Requiring the Respect of Reproductive Rights to Receive Federal Funding Appears Constitutional, Despite Political Pandering

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Recent changes to the requirements for applicants to receive federal funding under the Canada Summer Jobs program received heavy criticism from Ted Falk, Progressive Conservative Member of Parliament for the Manitoba riding of Provencher. The federal government’s website states the purpose of the new changes is to ensure that groups applying for federal grants under the program agree to respect “individual human rights, the values underlying the Charter of Rights and Freedoms and associated case law.” The goal behind the changes is to “prevent youth 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.” To meet the new requirements for funding, applicants must check a box indicating their support of “reproductive rights.” The federal government also recently announced its decision to invest $105 million into the Canada Service Corps program, which serves as a national youth volunteer program designed to encourage Canadian youth to serve their country and community. The Canada Service Corps program is also subject to the same funding requirements as the Canada Summer Jobs program. The funding application process for both programs requires applicants to check a box indicating that:

“My organisation’s core mandate respect individual human rights in Canada… these include reproductive rights and the rights 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.”

If applicant groups do not agree with the aforementioned statement, they will not be considered for federal funding. These changes have attracted criticism from some groups who argue that the requirements create a hierarchy of rights that values reproductive rights over freedom of conscience and religion. Ted Falk went so far as to say that the federal government is discriminating against groups “because of the Charter of Rights and Freedoms.” On his website, he even claims the federal government is violating Canadians freedom of conscience and refers to the changes as “discriminatory.” He also considers the changes a “values test,” and asks “if the Liberals are forcing Canadians to pass their ‘values test’ in order to receive CSJ funding today, what’s next? … Where will it end?”

Although Ted Falk is most certainly wrong about the changes being discriminatory, he appears to be right about them essentially being a values test. It must be considered, however, that some values are so rightly and widely held by Canadians that requiring groups to respect them in order to receive public funding should not be considered controversial at all. For example, if there was a requirement that groups refrain from supporting any form of slavery so as to receive federal funding, it would be correct to consider such a requirement as being a values test. It would certainly be considered absurd, however, if any politician was to vocally criticize the policy on that grounds; any such politician would at the very least be laughed out of office, but more likely than not they would be rightly condemned by Canadians. Surely, no reasonable Canadian would want their tax dollars to go towards any group that condones slavery, and most Canadians would be more than comfortable establishing a values test that prevented that from happening. Therefore, it is quite clear that the question Ted Falk should be concerned with is not “should the government make use of a values tests to determine who is eligible for federal funding” but rather “what values are so rightly and universally accepted by Canadians so as to be included in such a values test?”

An Ipsos poll from March of 2017 indicates that 77% of Canadians support safe and legal abortion. Of those, 24% favour some limits on abortion access while 53% think it should be allowed in all circumstances. Interestingly enough, while 12% of Canadians still feel legal abortion should generally not be allowed, only 5% of Canadians are strictly opposed to legal abortion in all circumstances. 11% of Canadians are not sure. To put these numbers in perspective, it would be wise to consider that one poll suggests that 19% of Canadians still believe that vaccinations are a cause of autism, despite this claim having been thoroughly debunked by the scientific community. Clearly, those who oppose legal abortions in Canada are increasingly finding themselves on the political fringe. It seems that the 5% opposed to abortion in all circumstances would likely be characterized as politically extreme by the majority of Canadians. Given the reality of Canadian public opinion, including reproductive rights in any values test ought not to be thought controversial at all since it has nearly universal support amongst the majority of Canadians.

Of course, just because an opinion is widely held does not mean that it is morally defensible. It must be considered, however, that famous and widely recognized philosophical arguments such as Judith Jarvis Thomson’s “A Defense of Abortion have made extremely persuasive arguments that basic ethical considerations require abortion to be legal. Other authors such as Andrew Koppelman have even gone so far as to draw bold parallels between slavery and prohibiting abortion. Anybody finding themselves uncertain on the issue would be well advised to consider reading into and exploring these ethical arguments.

The extent to which reproductive rights are included under Section 7 of the Charter’s “right to … security of the person” under Canadian law, however, still remains somewhat contentious due to the three different concurring judgments in the famous R v Morgentaler decision, which ultimately found Canadian Criminal Code provisions prohibiting abortion to be unconstitutional. In Chief Justice Dickon’s widely cited portion in his R v Morgentaler concurring judgment, he stated that “forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she met certain criteria unrelated to her own priorities and aspirations was a profound interference with a woman’s body.” Nevertheless, despite the fact that Charter rights to the security of the person prevent absolute restrictions to abortion through the use of Criminal Code provisions, R v Morgentaler did leave open the possibility that less restrictive laws regulating abortion could still be upheld in the future. Despite this, such restrictions seem to lack majority support amongst Canadians, and there is little consensus currently about what kind of regulations would be accepted by both Canadians and courts.

Ultimately, it seems fairly certain that requiring respect for reproductive rights to receive federal funding through the Canada Summer Jobs program and the Canada Service Corps program ought not to be considered controversial since reproductive rights to access abortion are rightly and universally supported by the majority of Canadians. Yet some opponents of reproductive rights are going so far as to claim that the federal government’s decision infringes upon their Charter rights to freedom of speech, conscience, and religion. Contrary to these claims, it is important to point out that there is a difference between preventing someone from expressing an opinion and giving someone money to express that opinion. Daphne Gilbert, an associate professor at the University of Ottawa’s faculty of law, highlighted this, noting that “the attestation simply requires organizations to say that they will respect the rule of law and they’re not going to employ people to undermine or overturn those laws. It doesn’t mean that they can’t do that, they can fundraise those positions. But the government’s public money won’t be used to fight a Charter fight, using taxpayer money.” In other words, groups are still free to express and advance their disagreements with reproductive rights and abortion using their own time and resources, but they cannot do so when simultaneously accepting federal government grant money; this is due to the simple fact that receiving grant money from the government can hardly be considered a legal entitlement. Daphne Gilbert went on to say that she thinks the funding changes are defensible on these grounds. Case precedent for a similar scenario is found in Canadian Arab Federation v Canada (Citizenship and Immigration), where the federal government was permitted to deny discretionary funding based on concerns with an organization’s public statements.

Furthermore, there is an important distinction to be made between supporting and advocating for reproductive rights, and merely “respecting” them as the application process requires. It is possible to respect something without agreeing with it. The fact is that groups who choose to participate in the program and accept grant money do not have to explicitly support abortion rights, they merely have to refrain from explicitly protesting them. Given that Canadians would likely be justifiably upset if taxpayer money was used to pay youths to protest outside abortion clinics, this requirement for federal funding ought to be considered uncontroversial. If groups wish to make use of their freedom of expression to protest abortion, which they continue to have every right to do, they can do so using their own time and money. The funding changes were undoubtedly needed to, considering the fact that purely political groups such as the Canadian Centre for Bio-Ethical Reform, Guelph Right to Life, and Toronto Right to Life were all previously receiving funding through the program to advance their agenda.

There may, however, still be some room for groups receiving federal funding to nevertheless actively support some regulations on abortion, so long as they do not seek to prohibit it in purpose or effect. Importantly, “reproductive rights” is a relatively vague term that has never been constitutionally enshrined in Canada. Daphne Gilbert also correctly notes that “the Morgentaler decision didn’t say a woman has a constitutional right to abortion, it didn’t go that far.” Although it remains to be seen, it may yet be possible for groups seeking funding to advocate positions that sincerely attempt to balance reproductive and security of the person rights with reasonable competing interests; but where the line is to be drawn is difficult to say. Until reproductive rights are explicitly defined, this area remains uncertain. But, considering the fact that Canada still lacks abortion regulations following the R v Morgentaler decision, such activity could nevertheless be of some social value, so long as a woman’s core choice in the matter and her right to the security of her person is left alone.

The fact that some people believe there is somehow an important political issue to be raised about the new funding requirements for youth programs is truly indicative of how out of touch they are with Canadians. The fact that some, such as Ted Falk, would even go so far as to claim the changes are discriminatory suggests that they are also out of touch with reality as well. At this point in time, it seems relatively certain that women have both a human right and a legal right to terminate a pregnancy if they so choose, albeit possibly within some reasonable limits. Thankfully, this is unlikely to change in the near future. In the meantime, however, Canadians may want to consider making use of their voting rights to terminate certain buffoons from elected office.

 

This blog post was written by a CCLA-PBSC RightsWatch student. Opinions expressed do not necessarily reflect the views of the CCLA or PBSC.

About the Author

Ryan Poirier
Ryan Poirier is a second year Law student at the University of Manitoba. He holds a Bachelor of Arts with a double major in both Political Studies and Economics.