On March 12th and 13th, the Saskatchewan Court of Appeal heard an appeal brought forth pertaining to a 2017 landmark ruling which declared that Saskatchewan’s Catholic schools should not receive government funding for non-Catholic students attending Catholic schools.
The case at hand initially stems back to 2003 in Theodore, Saskatchewan, a rural village, where the Good Spirit School Division closed down its public school because of declining enrolment numbers. Initially, the Good Spirit School Division had planned to bus approximately 42 students out to the neighbouring town of Springdale roughly 17 kilometres away. However, in an attempt to keep these students within the local community, a group formed their own Catholic school division – the Theodore Roman Catholic Division – and opened the St. Theodore Roman Catholic School for these students to attend using provisions found in the Education Act of 1995. As many as two-thirds of the students attending the school at the time were not Catholic.
In light of this, the Good Spirit School Division brought a challenge to the court and claimed that it was unfair for the newly-formed Catholic school division to receive government funding for non-Catholic students enrolled.
In the landmark 2017 ruling, the trial judge, Justice Donald Layh, decided in favour of the public school division. Justice Layh determined that Canada’s Constitution Act and the Charter of Rights and Freedoms precluded the government from funding non-minority faith students attending minority-faith schools. The judge decided to prohibit the provincial funding of non-Catholic students attending Catholic schools on the basis that public funding infringes on equality rights enshrined within the Charter and the state’s duty of religious neutrality. The key issue at hand surrounds the funding of separate schools by the province based solely on student enrolment irrespective of a student’s religion. It has been argued by the Good Spirit School Division that the government should not provide Saskatchewan’s Catholic schools with preferential treatment via the extra funding provided to non-Catholic students that are enrolled.
An appeal of the 2017 decision was filed by the provincial government and the Saskatchewan Catholic School Boards Association and, as such, was brought to the Court of Appeal this March.
Given the potential ramifications of the Queen’s Bench decision, including the fact that it could force approximately 10,000 Catholic school students to switch to public school or to require them to produce a baptismal certificate, the Province of Saskatchewan has invoked the notwithstanding clause for the time being and pending the outcome of the appeal. The notwithstanding clause grants the provincial government the power to override parts of the Charter for five-year periods. This is a significant measure taken by the Saskatchewan government given that the notwithstanding clause has been used only a handful of times in Canada. In 2017, Brad Wall stated, “we will defend school choice for students and parents. By invoking the notwithstanding clause, we are protecting the rights of parents and students to choose the schools that work best for their families, regardless of their religious faith.”
Essentially, the invocation of the notwithstanding clause has practically meant that enrolment stands at the Catholic schools and that the status quo remains. It presently also provides parents with certainty of choice regarding where they opt to send their children to school without having to worry about the decision made by the Court of Appeal for the time being.
Nonetheless, for others, this is viewed as a questionable political move on the part of the Saskatchewan government and that we should, at the very least, have reservations about the overriding of constitutionally protected Charter rights. Such action on the part of the government can be interpreted as posing a threat to the protection of our fundamental rights and to the nature of democracy in Canada.
As it stands, upon hearing the appeal, the Court of Appeal has opted to reserve judgment on the matter until further notice.
This blog post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.