THE THEODORE SCHOOL LITIGATION: OVERVIEW AND STATUS REPORT

Introduction: Equality and Religious Freedom The Arieh Hollis Waldman Case 1999 decision of the Human Rights Committee under The United Nations International Covenant on Civil and Political Rights Waldman, who paid to send his children to a private Jewish school, alleged that funding for Roman Catholic separate schools in Ontario, violated Covenant Article 26 : All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Introduction: Equality and Religious Freedom The Committee found discrimination: “…if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination. This means that providing funding for the schools of one religious group and not for another must be based on reasonable and objective criteria. In the instant case, the Committee concludes that the material before it does not show that the differential treatment between the Roman Catholic faith and the author’s religious denomination is based on such criteria. Consequently, there has been a violation of the author’s rights under article 26 of the Covenant to equal and effective protection against discrimination.”

Introduction: Equality and Religious Freedom Reference Re Bill 30, an Act to amend the Education Act (Ontario) 1987 decision of Supreme Court of Canada Court upheld validity of Ontario law extending full funding to Roman Catholic separate high schools Leading case on the interplay between section 93 of the Constitution Act, 1867 and the Charter of Rights and Freedoms Justice Estey said this:

Introduction: Equality and Religious Freedom “The appellants have argued that Bill 30 violates s. 2(a) and s. 15 of the Charter in that Bill 30 provides full funding for Roman Catholic secondary schools but not for other secondary schools, denominational or non-denominational, in the province. Section 2(a) and s. 15 of the Charter provide as follows:        2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. It is axiomatic (and many counsel before this Court conceded the point) that if the Charter has any application to Bill 30, this Bill would be found discriminatory and in violation of s. 2(a) and s. 15 of the Charter of Rights.” (emphasis added)

Introduction: Equality and Religious Freedom These cases illustrate the central legal point of the Theodore litigation Theodore is about protecting Charter rights to equality and religious freedom that are fundamental Canadian values Our public school system reflects those values Minority faith denominational education at public expense is an exception to those values Theodore is about defining the scope of that exception

Introduction: Mandate and Practical Impacts Theodore is not just about the law or principles Public boards say that the existence, size and shape of the separate school system impacts the ability of public boards to access funds and to deliver and manage services Theodore is one example of those impacts Theodore case is about protecting the mandate of public boards

The Theodore Litigation: the Particular Facts Theodore litigation relates to the closure of Theodore Public School by York School Division in 2003 Closure led to formation of Theodore Roman Catholic School Division, and establishment of Theodore Roman Catholic School We say the purpose was to save the community school, rather than a school to educate Roman Catholic children York and the Public Boards saw this as a misuse of denominational education provisions of the Constitution and The Education Act, 1995

The Theodore Litigation: the Particular Facts Public Boards had been concerned about this “mandate” issue for years Concern driven by growth of non-Roman Catholic student population in separate schools Perceived as development of a parallel public school system Unsuccessfully sought to pursue political solutions and negotiations Unsuccessfully sought a reference to the Court of Appeal

The Theodore Litigation: the Particular Facts York School Division commenced action in Queen’s Bench in 2005, against Theodore Roman Catholic School Division and Saskatchewan Action is now Good Spirit School Division v. Christ the Teacher Roman Catholic Separate School Division and the Government of Saskatchewan

The Minority Faith Education Provisions 17. Section 93 of the Constitution Act, 1867 shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:- "(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances." (2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment be no discrimination against schools of any class described in the said chapter 29. (3) Where the expression "by law" is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression "at the Union" is employed, in the said paragraph (3), it shall be held to mean the date at which this Act comes into force.

The Minority Faith Education Provisions 93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec: (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education: (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

The Theodore Litigation: Key Issues Minority faith education provisions of the Constitution protect the right of a Roman Catholic or Protestant minority to have separate schools to educate children of the minority faith That protection does not mean everything about separate schools is protected Government can, for example, change the way funding is provided, and determine the curriculum Our question: Is the right to admit non-Catholic students, and to get funding for those students, a protected “right or privilege”?

The Theodore Litigation: Key Issues We say it is not a protected right, based on this legal principle: (as stated by the Chief Justice of Canada in Mahe v. Alberta): “…the phrase "Right or Privilege with respect to Denominational Schools" in s. 93(1) of the Constitution Act, 1867, means that the section protects powers over denominational aspects of education and those non-denominational aspects which are related to denominational concerns which were enjoyed at the time of Confederation. The phrase does not support the protection of powers enjoyed in respect of non-denominational aspects of education except in so far as is necessary to give effect to denominational concerns.” (emphasis added)

The Theodore Litigation: Key Issues We say the right admit non-Catholic students, and to get funding for those students, are not a “denominational aspect of education” In 1993, Supreme Court of Canada found as follows in Reference re Education Act (Quebec): The legislature can limit access to dissentient schools without infringing constitutionally protected rights. Accepting children from another denomination is not a right or privilege of a denominational nature. Even if attendance is considered in relation to financing, the admission of children of other denominations was not a necessary factor to the effectiveness of the constitutional guarantees and was not related thereto, in particular since in 1867 the trustees could only impose taxes on parents of the dissentient faith.

The Theodore Litigation: Key Issues In result we ask for declarations: Theodore is not a separate school under the Constitution Establishment of Theodore, and funding for non-Catholic students, offend rights to equality and religious freedom under the Charter Christ the Teacher and Theodore have no Constitutional right to accept non-Catholic children Government of Saskatchewan shall not pay for non-Catholic students

The Theodore Litigation: Key Issues Christ the Teacher and Saskatchewan have defended on broad grounds, including: The establishment, operation and funding of St. Theodore School, including funding for non-Catholics, is required by the Constitution If provision for St. Theodore School offends the Charter, it is justified as a reasonable limit on the right to equality and freedom of religion These issues are not subject to Charter challenge, as they are about minority faith education rights Saskatchewan also argues that as a corporation, Good Spirit has no standing to bring this action Christ the Teacher also argues Good Spirit has no standing to litigate minority faith educational rights

The Theodore Litigation: Key Issues Christ the Teacher also asks the Court for positive declarations: If the funding is unconstitutional, any reduction in funding would offend the minority faith education provisions of the Constitution If funding for non-minority faith students is unconstitutional, funding for Roman Catholics in public schools is unconstitutional Separate schools are entitled to fair and equitable funding to enable them to provide the same quality of education as public schools

Progress and Next Steps: Discoveries Claim was issued in 2005, and amended in late 2008 Document discovery is largely complete Examinations for discovery in November 2006, January 2007, June 2008, June 2009, August 2009 and October 2009 Discoveries ongoing - estimate an additional 3 to 5 days When discoveries are complete, can seek a trial date

Progress and Next Steps: Other Preliminary Issues Our preliminary issues to be dealt with by the Court: Scope of discovery – set for June 10th Amending Claim due to change in funding formula - July May apply to add an individual plaintiff Government will apply to amend pleadings to meet Christ the Teacher claims Christ the Teacher preliminary issues: May claim action is premature or moot May challenge standing to litigate minority faith rights Expect these matters will be heard by the Court in July and August

Progress and Next Steps: Time to Trial Our goal is to have the matter heard as early as possible in 2011 Possible delays: Judgments and appeals on preliminary matters Expert evidence – depending on scope of action Expect other parties will also get expert evidence If succeed at trial, appeals are very likely

Closing Thoughts This is a very important case from both a legal and practical perspective Asking the Court to strike an appropriate balance between the historical compromise reflected in the Constitution, and the fundamental values reflected in the Charter A victory, or a loss, could result in significant changes to the delivery of education in Saskatchewan