Before we get to this week’s article, we have a brief book review by Acacia lawyer John Sikkema.
A Brief Book Review: Purchasing Submission: Conditions, Power and Freedom
I like listening to First Things podcast while walking our Australian Shepherd. A recent episode featured Columbia Law Professor Philip Hamburger discussing his book Purchasing Submission: Conditions, Power and Freedom. “Conditions” in the title refers to “rules” a person or organisation must follow or things they must do to receive or maintain a government benefit. Such conditions are not spelled out in legislation, but appear in bureaucratic policies and guidelines. Since they only apply to those who choose to seek out a government benefit, it may appear as though such conditions do not function as laws restraining our freedoms.
However, Hamburger contends that constitutional rights and restraints on government must still apply to such programs, which are still an exercise in state power. Hamburger observes that the sheer extent of such conditional benefits in society and their administration by the executive branch of government has effectively creates a new system of government that largely circumvents the separation of the executive, legislative, and judicial functions. Not only that, but governments generally get away with conditions curtailing constitutional freedoms (especially free speech).
While it’s set in the American legal context and draws on American examples and court cases, it is a timely book for Canadian constitutional lawyers like us. Let me give a current Canadian example of the problem: the Canada Summer Jobs Program. The Program offers government subsidies for summer jobs for students.
The Program is created and administered by the Ministry of Employment, Workforce, and Labour. The Ministry sets the criteria and decides whether organisations satisfy them. The process and the criteria are often rather opaque. In 2018, the government imposed an “attestation requirement” on applicants to the program. Unless you were willing to attest to the fact that your organization respected “human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms” and “reproductive rights” (including abortion), you could not participate.
Several organizations launched constitutional challenges to the attestation. Most of those challenges were put on hold by the Federal Court in order to await the outcome of the Toronto Right to Life Association’s (TRTL) challenge. TRTL’s challenge failed, but an appeal is underway. In upholding the attestation, the Federal Court noted that the impact on Charter freedoms is minor – it simply means TRTL lost a one-time benefit. But this reasoning overlooks the real issue of a government creating an ideological filter for public benefits, disqualifying citizens from a public benefit (whether big or small) based on their religious or conscientious convictions about the sanctity of life. This violates our most fundamental principles of law.
Expect more on this important case in our future newsletters.
Extraordinary “Emergency” Powers
by John Sikkema
The federal government’s invocation of the Emergencies Act – the first ever since that law was enacted – was predominantly condemned by legal and political commentators across the political spectrum in Canada and abroad. As many Canadians learned in the past few days when their bank accounts were frozen without court authorization or any kind of due process, the Act gives the government extraordinary powers that no government should have – except perhaps in the gravest of situations, for the safety and security of the country.
Indeed, the part of the Act relied on by the government is only for an “urgent and critical situation” that “seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it” or “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.”
The Canada Civil Liberties (CCLA) has filed a court challenge to the government’s invocation of the Act, noting that the Act “was intended to address situations of war, invasion and other national emergencies that are so exigent and threatening that they cannot be dealt with under existing laws or through typical democratic processes.” The Ottawa protest, which did not involve violence or destruction of private or public property, let alone threaten national security or public safety on a grand scale, could have been dealt with using ordinary legal measures. The Act was invoked after the Ambassador Bridge border blockade was cleared without violence.
We see this as an (albeit extreme) example of this government’s tendency to use its powers and resources for partisan and ideological ends in ways that disregard the Charter of Rights and Freedoms that it claims to hold sacred. In 2020, the Prime Minister ignored COVID-19 gathering restrictions to join one protest on Parliament Hill, but he assumed extraordinary powers to clear out and even to punish supporters of another protest that condemned his government’s policies. Other examples include excluding religious and pro-life groups from the Canada Summer Jobs Program (see above) and threatening to revoke the charitable status of pregnancy care centres. For excellent commentary on the Emergencies Act, check out our friend Don Hutchinson’s blog.