Saskatchewan Court of Appeal Decision

Anyone interested in the unique privileges associated with separate school education, should look to the Supreme Court of Canada, which has to decide whether it will hear an appeal from a recent decision by the Saskatchewan Court of Appeal.

In Saskatchewan, a public school jurisdiction (Good Spirit School Division) argued that the provincial government could not give money to separate school jurisdictions in support of the education of non-Catholic students.  Basically, the argument was that such support facilitated denominational recruitment by the Roman Catholic Church, was a privilege not available to any other faith community, compromised the citizenship rights of non-Catholic parents whose children were enrolled in separate schools, and exceeded the bounds of the constitution as it applies in Saskatchewan -- and Alberta.

At the Court of Queen’s Bench, Mr. Justice Layh found in favour of the public school argument.  His decision did not compromise the existence and operation of separate schools.  It did conclude that the Government of Saskatchewan exceeded the constitution by funding non-Catholic students who attended separate schools.  Clearly, Mr. Justice Layh had been at pains to understand the history, the operational implications for separate school education, and the reality that privilege for one faith represents discrimination against all other faiths.  He sought to limit the impact of the discrimination to that required by operation of the out-moded but still functioning provisions of the constitution.

In a situation such as this, it is important for me to make the disclaimer that I am not a lawyer.  I understand that I am being asked for comment on the basis of my background as:

  • a former Minister of Education (Alberta: 1979 – 1986);
  • a former Executive Director of the Public School Boards’ Association of Alberta (1990 – 2010);
  • a student of the history and current circumstances of separate school education, particularly in Alberta.

In my view, Mr. Justice Layh’s judgment was well-informed, comprehensive and compelling.

On the other hand, I would characterize the decision of the Court of Appeal as mediocre.  As I read it, I am struck by what I would describe as laxity that simply accepts current practices as acceptable -- conventions not to be disturbed.  In more than one place the decision accepts that what the province is doing is “constitutional” simply because the government is doing it, when the public school board’s challenge is to argue that, sometimes a government exceeds its authority and should not be doing what it is doing.

The Court of Appeal finds that Good Spirit School Division had no standing, meaning that they had no ‘right’ to bring the issues to court in the first place.

In that case, the Appeal Court’s decision should have ended with that finding.  The question is, then, why did the Court proceed to deal with the substance of the case, other than to justify what the Government was doing.

The Court of Appeal had an obligation to address what is called the “Standard of Review”.  They didn’t fulfil this obligation, at all.  In my view, they failed in this obligation because they could not have met the standard given Mr. Justice Layh’s comprehensive and legally factual rationale for his decision.

  1. Given the historic rationale for separate school education (faith formation, which is not only conceptual but also doctrinal) the education of non-Catholic students by a separate school jurisdiction must be considered to be an act of proselytizing, which is not an acceptable use of S.17. of the Saskatchewan Act.
  2. The requirement that non-Catholic students must participate in religious instruction is clearly a discriminatory practice that supports proselytizing, since the separate school district has the means of identifying such students and could choose to exempt them from religious instruction.
  3. The non-Catholic parents of students attending separate schools are forbidden by law to vote for the separate school trustees who will guide their children’s education. This prohibition is clearly discriminatory.  In a democratic society, there are some rights/responsibilities that citizens should not be able to give up, either with lesser or greater reluctance.  The responsibility to vote is one such right/responsibility.  In terms of proportionality, the Government of Saskatchewan could create an electoral system in which non-Catholic parents could vote, on a separate list, for a minority of the trustees.  (For example, there are situations across the country in which First Nations people or students have a separate list and a guaranteed right to elect one or more (but a minority) of the trustees.)
  4. There is an argument – the so-called ‘living tree’ argument -- that rights (including the rights of separate schools) should be allowed or even encouraged to grow as society’s respect for rights evolves. The problem is, of course, that not everything that was understood to be a right 150 years ago should continue to enjoy the privilege of its position just because it was once considered a right.  Men once had far more extensive ‘rights’ over spouses than is now the case.  I doubt that anyone would seriously argue that the ‘living tree’ argument could justify even more such rights today. The thoughtless acceptance of the living tree argument is not only unhelpful:  it is dangerous.

Both French and English are official languages of the country, and the designation implies that their parallel status should evolve apace (in parallel).  Roman Catholicism is not a State religion, and the evolution of our society is not in the direction of entrenching State advantages for particular denominations.  On the contrary, I would argue that, sometimes, and particularly in the case of religious pluralism and State neutrality, the underlying concept should not be the ‘living tree’ but the carefully bordered garden.  (Some living trees, if left untrimmed, will eventually kill every other tree in the grove by denying them sunshine and rainfall.)

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  • David King