Charter section 2(a)

The Constitutional validity of separate school funding

Posted on by Tal Schreier

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 schools protected under s.93 of the BNA Act. But 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.

Beyond freedoms: the administrative underbelly of the Trinity Western decision

Posted on by Student

By Sara Tatelman

The Supreme Court of Canada may have divided 7-2 on whether law societies must accredit Trinity Western University’s proposed law school, but the split was much narrower when it came to the nitty-gritty of administrative law. While the five-justice majority accepted the Doré/Loyola framework for judicial review of administrative law decisions, the other four justices called for varying degrees of reform.

The Doré framework applies when courts are reviewing the constitutionality of an administrative decision, such as one by a human rights tribunal, an immigration and refugee board, or a law society. Reviewing courts give considerable deference to the original decision-maker, given their subject matter expertise, and only over-turn their decisions if they are not reasonable.

On the other hand, when courts are determining whether a Charter-infringing law is nonetheless constitutional, the Oakes test applies. Unlike Doré, it clearly places the onus of proving the law is proportional on the government.

“The framework set out in Doré and affirmed in Loyola is not a weak or watered down version of proportionality – rather, it is a robust one,” the majority wrote (para 80).

“But saying [the framework is robust] does not make it so,” Côté and Brown J.J. snapped back in their dissent (para 304).

McLachlin C.J. (concurring) and Rowe (concurring), Côté and Brown (dissenting) J.J. all argued that judicial review of administrative law decisions should ask whether an individual’s Charter rights were infringed, rather than the more nebulous Charter values of the Doré framework and the majority’s decision. While rights are clearly outlined in constitutional documents, the majority suggests Charter values are those “the state always has a legitimate interest in promoting and protecting,” such as democracy, equality and human rights (para 41, citing Loyola at para 47).

Furthermore, rights are clearly distinct from other values. “To denominate an interest as a right is to recognize its normative primacy,” the Asper Centre noted in its 2013 intervention in Divito v. Minister of Public Safety and Emergency Preparedness. “As such, a Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement. A Charter right, once established, also possesses normative priority. A rights bearer need not justify protection of a Charter right; rather, the state must justify infringing it.”

Côté and Brown J.J. pointed out that Charter values are unsourced, amorphous and undefined, subject to each judge’s personal interpretation and nothing but “mere rhetorical devices by which courts can give priority to particular moral judgements” (para 309).

The dissenting (Côté and Brown J.J.) and the concurring (McLachlin C.J. and Rowe C.J., in separate in decisions) justices were divided over whether the Doré framework was salvageable. The latter argued it was, as they saw strong parallels between Doré and Oakes.

Under Doré, the decision maker must find reasonable the balance between the Charter values and the statutory objective, which of course involves identifying that objective, Rowe J. wrote. This corresponds to the first step of the Oakes test, which is ensuring the rights-infringing statute has a sufficiently pressing and substantial objective.

The second step of Doré is determining whether the decision proportionately balanced the relevant Charter protections, he added. This corresponds to the proportionality test in Oakes, which analyzes rational connection, minimal impairment and the balance between beneficial and deleterious effects.

McLachlin C.J. added that the Doré analysis usually comes down to the minimal impairment and balancing questions.

The dissenting justices, however, were troubled there was no clear rationale as to why judicial review of administrative decisions requires a separate framework. They noted courts had used the Oakes analysis before Doré was decided, as well as several times since.

“… [T]he orthodox test — the Oakes test — must apply to justify state infringements of Charter rights, regardless of the context in which they occur,” Côté and Brown J.J. wrote. “Holding otherwise subverts the promise of our Constitution that the rights and freedoms guaranteed by the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified” (para 304).

The four justices were once again united when the question of burden of proof came up. They all found Doré, which has remained “conspicuously silent” on that issue (para 195), especially unsatisfactory in this regard.

In most administrative law decisions, applicants shoulder the burden of proof. But in Charter disputes, the four justices argue – as did the Asper Centre in Attorney General of Canada on behalf of the Republic of India v. Surjit Singh Badesha — that the justificatory burden must fall to the state actor. Otherwise, the Doré framework would provide significantly less protection than Oakes (para. 117, 197, 313).

And that, surely, is intolerable. As McLachlin C.J. wrote, “Canadians should not have to fear that their rights will be given different levels of protection depending on how the state has chosen to delegate and wield its power” (para 116).

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

Ktunaxa Nation: A Lost Opportunity

Posted on by Tal Schreier

By Patrick Enright

 

Indigenous Religion and the Court: A Lost Opportunity to Revise Religious Freedom Under the Charter

Earlier this month, the Supreme Court of Canada delivered its much awaited freedom of religion decision in the case of Ktunaxa Nation Council v British Columbia. Put simply, we could have waited longer. The decision marks a lost opportunity for the Court to have revised its freedom of religion jurisprudence, and is an extraordinarily dismissive analysis for what stands as the first indigenous religion brought under the Charter.

The Ktunaxa Nation Council, the appellants in the case, challenged the BC government’s approval of a ski resort on what is believed to be their sacred territory called “Qat’muk.” It was alleged that, should any construction go forward on the land, the Ktunaxa’s religious rituals would be deprived of any spiritual significance, as the “Great Grizzly Spirit,” who infuses their traditions with meaning, would permanently flee the territory. The case therefore raised the novel issue of whether s 2(a) of the Charter covers so-called “sacred sites,” and if there is any role for government in preserving the spiritual traditions of religious practitioners.

The Court, however, side-stepped all of the difficult questions of the case to simply (and tersely) assert that s 2(a) does not protect the “object” of religious beliefs. As such, it does not protect the (believed) existence of Grizzly Bear Spirt. Full Stop.

On the fascinating question of whether religious practices are intimately connected to religious beliefs themselves? Nothing.

On the issue of whether the recent origin of a religious claim can affect the proportionality analysis on judicial review? Nothing.

On the matter of whether preserving a religious community is more pressing than an individual’s religious belief? Nothing.

On whether the building of a ski resort is a sufficiently pressing objective to override a constitutional right? Nothing.

Instead we were subjected to a mere four paragraphs of analysis, with the Court merely affirming that s 2(a) only covers “beliefs” and the “manifestation” of beliefs, rather than the beliefs themselves.

But this is a senseless distinction. For the Ktunaxa, the manifestation of their beliefs requires that Qat’muk remain undisturbed. There would simply be no point in practicing their faith if the spirit that animates these practices no longer is present. By way of analogy, imagine attending a Christian Mass with the knowledge that Yahweh is no longer listening, or that God has taken a sick day to watch football. There would, alas, be no point in attending such an empty ritual.

Similarly, for the Ktunaxa, their god has been effectively killed by the State’s action in this case; or, as one twitter user suggested, “Nietzsche would have been proud of this decision.”

By this, I do not mean to say that the Ktunaxa should have come out victorious on their appeal – indeed, I think the case was deeply problematic on the facts. But failing to at least find an infringement is to fail to grapple seriously with the intimate connection that indigenous peoples and indigenous religion has with land and land claims.

Only the concurring opinion seems to have understood this. Justice Moldaver’s concurring opinion – in contrast to the majority – is a deeply satisfying, cogent analysis that takes seriously the novelty and gravity of the Ktunaxa’s religious claims. Justice Moldaver’s opinion makes the rather obvious point that manifesting the Ktunaxa’s religious beliefs required that Qat’muk go undisturbed; that indigenous religion requires the preservation of sacred sites; that not all religious beliefs can be framed in terms of protestant religious practices; that the impact on the Ktunaxa’s beliefs is severe; and, ultimately, that the state’s objective in fostering a prosperous tourism market in the province is sufficiently important to uphold the Minister’s proposal.

This analysis is thoughtful. It is sound. And it is just.

As for the majority, the Court could have saved itself 115 unnecessary paragraphs, and hundreds of wasted sentences, by simply stamping the following two words onto their jurisprudential writ:

“Appeal Dismissed.”

Patrick Enright  is a 3L JD Candidate at the University of Toronto and a former Asper Centre Clinic student.

Ktunaxa case summary and further information available on the Supreme Court of Canada’s website here. For further reading on this case, please see University of Toronto Faculty of Law Professor Anna Su’s commentary: A Tale of Two Burdens and Patrick Enright’s previous summary of the Ktunaxa case in our 2017 Asper Centre Outlook Newsletter at page 12.