Saskatchewan brouhaha leaves Catholic schools in limbo
Theodore, Sask., population 323, seems an unlikely place to make constitutional history. But a fight by the parents of Theodore to save their village school has turned into a legal battle with huge implications for the future of Catholic education here in Alberta.
In 2003, the public school district for the Yorkton region announced it was closing Theodore’s tiny elementary-junior high school. Village kids were told they’d have to ride the bus 17 km to another town, Springside, for schooling.
Furious local parents came up with an ingenious end-run around the system.
They transformed themselves into a Catholic school.
It was neat sleight of hand, dreamt up by a group of non-Catholic parents. Theodore doesn’t even have a Catholic church. Of the 26 children now enrolled at the Theodore school — which was promptly rechristened St. Theodore — only nine come from Catholic families.
But instead of being relieved that a local Catholic board had taken on the expense and liability of the tiny, shrinking school, the public board was livid — it wanted to bus students to Springside from Theodore to keep Springside’s school viable.
Thus began more than a decade of legal wrangling. Late last month, in a provocative decision, Justice Donald Layh ruled that Saskatchewan was violating the equality and religious freedom clauses of the Charter of Rights and Freedoms by paying for non-Catholic students to attend Catholic schools.
Yes, he acknowledged, the Saskatchewan Act and the Constitution guaranteed a right to Catholic education — for Catholics. That right exists, despite anything the Charter says.
But, argued Layh, the Constitution wasn’t meant to fund two parallel, rival public school systems competing for the same non-Catholic students. Then, rather than just ruling on the St. Theodore school imbroglio, the judge effectively banned all non-Catholic kids in Saskatchewan from attending Catholic schools at public expense.
This week, rather than appeal the judge’s ruling, Saskatchewan Premier Brad Wall announced he’d pre-emptively invoke the notwithstanding clause to protect the rights of non-Catholics to attend Catholic school.
By short-circuiting the appeal process, Wall defused his own political landmine — for now. But the notwithstanding clause only lasts five years at a time. Come 2022, Saskatchewan will have to deal with this all over again.
Yet by bringing down the constitutional hammer, instead of litigating the case through the courts, Wall has created a fine mess for us in Alberta.
Catholic schools here are also guaranteed in the Constitution — that was part of the deal, post-Riel Rebellion, that brought Alberta into Confederation.
It was a compromise, to protect the rights of Catholics, most of them francophone, many of them Métis. But today, there are 10,313 self-identified non-Catholic students enrolled in the Edmonton Catholic School District, a quarter of their total student body.
If we applied Layh’s argument in Alberta, Edmonton Catholic would lose 25 per cent of its enrolment — and 25 per cent of its funding. If Wall’s government had appealed Layh’s decision — taking it to the Supreme Court, if necessary — we’d have clarity about its impact here. Instead, we’re left dangling.
Someone in Alberta could now go to court to challenge the right of Catholic schools here to admit non-Catholic students.
Layh’s ruling wouldn’t be a binding precedent, the way a Supreme Court ruling would.
But an Alberta court couldn’t just ignore it, either.
So would Alberta invoke the notwithstanding clause to protect Catholic schools here? On Wednesday, Alberta Education Minister Dave Eggen dismissed Wall’s announcement that he intended to invoke the notwithstanding clause as “a knee-jerk sort of thing.”
“I would have thought that premier Wall would perhaps have built a more substantial way of dealing with it,” said Eggen.
But in truth, Eggen seemed to be under the impression that Wall’s actions were somehow an assault on Catholic education, rather than a robust defence of it.
Despite Eggen’s insistence that the Theodore ruling isn’t relevant here, the case opens a giant-sized can of worms. Layh’s ruling may well have been overturned on appeal — arguably, he didn’t give enough consideration to the “reasonable limitations” clause in the Charter, which gives governments some latitude to infringe on some rights, if doing so can be justified in a free and democratic society. But with no court appeal, we’ll never know.
Meanwhile, Layh’s right about this. It makes no sense to operate two rival school systems, if they are more or less the same. Small wonder the Edmonton Catholic school board went ballistic this week, and censured two of its fellow trustees who’d mused publicly about eliminating mandatory religion classes in Catholic high schools. After all, if Catholic schools don’t actually teach Catholicism, why fund them at all?
Sure, we could get rid of Catholic schools. It would require a constitutional amendment — a binding Alberta-wide referendum, the agreement of the legislature, and the blessing of both the House of Commons and the Senate. Quebec and Newfoundland did something similar decades ago. It’s hard, though, to imagine an Alberta government ever having the political will to take such action.
Meanwhile, Wall’s rush to use the notwithstanding clause leaves the legal issues unresolved, and Alberta’s Catholic schools in limbo, waiting for the next shoe to drop.