The Constitutional validity of separate school funding

by Jeffrey Wang

On April 20th, 2017, Justice Layh of the Saskatchewan Queen’s Bench released the decision of Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212, ruling that public funding for non-Catholic students to attend Catholic schools is unconstitutional. In other words, this decision means that non-Catholic students can no longer attend Catholic schools in Saskatchewan. As can be expected, this ruling has been controversial, leading the Saskatchewan premier to invoke the notwithstanding clause. It has the potential to affect all Catholic students in Saskatchewan, Alberta, and Ontario, three provinces subject to denominational school rights. On March 13th, the case was heard at the Court of Appeal but no decision has been yet released.  

Background  

In 2003, the public school in Theodore Saskatchewan was shut down due to an insufficient student population. The school board planned to bus all 42 students to a nearby school instead. However, since Saskatchewan is subject to denominational school rights under the Constitution, the parents of Theodore voted to open a Catholic school (St. Theodore Roman Catholic School) even though the majority of students were not Catholic. Nonetheless, the majority of the 42 students chose not to be bussed to the public school, meaning that the public school board received less funding. In response, the school board (Good Spirit School Division) launched a suit claiming that the Catholic school cannot receive funding for non-Catholic students based on s.93 of the BNA Act, and s.2(a) and s.15 of the Charter. 

Case Summary   

This case is over 200 pages long, addressing numerous constitutional and procedural issues. This article will focus on two of them. Firstly, is the government’s funding of non-Catholic students in Catholic schools a constitutionally protected right under s.93 of the BNA Act? Secondly, if not, does it infringe s.2(a) and/or s.15 of the Charter? 

s.93 of the BNA Act  

S.29 of the Charter is clear that Charter rights do not apply to the denominational schoolprotected under s.93 of the BNA ActBut what parts of denominational schools are barred from Charter review? In Greater Montreal Protestant School Board v Quebec, the SCC ruled that s.93(1) only covers the denominational aspects of Catholic/Protestant education and the non-denominational aspects necessary to deliver these denominational aspects.1 This has been termed the denominational aspects test. The Good Spirit School Division (GSSD) argues that the admission of non-Catholic students is not a denominational aspect since the purpose of denominational schools is to be separate from the majority.2 They assert that Catholic schools were historically seen as entirely separate from regular education, and that Catholic organizers did not historically want non-Catholics to attend.3 On the other hand, the Catholic school argues that no specific admission requirements were historically outlined for Catholic schools,4 and that spreading the word of God to non-Catholics has always been a part of Catholic education.5  

Justice Layh rules that the funding of non-Catholic students does not pass the denominational aspects test and thus is not immune to Charter review. He leans heavily on the historical fact that those who fought for separate school rights wanted those schools to be separate from the majority  they were a way for the minority faith to remove their children from majority influences and sustain their religion.6 In addition, he asserts that even if it is accepted that spreading Catholicism is a part of Catholic education, the protected denominational aspect of Catholic education is the transmission of Catholic values to Catholic children rather than non-Catholic children.7 With this view, he finds that the admission of non-Catholics into Catholic schools cannot be protected under the denominational school rights negotiated in the BNA Act 

s.2(a) and s.15 of the Charter 

Proceeding to the Charter analysis, Justice Layh finds that funding non-Catholics to attend Catholic schools violates s.2(a) and s.15. He undertakes a religious neutrality analysis, ruling that funding students at the public expense to subscribe to one religion violates the government’s duty of neutrality under s.2(a).8 Similarly, Justice Layh finds that funding non-Catholic students to attend Catholic schools also violates s.15 – the funding allows members of the Catholic faith to promote Catholicism over other religions, and allows Catholic parents to fund education in their faith over parents of other faiths.9  

Conclusion  

It is unclear as of now where the law stands, since the appeal decision has not been released and the notwithstanding clause has been invoked. However, this case has already inspired litigation focusing on the admission of English students into constitutionally protected French schools.10 If Justice Layh’s decision is upheld, many Catholic school students may be forced to transfer schools and Catholic school boards around the country could lose large amounts of funding.  

Jeffrey Wang is a 2L JD Candidate at the Faculty of Law.

R v Bird: Do Not “Breach First, Challenge Later”

by Sahil Kesar

Spencer Bird (“Bird”), a long-term offender, was charged with breaching the conditions of a community supervision order prescribed by the Parole Board. At the criminal proceeding, he sought to use the defence that the order which imposed his parole conditions was unconstitutional as they violated Section 7 of the Charter. He argued that the condition that he reside in a facility that was designated a penitentiary for the community portion of his sentence breached his right to liberty. At trial, Bird was successful only to have the decision overturned and to be convicted on appeal on the basis that he could not collaterally attack the parole condition in this manner. The Supreme Court of Canada (“SCC”) drew upon the doctrine of collateral attack based on the approach developed in R v Consolidated Maybrun Mines Ltd and R v Al Klippert Ltd to determine its applicability when the constitutionality of an administrative order is challenged collaterally, rather than appealed or judicially reviewed directly.

The majority dismissed the appeal on the basis that Bird was precluded from collaterally attacking the long-term supervision order (“LTSO”) prescribed by the Parole Board. Analyzing the factors of the Maybrun framework, Moldaver J determined that Parliament could not have intended to let offenders “breach first” and “challenge later” the LTSO conditions imposed on them by the Parole Board. Further, the availability of other options for Bird to pursue his constitutional rights favoured not allowing the collateral attack especially since Parliament intended to defer to the judgment of the Parole Board, given the wording of the legislative scheme. Moldaver J did find, however, that the final factor of the Maybrun framework favoured allowing the collateral attack; however, after weighing all the factors of the Maybrun framework, Moldaver J concluded that Parliament did not intend to have LTSO conditions collaterally attacked in the case at hand and dismissed the appeal.

Martin J, in a concurring opinion, also dismissed the appeal but on the basis that the LTSO conditions did not violate the Charter, concluding that Bird could collaterally attack the LTSO conditions imposed by the Parole Board in his defence. Martin J differed in her approach to the factors enumerated in the Maybrun framework. She was of the view that allowing a collateral attack does not amount to a “breach first, challenge later” approach since breaching LTSO conditions is not a strategic plan, especially since it could potentially lead to an additional 10-year sentence. Martin J also found that none of the options listed by the majority, which Bird could have sought instead of breaching his LTSO conditions, were adequate and intended by Parliament to use in this specific legislative scheme, particularly habeas corpus. She also found that the fifth factor weighed in favour of allowing the collateral attack.

Looking at the Charter arguments, Martin J dismissed the Section 9 and 11 arguments on the basis that this was not an exceptional case where she should hear Charter arguments not previously raised. On the Section 7 argument, Martin J disagreed with Bird’s arguments that the residency condition imposed on him was arbitrary. She found that the broad definition of penitentiary does not amount to him being forced to serve an arbitrary extension of his carceral sentence. She also found that the distinctions between other parolees and long-term offenders do not indicate that long-term offenders were not to be housed where Bird was being forced to reside. Ultimately, Bird’s residency condition was within the ability of the Parole Board to impose and was based on his particular circumstances.

The Asper Centre intervened in this appeal. The Centre made four submissions:

  1. First, the Asper Centre’s sought to have constitutional considerations made explicit in the Maybrun This was based on two assertions. First, Maybrun was not a constitutional case but the jurisprudence it drew on provided for the balancing of legislative intent against constitutional considerations. Particularly, the US jurisprudence points towards the idea that courts should not ignore a defendant’s constitutional rights or the practical availability of prescribed remedies when deciding whether to permit a collateral attack on an administrative order. Second, the Maybrun framework implicitly permits constitutional considerations. Since the framework is intended to protect the rule of law by determining the legislature’s intended forum for relief, it must do so in a way that encourages compliance with the constitution because the principle of constitutionalism requires state action to comply with the constitution. Divorcing Charter rights from the Maybrun framework creates a perverse situation where an administrative decision is neither rooted in law nor constitutionally compliant.
  2. Second, the Asper Centre sought to have the repute of the administration of justice included as an enumerated factor under the Maybrun Denying a collateral attack when Charter rights are at stake would bring the administration of justice into disrepute, as shown in certain other examples.
  3. Third, with emphasis on seeking judicial review in Federal Court, the Asper Centre sought to have access to justice considered in the Maybrun Judicial review in Federal Court is not timely or accessible for three reasons: 1) the requirement to exhaust complex and ineffective internal reviews; 2) the difficulty in obtaining deadline extensions in Federal Court; and 3) the protracted time period required to obtain judicial review.
  4. Fourth, allowing collateral attacks does not prejudice the Crown. There is no impact on the standard of review. The Crown asserted that allowing the collateral attack would distort the standard of review since constitutional questions would be considered under correctness instead of reasonableness. However, reasonableness would be applied under Dore, not correctness as they assert.

Moldaver J for the majority, asserted that the two principles that underlie the approach to collateral attacks on court orders are accounted for in the Maybrun framework for administrative orders. The framework adequately balances legislative intent with ensuring effective means for recourse to individuals challenging administrative orders. As such, this rejects the notion that constitutional considerations or the repute of the administration of justice (submissions one and two of the Asper Centre) need to be explicitly included since the framework already accounts for the rule of law and the repute of the administration of justice.

Moldaver J made reference to the Asper Centre’s third submission at paragraph 57. He accepted that there are realistic concerns over timeliness and accessibility of relief in Federal Court and that efficiency and timeliness are of greater importance when liberty is concerned. However, he held that Bird received notice of the Parole Board’s decision to impose residency conditions five months before his long-term supervision commenced, therefore giving him ample time to seek judicial review. Moldaver J stated that concerns about timeliness of judicial review was speculation and that Parliament might want to consider whether the procedures in place governing judicial review could be modified to provide more timely and accessible relief. However, he did not make access to justice a consideration in the Maybrun framework. Martin J, in her concurring opinion also accepted that Bird would have been unlikely to have the resources to secure counsel or self-represent himself for the purpose of navigating judicial review proceedings. She did consider the access to justice issues that this raises as the absence of an internal appeal process cannot mean Parliament intends individuals to navigate Federal Court.

Neither the majority nor the concurrence directly addressed the Asper Centre’s fourth submission.

Read the Asper Centre’s Factum in the Bird Appeal here.

Sahil Kesar is a 3L JD Candidate at the University of Toronto Faculty of Law and is currently the Asper Centre half-time Clinic student

Supreme Court Moves Voting Rights into Globalization Era in Frank Decision

by Jasmit de Saffel

In its first decision of the year, the Supreme Court of Canada sided with Canadian ex-pats in a case about their voting rights. Chief Justice Wagner held that “citizenship, not residence, defines our political community and underpins the right to vote” (para 35).

Frank v Canada had been initiated by two Canadians living in the United States after they were denied the right to vote in the 2011 federal election. Dr. Gill Frank and Mr. Jamie Duong live in the United States for work and educational purposes but maintain close ties to Canada. The impugned provisions of the Canada Elections Act held that citizens who had resided outside of Canada for more than five consecutive years were not able to vote in federal elections until they resumed residence in Canada. This provision was recently repealed by the government, and the Supreme Court decision has made the residence limitation on voting rights unconstitutional.

The application judge sided with the applicants in 2014, finding that the residence requirement infringes section 3 of the Charter and was not saved under section 1. On appeal to the Court of Appeal, the Attorney General of Canada conceded that the provision breached section 3 but argued that it was a justified infringement for the sake of the Canadian “social contract.” The appeal was allowed.

In his reasons Wagner CJ, writing for a 5-2 majority, emphasized that any intrusions on the core democratic right to vote must be reviewed on the basis of a stringent justification standard (para 25). He found that residence is not mentioned in the section 3 guarantee or established as essential to the right to vote in the jurisprudence. “The Charter tethers voting rights to citizenship, and citizenship alone” (para 29).

Under the section 1 analysis, Wagner CJ dismissed the Attorney General’s social contract argument as a vague and ill-suited objective to withstand the rigours of a section 1 justification. He quotes the Asper Centre’s factum in laying out the argument’s analytical failings, holding that using the social contract as an objective collapses any distinction between legislative means and ends (para 53).

The real downfall of the government’s case was at the minimal impairment stage. The Court held that the limit was over-inclusive and that no correlation had been shown between time lived abroad and subjective commitment to Canada. The Court held that we live in a globalized society and that the ability of citizens living abroad to remain connected to Canada is “unprecedented.” Non-residents, like the applicants, are able to maintain deep “political, familial, financial or cultural” roots in Canada (para 69). The limit was held to undermine, rather than promote, the underlying objective of electoral fairness in Canada. The Court found that our democracy is “manifestly strengthened” by the demonstration of civic commitment of Canadian citizens abroad voting via special ballot (para 75). Denying non-residing citizens the right to vote was understood as coming at the expense of their dignity and self-worth.

In a concurring judgement, Rowe J held that the residency requirement is not trivial and is firmly rooted in Canada’s representative democracy model (para 90). While finding that the limit on section 3 was not justified in this case, Rowe J held that the possibility of voting limits based on residence should not be entirely ruled out.

In their dissent, Cote and Brown JJ held that the decision is regressive and undoes a long-standing Westminster tradition of privileging local connections in electing local representatives.

Jasmit de Saffel  is a 1L JD Candidate at the Faculty of Law and is the current Asper Centre work-study student

Above the Law? Understanding the Notwithstanding Clause

By Catherine Ma

On September 20, 2018 the David Asper Centre for Constitutional Rights convened a panel with U of T Law Professors Yasmin Dawood and Lorraine Weinrib, and Goldblatt Partners’ Steven Barrett to discuss the constitutional challenge to the Better Local Government Act. The proposed legislation would have reduced the size of Toronto’s city council in the midst of its municipal election, as well as ending mandatory election of regional councillors across all regional municipalities. Superior Court Justice Edward Belobaba struck down the legislation, finding that it was an unjustified infringement to s.2(b) of the Charter. The Court of Appeal of Ontario ultimately granted a stay of the Superior Court’s decision until a full appeal could be heard after the election. Its effect was allowing the Better Local Government Act to govern the 2018 municipal elections in Ontario.

Before the Court of Appeal rendered its decision, Ontario’s Premier Doug Ford had threatened to invoke the notwithstanding clause if a stay was not granted. The notwithstanding clause allows the federal government or a provincial government to enact legislation that overrides certain fundamental freedoms, legal rights, and equality rights guaranteed in the Charter. Premier Ford further warned that he would not hesitate to use the notwithstanding clause in the future, without providing specific details.

The Panel Discussion

The panelists all provided unique perspectives regarding the constitutional challenge to the Better Local Government Act and the notwithstanding clause itself.

Above the Law panelists: Prof Yasmin Dawood, Prof Lorraine Weinrib, Steven Barrett [click on photo for link to webcast of panel]

Professor Dawood summarized the Superior Court and Court of Appeal decisions. She noted the that it was “novel” to argue that the Better Local Government Act infringed s.2(b) by depriving voters of their right to cast a vote that would enable effective representation. She questioned whether the legislation also infringed the s.2(b) rights of political donors.  Professor Dawood ultimately concluded, “Interrupting an election midstream is inappropriate and completely inconsistent with notions of democratic and electoral fairness, even if it is the case that the provincial government has the power to do so.” Democratic legitimacy and electoral fairness requires that the provincial government consult all stakeholders before changing election laws.

Professor Weinrib focused on the principles that govern use of the notwithstanding clause. She emphasized that the drafters envisioned the notwithstanding clause as a narrow exception, used only when a Charter right would “fundamentally damage society’s stability and well-being.” She added that the notwithstanding clause cannot be applied retroactively; in this case, the provincial government cannot invoke the clause since candidates already spent resources, social capital, volunteers, and energy; and interacted with their constituents. Professor Weinrib further criticized Premier Ford for threatening to invoke the notwithstanding clause whenever the courts strike down provincial legislation as unconstitutional. She recommended asking the Supreme Court of Canada to clarify the constitutional principles that govern the use of the notwithstanding clause.

Mr. Barrett discussed specific Charter arguments made in the case, as well as the Court of Appeal’s decision. He commented that for the stay application, it was “unusual” for the Court of Appeal to examine the substantive merits of the s.2(b) argument rather than the usual factors for a stay application. He criticized the Court of Appeal for ignoring how the Better Local Government Act undermines the effectiveness of candidates’ political speech. Mr. Barrett criticized Premier Ford for threatening to routinely use the notwithstanding clause in the future as well. He warned this threat has a “corrosive effect” on judicial legitimacy and potentially judicial independence. Individuals must make it clear that using the notwithstanding clause is only appropriate in exceptional circumstances.

Other Uses of the Notwithstanding Clause

Provincial governments have rarely used the notwithstanding clause, particularly for its intended legal function. From 1982 to 1985, the Parti Québécois placed a notwithstanding clause in all of its new legislation and retroactively amended all existing laws to include such a clause in order to protest the enactment of the Constitution Act, 1982, which it had not signed. Its actions were a political protest, rather than aimed at protecting a specific law from a Charter challenge.

In 1988, Quebec’s provincial government invoked the notwithstanding clause in response to the companion cases, Ford v Quebec (AG) and Devine v Quebec (AG), which struck down provincial legislation that prohibited the public use of all languages other than French. The legislation already had a notwithstanding clause to override s.2(b) of the Charter; however, the Supreme Court of Canada held that the legislation unjustifiably infringed a similar guarantee in Quebec’s Charter of Rights and Freedoms. The provincial government then introduced a virtually identical bill, except with clauses to override the Charter and the Quebec Charter for a five-year period. Following the expiration of this period, the provincial government amended the law. The amended law did not include a notwithstanding clause.

In 2017, Saskatchewan’s provincial government used the notwithstanding clause in the School Choice Protection Act. Its use responded to Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, which held that funding non-Catholic students who attended Catholic schools was an unjustified infringement of s.2(a) and s.15(1) of the Charter. Saskatchewan Premier Brad Wall justified its use on the basis that the legislation would protect school choice for parents and students, including faith-based options. There was no political opposition to its use.

Most recently, Québec Premier François Legault threatened to use the notwithstanding clause in order to pass a controversial “secularism law.” This proposed legislation would prevent public servants – including teachers, police officers, and judges – from wearing religious garments while performing public functions. The law is widely interpreted as targeting Muslim women who wear a niqab.

It is hoped that Ford and Legault’s recent threats will not embolden others to invoke the notwithstanding clause inappropriately. In light of these threats, the appropriate use of the Constitution’s notwithstanding clause must continue to be scrutinized, perhaps as Professor Weinrib suggested by the Supreme Court of Canada itself.

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018. 

Procedural delays prevent constitutional answers in B.C. Medicare case

By Sara Tatelman

It is a truth universally acknowledged that a first-year law student in possession of a jam-packed schedule must be in want of an excuse to skip Legal Process class. But as we see in Cambie Surgeries Corporation v. British Columbia (Attorney General), both ignorance and careful manipulation of the smallest rules of civil procedure lead to months- and even years-long delays before pressing constitutional questions will be answered. So 1Ls, skip at your peril.

Cambie Surgeries centres on British Columbia’s ban of most private healthcare. The plaintiffs – two private clinics owned by Dr. Brian Day and four patients – argue the unconstitutionality of three provisions of B.C.’s Medicare Protection Act: prohibition of private duplicate insurance, limits on extra billing, and preventing doctors from being paid by both the provincial Medical Services Plan and directly by patients. They argue that by preventing private billing, the province forces patients to suffer as they languish on waiting lists. They allege this infringes their s. 7 Charter right to security of the person, and the fact that some residents have access to expedited private medicine through workers’ compensation and government-run auto insurance infringes other British Columbians’ s. 15 equality rights.

The trial began in September 2016, was adjourned in April 2017 partly due to the plaintiff running out of funds and partly due to inefficient presentation of evidence, and re-commenced on April 9, 2018.

Between February and April 2018 alone, British Columbia filed eight interim motions. Seven sought to strike parts of various witness’s affidavits, while one sought to enforce Cambie Surgeries’ compliance with a previous disclosure order.

Such evidentiary disputes aren’t new: in an April 2017 interim judgement, Justice John Steeves noted that half of the 70+ days of the trial had been devoted to argument over expert witnesses. In an interview with the Canadian Press, Dr. Day said the government delays were an attempt to bleed him dry and force him to abandon his suit.

Between March and May 2018, Steeves J. released 11 interim judgements responding to the parties’ very particular quibbles. Most of the motions sought to strike expert witness affidavits in whole or in part. Steeves J. assessed the impugned statements one by one, concluding that some are admissible because they derive from the witness’s direct experience and observations while others are inadmissible because they include hearsay evidence or opinion.

The line between description and argument can be fine: stating that many patients will deteriorate as they wait for treatment is admissible, but stating that surgery gets more challenging the later it occurs is not (2018 BCSC 759 para 11). Similarly, in another judgement, some comments that might be described as opinion were held to be admissible descriptions of the physician’s work, such as his statement that efforts made at the hospital will be insufficient to meaningfully reduce his waitlist (2018 BCSC 760 para 26).

In another motion, British Columbia sought to enforce Cambie Surgeries’ compliance with a previous order. Specifically, Cambie Surgeries hadn’t produced documents it had been ordered to, and allegedly redacted 55 documents without any explanation. It also failed to list documents it didn’t have in its possession or control, as well as to include any information about privilege, all of which violates the Supreme Court Civil Rules. Steeves J. ordered Cambie Surgeries to provide unredacted copies of certain documents, an amended list of all relevant documents, and an affidavit from Dr. Day that all relevant documents have been disclosed. “… The amended list of documents will comply with the Rules by indicating the documents or classes of documents for which privilege is claimed,” Steeves J. said. “Following discussions and argument I think counsel now understands what that means.”

It’s been almost two years since the Cambie Surgeries trial began, and while a CanLII search yields nearly 50 interim decisions, we’re nowhere near a final judgement. Maybe that’s because British Columbia is disputing the smallest points in the hopes that Dr. Day, drained of his assets and mortgaged to the hilt, will slink away, taking his Charter challenge with him. Maybe that’s because Cambie Surgeries’ lawyers are making disclosure mistakes that would cost them points on a 1L Legal Process exam. Whatever’s causing the delays, and whatever one’s thoughts on privatized medicine in the Canadian healthcare system, it’s clear that the complexities of civil procedure aren’t helping the country get an answer to an important constitutional question.

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.