Canadian Secular Alliance on the Coalition for a One Public School System
Greg Olivier is the president of the Canadian Secular Alliance. Here we are talking about One Public Education Now or OPEN, and challenging the privileges of Catholic schooling.
Scott Douglas Jacobsen: One Public Education Now, or OPEN, is a coalition of organizations and individuals working for one public school system. Following this, there is an interesting, even exciting development. A Charter challenge has been filed by two OPEN members, a teacher and a parent, to the public funding of Catholic schools in Ontario. What aspects of publicly funded Catholic education in Ontario are illegitimate (without basis in law)?
Greg Oliver: The challenge makes a variety of legal arguments that we believe are valid. Catholic schools enjoy some immunity from the Charter due to subsection 93(1) of the Constitution Act, 1867. This subsection effectively protects all the rights and privileges that denominational schools had in Quebec and in Ontario when they entered Confederation. Without immunity, these schools are a clear violation of equality rights under the Charter.
Now, while we hate the idea of Charter immunity – which is essentially the right to discriminate on the basis of religion – unless Ontario politicians take steps to opt out like Quebec has done a quarter of a century ago, it is a legal barrier to change. So that begs the question. What was really granted to the confederation? Any privilege involving “denominational aspects” that was not granted then should not be allowed today.
A prime example of this is the enrollment of non-Catholics – which in some school boards can reach half of all students. They are explicitly forbidden to attend by acquired rights Scott’s Law (1863) but explicitly authorized by the modern era Education Act (1990). This has never been considered by the Ontario courts before.
Another example is funding for grades 11 and 12. Catholic schools did not teach beyond, at most, grade 9 or grade 10 at the time of Confederation. This was considered by the Supreme Court of Canada in the 1987 Reference re Bill 30 Case. At the time, the SCC ruled that extending funding to secondary schools was constitutional, but it lacked much of the scholarly research that has been done on 19th century education in Ontario since then. They also placed great emphasis on the importance of denominational schools in the “Confederation Compromise,” an argument that lost all of its weight after Quebec abandoned its denominational schools ten years later.
The challenge also raises arguments related to the significant discrimination against non-Catholics in employment that would never be tolerated in any other area of public employment.
Jacobsen: How is that reflected in Alberta and Saskatchewan as well?
Olivier : The registration of non-Catholics has been particularly relevant to Saskatchewan in recent years. In 2005, the Good Spirit School Division took the case to court after opening a Catholic school in Theodore, Saskatchewan, populated by a majority of local non-Catholic students. In 2017, a landmark decision by Judge Donald Layh ruled that it was unconstitutional for non-Catholics to attend Catholic schools. We were very excited about this decision, but unfortunately it was overturned by Saskatchewan’s highest court in 2020 and the SCC refused to hear the case the following year (it should be noted that the relevant legislation of Ontario governing the registration of non-Catholics is very different from that of Saskatchewan).
So this challenge could certainly set precedents that would also affect the legal frameworks of those provinces. Saskatchewan and Alberta had slightly different laws 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. Today, publicly funded religious schools should not exist anywhere in Canada.
Jacobsen: Religiously affiliated and non-religiously affiliated people work for and through OPEN. Thus, religion, in the sense that adherents dispute legal merit, is irrelevant in a sense, while religion is relevant in a legal and egalitarian sense. In “Charter Challenge to Ontario Catholic Schools,” GlobeNewswire
A parent and teacher, both members of OPEN, are the plaintiffs in a petition served on the Ontario government by lawyers Adair Goldberg Bieber claiming that current public funding of Ontario Catholic schools violates Section 15 (1) of the Bill of Rights. …
… The application indicates that there have been sufficient changes since 1987 to warrant the Supreme Court of Canada reconsidering the Bill 30 Reference decision which granted Charter immunity to the funding of Catholic separate schools in the ‘Ontario.
If the challenge wins, in the sense of total victory, what would be the long-term impacts on the separate school system and its funding?
Olivier : A victory would end public funding of non-Catholic and Grade 11 and 12 enrollment in Ontario Catholic schools. This would significantly disrupt ongoing operations. We cannot know for sure what the government’s response would be.
Polls are generally around 70% in favor of a single school system for each official language. But politicians of all persuasions have done their best to avoid this problem for fear of a backlash from a vocal minority of supporters. The Catholic schools lobby has been extremely effective in shielding their entrenched profit interests from mainstream political discourse. A crisis of this magnitude would draw public attention to the issue and force the government to make difficult decisions. It could mean a drastically downsized version of existing Catholic schools or it could deal a fatal blow to the system itself given the hassle of adjusting to a new legal framework and the existing political support for the merger among the general public.
Jacobsen: Also, most people don’t want separate schools, which is to say most people want equality for all. What arguments of equal rights and money can be made in favor of abolishing the separate school system?
Olivier : We live in a liberal pluralist democracy. Everyone should be entitled to equal treatment before the law, regardless of their religious worldview. Government neutrality in matters of religion is a prerequisite for the realization of this ideal. It 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 significantly advantage religious people over non-religious people. Providing public funding only to Catholic schools benefits Catholics over non-Catholics. It is also a bad idea to separate children based on the religious views of their parents.
Running two school systems for each official language is much more expensive than running just one. Knowing the precise savings that would be realized is extremely difficult because it depends on what will replace the status quo. But the costs of duplication are very high under any reasonable set of assumptions. The majority of these duplication costs come from overlapping school boards, operating schools well below enrollment capacity, and unnecessary student transportation distances.
Jacobsen: Where can people help with money, time or volunteer time/skills/connections?
Olivier : So far, we have raised over $100,000 to pay for legal fees, freedom of information requests and research (including hiring a legal expert on 19th century education in Ontario to write an original report on the history of Catholic schools in the years before Confederation). But challenges of this nature are time consuming and can be quite expensive, 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 transfer at [email protected]. Every $20 helps pursue the legal challenge, although larger contributions are also appreciated.
Other than that, anything that can be done to educate the public is very helpful. Post on websites, use social media such as Facebook or Twitter or write opinion pieces for local media. The more people know, the easier it will be to overcome our financial hurdles so that we can finally see these issues fully considered by the courts.
Jacobsen: Thank you for this opportunity and your time, Greg.
Photo by Element5 Digital on Unsplash