‘Catholicity’ is up to school board and church

It’s improper for courts to overrule church teachings, says Paul Groarke.

The decision from the Court of Queen’s Bench on the Theodore Roman Catholic School, which held that Catholic boards were not entitled to provincial funding for the non-catholic students in their schools, is now under appeal. It seems like a fitting time to review the case.

There were two fundamental rulings. The first was that the constitutional right to Catholic schools does not give Catholic school boards the right to the provincial funding for non-catholic students. The second ruling was that the provision of such funding violates the Charter of Rights.

The first set of constitutional issues in the case accordingly concern the independence and the autonomy of the Catholic school boards. The legislation that led to the formation of Saskatchewan gives the Catholic boards a high level of institutional autonomy and the right to administer their own affairs, in accordance with the policies and traditions of the Catholic Church.

It is significant that the Theodore case was brought by one of the public school boards. If you are on the Catholic side, it looks as if the public board was interfering in the ordinary affairs of the Catholic board. Those affairs include questions with respect to the location of schools, the admission of non-catholic students, and the provision of facilities for community and faith-based activities outside school hours.

The second set of constitutional issues concern freedom of religion, which has been guaranteed in section 2(a) of the Charter of Rights. This freedom includes a principle of religious self-determination, which supports the autonomy of the institutions affiliated with the church.

It is not for the government or the courts to decide the beliefs of other people.

The general principle that comes out of the constitutional provisions is that it is for Catholics and their institutions to determine the goals of a Catholic education. The most significant fact in the case, which the judge overlooked, is that the admission of non-catholic students is an essential aspect of the Catholic tradition in education. The inclusion of non-catholic students in Catholic schools reflects the Catholic belief that schools should serve the needs of the broader community.

The church’s position is that this enhances the “Catholic” character of these institutions, which have historically adopted a universal outlook, in keeping with the teachings of the church. As a result, Catholic schools have opened themselves to non-catholic students, not merely in Canada, but around the world. It is interesting that this aspect of the Catholic tradition actively upholds the values underlying the Charter of Rights, which emphasize tolerance and respect for all religious traditions.

The main point, however, is that issues of “Catholicity” are for Catholics to decide. It is not for a judge sitting in a secular court to overrule the Catholic church’s teachings in this regard. It is not the business of the courts to certify who is a Catholic and who is not, or determine how many Catholic students are needed to provide a sufficient basis for the operation of a Catholic school, which meets the aims and standards of the Catholic system of education.

I might add, as a lawyer, that such issues are not open to simple proof. As long as a Catholic board is acting in good faith, it is improper for the courts to second-guess the board and enter into evidentiary inquiries to determine whether particular families and students are “Catholic.” Freedom of religion has little meaning if we are unwilling to trust religious bodies and their affiliated institutions to act sincerely, properly, and in accordance with their honest assessment of their beliefs.

It was accordingly for the Catholic school board to decide, with the Catholic church and the Catholic community, whether the establishment of the school in Theodore came properly within its mandate. The real issue is whether the decision to cancel the provincial funding prevents it from doing so, in accordance with the established goals of Catholic schooling. Any constitutional standard that fails to recognize the board’s autonomy in such matters is prejudicial to the religious interests of everyone in our society. Groarke practised law in Calgary. He was a member of the Canadian Human Rights Tribunal for 10 years, has a PHD in philosophy, and taught the Charter of Rights. He is now retired.