Update: A procedural court decision ended this case. See below.
Background: The Justice Centre has filed a court application against the federal Minister of Employment, Workforce Development and Labour, Patty Hajdu, on behalf of a small, family owned-business providing agricultural irrigation services in southern Alberta. Their application to provide a summer position for a student interested in water conservation or environmental sciences through the Canada Summer Jobs (CSJ) program was rejected because they refused to comply with the new 2018 attestation, which requires applicants to express agreement with the Liberal governments’ views on abortion and sexuality.
Starting this year, charities and small businesses must express their support for abortion being legal if they wish to access a grant through the Canada Summer Jobs program, which provides federal government grants to hire summer students. Further, charities and small businesses must express agreement with the idea that abortion is a Charter right, in spite of the fact that the Supreme Court of Canada ruled in R. v. Morgentaler that Parliament can legislate to protect unborn life.
The applicants, Rhea Lynne Anderson and William Anderson, are a married couple residing near Brooks, Alberta. The Andersons are the sole owners of A-1 Irrigation & Technical Services (“A-1”), which offers ecologically responsible irrigation services to local farming operations.
Believing that they could provide a quality summer job to a qualified student, the Andersons submitted a CSJ application on January 24, 2018. However, the Andersons submitted their 2018 CSJ application without checking the “I attest” box, because they object to being compelled to express their agreement and respect for ideological positions as required by the new attestation requirement, which reads:
Both the job and my organization’s core mandate respect individual human rights in Canada, and 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 federal government has defined “respecting” “reproductive rights” as including “the right to access safe and legal abortions”. The 2018 CSJ Application Guide states that the federal government “recognizes” that “the right to access safe and legal abortions” is protected by the Charter and human rights legislation.
On February 9, 2018, the Andersons received the following reply from Service Canada:
The essential requirements listed below are missing from your application, and therefore we are unable to determine your organization’s eligibility or the eligibility of the activities proposed in your application:
The signatory must check the “I attest” box to confirm eligibility and add his/her initials next to the box.
In order to determine the eligibility of your organization and its proposed activities, you must provide us with the above essential missing requirements within 10 business days following the date of this correspondence. If you fail to respond within the above specified timeframe, your application will be deemed incomplete and will therefore not be eligible for assessment. (Emphasis added)
On February 10, 2018, the Andersons responded to Service Canada, indicating that they would not be checking the “I attest” box because they viewed it as unconstitutional for the Government “to require a specific prescription of personal beliefs” to qualify for participation in a government program.
The court application seeks a declaration that the new attestation requirement violates section 2(a) and 2(b) Charter freedoms of conscience and expression. The new attestation requirement also breaches the duty of state neutrality, because it compels the Andersons to profess their agreement with, and ostensibly adopt, specific beliefs and values in order to qualify for a government benefit to which they would otherwise be entitled.
The court application further seeks a declaration that the new attestation requirement violates section 32 of the Charter by compelling private entities to assume the legal obligations of the Charter that only the government is required to honour.
The Andersons also seek a declaration that the new attestation requirement is ultra vires the authority of the federal government, and a court order to strike the new attestation requirement and to approve their CSJ application.
As Rhea Lynne Anderson explains in her filed affidavit:
My husband and I, and our business, comply fully with human rights legislation, and with all federal, provincial and municipal laws. The New Attestation Requirement is not simply a commitment to comply with legislation, but instead asks us to agree with the government’s “values” and to be bound by the Charter as though we are government actors.
Since the February 9, 2018, deadline for applying for Canada Summer Jobs funding, numerous charities have been told, in writing, that they will not receive funding unless they check off the “I attest” box on the application, to confirm their support for legal abortion and rights based on gender identity and gender expression as a Charter rights.
On April 26, 2018 the Justice Centre filed an application on behalf of the Applicants in the Alberta Court of Queen’s Bench. In December, 2018 the Trudeau government announced that the 2019 Canada Summer Jobs Program would require a different attestation, which means that any difficulties with the 2019 cannot be dealt with in the same case. On July 2, 2019 the Anderson’s case was in court and the government argued that the case should be struck. The government claimed that the Anderson’s case was moot because the 2018 attestation was no longer required and that the Federal Court has exclusive jurisdiction to hear a case that attacks decisions made under authority of federal legislation. The Justice Centre argued that the Anderson’s case is not moot because a declaration that the Anderson’s rights were infringed by the 2018 attestation requirement remained available and the Court of Queen’s Bench had authority to give that Charter remedy.