Here we go again. The Government of Canada appears poised to disqualify applicants who do not support the Trudeau Government’s ideological position on abortion from receiving funding in one of its post-pandemic support initiatives for charities, again meddling with constitutionally protected rights and freedoms.
When a political party leader has an ideological fixation, it may well determine the direction of the party’s policies. When that party forms government, the ideological fixation is not like blinkers on a horse to focus on reaching the goal but more a blind spot compromising policy across multiple affected tracks.
One of Justin Trudeau’s first initiatives after becoming leader of the Liberal Party in 2013 was to bar sitting MPs and other potential Liberal candidates from seeking election unless they would commit to being silent about discussing legal definition concerning status of the child in the womb and about consideration of potential restrictions on abortion from the current full-access Canadian timeframe of conception until delivered from the mother. Abortion has been a key point of Trudeau’s campaign politicking in each of the three elections he has led the party.
Almost immediately on becoming Prime Minister in 2015, Trudeau shifted Canada’s foreign policy to centre on women’s issues, particularly abortion access. The new focus compromised relationships with several African nations that were benefiting from the maternal, newborn, and child health initiative that was being led by the Canadian government. For cultural and religious reasons those governments were no longer willing to accept needed funding that was saving lives after that funding was tied to the requirement they legalize or expand abortion services.
In the December 2017 announcement for the Canada Summer Jobs 2018 program (CSJ), the Trudeau Government tied funding to attestation an applicant organization respected so-called “reproductive rights.” Justin Trudeau has incorrectly stated abortion is a constitutional right, and his government has acted on that misrepresentation of the law. The Prime Minister relented on the attestation a year later, after a number of otherwise eligible recipient organizations took the government to court and leaders from several different religions challenged the new disqualifying condition following years or decades of having received CSJ funding to provide community programs.
In the Prime Minister’s mandate letter to Deputy Prime Minister and Minister of Finance Chrystia Freeland following the 2021 election, Trudeau directed Freeland to “introduce amendments to the Income Tax Act to make anti-abortion organizations that provide dishonest counselling to pregnant women about their rights and options ineligible for charitable status.” Dishonesty being in the eye of the government beholder?
Given the history, it comes as little surprise the recently announced post-pandemic Community Services Recovery Fund (CSRF) appears also to be affected by the Prime Minister’s preoccupation with abortion.
One difference with the CSRF from other government post-pandemic programs is the distribution of funds has been contracted out to Canadian Red Cross, Community Foundations of Canada, and United Way. CSRF applications are submitted to a closed selection process. Applicant criteria notes faith-based organizations are eligible recipients, subject to identified restrictions, including:
Activities that undermine, restrict or infringe on human rights legally protected in Canada: Activities that weaken or limit the ability to exercise rights legally protected in Canada. These include restricting, or otherwise discriminatory, contrary to applicable laws, on the basis of prohibited grounds, including gender, race, colour, national or ethnic origin, mental or physical disability, sexual orientation, or gender identity or expression; advocating for intolerance, discrimination and/or prejudice; and/or actively working to undermine or restrict a woman’s access to sexual and reproductive health services.
Following are some general comments (not legal advice) that may be helpful to Christian organizations considering applying but concerned about the above requirement.
This requirement may be in violation of the Canadian Charter of Rights and Freedoms’ sections 2(a) freedom of conscience and religion and/or 2(b) freedom of thought, belief, opinion and expression.
The government has positioned itself to encounter litigation (again) from organizations it is seeking to target with this test should they apply and be denied based on the stated criteria.
The language may be less restrictive of applicants than it appears. It may also be (mis)used to cast the disqualification net as narrow or wide as the distributing organizations have been instructed in their agreements with the government. Both depend on interpretation.
The first part of the definition for the restriction is framed as “activities that weaken or limit the ability to exercise rights legally protected in Canada.” In Canada it is a recognized right for religious organizations to be selective in hiring, volunteer selection, and provision of services on the basis of religious requirements. For example, see section 24 of the Ontario Human Rights Code. The same right is recognized for other specified groups such as ethnic social clubs (e.g. Hellenic community organizations) or racially identified professional organizations (e.g. Canadian Association of Black Lawyers). As a result, religious organizations may exercise the right to restrict access to programs or services, or employment on the basis of hiring or serving co-religionists. The rights of others (i.e. non-co-religionists) are not weakened or limited as a result.
The second part of the definition is framed as “advocating for intolerance, discrimination and/or prejudice.” The terms used are multifaceted and fluid. Canadian courts have determined the constitutional exercise of freedom of religion gives religious individuals and organizations rights to: self-define religious beliefs and practices; establish membership and leadership standards that align with religious beliefs and practices; publicly express religious beliefs and practices that are not in violation of constitutionally sound legal requirements (e.g. violation of the Criminal Code by physical violence or confinement of another human being, or by promoting hatred toward an individual or identifiable group). Will a closed-door assessment process interpret publicly stated difference or disagreement about beliefs and practices as advocating intolerance, discrimination and/or prejudice? It’s not clear what standard of adjudication will be used by the contracted distribution organizations. It’s also not clear whether these organizations have received legal advice from the Department of Justice about the constitutional obligation to remain unbiased (the Supreme Court of Canada used the word “neutral”) in making decisions about distribution of government funds.
The final stated restriction in the definition is to not be “actively working to undermine or restrict a woman’s access to sexual and reproductive health services.” This wording is an adjustment by the current government from its previously (and incorrectly) stated claim there is a constitutional right to abortion. The language appears to be an effort to prohibit crisis pregnancy centres and pro-life advocacy organizations in particular from receiving funding for services they provide to the community that would otherwise comply with stated funding requirements. This phrase may be both Charter-rights infringing and too broad for the purpose intended as it may be used to capture the beliefs and practices of myriad religious organizations, depending on the interpretation of “advocacy” used in deciding whether an applicant will be eligible for funding.
A potential applicant might opt to consider the restricting phrase in similar fashion to Canada Revenue Agency’s thoughts about public policy dialogue and development activities (PPDDA) by charities. The Government of Canada’s guidance (GG-027) notes a “charity may engage in unlimited PPDDAs that further its stated charitable purpose(s), provided the charity never directly or indirectly supports or opposes a political party or candidate for public office.” In addition, consider whether the organization actively worked to undermine or restrict a woman’s access to sexual and reproductive health services or simply engaged in constitutionally protected freedom of thought, belief, opinion and expression.
Each potential applicant organization will have to assess whether it fits within the funding criteria established. None should be dissuaded from applying because the government has chosen ominous language which may likely be determined to express government overreach in its efforts to restrict access to funding based on an ideologically-based political position.