Apr 222017

A Court of Queen’s bench judgement out of Saskatchewan on April 20th regarding non-Catholics attending Catholic schools raised more questions for me than answers, so I phoned up Luke Fevin, one of our board directors but also founder of the secular rights education group APUPIL, to go over some things with me so I could understand it better.

Karen: This judgement came out of Saskatchewan yesterday but it’s one people have been waiting for, for a long time.  When did this case start?
Luke: The original Theodore case is 12 years old.

Karen:  Even though the ruling is from Saskatchewan I’ve seen a lot of people comment that this will affect Alberta, how so?
Luke: Alberta and Saskatchewan came into Confederation using identical legislation.  Whatever happens with Saskatchewan sets likely precedent for Alberta, and vica versa.

Karen:  What about Ontario?  They also have protected Catholic/separate school system? Could this affect them?
Luke: Ontario has similar but unconnected legislation. It will only impact Ontario if it goes to the Supreme Court of Canada.


Karen : Was this just the public system feeling upset of lack of funding of those students?
Luke: I think many champions in the Public education system feel aggrieved at the unfair & negative impact the separate system has on the Public system. Everything from school locations & design, to lowering available funding for facilities like science & engineering labs, to literally taking education dollars away from kids & classrooms for non-education reasons. In this case to unfairly favor one religion.

Karen: How are schools allotted in Alberta and Saskatchewan, if a public school is built does a catholic one have to be too?
Luke: Schools are built by perceived demand, not just by actual demand.  It’s a question of “Build it and they will come.” So if you open a school at the end of the road, regardless of denomination, it will fill up if there are kids living in that area.  Likewise if a Catholic school opens and there are kids in the area that attend it, not all of whom will be Catholic, it will be perceived as a requirement for Catholic schools. It ends up creating a skewed impression that people want Catholic schools, when most don’t – they just want a good local school.

Karen:  The Canadian courts have ruled numerous times now that the gov’t has to remain neutral in regards to religion (interpreted separation of church and state).  The exceptions are the protection written into school acts in Alberta, Saskatchewan and slight differences in Ontario, that ONLY protects Catholics or Protestants for having their own school system based on minority status.    Non-minority faith students, so those that aren’t Catholic, literally ANY other religion or non-religion are not currently protected for funding within the separate (Catholic) system.   Have I got that right?
Luke: The protections for minority education are in section 93 of the 1867 Constitution Act (BNA), entrenched in Section 17.1 of the Saskatchewan (& Alberta) Act.
The bottom line is everybody (even the Supreme Court) recognizes that the privilege and protection of (Catholic) minority education rights  are unfair and would fail The Charter were it not for the special protection it receives. But the funding of non-minority students in Catholic schools was NOT protected opening it up to Section 2a & 15 of the Charter. Why should Catholic districts get paid for taking non-Catholics if Mormon schools can’t get paid for taking non-Mormons?

Karen:  So what were the suggested remedies by this judge?
Luke:  Provincial government funding of non-minority faith students attending separate schools is a violation of the state’s duty of religious neutrality under s. 2(a) of the Charter and section 15. This means that non-minority faith students would no longer receive funding under the separate school system.  June 2018 was given as the timeframe deadline to make changes.

Karen:  Are Catholics still considered a minority faith?
Luke: Interestingly the judge asks that question too.   In 1901 when the legislation was put in place it was protection for Catholics and Protestants ONLY.   Here was the run down in the judgement regarding Saskatchewan numbers:   1901:  25 Catholics to every 100 Protestants, 2011:  83 Catholics to every 100 Protestants, estimate by 2031:  96 Catholics to every 100 Protestants.  We have to ask ourselves at what point are they no longer the minority faith that requires protection, and what counts as Protestant in the first place?
The judge also then makes the distinction that at the time of confederation, 99% of the population fell into one of those two categories (either Catholic or Protestant).  By 1901 it was 93% and by 2011 only 65%.  Put another way, by 2011 the protection excluded 35% of the population.

Karen:  What do you think this means going forward?
Luke:   I assume this will get appealed to the Saskatchewan Court of Appeal. Any number of things can happen from there. The ruling seems strong – if the appeal goes against the Catholics, there is a logic that says they won’t appeal to the Supreme Court. A defeat in the Supreme Court hastens the demise of Catholic separate education in Sask., Alberta & Ontario. If they restrict the loss to Sask then they at least slow this process.

I think we’ll also see an immediate but small decrease in enrollment at Catholic schools, an increase in baptisms so that kids can stay at their local catholic schools, and eventually as Catholic boards only get funding for Catholic students, their enrollment goes down, schools will start closing. Rural schools will go first. We may end up with a few urban Catholic “super-schools”, but ultimately I don’t see them being sustained.

My hope is that the provincial government will put this process out of it’s misery, and do what’s right by both the kids & the tax payer and pass a motion in the Legislature amending section 17 (of the Constitution). Catholic apologists have tried to paint this constitutional amendment as incredibly difficult, but this is a distraction & a myth.
A simple majority vote in the Legislature & a federal rubber stamp is all that is required.

Some key comments and points from the judge:

* I see no grounds to think that the 1901 Ordinances were meant to create two parallel and competing public school systems

* Separate schools were not created to give rights or choice to the majority. They were created so that a minority faith could separate their children from the majority, the same majority the defendants now say has always been their right to educate at public expense. The defendants advocate that rights originally intended to protect Catholic minorities have morphed into rights to protect certain elements of the non-Catholic majority by invoking the legally uncertain rubric of “parental autonomy” and “fairness.”

* I have found that the admission and funding of non-Catholic students in Catholic schools is not a protected right under the Saskatchewan Act and is therefore not immune from Charter scrutiny. Accordingly, such funding is open to a potential challenge under the Charter as infringing s. 2(a) and s. 15.

* s. 93 of the Constitution Act, 1867, which the Supreme Court has said makes equal treatment of religions impossible, and not augment or complement these unbalanced religious rights with further empowering rights. I cannot see how the “special or unequal educational rights” ( Reference re Bill 30 at 1199) already given to Catholics do not become even more “special” and more “unequal” when additional rights are given to them to receive funding to educate non-Catholic students

You can read the entire document here:

Justice Donald Layh’s decision after the trial involving Good Spirit School Division and Christ the Teacher School Division.

Karen Lumley Kerr is the President of the Society of Edmonton Atheists and co-founder of the AB Secular Conference.  You can follow the SEA on facebook, or contact her directly at president@edmontonatheists.ca

Luke Fevin is co-founder of APUPIL (Albertan Parents for Unbiased Public Inclusive Learning), sits on the Board of the Society of Edmonton Atheists and can be found as “According2Luke” on Twitter, Facebook & Youtube.

 Posted by at 3:50 PM