Summer jobs attestation battle suffers a legal setback

OTTAWA – Seven of the eight groups or businesses challenging last year’s pro-abortion Canada Summer Jobs attestation on constitutional grounds received a setback in federal court Feb. 22.

Federal court Judge Kathleen Ring granted the Ministry of Employment’s request to put off their cases until the case of Toronto Right to Life (TRTL) is decided. 

The judge ruled “there is substantial overlap” in the eight cases which, she concluded, all concern alleged breaches of the same sections of the Charter. Dealing first with the constitutional issues related to the TRTL case will prevent “a significant waste of judicial resources and the risk of contradictory judgments,” she said. 

There is also concern that the constitutional questions raised in the lawsuits — related to religious freedom, freedom of conscience and freedom of expression — could be declared moot because the government dropped the controversial version of the attestation for the 2019 summer jobs program.

The attestation was removed following protests by religious and pro-life groups which objected to a requirement to endorse Charter and other rights, including abortion. The new attestation simply states funds “will not be used to undermine or restrict the exercise of rights legally protected in Canada.” 

Gerry Chipeur, who represents Power to Change Ministries, one of the seven groups affected by the decision, said even though the government has dropped the controversial attestation, it is still defending the attestation in the courts.

If the government loses the TRTL case “will they drop the position they’ve taken?” Chipeur asked. “They haven’t so far.”

He expressed surprise that the government continues to defend the attestation “since they acknowledged our position is right by changing the policy.”

Fears have been expressed that the Liberal government will bring back the attestation should they win the federal election in October and apply it to more government policies than the summer jobs program.

Toronto Right to Life,  a pro-life educational group, was the first to ask for a judicial review of the attestation on Jan. 4, 2018, shortly after the policy requiring what critics have described as “compelled speech” was made public.

Some believe having the pro-life group’s case heard first may hurt the other suits because the target of the attestation policy seemed to be organizations actively involved in anti-abortion advocacy. On strictly constitutional grounds, TRTL may not be the strongest case, some argue.

Albertos Polizogopoulos, who represents Redeemer University College and the four private businesses, argued in his factum for Redeemer that solving the TRTL case would not settle the issues in the Redeemer case. Chipeur said the same argument could be made for hearing Power to Change’s case first.

Polizogopoulos believes Redeemer would be the better test case because TRTL is only arguing against the imposition of the 2018 attestation, while Redeemer is challenging both the attestation and the rejection of its 2018 CSJ application. He noted that adjudication of Redeemer’s judicial review would resolve all the issues raised by TRTL, but “the opposite however, is not the case.”

The judicial review requests from three evangelical Christian organizations and four private businesses have challenged not only the constitutionality of the attestation but also the decisions of the ministry to deny funding and refuse to make accommodation on the basis of the Charter’s guarantees of religious freedom, freedom of expression and freedom of conscience. TRTL launched its challenge before any funding decisions were announced.

Speaking on his own and not on behalf of his client, Chipeur said anyone who believes in pro-life causes or religious freedom is “under attack.”

“If anyone of us is unfree, all of us is unfree,” he said. “We’re under attack here.” 

Chipeur said he believed the case would always be handled in two hearings. “Everyone who has a fundamental belief with respect to religion or thought and belief is under attack, so one is not able to be strategic, one is only able to defend. That’s what I see everyone at the table doing,” he said.

The judge required the applicants — Redeemer University College, Adam House, Power to Change Ministries, Sarnia Concrete Products, The Wood Source Inc., Saturn Machine Works and Vantage Trailer Sales — to pay the government’s court costs.

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