Canada April 28, 2017

Saskatchewan judge denies funding to non-Catholics in Catholic schools

By Frank Flegel

12-year-old court case result leaves Regina's archbishop 'disheartened'


A judgment in a 12-year-old court case has sent shock waves through Saskatchewan’s Catholic education community and left Regina Archbishop Donald Bolen “disheartened.”

Queen’s Bench Justice Donald Layh ruled on April 21 that the Government of Saskatchewan is violating a section of the Charter of Rights and Freedoms by funding non-Catholic students who attend Catholic schools. He gave the province until June 30, 2018, to end the practice.

Robert Dixon, an Ontario education expert, said the decision, if upheld, could also have “huge implications” for Catholic schools in Ontario and Alberta. Removing non-Catholics from Catholic schools would result in lower enrolments and reduced funding for Catholic education.

“There would be a number of separate schools that would have to close unless they got into some kind of shared services basis,” said Dixon, suggesting a building could be part separate school and part public school. “Otherwise there will be a number a separate schools closed both at the elementary level and the secondary level.”

Dixon, a key figure in securing full-funding for Catholic education in Ontario in 1985, was an expert witness in the Saskatchewan case.

“Basically the position of the judge is that separate schools were begun for Catholics and therefore the separate schools have their constitutional right to educate Catholics,” said Dixon, 

“(But) the non-Catholics do not have a constitutional right to attend a separate school” and therefore “the government does not have the right to fund the board for those kids.”

Dixon said he expects the ruling to be appealed and it might take “a year or two before this whole thing is settled.”

The Saskatchewan Catholic School Boards Association (SCSBA) said it was “obviously disappointed” with the decision and is considering an appeal.

“This has already been a 12-year journey, instigated by the public boards, and we don’t have much of an appetite to spend more on legal defence,” the SCSBA said in a statement. “However, we have an obligation to stand up for the constitutional rights of separate school divisions, so we are giving serious consideration to an appeal.”

Archbishop Bolen offered his “full support” to the school board “as they continue to defend the constitutional rights of separate school divisions in the province.”

A spokesperson for Ontario's Ministry of Education said the ministry has “no plan to change the right-to-attend rules.”

“We will continue to uphold the constitutional and statutory framework of education in Ontario,” he said.

Phil Horgan, a constitutional lawyer in Toronto, said it is unclear if Ontario will be affected at all.

“The case may be of limited application given the particular fact and the uniqueness of the Saskatchewan funding model for its public and separate schools,” he said. 

In his decision, Layh wrote that the Constitution Act of 1867 does not require the province to fund non-Catholic students who attend Catholic schools. By funding non-Catholics in Catholic schools the state violates the Charter of Rights by failing to uphold its duty of religious neutrality and by failing to apply equality rights, the judge wrote.

The court case was initiated in 2005 when Good Spirit Public School Board launched an action against Christ the Teacher Catholic School Board.

Due to declining enrolments, the Good Spirit public board closed its school in the rural community of Theodore, 200 kms northeast of Regina. Catholics in the area, which included families in the school, successfully petitioned the government to form a new Catholic school division in the town. That new body then purchased Theodore public school and renamed it St. Theodore.

When the Catholic school opened, it accepted local non-Catholic students whose parents objected to busing their children to a public school in another town. More than 60 per cent of St. Theodore students are non-Catholic.

The public school board then launched a lawsuit against Christ the Teacher Catholic School Division and the Government of Saskatchewan. The trial ended nine months ago.

The case has cost the public and Catholic school divisions and the Government of Saskatchewan several million dollars.

Beyond the financial implications, the decision “threatens the choice of parents, limiting the education options of non-Catholic parents for their children,” said the SCSBA web site.

– With files from Evan Boudreau.