Opinion

The government's new criteria for summer jobs funding suffer from the same defining flaw as the old

The rights enshrined in the Charter are shields that protect private interests from the coercive power of the state: they are not swords that can be used to enforce moral conformity with government values or policies

Applicants must confirm they won't 'undermine or restrict the exercise of rights legally protected in Canada'

In justifying the new changes to the program, Minister Hajdu said that the criteria's emphasis on affirming 'rights legally protected in Canada' ensures that Canadians are safeguarded from groups that would seek to use Canada Summer Jobs funding to violate their rights. (Justin Tang/Canadian Press)

Back in early December, the federal government revealed that it will be revising next year's eligibility requirements for the Canada Summer Jobs program, which subsidizes small businesses and not-for-profits that hire youth and students during the summer. It was effectively a backtrack in the face of unyielding criticism from across the political spectrum.

The controversy over the program first began in late 2017, when the government announced that all funding recipients must attest that their "core mandate [respects] individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms" and including "reproductive rights." Critics of the attestation requirement, such as the Canadian Council of Christian Charities, decried the new policy as a veiled attempt by the Liberal government to stigmatize religious organizations that adhere to pro-life beliefs.  

The ensuing "kerfuffle," as the prime minister called it, partially stemmed from government's insistence that Charter values include "the right to access safe and legal abortions," even though the Charter itself is silent on the issue of reproductive rights.  

Numerous religious and charitable groups applying for Canada Summer Jobs funding refused to comply with the attestation, claiming that to do so would require them to effectively renounce their sincerely-held beliefs and amount to an unjustifiable violation of their Charter rights. All told, around 1,500 applications were denied last year for not completing the attestation.

New eligibility criteria

So next year, say the Liberals now, things will be different. And indeed, on their face, the new eligibility criteria announced by Labour Minister Patty Hajdu appear to address many of the issues with last year's attestation requirement. Applicants are no longer required to make any sort of attestation regarding their "core mandate" or beliefs, only that the jobs for which they receive funding will not "undermine or restrict the exercise of rights legally protected in Canada" or else that they will not "actively work to undermine or restrict a woman's access to sexual and reproductive health services."

For applicants who are still deemed ineligible to receive funding, such decisions will likely be based on the view that these funds would be used to support explicitly pro-life activities, rather than as a direct response to the beliefs of the applicant group.

Nevertheless, several problems continue to beset the Canada Summer Jobs program, even with the new changes implemented by Minister Hajdu. First, it's unclear precisely what activities that "undermine or restrict" the exercise of rights legally protected in Canada entail. Would a sermon at an evangelical church on the sanctity of life, for example, "undermine" a woman's "protected right" to an abortion?

No Canadian court has interpreted the Charter as guaranteeing a positive, free-standing right to access abortion. Yet even if one had, it's unclear how applicants such as, say, pro-life advocacy groups could actually restrict anyone's Charter rights, since the Charter only applies against actions undertaken by governments.

The new eligibility criteria thus suffer from the same defining flaw as the old attestation requirement. In justifying the new changes to the program, Minister Hajdu said that the criteria's emphasis on affirming "rights legally protected in Canada" ensures that Canadians are safeguarded from groups that would seek to use Canada Summer Jobs funding to violate their rights.

Such an assertion rests on the dubious proposition that the actions of private individuals can violate the Charter's protections and that, consequently, governments can rely on the Charter to, in turn, limit the rights of these individuals. 

Appealing to Charter values

As a general principle, we ought to exercise a healthy degree of skepticism whenever governments seek to defend their policies by appealing to Charter rights and values, especially when these policies are said to infringe other Charter rights such as freedom of expression and the right to equality before and under the law.

Indeed, much of the criticism that has been directed against the federal government for its changes to the Canada Summer Jobs program could also be made against the Ontario provincial government for attempting to turn the right to free expression on university campuses into a partisan wedge issue.

At their core, the rights enshrined in the Charter are shields that protect private interests from the coercive power of the state: they are not swords that can be used to enforce moral conformity with government values or policies, regardless of how laudable or widely-held these values are.

This is not to say that the Charter should not inform how governments craft their policies or legislation. The Charter is just as much prescriptive as it is remedial, providing governments with a purposive framework for how they ought to exercise their powers and jurisdiction.

Yet as we assess the new Canada Summer Jobs eligibility criteria, it's worth remembering that one of the fundamental purposes of the Charter is to limit the state's moral authority, not expand it. Minister Hajdu should bear this in mind as her department determines which groups will be eligible to receive Canada Summer Jobs funding next year.


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About the Author

Kristopher Kinsinger is a J.D. candidate at Osgoode Hall Law School in Toronto and the Co-Managing Editor of the legal blog TheCourt.ca. The views expressed here are his own.

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