The so-called Easter Bunny decision has struck a blow against compelled speech, and may have an impact on upcoming litigation on the Canada Summer Jobs program says John Carpay.
Carpay is president of the Justice Centre for Constitutional Freedoms that represented foster parents Derek and Frances Baars against the Children’s Aid Society of Hamilton, Ont.
On March 6, Ontario Superior Court Justice A.J. Goodman found the society had violated the couple’s Charter rights to religious freedom and other rights, citing Supreme Court of Canada decisions against compelled speech (coercing people into making statements they don’t wish to make).
Carpay pointed out there’s a clear link between having a “a social worker demanding on threat of penalty that you must state that the Easter Bunny is real,” and Prime Minister Justin Trudeau’s “wanting Canadians to state that they support abortion being legal and his false idea that his opinion on 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 has a client affected by the new Canada Summer Jobs (CSJ) policy and “will be taking this matter to court in the weeks ahead,” Carpay said. “Our client is not a prolife group.”
This will be the second court action this year against the federal government for the Canada Summer Jobs policy. The first was filed Jan. 4 by the Toronto and Area Right to Life Association. The group failed to get an injunction against the attestation before the Feb. 1 deadline for CSJ applications, but has been promised an expedited hearing but no date has been set.
“It’s better to challenge this program with an applicant that is not a prolife group,” Carpay said. “If your client is not a prolife group it makes it easier for the court to see the violation of freedom of expression because the court is not going to thinking about abortion to the same extent.”
The ‘Easter Bunny’ decision “had a huge precedent value because it establishes that social workers and child care workers need to respect the religious freedom of foster parents and that implies also to respect the religious freedom of adoptive parents and parents generally,” Carpay said.
“It’s good to see a court quoting and relying on Supreme Court jurisprudence that are very clearly against compelled speech.”
“The reality is our courts typically are for free speech, free expression and in circumstances where public benefit is involved, the proposition that one need to comply or be subjected to some sort of ideological preconditions is dimly view by the court,” said Phil Horgan, president of the Catholic Civil Rights League.
He noted the upcoming Supreme Court decision in the case of Trinity Western University (TWU), a private evangelical Christian university, “will be very much on that point.”
Two law societies have refused accreditation to students of a proposed TWU law school because of its mandatory community covenant that includes an agreement to abstain from sex outside of traditional marriage.
“I think the Easter 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. “It was striking that it got to that level in terms of the impact it was having on that couple.”
“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 noted the reversal in the Bedford decision striking down the prostitution law and in the Carter decision striking down the law against euthanasia and assisted suicide in Carter, when both laws had been upheld by decisions two decades previously.
Ray Pennings, co-founder and executive vice-president of Cardus, also sees implications in the Easter Bunny decision for governments and for government agencies, such as the Law Society of Ontario that is requiring lawyers to include in their annual report “a statement of principles acknowledging their obligation to promote equality, diversity and inclusion.”
Whether it’s the foster parents, business people, or professionals, “there’s an overreach on the part of government and administrative agencies that has some role to play in compelling speech,” Pennings said.
“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.”
Pennings said often bureaucrats are carrying out their functions “sincerely ignorant of the impact of compelling speech on the part of others.”
He puts the Canada Summer Jobs attestation, however, “in a slightly different category.”
“It seems to me on the Canada Summer 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 prolife organizations without having an attestation box,” he said, noting that all the government had to do was identify the organizations that have the abortion issue as part of their mandate. In fairness, though the policy should apply to both sides of the issue, he added.
“These different ways of expressing compelled speech have become a form of virtue-signaling regarding certain issues and what it means to be on the right side of contentious questions,” Pennings said. “It’s a very illiberal way of advancing arguments in the public square.”
“This is where government is using its powers in a coercive way,” Pennings said. “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.”