In Purgatory: The Saskatchewan Catholic Education System Court Ruling

Allow me to begin by grossly over-simplifying history.

The year was 2003. 50 Cent had just burst on to the scene to educate us on the correct spelling of P-I-M-P and just as importantly, that he was into sex, not making love, resulting in a new anthem (and hilarious Jesus-memes) for birthday-celebrators everywhere.

Tucked away on the eastern edge of Saskatchewan, just up the Yellowhead from Yorkton, residents of the village of Theodore (pop. 300) were outraged after the NDP government of the day first suggested, then forced, the closure of their community school. Theodore’s 42 pupils were slated to be bussed 17 kilometres up the road to attend school in the town of Springside.

That didn’t go down well, and when, despite their very best lobbying efforts, the Saskatchewan government refused to budge, Theodore parents threw a Hail Mary pass: they went Catholic.

T’was their constitutional right, after all.

The region’s public school board, the Good Spirit School Division (GSSD), was not impressed and tried to block the move – but you know what they say happens once you go Catholic.

No one was going back. Not willingly.

So, in 2005 the GSSD launched a lawsuit against both the Government of Saskatchewan and the school, which is now part of the Christ The Teacher Roman Catholic School Division (CTT), alleging that the reborn Theodore school was not a true “separate” school, as defined by the folks who created this mess structure way back in the late 1800s, and should not receive funding.

On Thursday a Saskatchewan court agreed with them, at least on the latter, issuing a judgment in favor of GSSD after a twelve-year legal saga that played out in a Yorkton courtroom.

The ruling impacts far more than the village of Theodore. In his ruling, Justice Donald H. Layh declares the funding of non-Catholic students attending Catholic schools unconstitutional, and orders the Government of Saskatchewan to cease doing so, across the province, by June 30, 2018.

Both sides called a number of witnesses to testify at the trial, which was held in May of 2016. The GSSD called current and former education administers, theologians, historians, concerned 2003 parents (whose children are now adults), as did the CTT and the Government of Saskatchewan.

A big chunk of the judgment cites case law as precedent, and analyzes the exact wording and legal interpretation of the 1867 Constitution, the 1901 Ordinances of the North West Territories, the Canadian Charter and the Saskatchewan Act of 1905 – primarily to determine the intention of the folks that wrote them.

Let’s rewind even further, to the mid-nineteenth century. The British government had just cut us loose, and Canada was born.

The British North America Act, aka the Constitution, was passed by British Parliament on July 1, 1867, including three mandates regarding education:

  • Section 91 assigned responsibility for First Nation’s education to the federal government (which they didn’t want, so they gave it to the Church – hence the flaming shitholes that were residential schools);
  • Section 93 made all other childhood education a provincial responsibility, but handcuffed the provincial governments so they couldn’t oppress schools formed by a denominational (or “separate”) minority – specifically Roman Catholics, which at the time were a significant minority in the centre of the Canadian universe, Ontario,
  • and gave the federal government the power to overturn any provincial law that violated the rights of those separate schools.

Then the Northwest Territories created school districts blah blah blah … stuff happened between delivery of the Constitution of 1867 and the emergence of the province of Saskatchewan via the Saskatchewan Act of 1905…more stuff happened in the twentieth century more regarding the Charter and issues like language (ie. the establishment of the constitutional right of every Canadian to a French-language education) but through it all, the rights of separate, or Catholic schools were protected, and remain so to this day.

And here we are.

I’m not a lawyer, nor a constitutional historian. However, I’ll do my best – I wouldn’t post this if it wasn’t – to break Layh’s judgment down into palatable, bite-sized pieces, because this is a huge decision impacting every single K – 12 student, now and in future, in Saskatchewan.

On What This Is NOT About:

  • Government funding of Catholic students attending Catholic schools. “The existence of these schools and their funding is guaranteed by s. 93 of the Constitution Act, 1867, even if incompatible with Charter rights”;
  • the quality of education offered in Saskatchewan’s public and separate schools;
  • whether Theodore’s school should have been closed – the government had full authority to do so.

On Being Legit Catholic:

Before you start moaning about how your kid has a “right” to a free Catholic education, understand that this ruling does not change that fact; he or she still does – as long as they are authentically Catholic.

“…proof of one’s Catholic identity is baptism in the Catholic tradition, commonly evidenced by a baptismal certificate.”

Layh then helpfully points out that “in the case of an emergency,” a Catholic child can be baptized “by a Catholic lay person”.

On Catholics Being a Minority:

I know. This one’s weird, because when we think of a “minority” in 2017, we definitely don’t automatically think “Roman Catholic”.

The reality, however, according to this ruling is that when you add up all the other smaller religions in the province (based on the 2011 census) Roman Catholicism is indeed a minority religion.

I don’t get it either, but that’s the deal.

On The Whole Point of Catholic Schools:

Oddly, there are no official stats kept on how many non-Catholic students attend Catholic schools, but according to the ruling, anecdotally it appears to be around 30 per cent.

In his ruling, Layh writes regarding the 1901 Ordinances:

“If separating students was the essential reason for separate schools’ existence, I fail to see why the minority would simultaneously seek a right to admit children of the majority faith from whom they took deliberate action to separate…”

He then reiterates the fact that concept of “separate” schools was afforded to Catholics and Protestants in Ontario as far back as 1840.

On the Constitution and Saskatchewan Act Being Super Old:

Case study something something precedent something legal blah…summary: age ain’t nothing but a number. It doesn’t matter, but those parchment papers still do.

You Can’t Have Your Cake and Eat It Too

The provincial government and CTT used the Canadian Charter of Rights and Freedoms to defend their position, essentially arguing that anyone has the right to choose a religious education. They claimed that the GSSD was advocating for the “segregation” of Catholic students, akin to putting criminals in jail (seriously).

Here’s what Layh had to say about that:

“…(the government of Saskatchewan and CTT) must mount an awkward argument that, despite their position being historically anchored in the constitutional right to separate students based on religion, somehow Catholic schools now hold the right to admit and receive funding respecting non-Catholic students from whom they wished to separate…”

Layh is saying the constitutional right to a Catholic education trumps a Charter challenge on freedom of religion, but:

“Inherent in protecting separate Catholic schools is the understanding that perpetuating the Catholic faith is best accomplished when a child adheres to the beliefs of his or her parents and, when in a minority, by separating the child from members of other faiths to ensure an immersion in Catholic faith.”

So Catholic parents have every right to a free Catholic education for their Catholic children, but this means they’re going to have to be segregated – as was the point of this clause  – from non-Catholic students.

Conversely, that means non-Catholics can’t complain when they can’t get in, because “separate schools have a denominational right to exclude non-denominational students to preserve their denominational character.”

“The religious freedom of non-Catholic parents wishing to send their children to Catholic schools has not been infringed if funding is unavailable for them. Parents are legislatively entitled to send their children to religious schools of their choice, but such choice may be accompanied by a financial obligation.”

On P3 Schools

There are currently nine “joint-use” school buildings – meaning each building houses one public and one Catholic school under one roof – slated to open in September of 2017: one in Warman, one in Martensville, four in Saskatoon and three in Regina (for a total of eighteen schools).

They did not escape the ruling’s scrutiny.

Larry Pavloff, chair of the Prairie Spirit Public School Division, testified that in March 2013 the provincial government announced construction of a joint-use school in Warman – despite the fact that there was neither a Catholic parish nor a Catholic school division in Warman.

Think about that.

If the point of the separate school division is to provide the guarantee of a Catholic education to Catholic kids who, along with their parents, request a Catholic education – what the hell was the government doing entering a community and imposing Catholic education on its residents?

Only after the announcement was a Catholic school division created in Warman, which immediately amalgamated with the Greater Saskatoon Catholic School Division.

(This is me asking, not the ruling: with schools busted-broke, does it make sense to you that the provincial government created demand for a whole new school, and the operating costs that accompany it? Or was it more a case of needing to provide the P3 private project partners with the volume of construction required to make their endeavor profitable?)

Ken Loehndorf is the executive director of the Catholic Section of the Saskatchewan School Board Association (SSBA). He testified that while his department supports the construction of joint use schools, it won’t agree to sharing program space with a public school, because Catholic schools insist on the display of religious symbols (ie. crucifixes) in classrooms and entranceways.

On the Money

Justice Layh also refused to accept the CTT’s argument that non-Catholic students were necessary to the healthy functioning of Catholic schools, despite the fact that (or because) as Ken Loehndorf admitted under cross-examination, receiving funding for non-Catholic students equals larger Catholic schools and increased programming choices for Catholic students.

“I see the practical benefit of separate schools receiving funding for non-minority faith students to create greater financial viability to promote the tenets of Catholic education, but I do not equate a practical benefit as creating a constitutional right…to leverage funds otherwise destined to public schools to assure the denominational character of Catholic schools.”

So while Catholic schools have the right to exist and receive funding, they don’t have the right to go above and beyond their mandate to get more or better funding.

What is their mandate, anyway?

A Softer, Gentler Catholicism

Another argument levied by the CTT and Government of Saskatchewan was that the Catholic faith had changed, and embracing non-Catholics is now a tenet of their faith.

Donald Bolen, then Bishop of Diocese of Saskatoon and now Archbishop of Regina, testified that Catholic schools are all about infusing Christian values through the entire student body. He said non-Catholic students in Catholic schools “create a culture of encounter and enrichment in a place where religion is respected and valued”.

But then I’m not sure Bolen helped himself, or the Catholic school division, when he testified that “a Catholic school does not treat all religions as equal. It treats all religions with respect.”

Well then.

Layh wasn’t buying any of it.

“Even if I accept, as I do, that Catholic theology has accepted a more ecumenical and inclusive view of other religions, where evangelization has replaced proselytization, where inclusion and accommodation of other faiths is part of Catholic doctrine….I see the protection of Catholic values for Catholic children, not the dissemination of Catholic values to non-Catholic children, as the protected denominational aspect of Catholic education…. “

He said the “class of persons” whose rights are protected are “primarily Roman Catholic parents and their children…” because:

“(It’s) not about the right of Catholics or Protestants to gain ascendancy or influence in their community through the right to educate children of other faiths.”

On Favoring Catholics By Funding Their Schools Is Unconstitutional and Kind of Discriminatory:

“It is an odd religious freedom that does not provide and equal measure of freedom to all citizens,” as opposed to only Roman Catholics, mused Layh.

“…non-Christian parents might think that non-Catholic parents should be, like them, equally denied or equally afforded the benefit of publicly-funded faith-based education.”

True story.

Dr. Ayman Aboguddah is longtime president of the Regina Huda (Muslim) School, which has an enrollment of 430 students and a waiting list of approximately 100 students.

Aboguddah testified that when the school was established in 1999, they thought they just assumed they would qualify for the same funding as Catholic schools…but no.

Instead they became an associate school, qualifying for 80 per cent of the per pupil government funding the public and Catholic schools receive, and zero per cent of the funding the public and Catholic schools receive for capital, infrastructure or even school busses for their students. All but one of their teachers are non-Muslim.

“Dr. Aboguddah explained that receiving full funding for non-Muslim students could address the stigma and stereotyping that exists against Muslims.”

So there’s that.

Compare that to Bishop Bolen’s testimony that the Catholic religion, “which has not had the best public image” *cough*sexualabuse*cough*, has benefitted from admission of non-Catholic students as a PR exercise, or “an opportunity for parents and children to adopt a positive view of the Catholic Church.”

“In my view, if both Catholic and Muslim institutions are advantaged by having non-adherent students attend their schools, and the former receives government funding to heighten this advantage and the latter receives none, the principle of state neutrality toward religion is offended.”

Layh writes that while Saskatchewan parents with kids attending independent or non-Catholic/faith-based schools must suck up the fact that it is theright of Catholic schools to receive 100 percent funding for Catholic kids, they don’t have to accept the government providing Catholic schools with a “leveraging advantage”, which is decidedly not decreed by the Constitution.

In a Nutshell:

“The Constitution Act, 1867 does not provide a constitutional right to (Catholic) schools in Saskatchewan to receive provincial government funding respecting non(-Catholic) students because (that) is not a denominational right of Catholic schools.”

“Provincial government funding of non-(Catholic) students attending (Catholic) schools is a violation of the state’s duty of religious neutrality under s. 2(a) of the Charter.”

“Provincial government funding of non-(Catholic) students attending (Catholic) schools is a violation of equality rights under s. 15(1) of the Charter.”

___________________________

When Theodore school reopened in 2003, 42 students were in attendance, 13 of which were legit Catholics.

In 2016-17, the school’s attendance was 26 students, or half of what it was when the Saskatchewan government tried to close it down in 2003.

9 were reportedly Catholic.

The Saskatchewan government, which is loving this media channel-changer away from their disastrous 2017 budget, says it will take a few weeks, at least, to figure out what happens next.

For those of you who care, I’m Tammy Robert. I’m a writer, but pay the bills consulting in media and public relations. Email me anytime at tammyrobert@live.ca

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10 comments

  1. As usual a good article. Thanks for your work. I wonder if Layh hasn’t just created a big mess. the ruling suggests that: (1) if I go to a catholic school as a non catholic the public system benefits since they get to keep my taxes (like other religious groups, but that is a different discussion) essentially attaching government funding to my faith and not my right to a K-12 education; (3) thus the state is telling me I don’t have the freedom to choose where my child goes to school unless i pay a penalty….notably as a non catholic the quality of education is why I chose one school over another (or because my child doesn’t fit e.g. bullied). Private schools are not an argument since they receive no public funding whereas i am already funding catholic schools so why can’t i benefit from that public investment; (3) have we just created more Catholics as the easiest work around is for parents to convert.
    I am concerned by this ruling largely since this should be about the quality of education for children and the ability of parents to chose where to get that education without financially ruining them — imagine well-to-do parents can support the publicly funded catholic system, but the rest of us have to go public. BTW I am not Catholic and do not support separate school systems for any religious reasons (!!!) but so long as the constitution mandates two, then there is a need to make sure they are effective.

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  2. You are incorrect on one significant point. The provisions do not apply only (or automatically) to Roman Catholics, but to the minority religion in the area. The provisions only envision two religions: Roman Catholics (all Christians in communion with the Pope – thus Uniate Catholics as well) and Protestants (everybody else). (Granted, in 1905, that pretty much worked.)

    Only the minority have the right to a separate school. Thus there used to be several Protestant Separate School Divisions across the province. The last of these legitimate PSSDs folded in the 1970s.

    But also, in areas where Roman Catholics are the majority (like the rural area around Humboldt), they do not have the right to a separate school.

    Thus, when the people of Engelfeld pioneered thus scam, they petitioned for a Protestant Separate School Division.

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    • Thanks Malcolm. The judge does differentiate from the outset between the Catholic and Protestant school systems, and seems to make it clear that his ruling pertains to the Catholic system, because the suit was between the public and Catholic system.

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  3. IF I remember my high school life clearly ( a bit iffy given the marijuana cloud that issued forth therefrom daily) everybody is a Catholic, asking for both forgiveness and to not be pregnant on Monday.

    Baring this irreverent insight, we’re going to have to start to treat other religions that are ‘minority’ schools equally and soon. I can hardly wait to see the debate between rural evangelicals and godless furriners over that one.

    All that being said, that was a tremendous job of breaking down the ruling Tammy. Were I in any way religious I’d say “God bless you.”

    ps. if you’re up to the task you ought to apply a column to “driving while high”. Apparently everyone from the Nat Post to MADD think this will be a New Issue. Folks, I hate to break it to you, but about 10% of the drivers on the road after noon, and the workers, and almost everyone else are stoned on the evil weed. Now legalization may increase this number possibly 100 per cent. But we’ve been dealing with it for a very long time.

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  4. My next question is what will happen with teachers who are not catholic teaching in catholic schools. How is it fair that students must be catholic but faculty doesn’t?

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  5. It saddens me how many people, including yourself, Tammy, have seized upon this court ruling as an opportunity to engage in some good old-fashioned Catholic-bashing. It wasn’t that long ago that a certain group
    of pointy-headed Klansmen we’re doing the very same thing in Saskatchewan. As a Catholic who has faced discrimination from work colleagues and others, the struggle is real lady. Separate schools are necessary and important.

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    • Lisa, I have broken down the ruling, which ruled against the Catholic School system, I haven’t bashed anyone. I do, however, think you want to rethink comparing your experience to those who suffered persecution at the hands of the KKK.

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