Childcare, Summer Jobs, and
Religious Discrimination in Canada*
Disqualifying otherwise eligible recipients from a public benefit because of their religious beliefs is unacceptable in a liberal democracy. Yet that is the effect of two recent government initiatives in Canada.
Better known for its provisions concerning face coverings, Quebec’s Bill 62 introduced new rules concerning religious childcare programs.  Quebec’s private childcare providers are eligible for public subsidies, but those which teach religious beliefs or practices are now disqualified. It seems private daycares that begin their day with toddler yoga can receive public funding, but those that begin with prayer or Bible stories (as some daycares operated by religious communities do) may not.
Similarly, religious charitable organizations unable to attest that they “respect” certain values identified by the federal government – including abortion, among other issues on which there is a divergence of (religiously-informed) beliefs – will now be disqualified from the Canada Summer Jobs grant program. In recent attempts at clarification, federal officials have indicated that these measures target groups advocating a pro-life message, not those engaged in other activities that “happen to hold pro-life beliefs,” though this still constitutes viewpoint discrimination, especially if pro-choice advocacy groups continue to receive funding. Regardless, it appears that whatever their activities and purposes, all organizations are still expected to affirm that their “core mandate agrees” with the government’s position on abortion, among other issues, which many are unable to do.
Both the Quebec and federal governments’ initiatives undermine the very principles they are said to be promoting.
The stated purpose of Quebec’s Bill 62 is to “foster adherence to State religious neutrality”, but it contradicts much of the Supreme Court’s case law on that topic. The state’s duty of religious neutrality, which flows from the right to equal exercise of freedom of conscience and religion guaranteed by the Charter, requires governments to accommodate religious diversity, not extinguish it. Governments must neither “favour nor hinder any particular belief”. Creating a “neutral public space” does not mean the homogenization of private actors – childcare providers included. Rather, it requires that those who adhere to secular beliefs not be given preference over those who adhere to religious beliefs, and vice versa.
Yet Bill 62, in the name of “religious neutrality”, effectively imposes a requirement of non-belief in order to receive a generally available benefit. This is anything but neutral. The Supreme Court of Canada has made clear that the government cannot dictate to a religious school – even one that receives public funding – how to teach or transmit its faith; this violates the Charter.
Similarly, the federal government, in the name of advancing “individual human rights, the values underlying the Charter of Rights and Freedoms and associated case law,”  undermines not only the Charter value of state neutrality, but also the fundamental freedoms of belief, opinion, expression, religion and conscience. All of these Charter guarantees protect the right to hold and express diverse views on moral issues, including abortion, without reprisal.
Some have argued that denying public funding does not impede religious freedom since organizations are still free to continue operating according to their religious beliefs. This is true, but that freedom comes at the cost of exclusion from the benefits of a public program for which they are otherwise fully qualified. The U.S. Supreme Court recently ruled against a state government for conditioning its public benefits this way, and our own Supreme Court has emphasized that “freedom of religion is not accommodated if the consequence of its exercise is the denial of the right of full participation in society”.
Government actions which deny religious individuals equal access to work and employment (which is considered a “fundamental aspect” of Canadian society) also run afoul of the Charter’s equality guarantee. The Supreme Court has affirmed that discrimination in this area marginalizes equality-seeking groups from the fabric of Canadian life. This includes religious minorities who cannot attest to prevailing majoritarian viewpoints on such issues as abortion. Compelling religious minorities to publicly affirm “values” contrary to their conscience – in the name of the Charter which specifically protects against such compulsion – epitomizes intolerance and illiberalism.
It is true that no right is absolute, and freedoms can be overridden if necessary to “protect public safety, order, health or morals and the fundamental rights and freedoms of others”. But that does not appear to be the case here – in fact, the religious tests being imposed do not seem to have any rational connection to the purposes of the programs in question. Is a daycare operated by (and primarily for) a Jewish community any less capable of providing childcare because it incorporates religious prayers and practices celebrating Hanukkah? Is a homeless shelter less deserving of social assistance because it is operated by a church that affirms that life begins at conception?
Granted, these organizations do not have a freestanding, automatic right to public subsidies. But they do have the right to equal participation in a government benefit program without having to disavow their religious beliefs. Where the government puts in place a scheme to provide a benefit, that scheme must comply with the Charter.  It is discriminatory to refuse to allow religious organizations – solely because of their religious character – to compete for public funding on equal terms with secular organizations that are carrying out the same, or similar, activities.
The federal government insists that its requirements do not discriminate on the basis of religion, stressing that religious affiliation “does not itself constitute ineligibility for this program”. This is technically true, as long as the organization’s religious beliefs align with the government’s position on issues such as abortion. If they do not, its representatives are apparently expected to disavow – or, at the very least, suppress – those beliefs, even though they may form an integral part of their identity.
In recent attempts to clarify the CSJ regime, and in response to opposition mounting across partisan and ideological lines, government officials have stressed that their measures only target conduct, not beliefs. A recently published “supplementary information” guide states that the government considers an organization’s “core mandate” to mean its “primary activities” and not its “beliefs” or “values.” It provides the example of a group formed to explicitly advocate a pro-life message (characterized as “seeking to undermine existing women’s reproductive rights”) as one that would be ineligible for funding. By contrast, religious organizations engaged in other activities that happen to hold “anti-abortion beliefs” could be eligible (presumably as long as those beliefs are not expressed through their activities in any way).
The government may think that organizations can neatly segregate their beliefs from their “core mandate,” but for most religious organizations, it is not that simple. Their “core mandates” are rooted in belief. Even the government’s lead minister overseeing the Canada Summer Jobs file describes a “core mandate” as an organization’s “principal reason for being.” Yet she asserts that “core beliefs” and “core mandates” are distinct, going so far as to suggest that Catholic organizations need not fret over signing the attestation, since their “core mandate” is not defined by what they are opposed to but “around spreading the word of God and Jesus Christ.” This is perhaps the most troubling development: the idea that the government might interpret a religious organization’s “core mandate” by suggesting what is, and is not, required by the tenets of its faith.
In reality, a religious organization’s activities are indistinguishable from—and a manifestation of—its beliefs. For the government to tell believers that they are free to “hold” beliefs, but may be denied a privilege if they (lawfully) express them through their (otherwise eligible) activities, hardly constitutes religious accommodation.
Ultimately, the government is still disadvantaging groups based on their beliefs, not their activities, despite assertions to the contrary. Public advocacy on the issue of abortion is an eligible activity for CSJ funding, it appears, but only for those on the pro-choice side of the debate. Further, the government’s overarching goal remains to “prevent youth . . . from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the Charter of Rights and Freedoms and associated case law” [emphasis added]. Putting aside the problematic assertion that the government’s position on access to abortion is mandated by the Charter (it is not), its preoccupation with an organization’s “position” on “reproductive rights” and other issues betrays the ideologically driven nature of its funding formula. If it were otherwise, there would be no need for an “attestation” about a “core mandate” at all: there would simply be a list of specific ineligible activities, regardless of an organization’s position or beliefs. Instead, despite all of the government’s post facto attempts to downplay its effect, the wording of the attestation remains unchanged. Organizations must still affirm that their “core mandate” will “respect . . . reproductive rights”—which, for many, will be understood as stating that they “agree” with the government’s position on that issue.
Bill 62 and the new Canada Summer Jobs regime both penalize religious participants by denying them an equal share of the rights, benefits, and privileges enjoyed by other citizens. In implementing these measures, the federal and Quebec governments are sending a message: certain religious beliefs and practices are less important or valid than others. But according to the Supreme Court, this is unacceptable; it casts doubt on the value of those who adhere to these beliefs and denies their equal worth.
Governments should show no preference as to the religious beliefs and practices of grant recipients (assuming, of course, that those beliefs/practices are lawful). This is necessary in order to preserve “a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally.”
Some may wonder what the “kerfuffle” is about, and assert that, in 2018, it is not unreasonable to expect Canadians to get in line with contemporary values. That may be satisfactory, as long as one’s ideological allies form the government of the day. But what happens when a new government articulates a contrary set of “values” that all citizens are required to affirm?
Regardless of how we may feel about the underlying “values” being advanced, we should all be deeply concerned when state actors insist that private citizens support their philosophical worldview – or any particular worldview, for that matter – as a precondition to equal treatment.
*Earlier, condensed versions of this article were previously published by the Montreal Gazette (January 15, 2018), The Ontario Bar Association (January 17, 2018), and The Public Discourse (February 11, 2018). It is reproduced with some updates here (last reviewed June 19, 2019).
 For example, Article 14 of the European Convention on Human Rights prohibits religious discrimination. Similarly, the U.S. Constitution “prohibit[s] governments from discriminating in the distribution of public benefits based upon religious status or sincerity”: Mitchell v Helms, 530 U. S. 793, 828 (2000). The U.S. Supreme Court recently rejected a government policy which “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character”: Trinity Lutheran Church of Columbia, Inc. v Comer, 582 U.S. (2017). And in Canada, section 15 of our Charter of Rights and Freedoms guarantees that no one will be denied a benefit to which they are otherwise entitled based on their religion.
 An act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies (Bill 62), 2017, ch 19, online: <http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2017C19A.PDF>. Commenters have noted with concern that section 10 effectively denies public services to religious minorities who wear face coverings pursuant to their sincere religious beliefs. A constitutional challenge has been launched, and last month, the Quebec Superior Court temporarily suspended the law pending that litigation. See National Council of Canadian Muslims et al v The Attorney General of Quebec, Quebec Superior Court No. 500-17-100935-173 (1 December 2017), online: <https://ccla.org/cclanewsite/wp-content/uploads/2017/11/2017-12-01-Judgment-on-Application-for-a-Stay-Bill-62.pdf>.
 Bill 62, ibid at section 20. See further discussion in Christian Legal Fellowship’s submission to the National Assembly of Quebec regarding Bill 62: <https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/5852d8e7440243057752a7aa/1481824488837/Submission+of+the+Christian+Legal+Fellowship+re+Quebec+Bill+62+%28English+translation%29.pdf>
 The Government of Canada, “Canada Summer Jobs 2018: Creating Jobs, Strengthening Communities; Applicant Guide” at pages 3-4, 6, 9, 13, online: https://www.canada.ca/content/dam/canada/employment-social-development/services/funding/canada-summer-jobs/CSJ2018_applicant_guide.pdf [Applicant Guide].
 Brian Platt, “A church’s ‘core mandate’ must be pro-choice to access summer jobs grant: minister” National Post (12 January 2018), online: <http://nationalpost.com/news/politics/a-churchs-core-mandate-must-be-pro-choice-to-access-summer-jobs-grant-employment-minister-says>.
 Ibid. Quote attributed to Employment Minister Patty Hadju.
 Mouvement laïque québécois v Saguenay (City), 2015 SCC 16,  2 S.C.R. 3 at paras 15, 74-76 [Saguenay]. See further discussion in Christian Legal Fellowship’s submission to the National Assembly of Quebec regarding Bill 62: <https://static1.squarespace.com/static/57503f9022482e2aa29ab3af/t/5852d8e7440243057752a7aa/1481824488837/Submission+of+the+Christian+Legal+Fellowship+re+Quebec+Bill+62+%28English+translation%29.pdf>
 Ibid at para 72.
 Ibid at para. 74.
 Ibid at para. 75.
 Loyola High School v Quebec (Attorney General),  1 SCR 613, 2015 SCC 12 at para 63.
 Applicant Guide, supra note 4 at page 4.
 Trinity Lutheran Church of Columbia, Inc. v Comer, 582 U.S. (2017).
 British Columbia College of Teachers v Trinity Western University,  1 S.C.R. 772, 2001 SCC 31 at para 35.
 Lavoie v Canada,  1 SCR 769, 2002 SCC 23 at para 52.
 As the BC Court of Appeal unanimously held in Trinity Western University v The Law Society of British Columbia, 2016 BCCA 423 at para 193: “A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.”
 R v Big M Drug Mart Ltd.,  1 SCR 295 at para 95.
 See Trinity Lutheran Church of Columbia, Inc. v Comer, 582 U.S. (2017), where the majority noted: “Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. The ‘imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights’” citing Sherbert v Verner, 374 U.S. 398 (1963) at 405.
 Chaoulli v Quebec (Attorney General),  1 SCR 791, 2005 SCC 35 at para 104.
 As the U.S. Supreme Court held in Trinity Lutheran Church of Columbia, Inc. v Comer, 582 U.S. (2017): “The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.” The Supreme Court also cited its earlier judgment in Sherbert v Verner, 374 U.S. 398 (1963) at 404: “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”
 Applicant Guide, supra note 4 at 6, 7, and 22.
 See Saguenay, supra note 7 at para 73.
 See Government of Canada, “Supplementary Information”, online: < https://www.canada.ca/en/employment-social-development/services/funding/canada-summer-jobs/supplementary-information.html>.
 Power Play TV interview, “Canada Summer Jobs saga continues”, CTV News Video Network, online: < https://www.ctvnews.ca/video?clipId=1310347>.
 John Geddes, “Trudeau government stands firm in clash with faith-based groups over summer jobs” Maclean’s (Jan 19, 2018) , online: < https://www.macleans.ca/politics/ottawa/trudeau-government-stands-firm-in-clash-with-faith-based-groups-over-summer-jobs/>.
 Government of Canada, “Funding: Canada Summer Jobs – Overview”, online: < https://www.canada.ca/en/employment-social-development/services/funding/canada-summer-jobs.html>.
 See Andrea Mrozek and Faye Sonier, “It’s Wrong to Call Abortion a Right”, Convivium (January 23, 2018), online: <https://convivium.ca/articles/it%E2%80%99s-wrong-to-call-abortion-a-right>.
 See Brian Platt, “A church's 'core mandate' must be pro-choice to access summer jobs grant: minister” National Post (January 12, 2018), online: < https://nationalpost.com/news/politics/a-churchs-core-mandate-must-be-pro-choice-to-access-summer-jobs-grant-employment-minister-says>.
 Government action which denies “any person an equal share of the rights, benefits, and privileges enjoyed by other citizens” is unacceptable because it “penalize[s] religious activity”: see Trinity Lutheran Church of Columbia, Inc. v Comer, 582 U.S. (2017), citing Lyng v. Northwest Indian Cemetery Protective Association, 485 U. S. 439 (1988).
 Ibid at para 74.
 See e.g. Prime Minister Trudeau’s comments at a January 10, 2017 town hall meeting that an organization unwilling to express its support of “rights to abortion” is “not in line with where we are as a government, and quite frankly where we are as a society”. Maura Forrest, “Trudeau: Abortion clause in summer jobs grant application shouldn’t put off religious groups” National Post (10 January 2018), online: <http://nationalpost.com/news/politics/trudeau-abortion-clause-in-canada-summer-jobs-grant-application-shouldnt-put-off-religious-groups>.