A “non-constitutional” take on the Canada Summer Jobs Program (by guest blogger Kathryn Chan)

The Trudeau government’s administration of the Canada Summer Jobs Program has attracted a great deal of criticism in recent weeks.  Controversy swirls around the “detestable attestation”, which requires groups that apply for program funding to attest that both the job [for which they plan to use the funding] and the group’s core mandate respect individual human rights in Canada.  The attestation specifies that these rights include “the values underlying the Canadian Charter of Rights and Freedoms” as well as reproductive rights and the right to be free from discrimination.

Underlying the poor drafting and poor communications, the issue is whether the Trudeau government either can or should require program applicants to sign an attestation that may conflict with their religious views. Commentators have expressed very strong opinions on the issue, with the weight of the legal commentary pivoting upon divergent views of the scope of the Charter’s equality and religious freedom provisions. Constitutional law principles are likely to be determinative of the question of whether the government can make signing the attestation a condition of its summer job funding. However, I suggest that as we consider whether government should use the attestation in this way, we also have regard to “non-constitutional” legal principles and debates.  In particular, I suggest we might gain a deeper understanding of the contest over the Canada Summer Jobs Program by considering the law’s approach to regulating charities, and the manner in which it navigates the tension between the respective spheres of individual project pursuit and collective project pursuit.

The majority of the organizations that object to the attestation are religious charities.  By virtue of the legal criteria of charitable status, we may assume that they are non-profit organizations constituted to advance the tenets of a religious faith, either directly (by spiritual teaching), or indirectly (by assisting the needy in accordance with their religious beliefs).   They must also operate “for the public benefit” within the meaning of the common law.  Provided that religious organizations meet these criteria, the common law has long held that they are entitled to the advantages of charitable status: perpetual duration, the protection of the Crown, and (since the early 20th century) a variety of tax benefits.  Religious and other charities are also subject to special burdens, including stringent duties with respect to the administration of charity property, and regulatory and reporting duties under the federal Income Tax Act.

The common law has always pursued two contradictory goals in defining and supervising the entities that are entitled to this special treatment.  The first is to enable benevolent property owners to improve the world in accordance with their own individual vision.  This goal – of protecting conditions of individual autonomy for the founders and administrators of charitable projects – is strongly associated with the private law sphere.  As Nigel Simmonds has explained, it expresses the deep value that liberal democracies place upon individual project pursuit – “the freedom of the individual to formulate and execute his or her own plans and projects without regard to the value or disvalue placed upon the content of those plans and projects by others”.

The common law’s second goal with respect to charities is in tension with the first – it is to set limits on the autonomy of those who found and administer charitable projects in order to ensure conformity with a more collective ideal of the good.  This is a goal strongly associated with the public law sphere. It expresses (again in Simmonds’ terms) the deep value that liberal democracies place upon collective project pursuit – “our collective freedom and responsibility to determine, through appropriate mechanisms, the broad structural features of our own society.”

One way that liberal democracies deal with their simultaneous valuation of individual and collective project pursuit is to delineate spaces where each of these forms of project pursuit dominates. For example, a person’s navigation of an intimate relationship is understood to be an individual project, where the law’s priority is generally that individuals be able to author their own life.  A government’s decision to impose a tax for the national defence, by contrast, is understood to be a collective project, which must be governed according to “public law values” such as fairness, equality and rationality.

The difficulty is that many projects sit somewhere along the expansive spectrum between the opposing poles of individual and collective project pursuit, making it difficult to determine whether autonomy or “public law values” should prevail.   Charitable projects, I have argued elsewhere, sit right in the middle of this spectrum, where the regulatory impulses of public law and private law bear down on them with comparable force. Religious charitable projects occupy an even more complex position on the spectrum, since their religious freedom is linked both to our collective project of rights protection and to individual and community autonomy.  Charity law has historically balanced the opposing impulses of public and private law with tools such as the definition of charity and the public benefit rule (see also Professor Adam Parachin’s work on these themes). Nevertheless, the equilibrium between these impulses changes over time.  And so a Catholic adoption agency that would, at one time, clearly have been considered an individual project, may come to be treated as a collective project in a world where government and charitable programs  are intertwined.

There are no easy answers to the question of when the government should stop treating projects as individual projects and start treating them as collective ones.  The question may arise with for-profit projects as well as not-for-profit ones. However, both ancient and recent history suggest that charities are particularly vulnerable to being ‘co-opted’ by government through funding or other mechanisms that nudge charities towards alignment with the government’s substantive goals. We should be wary of such alignment, I have argued elsewhere, religious freedom or not. First, such alignment or co-optation may threaten the voluntary spirit that typically characterizes charitable activity and has historically been understood to be its greatest strength.  Second, even where the alignment appears benign or well-intended, it risks becoming part of a broader pattern of the governmental stifling of dissent.  Finally, charities that cannot accept being aligned with the government’s agenda are likely to withdraw from their relationships with government, distancing themselves from the regulatory oversight that is designed to protect the public.

The debate over the Canada Summer Jobs grant program is unlikely to be easily resolved, and is almost certain to rear its head in other factual contexts.  Constitutional law principles may ultimately determine whether government can require applicants for funding programs to align with government policies in the manner of the attestation.  However, as government ponders how it should manage its relationship with religious organizations, it should also consider the centuries-old law of charities, and the principles it developed to regulate projects that were neither purely “individual” nor “collective”.

 

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