2021 FC, 2021 FC 1125

Date: 20211022 Docket: T-8-18 Citation: 2021 FC 1125 Ottawa, Ontario, October 22, 2021 PRESENT: The Honourable Madam Justice Kane BETWEEN: RIGHT TO LIFE ASSOCIATION OF TORONTO AND AREA, BLAISE ALLEYNE AND MATTHEW BATTISTA Applicants and CANADA (MINISTER OF EMPLOYMENT, WORKFORCE, AND LABOUR) Respondent and ACTION CANADA FOR SEXUAL HEALTH AND RIGHTS AND BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION Interveners JUDGMENT AND REASONS [ 1 ] The Applicants, the Right to Life Association of Toronto and Area [TRTL], Mr. Blaise Alleyne, its former president, and Mr.

Matthew Battista, a student who hoped to be re-employed by TRTL, seek judicial review of the decision of the Minister of Employment, Workforce, and Labour [the Minister]. The Minister decided to add an Attestation as an eligibility requirement for the 2018 Canada Summer Jobs [CSJ] program. All applicants for funding were required to attest to several statements, including that the job and the applicant organization’s mandate respected individual human rights, Charter rights and reproductive rights.

TRTL did not make the Attestation and, as a result, its application for funding was not considered. [ 2 ] Among other arguments, the Applicants allege that the Minister’s decision to add the Attestation is ultra vires as it was not authorized by the enabling legislation and was made for an improper purpose. The Applicants also allege that the Minister acted in bad faith and with bias, by imposing the Attestation to respond to the complaints of an abortion rights lobby group.

The Applicants further argue that the Attestation engages and infringes their sections 2(a), 2(b), and 15 rights under the Canadian Charter of Rights and Freedoms [the Charter ] and that the Minister failed to proportionately balance the Charter rights and protections with the relevant statutory objectives. [ 3 ] The Applicants submit that the Minister’s decision to add the Attestation punishes and excludes TRTL and other pro-life groups because they oppose the Government’s pro-choice policies.

They argue that the debate about abortion should continue and that TRTL’s engagement in this debate, through their educational activities, is beneficial to inform the public. However, this Application is not the forum to fuel this debate. This Application is about whether the decision of the Minister to include an Attestation as a prerequisite for organizations seeking funding under the 2018 CSJ program was reasonable. [ 4 ] For the more detailed reasons that follow, the Application is dismissed.

In brief, I find that the decision to add the Attestation as part of the eligibility criteria for the 2018 CSJ program was within the Minister’s broad authority pursuant to the Department of Employment and Social Development Act , SC 2005, c 34 [ DESDA or the Act ]. The Minister did not act for an improper purpose, rely on irrelevant considerations, or show bad faith or a closed mind in making this decision. The Attestation is intra vires the DESDA . [ 5 ] I also find that, although not the purpose of the Attestation, its effects engaged the Applicants’ rights of freedom of expression and freedom of religion.

Applying the framework established in Doré v Barreau du Québec , 2012 SCC 12 [ Doré ] for determining whether the limitation on the Applicants’ Charter rights reflects a proportionate balancing, I find that the limitation on the Applicants’ rights was minimal and proportional to the objectives of the DESDA and the CSJ program. Of note, the 2018 CSJ program sought to protect and promote the Charter and other rights of program beneficiaries. Given that the decision reflects a proportionate balancing, it is a reasonable decision. I. Background A.

The Parties [ 6 ] The Right to Life Association of Toronto is a registered charity incorporated under the Corporations Act , RSO 1990, c C.38 , carrying on business in Toronto and the Greater Toronto Area. TRTL describes itself a s a volunteer, non-sectarian human rights organization dedicated, through education, to upholding the sacredness and inviolability of human life from conception to natural death.

The Letters Patent state that its objectives include: t o uphold the dignity of human life; t o uphold the sacredness and inviolability of human life from the time of conception until death; t o protect the interests and rights of the unborn child; to hold conferences, meetings and exchange of views in matters relating to the dignity of human life; and to prepare and submit to the public or private groups, bodies, associations or authorities, information pertaining to the above objects.

[ 7 ] Blaise Alleyne, as president of TRTL at the time, filed the application for funding from the 2018 CSJ program. [ 8 ] Matthew Battista, described at the relevant time as a student at the University of Toronto, had been employed as a summer student by TRTL in 2016 and 2017.

He attests that he would have sought summer employment again in 2018. [ 9 ] Action Canada for Sexual Health and Rights [Action Canada] was granted intervener status in April 2018 to, among other things, make representations regarding sexual and reproductive rights and how the activities of " “anti-choice” " organizations are inconsistent with Charter values. [ 10 ] The British Columbia Civil Liberties Association [BCCLA] was granted intervener status in May 2018 for the limited purpose of noting relevant American constitutional principles involving freedom of speech and religion and how these principles may inform Canadian jurisprudence.

B. TRTL’s Previous Funding from CSJ [ 11 ] TRTL applied for and received funding from the 2016 CSJ Program. [ 12 ] TRTL also applied for $29,184.00 in funding from the 2017 CSJ program. Employment and Social Development Canada [ESDC] advised TRTL that due to the lack of sufficient funds for that particular federal constituency, no funds would be granted. TRTL sought judicial review of the funding decision, alleging that the real reason for refusing its application and those of other similar organizations was because of the organizations’ stand on abortion.

A settlement was reached and ESDC provided funding to TRTL. The Minister acknowledged that the 2017 application for funding had been denied based on criteria that were not set out either in the 2017 Applicant Guide or in the list of local priorities for Members of Parliament. C. The 2018 CSJ Program [ 13 ] The 2018 CSJ program set out five national priorities:

(1) Employers who intend to hire youth who are in underrepresented groups, including new immigrant youth/refugees, Indigenous youth, youth with disabilities and visible minorities;

(2) Small businesses, in recognition of their contribution to the creation of jobs; 3) Organizations that support opportunities for official language minority communities; 4) Organizations that provide services and/or supports for the LGBTQ2 community; and

(5) Organizations that support opportunities in science, technology, engineering and mathematics (STEM) and information and communications technology (ICT), particularly for women. [ 14 ] On December 19, 2017, the Minister published the Applicant Guide for the 2018 CSJ program [Applicant Guide].

The Applicant Guide stated that, for an application to be considered complete and eligible for assessment, the applicant must check the box attesting to the following statements [the Attestation]: I have read and understood the Canada Summer Jobs Articles of Agreement and referred to the Applicant Guide as needed; The job would not be created without the financial assistance provided under a potential contribution agreement; Both the job and my organization’s core mandate respect individual human rights in Canada, including the values underlying the Canadian Charter of Rights and Freedoms as well as other rights.

These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability or sexual orientation, or gender identity or expression; I have all the necessary authorities, permissions and approvals to submit this application on behalf of myself and the organization. [Emphasis added.] Only the underlined parts of the Attestation are at issue in this Application. [ 15 ] The Applicant Guide further states: The employer attestation for CSJ 2018 is consistent with individual human rights in Canada, Charter rights and case law, and the Government of Canada's commitment to human rights, which include women's rights and women's reproductive rights, and the rights of gender-diverse and transgender Canadians.

The government recognizes that women's rights are human rights. This includes sexual and reproductive rights – and the right to access safe and legal abortions. This explanation of women’s reproductive rights is repeated throughout the Applicant Guide. [ 16 ] Under the heading " “2.0 Introduction” " , the Applicant Guide states:

Canada Summer Jobs (CSJ) is an initiative of the Summer Work Experience program. It provides wage subsidies to employers to create employment for secondary and post-secondary students.

Again this year, Canada Summer Jobs welcomes applications from small businesses, not-for-profit employers, public sector and faith-based organizations that provide quality summer jobs for students. [ 17 ] Under the subheading " “3.1 Eligible Employers” " , the Applicant Guide includes this note: NOTE: That an organization is affiliated with a religion does not itself constitute ineligibility for this program. [ 18 ] A document titled " “Implementing Changes to Eligibility for Canada Summer Jobs 2018: Program Policy Rationale” " (ESDC 2017) [Rationale] describes the context and objectives of the Attestation and its elements.

In setting out the context, the Rationale notes the Government’s commitment to offering valuable summer work opportunities. It also notes that the Government has publicly expressed its overall priorities, which include strengthening diversity and inclusion, and innovation and skills development. The Rationale then elaborates: The government has proclaimed itself as feminist and recognizes that women’s rights are human rights. This includes sexual and reproductive rights — and the right to access safe and legal abortions. These rights are at the core of the Government of Canada’s foreign and domestic policies.

In March 2017, on International Women’s Day, the Prime Minister announced a new strategy to spend $650-million on sexual and reproductive health and rights worldwide. This three-year plan is expected to finance a range of global programs, including contraception, reproductive health, legal abortion, sexuality education and advocacy work. The government recognizes that everyone should have the right to live according to their gender identity and express their gender as they choose, free from discrimination.

The government is committed to protecting the dignity, security, and rights of gender-diverse and transgender Canadians. [ 19 ] The objective of the changes in approach to include the Attestation is: [t]o prevent Government of Canada funding from flowing to organizations whose mandates or projects may not respect individual human rights, including the values underlying the [ Charter ] and associated case law.

Additionally, these changes help prevent youth (as young as 15 years of age) from being exposed to employment within organizations that may promote positions that are contrary to the values enshrined in the [ Charter ] and associated case law.

This change helps to ensure that youth job opportunities funded by the Government of Canada take place in an environment that respects the rights of all Canadians. [ 20 ] A memorandum from the Deputy Minister of ESDC to the Minister, dated December 1, 2017, (with some redactions) described the options considered and sought the Minister’s approval for the inclusion of the Attestation as a new eligibility requirement for funding.

The memorandum notes, among other considerations: Consideration was given to asking employers to certify that the project or job respects the values underlying the Charter , as well as respects the individual’s reproductive rights and freedoms. However, following consultation with your office, the new desired approach was to also ask that the core mandate of the organization respect individual human rights, including the values underlying the Charter as well as other rights.

These would include reproductive rights and, non-discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability, sexual orientation, or gender expression and identity. The addition of this new requirement does not guarantee that only organizations whose mandates align with government priorities will apply for funding. However, it provides the department with an additional means to screen out ineligible organizations—even if the projects themselves seem to respect the spirit of the Charter at first glance. [Emphasis in original.] D.

TRTL’s 2018 CSJ Application [ 21 ] On December 20, 2017, Mr. Alleyne, president of TRTL, submitted a paper application for funding under the 2018 CSJ program. Mr. Alleyne did not make the Attestation. Instead, he enclosed a letter objecting to the Attestation and proposing a different attestation: On the basis of conscience, we are unable to express the words that the Minister has required in the Applicant’s Guide.

We are, however, able to attest that “we support all Canadian law, including Charter and human rights law.” We believe the Minister does not have the jurisdiction under law to compel us to make a statement that conflicts with our conscience rights under the Charter . Nor does the Minister have the right to compel speech as a condition of receiving a financial benefit from the government of Canada. We respectfully decline to make a statement that is inconsistent with our fundamental personal beliefs about the value of life and the right to life under

section 7 of the Charter . Please confirm that you will accept our application with the above noted statement in substitution for the statement set forth in the online application process and in the Applicant’s Guide. [Emphasis added] [ 22 ] The application for funding was considered incomplete because TRTL did not fulfil the Attestation requirement and was not considered.

[ 23 ] On January 4, 2018, the Applicants filed this Application.

The Applicants sought several remedies, including that the decision be quashed, that they be awarded the funding they had sought, and that an interim injunction be granted. [ 24 ] On January 30, 2018, Justice Martine St-Louis dismissed the Applicants’ motion for an interim injunction to stay the decision to add the Attestation to the 2018 CSJ program pending the final determination of this Application ( Right to Life Association of Toronto and Area v Canada (Minister of Employment, Workforce, and Labour) , 2018 FC 102 [Injunction Order]). [ 25 ] The Applicants subsequently amended their Notice of Application to add the allegations that the Minister’s decision was made in bad faith, for an improper purpose, on irrelevant considerations and with bias.

II. Overview of Positions A. The Applicants’ Position [ 26 ] The Applicants submit that the Minister’s decision to add the Attestation is ultra vires and does not relate to any of the statutory purposes of the DESDA or the CSJ program, which is only about jobs and aims, more particularly, to provide opportunities for skills development for all Canadians.

The Applicants submit that the Attestation was instead added for illegal purposes: to coerce thoughts, opinion, expression or religious and conscientious beliefs of the Applicants and similar groups and to discriminate against them on the basis of their religious beliefs. [ 27 ] The Applicants acknowledge that the Minister has the discretion to award funding to some groups and not others, but argues that the Minister cannot deny the eligibility for funding on the basis of belief and opinion. [ 28 ] The Applicants further argue that the Attestation was added to placate pro-choice lobby groups by excluding TRTL and other similar groups who hold a pro-life view.

The Applicants therefore allege that the decision to add the Attestation was made in bad faith, because it was made for an improper purpose or on irrelevant considerations, and that it reflects a reasonable apprehension of bias. [ 29 ] The Applicants dispute the Respondent’s contention that they have misunderstood the Attestation. They submit that the Attestation, which refers to their core mandate and activities, relates to their values and beliefs, which are grounded in religion, and prevents them from disavowing its message of supporting reproductive rights.

The Applicants also dispute the Respondent’s suggestion that they are not required to sign the Attestation unless they seek funding, and that the Attestation does not silence them because they can still express their views. [ 30 ] The Applicants submit that even if the Minister’s purpose in adding the Attestation were permissible, the effects of the Attestation infringe their Charter rights.

The Applicants argue that the Attestation infringes their right to freedom of expression because it compels speech; to freedom of religion, because it requires them to disavow their religious beliefs; and to equal benefit of the law, because it discriminates against them by excluding them from the program on the grounds of religion. [ 31 ] The Applicants submit that the infringing effects of the Attestation on their Charter rights are greatly disproportionate to the statutory objectives because they were completely excluded from applying for funding.

The Applicants submit that while the Attestation may have sought to protect the rights of others, it did not protect their rights. The Applicants contend that there is no evidence that the Minister considered their Charter rights to freedom of religion and speech or how to proportionately balance the limitation of their rights with the statutory objectives. [ 32 ] As a remedy, the Applicants seek declarations that the Minister’s decision to add the Attestation infringes sections 2(a), 2(

b) and 15 and cannot be saved by

section 1, and that the Minister’s decision is ultra vires , made in bad faith and for an improper purpose and/or on irrelevant considerations. The Applicants also seek an order in the nature of certiorari to quash the decision and an order in the nature of mandamus to require the Minister to award the Applicants the funds they would have been awarded had they made the Attestation. B. The Respondent’s Position [ 33 ] The Respondent explains that the CSJ program is an oversubscribed annual discretionary funding program. The purpose of the Attestation was to respect the Charter and other rights of all Canadians.

The Attestation confirmed that the primary activities of the organization seeking funding and the jobs to be funded did not seek to undermine the Charter and other rights of Canadians. The Respondent notes that applying for funding is voluntary and that no organization has a right to funding. [ 34 ] The Respondent first submits that neither Mr. Alleyne nor Mr.

Battista have standing; only TRTL has standing to bring this Application. [ 35 ] The Respondent notes that in accordance with Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ], the Court’s role is not to decide whether a different approach is better, only whether the approach taken—i.e., the decision to add the Attestation—is reasonable. The objectives and eligibility criteria for the 2018 CSJ program provide the context for the reasonableness review.

The Respondent submits that discretionary policy decisions, including those related to program design, are owed deference. [ 36 ] The Respondent argues that the policy decision to add the Attestation as an eligibility requirement is intra vires ; it falls within the purpose and objectives of the Act and within the Minister’s broad discretion. The decision was not based on irrelevant considerations nor made for an improper purpose.

There is no evidence that the Minister acted with a closed mind. [ 37 ] The Respondent notes that subsection 5(2) of the DESDA , which refers to an inclusive labour market and social well-being and quality of life for all, anchors the vires of the Attestation. The Respondent submits that the Attestation ensured that funding flowed only to organizations that respect the rights of all Canadians and promoted the statutory objectives of an inclusive labour market and the social

well-being of vulnerable and underrepresented persons. [38] The Respondent notes that Justice St-Louis found that the Minister had broad discretion (Injunction Order at para 17) and that theprogram was in the public interest (para 78). [39] If the Court considers the Charter issues, the Respondent submits that neither the purpose nor the effects of the Attestation interferewith the Applicants’ rights under sections 2(a), 2(

b) or 15. Alternatively, the Respondent argues that if the effects of the Attestation limitthe Applicants’ Charter rights, the limitation is minimal and the decision to add the Attestation reflects a proportionate balancing of theCharter rights and protections at play with the statutory objectives of the DESDA and the CSJ program.

A proportionate balancingreflects a reasonable decision. [40] The Respondent submits that the Attestation did not compel speech and force the Applicants to say that they supported abortion, asthey alleged, nor did it restrict the Applicants’ ability to disavow the message. [41] The Respondent disputes that the Attestation infringed the Applicant’s freedom of religion. The Respondent notes that TRTLdescribes itself as a non-sectarian, human rights organization with its main activities as education.

The Respondent adds that TRTL hasnot provided any objective evidence that the Attestation interfered with their religious freedoms in a non-trivial way. [42] The Respondent further submits that the Applicants cannot assert their

section 15 claim because

section 15 rights belong toindividuals and neither Mr. Alleyne nor Mr. Battista has standing to advance this claim. [43] The Respondent alternatively argues that the Attestation did not infringe the equality rights of Mr. Alleyne or Mr.

Battista on thebasis of religion for several reasons, including that they were not personally required to make the Attestation, TRTL is not a religiousgroup, and there is no evidence of a differential impact or disadvantage that would be perpetuated by the Attestation. [44] With respect to the remedy sought by the Applicants, the Respondent submits that if any error is found, only certiorari (to quash theAttestation) and a declaration are appropriate. The Respondent submits that it would be pointless for the Court to order a redeterminationof the Minister’s decision, since the 2018 program is over.

The Respondent adds that mandamus is not justified as there is no duty owedto the Applicants and funding is a discretionary decision. C. The Interveners

(1) Action Canada for Sexual Health and Rights [45] Action Canada’s mandate is to advance and uphold the sexual and reproductive rights and health of all people, including throughadvocacy, education and the provision of services. [46] Action Canada submits that the Attestation fulfills a necessary statutory purpose, which includes promoting the well-being ofvulnerable persons. Funds should not be used to support activities that cause harm and which violate constitutionally guaranteed rightssuch as reproductive rights protected by

section 7 of the Charter. [47] Action Canada submits that the Government has a responsibility to uphold the protections for sexual and reproductive rights, notingCanada’s international commitments, including the International Covenant on Civil and Political Rights. [48] Action Canada submits that based on its own work, it has observed the prevalence of misinformation provided to women about theirpregnancy options by anti-choice groups. Action Canada alleges that some engage in duplicitous and harassing campaigns that intimidatewomen considering their options.

Action Canada submits that the activities of anti-choice groups are inconsistent with Charter values. [49] Action Canada disputes the submission of TRTL that women and others are not harmed by being exposed to the graphic literature ofpro-life groups. Action Canada notes that those in a vulnerable state can be influenced.

(2) BC Civil Liberties Association [50] BCCLA intervenes for the limited purpose of making submissions about the possible guidance from US constitutional principlesregarding freedom of speech and expression and how these principles may inform Canadian jurisprudence. [51] BCCLA notes that it disagrees with the views of TRTL on access to abortion; however, it also opposes measures that interfere withfreedom of expression and the peaceful expression of alternative views. [52] BCCLA characterizes the Attestation as a condition that requires applicants to attest that they adopt the Government’s view.BCCLA notes that in the US experience, such attestations, oaths or pledges as a condition of funding have in some cases been held toviolate freedom of speech.

BCCLA submits that if the effect of the Attestation is found to suppress free speech, the Court shouldconsider American jurisprudence that addresses the "“unconstitutional conditions doctrine.”" [53] BCCLA submits that the Supreme Court of Canada has acknowledged, in R v Simmons, (SCC), [1988] 2 SCR 495,55 DLR (4th) 673, and R v Keegstra, (SCC), [1990] 3 SCR 697, 114 AR 81, that US jurisprudence on constitutionalfreedoms can provide guidance to Canadian courts because of the long experience with these issues in the US.

BCCLA submits thatalthough Canadian jurisprudence has since been developed, US jurisprudence may provide guidance. [54] BCCLA notes that the Supreme Court of Canada considered US jurisprudence on compelled speech and how it may be persuasive inLavigne v Ontario Public Service Employees Union, (SCC), [1991] 2 SCR 211 at 274–76, 81 DLR (4th) 545 [Lavigne],which is relied on by the Applicants.

[ 55 ] BCCLA cites particular US decisions and notes, more generally, that many US judgments are consistent with Canadian jurisprudence that holds that there is no right to government funding (e.g., Rust v Sullivan , 500 US 173 (1991)). Governments can support or subsidize some opinions to the exclusion of others.

However, US jurisprudence makes a distinction between programs directed at promoting certain views and conditions that limit freedom of expression for reasons unrelated to the purpose of the program (e.g., Perry v Sindermann , 408 US 593 (1972)). [ 56 ] BCCLA submits that the Attestation at issue appears to be a form of compelled speech not directly connected to the purpose of the funding. [ 57 ] BCCLA submits that it would be permissible to attach a condition to the job that is funded by the grant, but questions whether it is permissible to include the core mandate in the Attestation. III.

The Issues [ 58 ] The Respondent raises the preliminary issue of whether Mr . Alleyne and Mr. Battista have standing as individuals to bring this Application or whether the only Applicant should be TRTL, with Mr. Alleyne’s involvement limited to his role as the president and a member of the organization. [ 59 ] With respect to the merits of the Application, the overarching issue is whether the Minister’s decision to add the Attestation as a new eligibility requirement was reasonable.

This entails consideration of the following issues: Whether the decision to add the Attestation is ultra vires the DESDA ; Whether the decision to add the Attestation was made in bad faith because it was made for an improper purpose or based on irrelevant considerations; and Whether the decision to add the Attestation was made with bias or a closed mind. [ 60 ] In the event that the Court finds that the Attestation is ultra vires based on the administrative law arguments advanced, the Court need not consider the Charter issues raised ( Taseko Mines Limited v Canada (Environment) , 2019 FCA 320 at para 105 ) .

In the event that the Court finds that the purpose of the Attestation is not ultra vires , the Court must consider the effects of the Attestation. The issue becomes whether the Attestation engaged the Applicants’ Charter rights protected by sections 2(a) , 2(

b) and 15 , and if so, whether in deciding to add the Attestation, the Minister proportionately balanced the Charter rights and protections at play with the objectives of the DESDA and the CSJ program. IV.

The Standard of Review [ 61 ] The reasonableness standard is the presumptive standard of review for administrative decisions, including decisions of Ministers, and applies to the majority of the issues noted above ( Vavilov ). [ 62 ] In Vavilov , the Supreme Court of Canada provided extensive guidance to the courts in reviewing a decision for reasonableness, noting that a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker ( Vavilov at paras 85, 102, 105–10 ).

The Court does not assess the reasons against a standard of perfection ( Vavilov at para 91 ). [ 63 ] In Vavilov , the Supreme Court of Canada explained that decisions should not be set aside unless there are " “sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” " and that " “[t]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable” " [Emphasis added] ( Vavilov at para 100 ). [ 64 ] The Applicants’ allegations of bad faith and bias or closed mind are issues of procedural fairness that are reviewed on the standard of correctness.

As noted in Canadian Pacific Railway Company v Canada (Attorney General) , 2018 FCA 69 at paras 54–55 , c orrectness is not so much a standard of review as an assessment of whether the process was fair having regard to all the circumstances. [ 65 ] If the Court determines that the Minister’s decision to add the Attestation engages the Applicants’ Charter rights, the reasonableness standard applies to determine whether the Attestation reflects a proportionate balancing between the relevant Charter protections at play and the statutory objectives of the DESDA and the CSJ program to ensure that the right is limited no more than necessary ( Doré ; Loyola High School v Quebec (Attorney General) , 2015 SCC 12 [ Loyola ] ).

A decision that reflects a proportionate balancing of Charter rights and values is a reasonable decision. [ 66 ] In Vavilov , at para 57 , the Supreme Court expressly stated that it was not displacing the standard of review set out in Doré . V. Preliminary Issue: Mr. Alleyne Has Direct Standing [ 67 ] The Respondent’s position is that TRTL is the only applicant with standing. The Respondent argues that neither Mr. Alleyne nor Mr.

Battista has established that the Attestation affected their legal rights, imposed legal obligations on them, or prejudicially affected them in some personal way ( Bernard v Close , 2017 FCA 52 at para 2 [ Bernard ] ). The Respondent also argues that they do not have a genuine interest in the matter ( Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45 at para 37 ).

[68] The Applicants’ position is that both Mr. Alleyne and Mr. Battista have direct standing as individuals because they have beenprejudicially affected. The Applicants argue that by signing the Attestation on behalf of TRTL, Mr. Alleyne would be required to attestto a view that he does not hold and which is contrary to his strongly held religious belief. The Applicants submit that Mr.

Battista’sopportunity for employment in the summer of 2018 was prejudicially affected by the Attestation requirement. [69] Individuals have direct standing to challenge a decision where the decision directly affects them (subsection 18.1(1) of the FederalCourts Act, RSC 1985, c F-7); where the decision affects their legal rights, imposes legal obligations upon them, or prejudicially affectsthem (Bernard at para 2, citing League for Human Rights of B’Nai Brith Canada v Odynsky, 2010 FCA 307 at para 58; Dow v CanadianNuclear Safety Commission, 2020 FC 376 at para 9). [70] I find that the Applicants have established that Mr.

Alleyne has direct standing. At the relevant time, Mr. Alleyne was a member ofand president of TRTL. He applied for funding on behalf of TRTL and would have been required to make the Attestation on behalf ofTRTL. He attested that his "“conscience does not allow [him] to sign the attestation”". Mr. Alleyne explained that he is faithful to theteachings of the Catholic Church, which teaches that human life must be respected and protected from conception. The Respondent’sview—that Mr.

Alleyne’s legal rights and obligations were not affected by either signing or not signing the Attestation and that he wasnot prejudicially affected in his personal capacity—overlooks that Mr. Alleyne was the public face of TRTL. The organization could notsubmit an application for funding without a representative signing the Attestation. Mr. Alleyne explained that neither he nor othermembers of TRTL could make the Attestation, which in their view is inconsistent with their strongly held beliefs. In my view, as the faceof TRTL, Mr.

Alleyne’s personal views and beliefs are aligned with the beliefs and values of TRTL and vice versa, and he would beprejudicially affected by making the Attestation. [71] The Applicants have not established that Mr. Battista was directly affected or prejudiced by the Attestation. Although Mr. Battistaattested that he would have, or hoped to, seek employment with TRTL in 2018, noting that he had worked in previous summers, there isno evidence regarding whether TRTL had other sources of funds to employ Mr. Battista or whether he was employed in 2018 regardlessof the lack of funding from the CSJ program. Mr.

Battista was not required to make the Attestation as a representative of TRTL. UnlikeMr. Alleyne, he was not the public face or official representative of TRTL. VI. Was the Decision to Add the Attestation Ultra Vires? A.

The Applicants’ Submissions [72] The Applicants argue that the Attestation is ultra vires because its purpose is unrelated to and exceeds the statutory purposes of theDESDA. [73] The Applicants submit that the Attestation is an attempt by the Minister to influence or affect political speech, to compel or censorspeech, to regulate beliefs, or to discriminate against them on the basis of their religious beliefs.

The Applicants argue that these areunconstitutional purposes, which render the Attestation ultra vires. (The Applicants’ Charter-related submissions are addressed below.) [74] The Applicants further allege that the purpose of adding the Attestation was also to accomplish the Minister’s publicly statedobjective of denying funding to any "“organization that works to limit women's reproductive rights”" and to satisfy the demands of theAbortion Rights Coalition of Canada [ARCC]. B.

The Respondent’s Submissions [75] The Respondent submits that the decision to add the Attestation is within the scope of the Minister’s discretion and is intra vires theDESDA. The Respondent points to the reference to an "“inclusive labour market”" and "“promoting social well-being”" in subsection5(2) of the DESDA.

The Respondent submits that the Attestation, which ensures that funds flow only to employers that do notdiscriminate in their hiring and do not undermine individual human rights, helps achieve the DESDA objectives of an inclusiveworkforce, social development and the social well-being of vulnerable persons such as LGBTQ2 youth and underrepresented groupssuch as women in STEM. In addition, the DESDA requires the Minister to establish criteria that favour certain applicants over others forthe benefit of all Canadians. [76] The Respondent further argues that the Attestation did not have unconstitutional objectives.

The Respondent distinguishes theAttestation from the circumstances in R. v Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 [Big M], cited by theApplicants, where the law in question (the Lord’s Day Act) clearly had the purpose of forcing people to observe a particular religiouspractice.

The Respondent submits that the purpose of the Attestation is not to coerce religious beliefs or to put a particular message "“inthe mouth of the Applicants.”" Rather, the Attestation ensures that youth job opportunities funded by the CSJ program take place in anenvironment that respects the rights of all Canadians. [77] The Respondent submits that there is no evidence that TRTL was singled out or excluded. The Attestation was directed at jobs andactivities, not at values and beliefs. C. The Attestation Is Intra Vires the DESDA [78] The relevant provisions of the DESDA state:

" 5

(1) The Minister’s powers, duties and functions extend to and include all matters relating to human resources and skills development in Canada or the social development of Canada over which Parliament has jurisdiction and which are not by law assigned to any other Minister, department, board or agency of the Government of Canada. " " 5 (1) " " Les attributions du ministre s’étendent d’une façon générale à tous les domaines de compétence du Parlement liés aux ressources humaines et au développement des compétences au Canada ou au développement social du Canada et ne ressortissant pas de droit à d’autres ministres, ministères ou organismes fédéraux. " " " " " "

(2) The Minister shall exercise the powers and perform the duties and functions " " (2) " " Ces attributions sont exercées aux fins suivantes : " " " " " " (

a) relating to human resources and skills development with a view to improving the standard of living and quality of life of all Canadians by promoting a highly skilled and mobile workforce and an efficient and inclusive labour market; and " " a) " " s’agissant des ressources humaines et du développement des compétences, en vue de rehausser le niveau de vie de tous les Canadiens et d’améliorer leur qualité de vie en faisant la promotion du développement d’une main-d’oeuvre hautement qualifiée et mobile, ainsi que d’un marché du travail efficient et favorable à l’intégration; " " " " " " (

b) relating to social development with a view to promoting social well-being and income security. " " b) " " s’agissant du développement social, en vue de promouvoir le bien-être des personnes au sein de la société et la sécurité du revenu.

" " " " " " 7 The Minister may, in exercising the powers and performing the duties and functions assigned by this Act , establish and implement programs designed to support projects or other activities that contribute to the development of the human resources of Canada and the skills of Canadians, to the social development of Canada or to service delivery to the public, and the Minister may make grants and contributions in support of the programs.

" " 7 " " Le ministre peut, dans le cadre des attributions que lui confère la présente loi, concevoir et réaliser des programmes destinés à appuyer les projets ou autres activités qui contribuent au développement des ressources humaines au Canada et au développement des compétences des Canadiens, au développement social du Canada ou à la prestation de services au public, et accorder des subventions et des contributions pour appuyer ces programmes. " [ 79 ] The DESDA sets out the powers, duties and functions of the Minister in sections 5–17. The broad powers of the Minister are set out in

section 5 regarding human resources, skills development and social development. More specifically, subsection 5(2) reflects the objectives of " “improving the standard of living and quality of life of all Canadians by promoting a highly skilled and mobile workforce and an efficient and inclusive labour market” " and promoting social well-being and income security. [ 80 ]

Section 7 grants the Minister the authority to establish and implement programs that support the objectives set out in the DESDA , which include grants and contributions programs, such as the CSJ program.

The CSJ program provides grants to non-governmental organizations that meet the specific criteria of the program, which in turn reflect the objectives of the DESDA . [ 81 ] The parliamentary debates regarding the DESDA convey that the DESDA (and its predecessor legislation) is the governing legislation for a wide range of programs from skills development to income support, such as pensions and employment insurance. In my view, it would be impossible for the DESDA to set out the specific objectives of each existing or potential program within the mandate of the Minister.

The broad language of sections 5 and 7 is necessary, as is a broad

interpretation of the scope of the DESDA and the Minister’s authority pursuant to it. [ 82 ] Justice St-Louis also found, at para 17 of the Injunction Order, that the DESDA " “grants broad discretion to the Minister as

section 7 contains no indications as to how the programs should be construed.” " She noted at para 77: Under the authority of

section 7 of the Act , the Minister may establish and implement programs designed to support projects or other activities that contribute to the development of the human resources of Canada and the skills of Canadians, or that contribute to the social development of Canada, and the Minister may make grants and contributions in support of the programs. The Act thus grants broad discretion to the Minister. [ 83 ] As explained by the Respondent, the demand for funding from the CSJ program greatly exceeds the budget for the program.

Each program year, the Minister establishes national priorities and eligibility criteria. The national priorities for the 2018 CSJ program focused on women, the LGBTQ2 community, and underrepresented groups. The priorities were clearly set out in the 2018 Applicant Guide and other public material. [ 84 ] The 2018 Applicant Guide noted the objectives of the program: to provide work experience for students; to support organizations, including those that provide important community services; and to recognize that local circumstances, community needs and priorities vary widely.

It also stated that " “[i]n delivering on these [CSJ] objectives, the Government of Canada seeks to ensure that youth job opportunities funded by the Canada Summer Jobs program take place in an environment that respects the rights of all Canadians.” "

[85] The Applicant Guide noted that the Attestation is consistent with the Government of Canada’s commitment to human rights, whichincludes women’s rights and women’s reproductive rights, including the right to access safe and legal abortions. In addition, theRationale noted commitments made by the Prime Minister in support of global programs on sexual and reproductive health and rights. [86] Establishing a discretionary funding program that seeks to respect the rights of women, LGBTQ2 individuals, and minorities isclearly within the statutory objectives of the DESDA to establish and implement programs, in accordance with

section 7, which reflectthe broad objectives set out in subsection 5(2).

The CSJ program supports projects that contribute to the development of humanresources, the skills of Canadians and to the social development of Canada. [87] Given the high volume of applications received each year, the budget, and the short time frame for the processing and approval ofthe funding, the addition of the Attestation as part of the eligibility criteria was within the range of options available to the Minister. [88] The Deputy Minister’s memo to the Minister, which noted that the Attestation provided "“an additional means to screen outineligible organizations—even if the projects themselves seem to respect the spirit of the Charter at first glance”" does not support theApplicants’ contention that the Government’s goal was to exclude those whose views did not align with those of the Government. [89] In addition, while the references in the Applicant Guide about the meaning of reproductive rights may suggest to the Applicants thatthe Minister added the Attestation to exclude pro-life groups, that was not its purpose. [90] The evidence, including Rachel Wernick’s affidavit [the Wernick Affidavit] and many of the exhibits attached thereto, demonstratesthat the purpose of adding the Attestation to the eligibility requirements for the 2018 CSJ program was to prioritize funding to groupsthat would respect Charter rights and other rights and that would provide job opportunities for vulnerable groups or to those who wouldbenefit or serve those vulnerable groups.

While its effect on the Applicants may have excluded them, it was not the purpose. D. The Attestation Was Not Based on Irrelevant Considerations [91] The record shows that the Minister received complaints from ARCC, an abortion rights lobbying group, and from others whosupport a pro-choice approach, who asserted that funding should not be provided to pro-life groups. However, the record also shows thatthe Minister received complaints from pro-life groups in response. Complaints to Ministers and Members of Parliament from Canadiansabout how government funding is allocated are not unusual.

The Minister’s consideration of such correspondence in the context ofestablishing funding priorities or criteria can hardly be characterized as an irrelevant consideration. There is no evidence that this was theMinister’s sole consideration—rather, the evidence shows that many considerations influenced the priorities of the program, includingCanada’s international commitments and stated policy priorities more generally. VII. Was the Decision to Add the Attestation Made in Bad FaithBecause It Was Made for an Improper Purpose or Based onIrrelevant Considerations? A.

The Applicants’ Submissions [92] The Applicants rely on Roncarelli v Duplessis, [1959] SCR 121, , to argue that the Minister acted in bad faith, onirrelevant considerations, and for an improper purpose because the Attestation was imposed to placate ARCC, who supports theGovernment’s views on reproductive rights, and to further the Government’s ideological commitment to the lack of any legal restrictionson abortion in Canada. [93] The Applicants allege that the Minister hid the real motivation for the Attestation until the Court ordered disclosure of additionaldocuments that revealed the ARCC complaints and social media posts. [94] The Applicants also suggest that the Prime Minister’s Office was "“unusually”" involved, noting ARCC’s correspondence in June2017 offering to meet with the Prime Minister’s Office [PMO] and the PMO’s acknowledgement of that correspondence.

B. The Respondent’s Submissions [95] The Respondent submits that there is no evidence to suggest that the Minister acted for an improper purpose or considered irrelevantfactors. [96] The Respondent submits that considering public complaints from individuals and organizations with opposing viewpoints does notdemonstrate bad faith. The Respondent notes that ESDC is required to review such complaints. C.

The Decision to Add the Attestation Was Not Made in Bad Faith [97] In Freeman v Canada (Minister of Citizenship and Immigration), 2013 FC 1065 at paras 23–29, Justice Mactavish (as she then was)summarized the principles relating to bad faith, including those established by the Supreme Court of Canada in Roncarelli v Duplessis.The relevant principles can be summarized as follows: Good faith is presumed; the person alleging bad faith must prove it. Neither direct evidence nor evidence of actual malice or intentto harm is required to prove bad faith. It may be inferred from the surrounding circumstances.

Good faith means carrying out the statute according to its intent and for its purpose: i.e., acting with a rational appreciation of thatintent and purpose and not with an improper intent and for an alien purpose.Good faith does not mean acting for the purposes of punishing a person for exercising an unchallengeable right, or arbitrarily andillegally divesting a citizen of an incident of their civil status.Bad faith can include: deliberate acts; acts that are so markedly inconsistent with the relevant legislative context that a court cannotreasonably conclude that they were performed in good faith; and serious carelessness or recklessness. [98] The decision to add the Attestation does not reflect any of the indicia of bad faith, nor can bad faith be inferred from the"“surrounding circumstances.”" [99] As noted above, the Attestation is within the scope of the Minister’s authority and discretion pursuant to the broad mandate as setout in

section 5 of the DESDA and pursuant to the Minister’s authority to implement programs designed to support projects thatcontribute to the development of human resources, skills and social development, as set out in

section 7 of the DESDA. The Minister didnot act for an improper purpose when she imposed the Attestation. [100] As noted by the Respondent, ensuring that funding was targeted to employers that do not undermine individual human rights andthat respect the rights of all Canadians reflects the objectives of an inclusive workforce and social development, and is not an improperpurpose. [101] The Minister did not base the decision to add the Attestation on irrelevant considerations.

The views of Canadians about how CSJfunding is allocated are relevant considerations in setting out priorities, eligibility criteria and terms and conditions. [102] The acknowledgement of correspondence from ARCC by the PMO does not establish bad faith. Although ARCC offered their"“expertise and resources”" to help to ensure that anti-choice groups did not benefit from future government funding, there is noevidence that any meeting ever occurred. Even if it did, meetings between politicians and lobbyists do not establish bad faith in decision-making.

As noted, the Minister received complaints from both pro-choice and pro-life groups at the relevant time. The Minister andGovernment were aware of the polarized debate on abortion. VIII. Did the Minister’s Decision to Add the Attestation Reflecta Closed Mind or a Reasonable Apprehension of Bias? A. The Applicants’ Submissions [103] In their Notice of Application, the Applicants plead that the addition of the Attestation was unlawful on several administrative lawgrounds, including a breach of procedural fairness.

The Applicants more specifically submit that the Minister acted with a reasonableapprehension of bias because, in the Applicants’ view, the Attestation responded to the complaints of the ARCC and pro-choice groups. B.

The Respondent’s Submissions [104] The Respondent argues, first, that no duty of procedural fairness is owed to the Applicants with respect to this policy decision and,second, that there is no evidence of any bias. [105] The Respondent submits that the proper test for any allegation of bias or lack of impartiality on the part of the Minister making apolicy decision is the "“closed mind”" test (Pelletier v Canada (Attorney General), 2008 FCA 1 at paras 49–55 [Pelletier]).

The issue iswhether the Minister’s mind was closed to opposing views. [106] The Respondent submits that the Applicants have not pointed to any evidence to support their allegation of bias or a closed mind.The Respondent submits that the Minister did not demonstrate a closed mind by considering complaints about how CSJ funding hadbeen allocated in the past. C.

The Minister’s Decision to Add the Attestation Does Not Reflect a Closed Mind [107] In Pelletier, the Federal Court of Appeal clarified that the duty of impartiality for Ministers making discretionary policy decisionsis that of a "“closed mind.”" The Court noted at para 49: In a series of decisions, the most recent being Imperial Oil Ltd. v.

Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624 (Imperial Oil Ltd.), the Supreme Court of Canada has clearly established that the content ofthe duty of impartiality varies according to the functions of the administrative decision maker, and the question beingdecided.

The content varies between those of the judiciary and administrative tribunals whose adjudicative functions arevery similar to those of the judiciary (attracting the highest standard of reasonable apprehension of bias) and those ofadministrative decision makers such as ministers or officials who perform policy making discretionary functions (attractingthe lower standard of closed mind). [Emphasis added] [108] The Court explained, at para 55, that a discretionary policy decision "“attracts, at best, a standard of impartiality of a closedmind.”" [109] Although the standard of a "“closed mind”" may be less onerous to establish than that of an apprehension of bias, it remains a high

threshold to meet. [110] As noted by Justice Brown in Ernst v Canadian National Railway Company, 2021 FC 16 at para 50 (although with respect to adifferent administrative decision maker): An allegation of bias against an Investigator is a serious allegation and should not be made lightly. The allegation cannot bemade on mere suspicion, conjecture, insinuations, or a mere impression of an applicant.

The burden of demonstrating theexistence of bias or a reasonable apprehension of bias rests on the person making the allegation: Arthur v Canada (AttorneyGeneral), 2001 FCA 223 [Létourneau JA] at para 8 and Hughes v Canada (Attorney General), 2010 FC 837 [Mactavish J asshe then was] at para 21. [111] The Applicants have not met the high threshold to establish the serious allegation of bias, whether the closed mind test or thereasonable apprehension of bias test is applied. [112] The evidence on the record shows that the Minister’s decision to impose the Attestation was not made with a mind closed to theviews of pro-life groups and only open to the views of ARCC and other abortion rights groups as alleged by the Applicants.

The decisionwas based on several considerations, including the government’s existing and stated domestic policy and international commitments onhuman rights, gender equality, reproductive rights and LGBTQ2 rights. This is reflected in the Applicant Guide, Rationale, and severalother documents generated from discussions within ESDC and Parliament as noted in and attached to the Wernick Affidavit. D.

The Applicants Have Not Established Any Other Breach of Procedural Fairness [113] The Applicants’ general allegation of a breach of procedural fairness, which they did not elaborate on, is without merit. [114] In Canadian Arab Federation v Canada (Citizenship and Immigration), 2013 FC 1283 [CAF], aff’d 2015 FCA 168, Justice Zinnfound that no duty of procedural fairness was owed in the context of a decision not to renew a contribution agreement, noting at para 38: Finally, according procedural rights in what is essentially a strictly commercial context would unduly burden the Minister,particularly where the window for making a decision is short and there are greater public policy considerations which theMinister must weigh.

In such a context, the parties’ rights are best protected by a reviewing court’s assessment of thereasonableness of the decision, not by extending procedural rights where none would otherwise exist. [115] In the present case, the issue is whether any duty of procedural fairness was owed with respect to the policy decision to impose theAttestation, not to a decision to refuse funding.

Given that in CAF, the Court found that no duty of procedural fairness was owed to anapplicant with respect to the Minister’s refusal to extend a funding agreement, there would be no duty of procedural fairness owed to apotential applicant regarding the broader policy decision to establish the program and its funding criteria.

In addition, the factors set outin Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, 174 DLR (4th) 193, whichinform whether a duty of procedural fairness exists, do not support finding any general duty of procedural fairness to the Applicants withrespect to the decision to add the Attestation. IX. Does the Attestation Engage the Applicants’ Sections 2(a),2(b), and 15 Charter Rights? If So, Does the Attestation Reflect aProportionate Balancing of the Charter Rights and Protectionsat Play with the Objectives of the DESDA and the CSJProgram? A.

The Applicants’ Submissions [116] The Applicants submit that even if the purpose of the Attestation was not unconstitutional, the effects of the Attestation infringedtheir Charter rights to freedom of speech, freedom of religion and equality significantly and disproportionately to the statutoryobjectives. [117] The Applicants argue that the Attestation amounts to compelled speech, contrary to

section 2(

b) of the Charter. They argue, citingthe factors set out in Lavigne, that: the Attestation compels TRTL and Mr. Alleyne to say that they agree with the pro-choice view inorder to be treated equally; they must publicly identify with a message supporting abortion; and they have no ability to disavow thatmessage. [118] The Applicants also argue that the Attestation coerces a religious belief because it requires them to make the Attestation contraryto their religious beliefs or conscience, in contravention of

section 2(

a) of the Charter. The Applicants submit that their sincere pro-lifebelief has a nexus with religion and that the Attestation interferes with their freedom of religion in a non-trivial way. The Applicantspoint to the affidavit of Dr. John Berkman, who explains that the belief in the sanctity of life is founded on the traditions of Catholicism. [119] The Applicants submit that TRTL is both an educational and religious-based organization; its mandate is to educate and advocatewith respect to the sanctity of life.

The Applicants add that the reference to the "“sanctity of life”" in its Letters Patent is clearly areference to its religious beliefs. The Applicants submit that TRTL and its members cannot attest to an opposing belief. [120] The Applicants dispute that the Charter infringements can be excused because TRTL is not obliged to seek the funding in the first

place. They rely on the US jurisprudence in Perry v Sindermann , where the US Supreme Court found that while there is no right to a government benefit, its denial for reasons of expression of a particular belief is contrary to the US Constitution. [ 121 ] The Applicants also argue that the Attestation results in discrimination on the basis of religion, contrary to

section 15 of the Charter . The Applicants submit that the Attestation makes a distinction between Mr. Alleyne and Mr. Battista and others based on their religious beliefs and their membership in a group whose religious beliefs prevent it and its members from making this Attestation. The Applicants add that the Attestation has a discriminatory effect because it imposes a disadvantage on Mr. Alleyne and Mr. Battista. Mr. Alleyne’s organization—TRTL—was denied consideration for funding because he could not attest to a view contrary to his religious beliefs. Mr.

Battista was denied a potential job opportunity. [ 122 ] The Applicants further submit that this distinction perpetuates a disadvantage, including the stereotypes about their organization and pro-life organizations in general. The Applicants also point to Mr. Alleyne’s affidavit in which he attests that he was harassed and assaulted .

The Applicants argue that they need not submit any particular type of evidence to establish the disadvantage ( Fraser v Canada (AG) , 2020 SCC 28 at paras 57–59 [ Fraser ]) . [ 123 ] The Applicants submit that the Attestation denies them completely of the benefit of the CSJ program, which they allege is a program of general application, without any accommodation. They add that the deleterious effects on their freedom of expression, freedom of religion and equality are disproportionate to any possible salutary effects related to the achievement of the Minister’s statutory objectives. B.

The Respondent’s Submissions [ 124 ] The Respondent submits that the Applicants have not established that the Attestation compels speech, infringes freedom of religion or discriminates against them based on religion or other protected grounds. Alternatively, if the Applicants’ Charter rights were engaged, the Attestation balanced the Charter rights at play with the objectives of the DESDA and the 2018 CSJ program. [ 125 ] The Respondent contends that the Attestation does not relate to an applicant organization’s beliefs and values.

The Respondent reiterates that the Applicants’ misunderstanding cannot be the basis for a finding of unconstitutionality. The Respondent submits that the Attestation only confirms that an applicant’s primary activities and jobs do not seek to undermine human rights, in order to ensure that the organizations receiving funds respect the rights of all Canadians. The Respondent contends that the Attestation does not require TRTL to state that it agrees with the pro-choice view. [ 126 ] With respect to

section 2(b), freedom of expression, the Respondent argues that the Attestation does not associate TRTL with a message that it disagrees with. The Respondent notes that Mr. Alleyne stated that TRTL agrees with upholding the law and the Charter . [ 127 ] The Respondent submits that the Lavigne factors are not at play. There is no right to funding, no requirement to apply for funding and, in turn, no compulsion to make the Attestation. The Respondent notes that TRTL did not make the Attestation; therefore, no speech was compelled from TRTL or Mr. Alleyne personally.

In addition, TRTL had an opportunity to disavow the Attestation or their understanding of it. TRTL and Mr. Alleyne were not restricted in expressing their pro-life views and continue to do so. [ 128 ] With respect to

section 2(a), freedom of religion, the Respondent submits that the Attestation did not create a religious-based distinction or exclude religious groups from applying for funding. [ 129 ] The Respondent also submits that the Applicants have not demonstrated that TRTL is a religious group or organization. [ 130 ] The Respondent argues that the Applicants have failed to provide objective evidence to support their assertion that the Attestation interfered with a sincere belief that has a nexus to religion in a non-trivial manner. The Respondent submits that the Applicants’ perception and speculation is not enough.

The Respondent notes that TRTL is free to express and practice their religious views and that they continue to do so. [ 131 ] With respect to the Applicants’

section 15 claim of discrimination based on religion, the Respondent submits, first, that equality rights belong only to individuals. The Respondent again submits that the individual rights of Mr. Alleyne or Mr. Battista were not engaged. [ 132 ] Second, the Respondent submits that TRTL is not a religious organization, noting that it describes itself as a " “non-sectarian human rights organization” " whose mandate is to educate and promote pro-life views.

The Respondent submits that holding a pro-life view is not a protected or analogous ground of discrimination. [ 133 ] Third, the Respondent argues that the Attestation did not create any religious-based distinction or exclude religious groups from applying for funding. The Respondent points to the 2018 Applicant Guide that clearly stated that religious organizations were not excluded from applying. [ 134 ] Fourth, the Respondent argues that the Applicants have not provided any objective evidence that the Attestation infringed the equality rights of Mr. Alleyne or Mr. Battista.

The Applicants have not demonstrated, as required by Fraser at para 50 , that the Attestation created a distinction on an enumerated or analogous ground and that the distinction imposed burdens on them or denied them benefits in a manner that perpetuated disadvantage. [ 135 ] The Respondent submits that even if TRTL is characterized as a religious group, and Mr. Alleyne and Mr. Battista are part of that group, the Applicants have not demonstrated a differential impact.

Rather, the Applicants only speculate that if TRTL were denied funding for two summer student jobs, their ability to provide job opportunities would be limited. [ 136 ] The Respondent submits that contrary to the Applicants’ reliance on Fraser to argue that they need not provide any particular type of evidence to establish disadvantage, the Applicants are required to provide sufficient evidence.

[137] With respect to proportionality, the Respondent argues that if the Attestation limited the Applicants’ Charter rights, the limitationwas minimal and reasonable as it reflected a proportionate balancing of the Charter protections at issue against the objectives of theDESDA and the CSJ program. [138] The Respondent submits that the Minister balanced freedom of expression and religion with the objective of promoting genderequality by focusing the Attestation on an organization’s primary activities, not its beliefs or values.

The Respondent further submits thatCharter rights and human rights, including gender equality and prioritizing LGBTQ2 rights, underpinned the 2018 CSJ programobjectives and the Attestation. The Respondent explains that women’s autonomy over their bodies is essential to gender equality;reproductive rights are essential to women’s autonomy over their bodies; and access to safe and legal abortion is part of reproductiverights. Organizations that work to undermine a woman’s right to abortion negatively impact women and society.

The Respondentsubmits that providing funding to organizations that undermine a woman’s access to abortion legitimizes these activities. [139] The Respondent points to the evidence of Dr. Amy Kaler, who attested to the importance of women’s bodily autonomy to genderequality and full participation in society. The Respondent also points to the evidence of Dr. Barry Adam, who attested to the negativeimpacts of employment discrimination on LGBTQ2 youth.

The Respondent notes that this and other evidence supports thereasonableness of the Minister’s policy decision to introduce the Attestation and in balancing the Charter protections at play against itsobjectives. C. The Limitation on the Applicants’ Charter Rights Reflects a ProportionateBalancing with the Statutory Objectives; The Decision to Add the Attestation wasReasonable

(1) Overview [140] The purpose of the Attestation is not ultra vires the DESDA. The purpose of the Attestation is not to infringe Charter rights, butrather to broadly promote Charter rights and values and human rights. [141] However, I find that the effects of the Attestation do engage the Applicants’

section 2(

a) and 2(

b) rights. The effects of theAttestation do not engage the Applicants’

section 15 right to equality. I also find that the decision to add the Attestation reflects aproportionate balancing of the Charter rights at play with the objectives of the DESDA and the 2018 CSJ program, which itself seeks toprotect and promote Charter rights and values. While true proportionality may be elusive, the record shows that many considerationswere taken into account in the decision to add the Attestation, including its effects on pro-life and faith-based groups.

While the Ministercould have chosen other options to enhance the eligibility criteria, the Attestation was a reasonable option that sought to highlight thepriorities for funding and the overall objectives of the CSJ program while addressing its rights-limiting impacts on some would-beapplicants. The Minister’s policy decision is owed deference and there is no basis to interfere. The proportionate balancing demonstratesa reasonable decision.

(2) Section 2(

a) Freedom of Religion Engaged [142] The test for whether a

section 2(

a) right is engaged was restated by the Supreme Court in Law Society of British Columbia v TrinityWestern University, 2018 SCC 32: [62] This Court has adopted a broad and purposive approach to interpreting freedom of religion under the Charter. Thisencompasses “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openlyand without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teachingand dissemination” (R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 336). [63]

Section 2(

a) of the Charter is limited when the claimant demonstrates two things: first, that he or she sincerely believesin a practice or belief that has a nexus with religion; and second, that the impugned state conduct interferes, in a manner thatis more than trivial or insubstantial, with his or her ability to act in accordance with that practice or belief (SyndicatNorthcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 65; Ktunaxa Nation v. British Columbia (Forests, Landsand Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, at para. 68). If, based on this test, s. 2(

a) is notengaged, there is nothing to balance. [143] In Loyola at paras 91–92, the Supreme Court (in the concurring reasons) confirmed that organizations may rely on

section 2(a)because religious freedom "“has both an individual and a collective dimension.”" [144] Mr. Alleyne attests that he holds sincere religious beliefs and, as a matter of conscience and religion, he is morally opposed toabortion. Mr. Alleyne attests that his own views on the sanctity of life, the views of the members of TRTL, and the mandate and coreactivities of TRTL are all grounded in the teaching of the Catholic Church. The affidavit of Dr.

Berkman explains how Catholicismreflects, practices and protects the sanctity of life. [145] While TRTL describes itself as non-sectarian and it is primarily a pro-life organization, its mandate and underlying values have anexus with religion. [146] With respect to the Respondent’s submission that the Applicants have not adduced any objective evidence of a non-trivialinterference with religion, I find that the affidavit of Mr.

Alleyne, on behalf of and as a member and president of TRTL, stating that hecould not check the box without violating his personal moral and religious beliefs about abortion or the core beliefs of TRTL, providessufficient evidence. Although TRTL was not required to seek CSJ program funding, they wanted to do so. Making the Attestation wouldbe antithetical to and an interference with the religious beliefs underlying the mandate and activities of TRTL and the religious beliefs ofMr. Alleyne. The Attestation interferes with Mr. Alleyne’s ability to act in accordance with his beliefs. He could not—credibly or

morally—take a different view. [147] Although TRTL and Mr. Alleyne are not prevented from practicing their religion or sharing their religious beliefs more generally,the broad approach to the

interpretation of freedom of religion supports the finding that there was an interference with the Applicants’ability to act in accordance with their religious beliefs, albeit in the limited context of applying for funding from the 2018 CSJ program.

(3) Section 2(

b) Freedom of Speech Engaged [148] Freedom of expression protects the right to express oneself and the right not to express oneself (National Bank of Canada v RetailClerks’ International Union, [1984] 1 SCR 269 at 296, ). [149] In Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, [Irwin Toy], the Supreme Court of Canadafound that in assessing whether a law infringes freedom of expression, the first determination is whether the activity falls within theprotected sphere of freedom of expression, and the second determination is whether the purpose or effect of the law restricts expression. [150] The Attestation is a form of expression with expressive content (i.e., respect for reproductive rights, which includes access toabortion) and can be considered a form of compelled speech as applicants must agree or adopt the message; otherwise their applicationfor funding is not assessed.

Although the purpose of the Attestation was not to compel speech or expression, the effect of the Attestationon the Applicants was a form of compelled speech. The Applicants understood the message. The Applicant Guide repeatedly stated thatrespect for reproductive rights includes the right to access safe and legal abortions. [151] The parties agree that the factors set out in Lavigne—public identification with the message and the opportunity to disavow it—arerelevant to determine whether compelled speech infringes

section 2(b). [152] In Lavigne at page 267, Justice Wilson found that Irwin Toy applied to compelled speech, noting: If the government's purpose was to put a particular message into the mouth of the plaintiff, as is metaphorically alleged to bethe case here, the action giving effect to that purpose will run afoul of s. 2 (b). If, on the other hand, the government'spurpose was otherwise but the effect of its action was to infringe the plaintiff's right of free expression, then the plaintiffmust take the further step and demonstrate that such effect warrants constitutional disapprobation.

It seems to me thereforethat the interpretive approach established in Irwin Toy readily lends itself to the analysis of claims based on compelledexpression and I will follow it in my approach to s. 2 (

b) in this case. [153] Justice Wilson elaborated on the opportunity to disavow the compelled expression, at pages 279–80: Quite apart from these [US] decisions it would be my view that as a matter of principle concerns over public identificationand opportunity to disavow should form part of the s. 2(

b) calculus. I have only one reservation and that is that care shouldbe exercised in considering whether or not one truly has the opportunity to disavow. Opportunity must be meaningful and weshould not be too quick to ascribe to persons opportunities and abilities which they do not really possess. That aside, I favourthe inclusion of these factors because both are directed to preserving and promoting the fundamental purpose of the s. 2(b)guarantee, namely to ensure that everyone has a meaningful opportunity to express themselves.

If a law does not reallydeprive one of the ability to speak one's mind or does not effectively associate one with a message with which one disagrees,it is difficult to see how one's right to pursue truth, participate in the community, or fulfil oneself is denied. [154] As the Respondent notes, no one was required to make the Attestation because no one was required to seek funding. However, allapplicants who did seek funding were required to make the Attestation.

The experience of TRTL was that there was no alternativewording or exception. [155] In addition, as the Respondent notes, applicants who made the Attestation were not prevented from expressing their views in otherfora, whatever their views may have been and even if they differed from the message in the Attestation. However, from a practicalperspective, expressing a contrary view would call into question the honesty and credibility of the organization.

Although TRTL couldand does publicly denounce the pro-choice view and continues to publicly share and advocate pro-life messages, TRTL could notpractically and credibly make the Attestation in the first place as it would have associated or identified TRTL with the view that respectfor reproductive rights includes access to safe and legal abortions, which is a message it does not promote. In these circumstances, TRTLwould not have had a real opportunity to disavow the Attestation. [156] Based on a broad

interpretation of

section 2(b), I find that the Attestation engaged the Applicants’ right to freedom of expression.Although the Applicants are otherwise free to express their pro-life or anti-abortion views, in order to be eligible for 2018 CSJ fundingthe Applicants were required to make the Attestation (along with meeting several other criteria).

(4) Section 15 Equality Rights Not Engaged [157] In Fraser, the Supreme Court of Canada restated the test for a

section 15 claim and provided guidance about how such claimsshould be determined and the nature of the evidence that courts may consider, noting at para 27: To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law or state action: • on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and • imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbatingdisadvantage. (Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018

SCC 17 , [2018] 1 S.C.R. 464, at para. 25; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018SCC 18 , [2018] 1 S.C.R. 522, at para. 22.) [158] At para 81, the Court stated: In sum, then, the first stage of the s. 15 test is about establishing that the law imposes differential treatment based onprotected grounds, either explicitly or through adverse impact.

At the second stage, the Court asks whether it has the effectof reinforcing, perpetuating, or exacerbating disadvantage (Alliance, at para. 25). [159] As noted, the Applicants’ position is that the Attestation creates a distinction for members of TRTL, including Mr. Alleyne, basedon their beliefs on the sanctity of life, which is rooted in their sincerely held religious beliefs and, therefore, is protected under section15. [160] I find that Mr. Alleyne’s right to equality is not engaged. [161] Although TRTL describes itself in various ways, it is primarily a pro-life group. Mr.

Alleyne attests that TRTL is a volunteer non-sectarian human rights organization and that its mandate is to educate about pro-life issues through educational presentations and eventsand distribution of educational information. I acknowledge that TRTL’s message or mission is to uphold the sacredness of life fromconception to death. As Dr. Berkman explains, this is rooted in Catholicism. The mandate of TRTL and its underlying values have anexus with religion.

However, in my view, TRTL should not be characterized as primarily a religious organization. [162] Holding pro-life views or being a member of a group that holds pro-life views is not a protected or analogous ground pursuant tosection 15. [163] I would characterize TRTL as a hybrid organization given that its pro-life mandate has a nexus with religion.

To the extent that thischaracterization opens the door to a claim of discrimination based on religion, the issue becomes whether the Attestation has adisproportionate impact on the members of this group (Fraser at para 52). [164] The purpose of the Attestation is not to create a distinction based on religion. There is no impediment for religious or faith-basedgroups to be eligible for funding from the CSJ program based on religion. The Applicant Guide expressly states that "“churches,religious and f

[…]