“The fact they’ve now abandoned it means in some ways we were victorious,” said Albertos Polizogopoulos, a constitutional lawyer representing four small businesses and Redeemer University in five separate lawsuits before the federal court. “All the cases remain ongoing for the time being.”
The government announced Dec. 7 it was removing the attestation that required applicants to endorse Charter and other rights, including abortion. It was replaced by an attestation that funds “will not be used to undermine or restrict the exercise of rights legally protected in Canada.”
“I think the government’s decision to change the attestation makes their case completely untenable,” said Gerry Chipeur, who represents Power to Change Ministries, an evangelical Christian organization.
Chipeur said that under Section 1 of the Charter, the government must justify any infringement on freedom of religion or freedom of expression. “Both of those freedoms are impacted by a forced attestation to access a government program or payment,” Chipeur said.
The government uses the Supreme Court’s Oakes Test to ensure it uses the “least intrusive means to achieve the governmental objective,” Chipeur said. “By changing the attestation, the government has provided clear and convincing evidence there is an alternative to the attestation that they forced upon the civil society community last year. So, it’s game, set, match.”
Chipeur said the request before the courts was for his client to receive the money they would otherwise have received for a Canada Summer Jobs grant had the government accommodated his request for recognition of religious freedom and freedom of expression charter rights.
“I don’t know what the government’s strategy will be,” Chipeur said.
On Dec. 13, the federal court heard an application from the federal government to stay all the other cases until the first case involving Toronto Right to Life (TRTL) is settled. In the absence of a stay, the government sought advice on how to streamline the court proceedings.
“The government applied to have a stay long before the political decision was made to recant (the attestation),” Chipeur said. “So, I do not know what the government will do, but the government must reconsider its position now that this political decision has been made, because there does not appear to be any issue left to debate, unless the government wants to fight for something it has already abandoned.”
TRTL challenged the Minister’s decision to impose the attestation, while Polizogopoulos’s four small businesses, and Adam House, a Toronto-based charity supporting refugees, went at the constitutional matter differently. They challenged the government’s refusal or rejection of their application after they sought accommodation on religious freedom and freedom of expression grounds.
The businesses “specifically requested an accommodation of their Charter rights,” Polizogopoulos said. One had said, “We don’t have a position (on abortion). We sell concrete, please respect that.”
“Every Canadian is entitled to hold and express an opinion and not be denied a public service because their political opinion differs from that of the government of the day,” said Chipeur.