Second in a four-part series considering the idea of the politicization of the Charter right to freedom of religion. Part 3, tomorrow.
Prime Minister Justin Trudeau has frequently referred to the Liberal Party he leads as “the Party of the Charter,” stating on many occasions that his party will “respect, defend, and uphold the Charter and the fundamental freedoms and rights of every Canadian.” The Liberal Party may claim particular connection as the Party in government at the time of the negotiation and agreement adding the Charter to Canada’s Constitution in 1982. The Prime Minister may suggest personal claim because his father was Prime Minister at the time. But, as a Constitutional document, every political party is (or should be) the party of the Charter, a Constitutional amendment negotiated by eleven governments of differing political persuasions.
In addition to asserting the Liberal Party will respect, defend and uphold the Charter, has the Prime Minister perhaps led his Party to also attempt to interpret the Charter in a way it (or he) prefers? To politicize the Charter for partisan purpose?
Much has been written about the attestation clause introduced by the Liberal government on the application for Canada Summer Jobs 2018 funding. Most of that writing was a recognition that the clause is ideological in nature, violates the Supreme Court of Canada’s expressed concept of state neutrality in the provision of a government program, invents a non-existent right (reproductive rights), and its function violates fundamental freedoms guaranteed in the Charter. The issue is now before the courts in multiple pieces of litigation.
The controversial attestation clause reads:
Both the job and my organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include 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 or sexual orientation, or gender identity or expression.
The clause would have been fine if it ended after the word “Canada.” It strays into partisan presentation from that point forward. What are the values the government claims are underlying the Charter? How does anyone who has read the Charter anticipate the Charter could be applied to private employers as proposed? What are the unnamed “other human rights” referenced in the clause? The category “other human rights” is stated to include, as one example, “reproductive rights.” However, there are no “reproductive rights” under the Charter or any other human rights legislation in Canada. To clarify that point, in the 1988 decision of the Supreme Court of Canada in R. v. Morgentaler, the court struck down a federal law it found to be flawed but did not give recognition to any “reproductive rights.” Parliamentary debate following the decision resulted in the introduction of a proposed law to replace the one struck down. Bill C-43, as it was known, did not require use of the notwithstanding clause (s. 33), because no Charter right had been found by the Supreme Court to have been violated in regard to the state’s interest in the child before birth. Bill C-43 was defeated by reason of a tie vote on final reading in the Senate, and no law limiting abortion in Canada has been enacted since. There is, therefore, no legal prohibition or restriction on abortion in Canada. That is not the same as Constitutional reproductive rights.
Human rights legislation across the nation provides a positive right for religious organizations (and other organizations based on culture, heritage, etc.) to be selective in employment based on religious requirements of belief and practice. This right that has been recognized on numerous occasions by the Supreme Court of Canada. But the attestation clause does not recognize it.
The essential message of the clause? Agree with this ideological position, compromise your constitutionally acceptable religious beliefs and practices, or forego this theoretically impartial government funding. No accommodation was available for applicants for Canada Summer Jobs funding who objected to this particular government action for reasons of “freedom of conscience” or “freedom of religion” under section 2(a) of the Charter, “freedom of thought, belief or opinion” under section 2(b), or a desire for equal treatment under section 15.
While the Supreme Court of Canada has added equality rights based on sexual orientation to section 15, concluding that the list of grounds in section 15 is an example of an open set to which others may be added, it has not added “gender identity or expression” as the attestation clause does. (And remember, the government can’t force the Charter to apply to private, non-governmental organizations.) It is also important to remember that included in the negotiated set of equality rights to be recognized by government is “religion,” the basis on which many potential applicants found themselves discriminated against based on the new attestation clause. Here’s section 15:
- (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
A key reason Prime Minister Trudeau has been able to continually claim before Canadians that his Party and government will respect, defend and uphold the Charter, while instead politically manipulating it, including invention of non-existent rights, is too many Canadians have not read the Charter and have little to no comprehension of the actual nature of the rights and freedoms enshrined in our Constitution.
This is not just a problem with the federal government. There are approximately 3,700 municipal governments in Canada and 700 school boards in addition to the 14 provincial and territorial legislatures and federal parliament. That represents more than 50,000 elected officials. Add to that number those elected or appointed to serve on boards of government regulatory agencies and other government bodies. How many of them do you think have read the Charter or understand their responsibility as “government” to not violate Canadians’ Charter rights and freedoms?
The Prime Minister has access to over 3,000 lawyers in the federal Department of Justice. The media and large numbers of Canadians are aware of his actions as the head of government. Yet, he still used a partisan political position to skew application of Charter rights and freedoms in a government program. If a politician with such a prominent profile is either unaware of Canadians’ rights or has chosen intentionally to disregard them, what can be expected of elected and other government officials who do not have comparably surveilling eyes following them?
I’m an advocate that every newly elected government office holder be required to attend a mandatory introductory course on the authority, limitations and responsibilities of their office under the Constitution and the constating documents of their government body (e.g. the Constitution generally, including the Charter, and the particular legislation establishing their municipal council, school board, regulatory body, etc.). This could easily be done in one regular work week, and would save countless taxpayer dollars in the legal expenses of court battles resulting from errors brought on by lack of awareness.
Have other governments in Canada politicized the Charter? Here are a few current examples.
In Quebec, there is legislation requiring full facial uncovering for the delivery or receipt of government services. The newly elected Premier has committed to use the notwithstanding clause to further limit freedom by prohibiting the wearing of religious symbols or clothing by government officials as well as in the delivery or receipt of government services.
In Alberta, the government has historically funded independent religious schools. The Minister of Education recently announced the requirement that to continue receiving funding those schools must remove from their expression all references to the authority of the God they believe in as well as references to religious understandings of marriage and societal commitments.
In British Columbia, the SOGI 123 (sexual orientation and gender identity) curriculum is a kindergarten to graduation program integrated into all other curriculum. SOGI 123 was developed by a private agency in consultation with the B.C. Teachers’ Federation, Ministry of Education, and LGBT organizations. Now implemented in 51 of 60 school districts, religious schools are experiencing pressure to comply with the SOGI curriculum which violates their communities’ religious beliefs on marriage and gender.
Also in British Columbia, the government regulatory body for lawyers (called a law society) held a referendum of its members to decide whether or not to respect, defend and uphold the freedom of religion of a private Christian university that proposed to establish a law school. In 2014, nearly 6,000 lawyers voted against the proposed law school in a referendum, despite a 2001 Supreme Court of Canada decision dealing with a similar situation at the same university when the court approved of it establishing a school of education based on the university community’s Charter guaranteed freedom of religion.
If the profession that should understand the Charter is prepared to authorize its government appointed regulatory body to prefer a political position over existing constitutional law recognition by the Supreme Court of Canada of a guaranteed fundamental freedom in a free and democratic society, then what level of expectation can we reasonably have of elected representatives who do not have a legal education?
Expectation or not, government and government agencies must meet the standard set out in our Constitution.
Could it be that even the Supreme Court of Canada has on occasion been more political than judicial with the Charter? We’ll look at that next.