Justin Trudeau’s Liberal government is well over halfway through its statutory four-year mandate, and the prime minister continues to cause controversy by imposing his contestable interpretation of Canada’s Charter of Rights and Freedoms. The provocations began with his parliamentary caucus before the 2015 federal election, when he proclaimed that he would no longer permit pro-life candidates to stand for a seat under the Liberal label. This action produced a dilemma for pro-life Liberals, such as the Honourable John McKay, who had previously served under the convention that controversial moral issues, if raised in the House of Commons, would be settled by a free vote so as not to coerce members into violating their consciences. Trudeau, in effect, unilaterally changed this convention, making “reproductive freedom” for the first time a nonnegotiable element of the federal Liberal program.
In January of this year, the government announced that federal funding for the Canada Summer Jobs program—which subsidizes wages for small business, government entities, and nonprofits that employ young people who are full-time students—would be available only to groups that accept its reading of the Charter. At issue was the expectation that organizations applying for funding sign the attestation at the end of the application form, including these sentences:
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 government followed up by briefing the members of parliament on its reasons for implementing this new requirement:
The objective of the change is to prevent Government of Canada funding from flowing to organizations whose mandates or projects may not respect individual human rights, the values underlying the Charter of Rights and Freedoms and associated case law. . . . Additionally, these changes help prevent youth (as young as 15 years of age) from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the Charter of Rights and Freedoms and associated case law. This change helps to ensure that youth job opportunities funded by the Government of Canada take place in an environment that respects the rights of all Canadians.
Following protests from religious groups and the media, the federal government appeared to pull back on its requirement, with this clarification appearing on the relevant website:
[The phrase “core mandate” denotes] the primary activities undertaken by the organization that reflect the organization’s ongoing services to the community. It is not the beliefs of the organization, and it is not the values of the organization but, rather, the primary activities undertaken by the organization in respect of this program.
Though some organizations were content to accept this semantic back-pedaling, others decided to forgo the funding for fear of compromising their missions. The government's response? It shouldn't be a big deal. Just check the box and take the cash.
The Charter is the most significant component of Canada’s Constitution Act, 1982, which was engineered by the current prime minister’s late father, Pierre Trudeau. Whereas the earlier Canadian Bill of Rights of 1960 had only a statutory basis and was thus effectively beyond the scope of judicial review, the new Charter was an entrenched constitutional document similar to that of the United States. Section 2 of the Charter claims to guarantee the following fundamental freedoms to all Canadians: “(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.”
One need not be a lawyer or constitutional scholar to recognize that nowhere does the Charter describe abortion as a right, whereas it definitely guarantees religious freedom. Furthermore, whereas the U.S. Supreme Court ruled in Roe v. Wade (1973) that women have a constitutional right to obtain an abortion, Canada’s comparable ruling, R v. Morgentaler (1988), though it invalidated the former section 251 of the Criminal Code, stopped short of declaring such a right. Thus the Liberal government’s interpretation of the Charter is faulty on at least two points.
One generally assumes that constitutional bills of rights are needed primarily to limit the power of governments and to protect the legal space for those ordinary communal activities often grouped under the label of “civil society.” These activities include, of course, the expression of political views and participation in debates over the issues of the day. To be sure, the Charter does not explicitly cover the disbursement of federal funds for various activities deemed to be in the public interest. Yet it is not unreasonable to expect that, given its guarantee of “freedom of conscience and religion,” the government should be even-handed in its funding priorities, not singling out for support those groups that happen to agree with the ruling party’s worldview. More to the point, the current government is using the Charter, not to reveal its own limits so as to work within them, but to limit citizens’ freedom to differ from the government’s debatable policy positions. This approach does not conform to the Charter “values” the government claims to uphold, and it certainly does not measure up to the standards of a healthy democratic polity.
Most practical politicians do their best to keep as many voters as possible on their side so as to stay in power. Deliberately alienating much of the electorate by supporting an obviously unjust policy is not exactly the way to accomplish this goal. Yet it is not unusual for those in the grip of a particular ideological vision to allow it to override such considerations. We can only hope that the prime minister will remove the disputed attestation, if not because it’s the right thing to do, then at least because he craves re-election.
David Koyzis is author of Political Visions and Illusions.