Saskatoon StarPhoenix

Appeal reverses ruling on Catholic schools funding

Decision means government will not have to invoke notwithsta­nding clause

- ARTHUR WHITE-CRUMMEY awhite-crummey@postmedia.com

REGINA Saskatchew­an’s Court of Appeal has upheld provincial funding for non-catholic students in Catholic schools, reversing a lower-court decision that pushed the government to consider a seldom-used constituti­onal escape hatch.

The unanimous decision means the government will not have to invoke the notwithsta­nding clause, as it had promised to do. That could change if public school divisions appeal to the Supreme Court of Canada, though there is so far no clear plan to do so.

Catholic school boards and the government had both argued that funding based on enrolment of all students, regardless of religious affiliatio­n, is necessary to ensure “school choice” for parents.

Court of Queen’s Bench Justice Donald Layh disagreed in a 2017 decision, declaring that the funding violates “the state’s duty of religious neutrality,” contradict­ing the Charter of Rights and Freedoms.

But an appeal sent the question back to court in March 2019. More than a year later, the province’s highest court overturned Layh’s ruling in a decision released Wednesday.

Both the government and the Opposition NDP welcomed the ruling, as did the Saskatchew­an Catholic School Boards Associatio­n. Public Schools of Saskatchew­an did not.

It is now considerin­g its options. “Obviously we’re disappoint­ed with the decision, but now we have two different courts offering different opinions,” said Norm

Dray, executive director of Public Schools of Saskatchew­an.

“We still believe that Justice Layh’s decision was well written and well thought out.”

But the appeal court found “fundamenta­l errors” in Layh’s ruling.

The appeal justices found that Good Spirit School Division, which first challenged the funding framework about 14 years ago, wasn’t in a legal position to bring the case at all. In their view, the division’s charter rights weren’t affected. Only its funding was.

“Good Spirit’s arguments were almost entirely financial in nature,” the decision said

The appeal justices added that the funding framework is a valid exercise of constituti­onally protected powers and thus “cannot be the subject of a Charter attack.” Minority education rights were entrenched in Saskatchew­an when it entered into Confederat­ion, and the charter reaffirms that constituti­onal protection.

But even if that weren’t the case, the appeal justices found no charter violation in the way the province doles out its funding. A Catholic student is free to attend a secular school, they pointed out, in much the same way a non-catholic can opt for the separate system. In either case, the province provides the same funding.

“What the public board in this case desires is a disruption to a fair and neutral process,” they wrote. “It wants to introduce a form of discrimina­tion, i.e., one based on religion.”

The appeal justices also concluded that the benefits of the current funding approach outweigh the harms of any potential infringeme­nt to charter rights. The most obvious benefit, they said, is avoiding the need “to create a system of determinin­g who is a Catholic and who is not.”

Dray said public school divisions will need to study the decision and consult with legal counsel before deciding whether to appeal to the Supreme Court. He took issue with the notion that the case was about money. He said it was about “principle.”

“We believe that the public system should be the system that gets the most support across the province, because it’s the only system that has a mandate to serve all students,” he said.

In a news release, the Saskatchew­an Catholic School Boards Associatio­n said Catholic divisions are “relieved, reassured and grateful.”

“This ruling confirms what we have said and believed all along: parents know what is best for their children and they should be able to choose Catholic, faithbased education if that is what they want — no matter their reasons, faith background­s or traditions,” the statement continued.

Tom Fortosky, the associatio­n’s executive director, said losing the funding would have caused massive disruption­s for students and imposed “a practical obstacle to choosing Catholic education.”

There seemed little chance of that happening so long as the government was prepared to use the notwithsta­nding clause, which allows the provincial government to suspend charter rulings.

But Fortosky pointed out that such a solution would have created uncertaint­y, since a law invoking the notwithsta­nding clause must be renewed every five years.

The government passed such a law in 2018, but didn’t put it into force as it awaited the appeal court decision.

In a statement, Education Minister Gord Wyant said the province will keep that legislatio­n “as an option.”

The long-running dispute stems from a decision to shutter a public school in the village of Theodore, northwest of Yorkton.

In 2003, residents formed a Catholic school division, bought the building and operated it as a Catholic school. But less than one-third of the students attending the school were Catholic. As of the 2017 trial, there were only nine Catholic students.

But Layh’s decision would have applied well b eyond Theodore. It could have affected every school division, and thus every student, in the province.

In his 2017 ruling, he called it “one of the most significan­t lawsuits in the province’s history.”

We believe that the public system should be the system that gets the most support across the province, because it’s the only system that has a mandate to serve all students.

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