Focus On

SCHOOL REGULATION AND ADMINISTRATION - Finances and funding 

Wednesday, May 20, 2020 @ 6:56 AM  


Appeal by the defendants Saskatchewan and Christ the Teacher School Division from trial judgment declaring the applicable legislation and the Government action that provided funding for non-Catholic students to attend Catholic schools contravened ss.2(a) and.15 of the Canadian Charter of Rights and Freedoms (Charter) and was therefore unconstitutional. The respondent Good Spirit, a public school division, brought the present action for a declaration that ss. 53, 85, 87 and 310 of the Education Act and ss. 3 and 4 of the Regulations were unconstitutional to the extent they provided funding to educate non-minority faith students attending a denominational separate school. The trial judge found the funding of non-minority faith students in separate schools violated ss. 2(a) and 15(1) of the Charter and could not be justified under s.1 and declared that those provisions of the Education Act, 1995 and the Education Funding Regulations, to the extent that Saskatchewan provided funding grant to separate schools respecting students not of the minority faith, were of no force and effect.

HELD: Appeal allowed. The trial judge erred by granting Good Spirit public interest standing to assert a breach of s. 2(a) or s.15. Contrary to the approach Good Spirit advocated at trial, this case was not about the constitutionality of funding non-Catholics in Catholic schools. Saskatchewan fully funded the attendance of all students in both of its public education systems. This parallelism underpinned the province’s approach to education and must be considered in its entirety to determine whether the Legislative Framework offended the Charter. There was no evidence that private religious schools received partial funding for children of their faith or for the children of other faiths because of discrimination, stereotyping or prejudice in breach of the Charter protection of freedom of religion. The trial judge erred in his interpretation and application of s.17(2) of the Saskatchewan Act. Section 93 of the of the Constitution Act, 1867 and s.17(2) of the Saskatchewan Act and the protections they afforded to separate schools in Saskatchewan did not create inequality under the Charter as the trial judge held. The funding of separate schools was not inherently discriminatory. The Legislative Framework was a valid exercise of the legislative authority and consistent with the constitutional guarantees provided by ss. 93 and s.93(1) of the Constitution Act. The Legislative Framework was on its face religiously neutral. It reflected a political decision taken by the Legislature to fund two public systems of schools. All the province’s public schools received the same proportion of funding based largely on student enrolment. Even if the Legislative Framework were not Charter immune, it respected the state’s duty of religious neutrality and there was no evidence of a breach of any individual’s rights under s. 2(a) or 15(1). Considering how the Government funded secular public schools and the constitutional compromise, there was no proof that the funding of non-Catholic students in Catholic schools perpetuated prejudice or disadvantage or negatively stereotyped individuals or groups. The benefits of the Government’s approach to funding students in separate schools outweighed the harms caused by the infringement and the potential harm caused by any of the suggested options, including bringing an end to the present funding model. Even if there was a Charter breach, the Legislative Framework was a reasonable limit on religious freedom and one that was demonstrably justified in a free and democratic society.

Good Spirit School Division No. 204 v. Christ The Teacher Roman Catholic Separate School Division No. 212, [2020] S.J. No. 92, Saskatchewan Court of Appeal, R. Jackson, R.K. Ottenbreit, N.W. Caldwell, P.A. Whitmore and L.M. Schwann, March 25, 2020. Digest No. TLD-May182020006