On March 6, Ontario Superior Court Justice A.J. Goodman ruled that the Children’s Aid Society of Hamilton violated the Charter rights of a foster couple when the government agency removed two foster children from the couple’s home because the foster parents refused to lie about the Easter Bunny. By trying to compel them to promote the Easter Bunny myth, the Children’s Aid Society violated the couple’s Charter rights of religious freedom and expression, ruled the judge.
Carpay, president of the Justice Centre for Constitutional Freedoms, represented the foster parents, devout Christians Derek and Frances Baars. He believes there’s a clear link between a social worker “demanding on threat of penalty” that someone state the Easter Bunny is real, and the federal government insisting that applicants to the summer jobs program attest “that they support abortion being legal” and the “false idea” that abortion is a Charter right.
“The commonality in both cases, you have the State attaching consequences to not saying what the State wants you to say,” Carpay said.
The Justice Centre represents a client who will launch a court action against the summer jobs application “in the weeks ahead,” he said.
This client is not a pro-life group, he added. That is significant because “it makes it easier for the court to see the violation of freedom of expression because the court is not going to be thinking about abortion to the same extent.”
He believes the Easter Bunny decision “had a huge precedent value” because it upheld the religious freedom rights of parents generally and because the decision quoted various Supreme Court rulings “that are very clearly against compelled speech.”
Phil Horgan, president of the Catholic Civil Rights League, said Canadian courts typically rule in favour of free speech and free expression. He said courts take a dim view when someone is required to “comply or be subjected to some sort of ideological preconditions,” particularly “where public benefit is involved.”
“I think the Eastern Bunny case is quite frankly so far-fetched — a foster parents’ loving environment, with great results for their children, who just refuse to participate in some Walmart marketing exercise related to the Easter Bunny. I don’t think it was that difficult a decision,” Horgan said.
“I think the message from this court to the federal government and other governments that are engaging in these types of limitations, whether on attestation requirements, or bubble zones, or other kinds of limitations, they should tread very lightly into areas of cherished freedom,” he said.
Horgan issued a caveat, however.
“We’ve also seen the shelf life of a Supreme Court decision may be less than 22 years,” he said, referring to recent reversals regarding prostitution laws and euthanasia and assisted suicide.
Ray Pennings, executive vice-president of the Christian think-tank Cardus, also sees implications in the Easter Bunny decision for governments and government agencies, such as the Law Society of Ontario, which is compelling lawyers to have “a statement of principles acknowledging their obligation to promote equality, diversity and inclusion.” He said there is an “overreach” by government and administrative agencies that contributes to a climate of “compelling speech.”
“What the court has done here has quite clearly drawn some lines showing: a) this is dangerous and b) the worker at the agency seemed blind to what she was doing.”
But there is nothing blind about the jobs attestation.
“The government has been very intentional and it has not backed down,” he said.
“It’s part of a broader strategy and that is something that I worry about. There are lots of ways the government could achieve its objective of not funding pro-life organizations without having an attestation box.”
He believes the government is acting “in a coercive way.”
“It has turned the Charter from a shield into a sword and is seeking to transform society according to its beliefs at the expense of the conscience, religion and expression rights of individual Canadians,” he said.