Legal fight over summer jobs clause escalates

Challenges to attestation piling up

OTTAWA • The legal battle over the government’s Canada Summer Jobs attestation is only just beginning with a host of groups preparing to launch Charter challenges.

Meanwhile, new documents in an ongoing Federal Court challenge were filed on Friday, with the Toronto Right to Life Association arguing the government’s evidence shows it conducted itself in bad faith.

In an affidavit, the association also refers to evidence by a senior public servant that the attestation clause seemingly came about because of complaints by one pro-choice lobby group. The affidavit also reveals for the first time how the government considered multiple options before choosing the attestation.

Toronto Right to Life is further alleging the government has withheld documents, and is seeking access to legal opinions and other memos prepared around the attestation.

Third-party groups are also joining the fray, with the B.C. Civil Liberties Association seeking to join the challenge against the government, and the pro-choice Action Canada for Sexual Health and Rights already approved as an intervener on the government’s side.

And now that the funding decisions have been made, a floodgate on litigation could open from rejected groups. To qualify for grants this year, applicants had to sign an unmodified attestation saying both the job and the organization’s “core mandate” respect reproductive rights, as well as other “values underlying the Canadian Charter of Rights and Freedoms.”

A small irrigation company near Brooks, Alta., filed a Charter challenge on Thursday arguing their rejection over refusing to sign the attestation was illegal on numerous grounds, including as a violation of their right to freedom of conscience and as an unlawful attempt “to subject private entities to the legal obligations of the Charter.” The challenge is being sponsored by the Alberta-based Justice Centre for Constitutional Freedoms.

Christian organizations are also preparing their cases.

“We are definitely in discussion with legal counsel and we have 20-plus charities right now that are wanting to be part of a legal challenge,” said Barry Bussey, legal affairs director for the Canadian Council of Christian Charities. “We are basically looking at the various options as to what is the best road forward ... I would anticipate that in the coming days we will be making some decisions.”

In the Federal Court case, which was filed in January and challenges the decision to include the attestation, the government argues it is simply setting its funding priorities in support of its public position on women’s rights.

An affidavit from Rachel Wernick, a senior assistant deputy minister with Employment and Social Development Canada (ESDC), says her department explored three options for setting a new eligibility requirement to address complaints about employers who “undermine human rights.”

First, they considered having public servants screen out applications, but decided it wasn’t reasonable.

“ESDC determined that the department would be unable to undertake the necessary detailed review of approximately 42,000 applications within the three and a half weeks available without significant additional resources,” Wernick said.

“ESDC determined that additional resources would not be a responsible use of public funding ... Further, this option would ultimately require junior front line staff to make a judgment call on eligibility for which they were not trained to do.”

The department also considered asking MPs to attest that the employers on their riding’s list comply with all of the eligibility requirements.

“However, that option was not considered feasible or appropriate,” Wernick said. She said MP participation in validating their lists is voluntary, so “such an option would exclude applicants in those communities where MPs do not participate.”

The department thus recommended an approach that would “place the onus on demonstrating compliance with the Eligibility Requirement on the employer applicants.”

In its motion filed Friday, Toronto Right to Life highlights the evidence Wernick disclosed around the complaints, arguing they all came from one pro-choice lobby group.

Employment Minister Patty Hajdu told the media in January that “last year we heard a whole bunch of complaints from citizens across Canada and organizations” about anti-abortion groups. Of the six examples Wernick included with her affidavit, all but one are a form letter from the Abortion Rights Coalition of Canada, while the other links to a press release from that coalition.

During cross-examination, Wernick said she couldn’t speak to whether the complaints were investigated for merit, and noted the minister may have heard other complaints that weren’t forwarded to the department.

In April 2017, following a media report on grants going to anti-abortion groups, Hajdu’s office said they had “fixed the issue” and would not allow such groups in Liberal ridings to get funding. The attestation was added the following year.

Toronto Right to Life is already contesting the attestation on the grounds it violates their Charter rights to freedom of conscience, expression, and to be treated equally under the law. They are now seeking to additionally argue Wernick’s evidence shows the government made its decision “with an improper purpose, bias, on irrelevant considerations, and in bad faith.”

In looking to join the case, the B.C. Civil Liberties Association says it won’t be arguing the government doesn’t have the right to set funding priorities.

“Instead, the BCCLA would take the position that the mechanism the (government) chose to employ in this case — the attestation of holding certain beliefs — would, in the BCCLA’s view, attach an unconstitutional condition that is unrelated to the program.”

In the coming weeks a Federal Court judge will rule on their intervener status, and on whether Toronto Right to Life can add grounds of complaint. The case as a whole has a hearing set for June 19, but that could be delayed depending on these decisions. In April 2017, following a media report on grants going to anti-abortion groups, Employment Minister Patty Hajdu’s office said they had “fixed the issue.”