Greg Oliver is the President of the Canadian Secular Alliance. Here we talk about One Public Education Now or OPEN, and the challenge to Catholic schooling privileges.
Scott Douglas Jacobsen: One Public Education Now, or OPEN, is a coalition of organizations and individuals working for a single public school system. Following from this, there is an interesting, even exciting, development. A Charter application challenge was filed by two members of OPEN, a teacher and a parent, to the public funding of Catholic schools of Ontario. What aspects of publicly funded Catholic education in Ontario are illegitimate (without merit in the law)?
Greg Oliver: The challenge brings forth a variety of legal arguments that we think are valid. Catholic schools have some immunity from the Charter because of Section 93(1) of the Constitution Act, 1867. This sub-section effectively grandfathers in whatever rights and privileges that denominational schools had in Quebec and Ontario when they entered confederation. Without immunity, these schools are an obvious equality rights violation under the Charter.
Now as much as we detest the idea of Charter immunity – which is essentially the right to discriminate based on religion – unless Ontario politicians take action to opt out as Quebec did a quarter century ago it’s a legal obstacle to change. So this begs the question. What was actually grandfathered in at confederation? Any privilege involving “denominational aspects” that was not granted at the time should not be permitted today.
One excellent example of this is non-Catholic enrollment – which in some school boards can be as high as half of all students. They are explicitly forbidden to attend by the grandfathered Scott Act (1863) but explicitly permitted by the modern-era Education Act (1990). This has never been considered by the courts in Ontario before.
Another example is
funding for Grade 11 and 12. Catholic schools did not teach beyond, at maximum,
the grade 9 or 10 level at Confederation. This was considered by the Supreme
Court of Canada in the 1987
Reference re Bill 30 case. At the time, the SCC ruled extending funding to
high school was constitutional but it was missing the majority of
scholarly research that has been conducted on 19th century education in Ontario
since then. They also put heavy emphasis on the importance of denominational
schools to the “Confederation compromise”, which is an argument that
has lost all weight after Quebec abandoned their denominational schools ten
years later.
The challenge also raises arguments related to the
substantial employment discrimination against non-Catholics that would never be
tolerated in any other area of public employment.
Jacobsen: How are these reflected in Alberta and Saskatchewan as well?
Oliver: The enrollment of non-Catholics has been specifically relevant to Saskatchewan in recent years. In 2005, the Good Spirit School Division took the issue to court after a Catholic school opened up in Theodore, Saskatchewan and was populated with a majority of non-Catholic local students. In 2017, a landmark decision by Justice Donald Layh ruled that it was unconstitutional for non-Catholics to attend Catholic schools. We were very excited about this decision but sadly it was overturned by Saskatchewan’s top court in 2020 and the SCC declined to hear the case the next year (it’s worth noting that Ontario’s relevant legislation governing non-Catholic enrollment is much different than Saskatchewan’s).
So this challenge definitely could set precedents that would affect the legal frameworks of those provinces as well. Both Saskatchewan and Alberta had slightly different legislation when they entered confederation in 1905, but the similarities outweigh the differences. It could also potentially reignite the political debate surrounding the continued existence of these schools. As far as we are concerned, anything that could be done to diminish the scope of denominational schools in Alberta and Saskatchewan would be a positive development. Publicly funded religious schools should not exist anywhere in Canada in this day and age.
Jacobsen: Both religiously affiliated and religiously unaffiliated people work for and through OPEN. So, religion, in the sense of adherents challenging the legal merit, is irrelevant in one sense, while religion is relevant in the legal and equality sense. In “Charter challenge to Ontario Catholic schools,” GlobeNewswire states:
A parent and a teacher, both members of OPEN, are the plaintiffs in an application served on the Ontario Government by the lawyers Adair Goldberg Bieber stating that the current public funding of Ontario Catholic schools violates s.15(1) of the Charter of Rights…
… The Application states there have been sufficient changes since 1987 to justify the Supreme Court of Canada re-examining the Reference re Bill 30 ruling that granted Charter immunity to the funding of Ontario’s separate Catholic schools.
If the challenge wins, in the sense of a complete victory, what would be the long-term impacts on the separate school system and its funding?
Oliver: A victory would end the public funding of non-Catholic enrollment and Grade 11 and 12 in Ontario Catholic schools. This would present a major disruption to current operations. We cannot know for certain what the government response would be.
Polling is typically around 70% support for a single school system for each official language. But politicians of all persuasions have tried their best to avoid this issue out of fear of a backlash from a noisy minority of supporters. The Catholic school lobby has been extremely effective at protecting their lucrative entrenched interest from mainstream political discourse. A crisis of this magnitude would foist the issue into the public eye and force the government to make tough decisions. This could mean a significantly reduced version of existing Catholic schools or it could prove the fatal blow to the system itself given the hassles of adjusting to a new legal framework and existing political support for amalgamation amongst the general public.
Jacobsen: Also, most people don’t want separate schools, i.e., most want equality for all. What equal rights and financial arguments can be made in favour of the abolition of the separate school system?
Oliver: We live in a pluralistic liberal democracy. Everyone should
be entitled to equal treatment under the law, regardless of their religious
worldview. Government neutrality in matters of religion is a prerequisite to
attaining this ideal. This means not favoring one religion over another or
favoring religion over no religion (or vice versa). When the government funds
schools that advance religion, they are substantively advantaging the religious
over the non-religious. Granting public funding only for Catholic schools
advantages Catholics over non-Catholics. It’s also a lousy idea to separate
children based on the religious views of their parents.
Running two school systems for each official
language is much more costly than running one. Knowing the precise savings that
would be realized is extremely difficult because it depends on what replaces
the status quo. But the duplication costs are very high under any reasonable
set of assumptions. The majority of these duplication costs come out of
overlapping school boards, operating schools well below enrolment capacity and
otherwise unnecessary student transportation distances.
Jacobsen: Where can people help with money, time, or volunteering time/skills/connections?
Oliver: We have raised over $100,000 so far to pay for lawyer’s fees, FOI requests and research (including contracting a legal expert on 19th century education in Ontario to write an original report on the history of Catholic schools in the years leading up to confederation). But challenges of this nature take a lot of time and can be quite costly so we will need more funding and are currently fundraising. Donations to contribute to the challenge can be made via PayPal at https://open.cripeweb.org/aboutOpen.html or by Interac e-transfer to open@cripeweb.org. Every $20 helps continue the legal challenge, though larger contributions are also appreciated.
Aside from that, anything that can be done to raise awareness is very helpful. Posting on websites, using social media such as Facebook or Twitter or writing opinion pieces for local media. The more people know about this the easier it will be to overcome our financial hurdles so we can finally see these issues fully considered in the courts.
Jacobsen: Thank you for the opportunity and your time, Greg.
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