Ruling strips non-Catholic students of funding

The decision of a long-running Queen’s Bench court case means non-Catholic students won’t be funded to attend Catholic schools in Saskatchewan.

Justice Donald Layh’s 242-page decision was published Thursday afternoon, nine months after the end of the trial involving Yorktonarea Good Spirit School Division (Public) and Christ the Teacher School Division (Catholic).

The case concerns the Catholic elementary school in Theodore, 40 kilometres northwest of Yorkton, St. Theodore Roman Catholic School.

Prior to 2003, it was a public school that was known as Theodore School.

Separate schools have protection under the Constitution.

So with the school on the closure list by the pre-amalgamation Yorkdale School Division, a minority group of Roman Catholics in the community petitioned the provincial government to form the Theodore Roman Catholic School Division, which is now part of Christ the Teacher.

The new division purchased the school building and opened St. Theodore School.

In 2003, 13 of the school’s 42 students were Catholic — 31 per cent. In the years since, the highest was 39 per cent.

The case has been playing out in court since 2005, when the public school division filed a legal complaint. The trial wrapped up in July 2016.

Layh’s decision reads, “The Constitution Act, 1867 does not provide a constitutional right to separate schools in Saskatchewan to receive provincial government funding respecting non-minority faith students.

“Section 17(2) of the Saskatchewan Act, which provides constitutional protection against discrimination in the distribution of moneys payable to any class of school, only protects separate schools to the extent they admit students of the minority faith.”

The decision goes on to say that the province is violating the Charter of Rights and Freedoms if it funds non-minority faith students in separate schools, as the state has a duty of religious neutrality per section 2(a) of the charter. It is also violating equality rights per section 15(1) of the charter.

The sections of the Education Act and Education Funding Regulations under which the government has funded non-minority faith students in separate schools “are of no force and effect.”

Layh appreciates this decision “will cause significant repercussions in the province,” so it is stayed until June 30, 2018.

The provincial government declined to comment until having time to further review the decision. In reference to the Theodore case earlier Thursday, Education Minister Don Morgan said it has cost the government “millions of dollars” over the years.

Larry Huber has been involved in the case as executive director of the public section of the Saskatchewan School Boards Association.

“Our public section has never had an issue with the minority rights of minority faith groups having their school divisions,” said Huber.

“We’ve only felt that Catholic school divisions are there for members of the minority faith and those are the students that should be funded in Catholic school divisions. … Their change to accepting more non-Catholic students was something we felt really needed to be looked at; it affected us in terms of enrolment, it affected us in terms of capital.”

Huber wouldn’t speculate on the future of St. Theodore, or of nonCatholic students who are currently being educated in Catholic schools.

“(The Catholic side) also might appeal the decision; we don’t know. I don’t think any changes are going to happen tomorrow,” said Huber.

A spokesperson for the Saskatchewan Catholic School Boards Association (the SSBA Catholic section) or Christ the Teacher could not be reached for comment.

The SCSBA website states: “The challenge by the public school division of the right of Catholic separate schools to admit non-Catholic students threatens the choice of parents, limiting the education options of non-Catholic parents for their children. We interpret the Saskatchewan Act in a way that requires funding to Catholic separate schools be comparable to that provided to public schools. Fair and equitable funding includes all students, regardless of their faith.”