If you sent an email or letter to your Member of Parliament, you may have received a reply by now. The exercise has been fairly simple for Liberal MPs. Several I’ve seen indicate MPs just cut and paste what was given them. There are two variations on the theme. Both demonstrate a lack of basic understanding of Canada’s constitution.
The first response is a cut and paste of the supplementary information provided by Employment and Social Development Canada as a ‘clarification’ of ‘core mandate.’ As tone deaf as the clarification is to the concerns of religious individuals and communities, it exhibits a continuing failure to grasp the most basic point of the Canadian Charter of Rights and Freedoms. As more Canadians find themselves driven to read the Charter, which is a good thing, it’s best to do so with that most basic point in mind.
Section 32 of the Charter informs us:
- (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
The Charter applies to government – federal, provincial, municipal, school boards and government agencies. The Charter protects Canadians from acts of government. The Charter states the freedoms and rights of Canadians, which the government is not allowed to violate.
Section 1 notes the purpose of the Charter.
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The only limitation permitted on Charter guaranteed freedoms is when government can demonstrate and justify to the courts that the proposed limitation is reasonable, i.e. prescribed by law (i.e. government action), and the least intrusive way to accomplish a legitimate government purpose in Canada’s free and democratic society. The Supreme Court of Canada has determined that for government to violate or infringe the rights guaranteed in the Charter in a manner that is considered reasonable, the government must be have a pressing and substantial purpose, i.e. it’s got to be something that is really important. Government must also prove the action proposed or taken is one that minimally impairs/infringes the right in question, and the action taken is proportional to the objective.
All of this to say, Canadians are not required to abide by the Charter, the government is. Under our constitution, Canadians are required to adhere to relevant human rights legislation in the province or territory in which they live.
The fundamental flaw in the government’s efforts to require private entities to agree to apply the Charter to themselves is the Charter does not apply to private entities.
The second flaw of the government’s required attestation clause is that, by mandating all applicants for a Canada Summer Jobs grant endorse the statement, the government may require agreement to an expressed belief that is contradictory to that held by the applicant. This government requirement violates the expressed Charter rights to “freedom of conscience and religion” (s. 2a), “freedom of thought, belief, opinion and expression” (s. 2b).
The other party line response includes a paragraph on two decisions of the Supreme Court of Canada. Having an MP send this to a constituent might seem definitive, but it is misleading. Here’s the paragraph, which has been placed in bold at the centre of a response on more than one occasion:
The Supreme Court of Canada has said that an individual’s reproductive autonomy is a right protected under section 7 of the Charter. In Blencoe v. British Columbia (Human Rights Commission) the Supreme Court commented that “Few interests are as compelling as, and basic to individual autonomy then, a woman’s choice to terminate her pregnancy… Such interests are indeed basic to individual dignity.” In the Morgentaler case, the Supreme Court held that certain restrictions on access to abortion violated women’s right to security of the person under section 7 of the Charter.
Let’s talk about the first part and the quote from the Blencoe decision in 2000. Blencoe was a case about a politician seeking to avoid a human rights hearing following a complaint of sexual harassment being filed against him under the British Columbia Human Rights Code. Blencoe asserted he was unable to face the hearing because he became depressed after the complaint was filed. Here’s the rest of the quote from paragraph 86 in Blencoe:
Few interests are as compelling as, and basic to individual autonomy than, a woman’s choice to terminate her pregnancy, an individual’s decision to terminate his or her life, the right to raise one’s children, and the ability of sexual assault victims to seek therapy without fear of their private records being disclosed. Such interests are indeed basic to individual dignity. But the alleged right to be free from stigma associated with a human rights complaint does not fall within this narrow sphere. [I italicized the parts the government skipped]
There is no mention there of a “right” to an individual’s reproductive autonomy.
Second, the reference to the Morgentaler decision from 1988 is also misleading. Much has been written on the 1988 decision. Apparently, in terms of the government’s comments, little has been read.
The decision of the Supreme Court in Morgentaler was in regard to the particular section of the Criminal Code that was being challenged. The issue in question was the inconsistent availability of therapeutic abortion committees across the country. The job of the committees was to assess whether an abortion could be justified on the basis of the pregnancy endangering the mother’s health. An “endangered” woman might arrive at a hospital to find there was no capacity to save her life because it lacked a therapeutic abortion committee. The Court determined that the state had an interest in determining the point in pregnancy when the child’s life should be protected, but the law had to apply consistently across the nation. Here’s what Chief Justice Dickson’s court (McIntyre, J.) had to say:
The historical review of the legal approach in Canada taken from the judgment of the Court of Appeal serves, as well, to cast light on the underlying philosophies of our society and establishes that there has never been a general right to abortion in Canada. There has always been clear recognition of a public interest in the protection of the unborn and there has been no evidence or indication of any general acceptance of the concept of abortion at will in our society. It is to be observed as well that at the time of adoption of the Charter the sole provision for an abortion in Canadian law was that to be found in s.251 of the Criminal Code. It follows then, in my view, that the interpretive approach to the Charter, which has been accepted in this Court, affords no support for the entrenchment of a constitutional right of abortion.
That’s why the Mulroney government’s Bill C-43 (defeated on a tie vote on third vote in the Senate after passing in the House of Commons and two Senate votes) did not use the Charter’s ‘notwithstanding clause’ (s. 33 of the Charter, which provides for supremacy of elected representatives in the event of disagreement with a decision of the appointed members of the courts). The Supreme Court had not found that a right existed, so none had to be overridden by Parliament.
Even if a right had been found, we return to the matter of the Charter applying to government behaviour, and the protection of Canadians from having government opinion forced upon us in violation of our guaranteed rights.
As I have noted previously, and in my letter to the Prime Minister and my Member of Parliament:
… For many religious individuals and organizations that hold a position on the issues in question, that position has been formed based on an understanding of their religion’s sacred text. Their faith is comprehensive and all-encompassing of both beliefs and practices. There is no hierarchy of beliefs to which their practices are tied. Their core mandate includes all of their religion – both beliefs and practices – and cannot be compartmentalized into separation of one belief from their worship or community service. They cannot with integrity check a box that says their beliefs concerning abortion are not part of their core mandate, even though they may never have engaged politically on the matter of abortion or have any plans to do so.
Guaranteed under the Canadian Charter of Rights and Freedoms is that government cannot force agreement with this kind of ideological position. In these matters, the Supreme Court of Canada has determined that government must be neutral to avoid violating the Charter rights of Canadians. Government action in administration of a government service/program, such as the Canada Summer Jobs Program, must treat all Canadians equally, regardless of religious or other beliefs, opinions or expression.