Faith, school-funding link disputed
Province argues in court over way education should be financed
REGINA The provincial government is arguing it cannot and should not take a student’s religion into account when determining school funding.
The position — argued on Tuesday by Constitutional Branch lawyer Tom Irvine — runs contrary to a decision by Court of Queen’s Bench Justice Donald Layh, who found non-minority faith students attending a minority faith school should not be funded by the province. The April 2017 decision sparked an appeal by the government and the Saskatchewan Catholic School Boards Association.
The case is now before the province’s highest court, and a fivejudge panel is hearing arguments this week at the Saskatchewan Court of Appeal.
It centres on St. Theodore Roman Catholic School, an elementary school in the village of Theodore. In 2003, the school — then known as Theodore School — was slated for closure by the public school division it was then within.
A group of Catholic community members formed Theodore Roman Catholic School Division, now part of Christ the Teacher. Separate schools are protected under the Constitution, giving St. Theodore a means to remain open — despite the fact approximately two-thirds of its students were not Catholic.
The public school division subsequently filed a complaint, first bringing the case before the court in 2005.
The case was finally decided by Layh in 2017. He found the Constitution does not allow for funding of non-minority faith students in separate schools, and that the province had breached the charter by providing funding to those students. The decision, if it stands, affects one-quarter of the students currently attending Catholic schools in this province.
At the Court of Appeal, the province argued the case begins with a significant problem in that the charter breach allegation should not and cannot come from the Good Spirit School Division. Irvine said charter breach claims can only be made by individuals, not by a school board with no inherent charter rights. Irvine noted no parents from Theodore testified at trial to any such breaches, meaning, in his view, the case shouldn’t have been brought before the courts on the charter claim in the first place.
He added the government is not in the business of asking about religion when parents are deciding whether to send their kids to public or separate school. That decision, he said, should be strictly up to the parents; the government’s role is simply to fund education regardless of where the student attends — a position he says is ingrained within the province’s legislative history.
Telling the government it needs to ask parents to produce baptismal certificates, or telling parents they can’t send their children to separate schools runs contrary to government neutrality and “sounds like religious discrimination by the government,” Irvine argued.
“The government does not tie funding to the religion of students,” he said, adding the government might be committing a charter breach by telling families education will not be funded if they choose to send a non-catholic child to a Catholic school.
Collin Hirschfeld, counsel for Christ the Teacher Roman Catholic School Division, argued discrimination would occur if government funding was made available to all students in the public school system, but only some attending separate schools. He said the province has an obligation to provide equal opportunity to students across the province, regardless of religion.
(This) doesn’t have anything to do with religion. They want those students in their schools because that’s where the funding goes
Hirschfeld said as someone who grew up in a rural area, he understands the difficulties faced by families looking to put their kids in school, given there are fewer options than in urban areas. He said it makes no sense to set up restrictions making it harder for families to find a school for their kids to attend — something he argued this decision does.
Hirschfeld questioned Good Spirit’s motive for bringing the case to court, arguing it “doesn’t have anything to do with religion.”
“They want those students in their schools because that’s where the funding goes,” he said.
The court also heard from lawyers for Catholic school associations from Alberta and Ontario, who sought standing at the appeal. The Alberta Catholic School Trustees’ Association (ACSTA), the Ontario Catholic School Trustees’ Association (OCSTA), the Ontario English Catholic Teachers’ Association (OECTA) and the Association franco-ontarienne des conseils scolaires catholiques (AFOCSC) each presented brief arguments as to why they felt Layh erred in his decision.
Jennifer Klinck, lawyer for the AFOCSC, spoke to similarities between French language protections and religious protections, stating it would be wrong to argue Catholics no longer require minority protection.
ACSTA counsel Simon Elzen-hoskyn said the decision “could decimate an institution that has operated in Alberta for nearly 114 years with tremendous success,” given the significant number of non-catholic students attending separate schools in that province.
The case is set to be heard over two days, after which the court will likely reserve decision. On Wednesday, the court is expected to hear from Good Spirit School Division and the Public School Boards’ Association of Alberta.