have fought hard for abortion to be understood, and reflected in the law, as a medical service and part of a larger picture of reproductive justice that proclaims reproductive rights to be human rights. Defending reproductive rights is one of this government’s leading achievements and should make Canadians proud.