Q & A: Alberta could feel impact of Saskatchewan court decision

May 16, 2017
Gordon Thomas, ATA Executive Secretary

Question: How will the recent court decision regarding Catholic school funding in Saskatchewan affect Alberta?

Answer: The decision of Justice Donald Layh of the Saskatchewan Court of Queen’s Bench (all 230 pages) has made quite a splash across Saskatchewan and Alberta. The commencement of the legal action is interesting in and of itself. A public school board, faced with low and declining enrolment, closed its K–8 school in Theodore, Sask., with the expectation that the school’s 42 students would be bused 17 kilometres to the neighbouring public school. A group of Catholic parents petitioned to establish a Roman Catholic separate school system, which had not previously existed. As a result, a Roman Catholic separate school system was formed, the closed school was purchased by the new Roman Catholic separate school board, and the new Catholic system opened its school.

When the school reopened, 13 of its 42 students were Catholic. As a result, the public school board (Good Spirit School Division No. 2014) commenced legal action against the Roman Catholic separate school board (Christ the Teacher Roman Catholic Separate School Division No. 212) and the province of Saskatchewan, arguing that it was unconstitutional for the Saskatchewan government to provide funding to the Roman Catholic separate school board for non-Catholic students. The decision is known as “Good Spirit.”

Justice Layh determined that the funding of non-Catholic students in a Roman Catholic separate school system was not a denominational right. At the time of admission to Confederation in 1905, Saskatchewan did not fund Roman Catholic schools for non-Catholic students and the concept would have been at odds with the stated motivation behind the creation of separate school boards, which was to separate children of the minority faith from the majority. (It should be noted that a separate school board could be Roman Catholic or Protestant.)

Layh did conclude that funding non-Catholic students violated Charter guarantees of freedom of religion and the right of equality. The state effectively violated its duty of religious neutrality by endorsing a particular religion by funding dissemination and evangelization of the Catholic faith to non-Catholics.

Further, Layh found that providing funding to non-Catholic students in a Catholic system did not treat members of other religious faiths equally. Catholic school systems could receive full funding for non-adherents but other faith-based schools would have to charge tuition and would be less able to attract non-adherents. In considering whether these violations could be justified in a free and democratic society, Layh rejected any arguments around parental choice and noted that society is increasingly diverse, with an increasingly complicated mosaic of religious and non-religious traditions. He declared the sections of Saskatchewan legislation that provide for funding non-Catholic students in Catholic school boards unconstitutional and, given the extensive repercussions of his decision, delayed the application of his declaration until June 30, 2018.

Layh’s decision could have a profound impact on education in Alberta. While it is true that the decision does not currently apply to Alberta, that could change. Given that the Catholic board intends to appeal the decision, the verdict is on its way through the legal system. No doubt a decision of the Saskatchewan Court of Appeal would be appealed to the Supreme Court of Canada. A decision of the Supreme Court of Canada would be binding on Alberta, and the argument of such a matter would attract a wide variety of intervenors from across the country. Saskatchewan Premier Brad Wall’s announcement that the government would utilize the “notwithstanding clause” to protect funding for non-Catholic students could make the matter more complex in Alberta.

It should be noted that the denominational rights in Alberta are essentially the same as the denominational rights in Saskatchewan, dating to the 1901 Ordinances. If the decision works its way through the Courts and is upheld, the decision could impact schooling in Alberta. First, Catholic students attending Catholic schools would have to prove their Catholicity (e.g. presentation of a baptismal certificate).

Proving one’s religion could produce issues in and of itself. Catholic school boards would only receive funding for Catholic students. Non-Catholic students could probably attend Catholic schools, but they would not be funded by government. The product of these realities would be a switch by non-Catholic students to the public school system; Catholic school boards could see a significant drop in student population and public school boards could see an unanticipated surge in enrolment.

There could also be implications for religious alternative schools in public school systems, given that state funding for a particular religious program could be seen as endorsing a particular religion and not including others. With respect to funding issues, there is no question that Layh provides a narrow interpretation of the Constitution as it applies to separate schools in Saskatchewan. The protection extends only to the consideration of Catholic students.

Given that approximately one-third of our members are employed by Roman Catholic separate school boards, the 2017 Annual Representative Assembly will debate resolutions, introduced and defended by Provincial Executive Council, that emphasize the Association’s support for continued public funding for Roman Catholic separate school boards as a constitutional right as well as the professional autonomy of Roman Catholic separate school teachers in developing learning resources for their schools. ❚

Questions for consideration in this column are welcome. Please address them to Gordon Thomas at Barnett House (gordon.thomas@ata.ab.ca).