An Easy Case

Why funding Catholic schools on terms not available to others is an obvious infringement of religious freedom

In Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, the Saskatchewan Court of Queen’s Bench held that funding Catholic schools, and no others, for educating students who do not belong to their religion is contrary to the guarantee of the freedom of religion in paragraph 2(a) of the Canadian Charter of Rights and Freedoms, and not justified under the Charter‘s section 1. In commenting on that decision, I wrote that this “is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.” To my enduring surprise, some of my friends disagree with this, so I will try to explain my views further.

Writing for Policy Options, Joanna Baron and Geoff Sigalet argue that in Saskatchewan the province’s duty of religious neutrality has to be understood in the context of “Saskatchewan’s Confederation compromise [which] entailed a built-in elevation of the status of Catholics” and required provincial funding of Catholic schools. In that context, allowing non-Catholic students to access these schools “does not violate a principle of religious neutrality — it is the definition of neutrality.” They add that “the Charter itself does not explicitly require state neutrality vis-à-vis religion” ― in contrast to the First Amendment to the U.S. Constitution, under which the funding of vouchers allowing students to attend religious schools has nevertheless been permitted. They claim, finally, that it is ironic that the Charter, which is supposed “to give individuals rights vis-à-vis the state”, ends up foreclosing the educational choices of non-Catholic students. Finally, they worry about the way in which students would be classified as Catholic or not to determine who is, and who is not, entitled to access Catholic schools.

In an Advocates for the Rule of Law post, Asher Honickman makes some similar points. Religious neutrality is only a judicial construction, and in any event not absolute. Determining who is Catholic enough to attend a Catholic school is problematic. Mr. Honickman adds that it would be discrimination to require “non-Catholics … to attend secular schools, while Catholics would have a taxpayer funded choice to attend either Catholic or secular schools.” While

the government could provide equal funding to all religious schools, but this would prove far too costly. The Charter is by and large a ‘negative rights’ document and the government should not have to break the bank to comply with its provisions.

In any event, since they receive public funding to cover their capital expenses, Catholic schools could charge non-Catholics cheaper tuition to any non-Catholic students who wished to attend, and the additional benefit of receiving funding to cover their individual education is too trivial to count as an infringement of neutrality.

I do not find any of this at all persuasive. Begin with the suggestion, admittedly never fully articulated, that we should not make too much of religious neutrality because it is not expressly referred to in the Charter. Justice Dickson, as he then was, rejected it in the very first religious liberty case R v Big M Drug Mart Ltd, [1985] 1 SCR 295. Dismissing an argument that the Lord’s Day Act was not contrary to the Charter‘s guarantee of freedom of religion because it did not include a proscription of religious establishment, he noted that “recourse to categories from the American jurisprudence” ― free exercise of religion and non-establishment ― “is not particulary helpful in defining the meaning of freedom of conscience and religion under the Charter” because these categories flow from “the wording of the First Amendment”. (339) They do indeed, and the wording is not accidental, as Michael McConnell explained in this excellent lecture.

The Charter only contains a single guarantee of religious liberty, and the question is whether its meaning in 1982 (on an originalist approach) or now ( on a living constitution one) includes state neutrality. The answer to this question is an emphatic yes, whatever one’s reference point. As Justice Taschereau wrote in Chaput v Romain, [1955] SCR 834, “[i]n our country, there is no state religion. … All religious creeds are set on an equal footing.” (840; translation mine.) As a statement of positive law, this was perhaps a tad optimistic while the Lord’s Day Act was still in force; but as a statement of what religious liberty, properly understood, meant by the 1950s (and indeed earlier) and still means, this passage remains unsurpassed in its forceful simplicity.

State neutrality is then, along with a rejection of religious coercion, one of the fundamental principles of paragraph 2(a) of the Charter. The Charter itself contains one  exception to this principle: section 29, which protects “rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.” (The fact that the Charter’s framers thought it necessary to make this exception explicit suggests that they too understood neutrality to be the general principle.) Except insofar as they are “guaranteed by or under the Constitution of Canada”, the privileges of “separate” schools are subject to the general principle.

The constitution’s “built-in elevation of the status of Catholics”, in other words, is set at a precisely calibrated level. It permits the “discrimination” involved in allowing Catholics ― or, more precisely Catholics or Protestants, depending on who happens to be the minority ― a choice between public and “separate” schools, and immunizes it from Charter scrutiny. By necessary implication, it permits and even requires the state to distinguish between Catholics and others, however distasteful we might find the drawing of such distinctions. (That said, as Justice Layh found in Good Spirit, “proof of one’s Catholic identity is baptism in the Catholic tradition, commonly evidenced by a baptismal certificate” [17] ― not an especially intrusive inquiry, all things considered.) The constitution does not, however, permit conferring on Catholics them the further advantage ― whether it is a great or a small one ― of admitting and proselytizing to non-Catholic students at the public expense. It is not for the courts to upset this calibration that is quite clearly set by the constitution itself, whether or not doing so would be convenient or save money. Having found that the admission of non-Catholic students was not “guaranteed by or under the Constitution of Canada”, the Good Spirit court was quite correct to apply the principle of neutrality to it.

As I have been saying from the beginning, if the province of Saskatchewan does not like the outcome that non-Catholic students and their parents lose the (limited) measure of school choice that was available to them, the obvious solution is to provide more school choice on a non-discriminatory basis. This, in fact, is what the State of Ohio did in Zelman v Simmons-Harris, 536 U.S. 639 (2002), the First Amendment case on which Ms. Baron and Mr. Sigalet rely. As Chief Justice Rehnquist described the scheme at issue in his majority opinion, “[a]ny private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school” meets certain administrative requirements, educational standards, and does not discriminate. (645) The issue was whether the eligibility of religious schools for participation violated the First Amendment. The U.S. Supreme Court held that it did not, and the result would be the same under the neutrality principle of the Charter. But the Zelman-Harris court did not uphold, and would not have upheld, a similar scheme the participation in which was restricted to religious schools only, still to Catholic schools alone. If Saskatchewan want to include Catholic schools in a broader school choice programme, that would have been constitutionally permissible. It is not permissible to limit school choice to such schools alone.

It is not the Charter, then, that limits school choice in Saskatchewan in the wake of the Good Spirit decision, but the political choices made by the province’s legislature. Will it be too expensive to offer meaningful, non-discriminatory choice to students? We don’t know; the province has not, so far as I can tell, even considered the possibility, rushing to override the decision by invoking the Charter‘s “notwithstanding clause”. But whatever the amounts at issue, it will not do to say that it is better to offer a discriminatory benefit to some if we cannot offer the same benefit to all. The Supreme Court rejected this proposition in Schachter v Canada, [1992] 2 SCR 679, and rightly so. No one would accept that a province offer a tax cut to Catholics alone on the basis that it’s better to give one to some people than to none. The same reasons that would make that utterly unacceptable condemn the policy of subsidizing Catholic schools (beyond what is constitutionally required) and no others.

While some aspects of the Good Spirit case were difficult, the Charter issue that it presented was not. Once it is established that the education of non-Catholic students is not a constitutionally entrenched aspect of “separate” Catholic schools, it follows straightforwardly that it can only be subsidized on equal terms with those available to other schools, religious or otherwise. To conclude so is not to impose a new interpretation on constitutional text, but to apply principles that were recognized in Canada well before the Charter‘s entrenchment. Those who would depart from these principles in the name, ultimately, of financial expediency and administrative convenience should re-consider.

Chekhov’s Gun

Why Dwight Newman’s defence of the Charter’s notwithstanding clause is unpersuasive

Anton Chekhov liked to say that “one must never place a loaded rifle on the stage if it isn’t going to go off”. And conversely, once the rifle is part of the set, then go off it must. But must this theatrical directive apply to constitutional law? Some evidently think so―at least when it comes to the “notwithstanding clause” of the Canadian  Charter of Rights and Freedoms. Dwight Newman in a National Post op-ed, and Gerard Kennedy in a post for Advocates for the Rule of Law, are the latest of those who have ventured this opinion in the wake of Saskatchewan’s decision to invoke the “notwithstanding clause” to continue funding the education of non-Catholics at Catholic “separate” schools, despite a court finding that this is unconstitutional. Their arguments are no more persuasive than those I considered in my previous post on this topic.

Professor Newman notes that “[t]he notwithstanding clause was a vital part of the constitutional negotiations that led to the Charter being adopted in 1982. Without it, some provinces were unwilling to come on board.” In his view, “[t]hose who argue that the notwithstanding clause is somehow illegitimate actually bear the onus of explaining how the rest of the Charter would be legitimate without it”. But the fact that the existence of a legal power was a necessary part of a constitutional compromise does not justify the use of such a power. The federal power of disallowance over provincial legislation was a necessary part of the compromise that made Confederation possible, yet using it now would violate a firm constitutional convention. Does Professor Newman think that opposing the use of this power involves thinking that sections 91 and 92 of the Constitution Act, 1867 are illegitimate too?

Professor Newman adds wants to bolster the propriety of using the “notwithstanding clause” by pointing out that “[i]t tracked a similar clause in the 1960 Canadian Bill of Rights … and was an important clause in bringing together different constitutional traditions”. Yet although they are worded similarly, section 33 of the Charter and section 2 of the Canadian Bill of Rights have very different functions. The Charter‘s notwithstanding clause makes it possible to deny some of its provisions the status of Supreme Law that they would otherwise have by virtue of subsection 52(1) of the Constitution Act, 1982. By contrast, the notwithstanding clause of the Canadian Bill of Rights serves to protect it against implied repeal by subsequent legislation, and thus to elevate what would otherwise be an ordinary statute to what has been described as “quasi-constitutional” status. Though they can both be described as reconciling the protection of individual rights with Parliamentary sovereignty, the two notwithstanding clauses are thus motivated by opposite concerns. That of the Canadian Bill of Rights is rights-protecting; the Charter‘s is legislation-protecting.

Professor Newman makes some substantive criticisms of the court decision Saskatchewan wishes to override. I hope that I will be able to return to them later on. Suffice it to say that I am still of the view, expressed here, that the decision on the issue of religious freedom was quite obviously correct. Professor Newman also claims that those who criticize Saskatchewan’s use of the notwithstanding clause “miss the realities of governing”―notably the need to prevent the uncertainty about the eventual application of the court decision, indeed the “chaos” that would result from its application. Of course, uncertainty is not eliminated, but merely postponed by invoking the notwithstanding clause, which has to be renewed every five years. More importantly though, as I have already explained, the government has a way to avoid creating “chaos” while complying with the constitution. It only needs to fund all non-public schools equally, without discrimination in favour of Catholic ones.

More importantly still, the “realities of governing” objection, and the concern about uncertainty, could be applied to any number of Charter decisions. Uncertainty has followed the Supreme Court’s decisions declaring unconstitutional the blanket ban on assisted suicide and extreme trial delays, for instance, to name only two. If uncertainty, or public concern, is enough to set aside a judicial decision about rights, then we should drop the pretense of having a judicially enforced Charter of Rights, and go back to the good pre-1982 days of Parliamentary sovereignty. Mr. Kennedy is perhaps more forthright about this, arguing that anyone “who seeks to have a court expand”―or simply declare―”the meaning of Charter rights must be prepared to have the scope of those rights subsequently narrowed by the legislature”.

This is really the heart of the debate. Do we want a judicially enforced constitution, or should we go back to Parliamentary sovereignty? I’m not saying, by the way, that turning the clock back to 1982 would be some sort of catastrophe. Canada was a free country in 1982―albeit a free country where the Lord’s Day Act was good, unassailable law. New Zealand, which does not have rights protections enforceable against Parliament, is a free country, freer than Canada in some ways, though not in others. I think that abandoning judicially enforced rights would be a step backwards, which is why I am so critical of those who want to do it, but it would not be a step into the abyss.

But even though it would not be a crazy thing to do, giving up on judicial enforcement of constitutionally guaranteed rights would involve a substantial change to our constitutional arrangements. Professor Newman claims that those opposed to the use of the “notwithstanding clause” “may be wedded to a different vision of Canada—one oriented only to individualistic rights”. But in truth, however exactly we count them, uses of the “notwithstanding clause” have been a marginal phenomenon for 29 years, ever since Québec gave in to nationalist protests to prevent the use of English in advertising. Professor Newman’s individualistic dystopia is actually our reality. It is he and his fellows, not Andrew Coyne or I, who are “wedded to a different vision of Canada” from that in which we live.

Ostensibly, Professor Newman and Mr. Kennedy might not see themselves as advocating a complete de facto reversal of the 1982 constitutional settlement as it has been implemented by political actors as well as courts over 35 years. They might think that they are only defending occasional uses of the notwithstanding clause in response to particularly problematic judicial decisions. But as I’ve explained before, I do not think there is a tertium quid, some sort of happy Canadian middle ground between Parliamentary sovereignty and judicial enforcement of constitutional rights. If the norm against using the notwithstanding clause disappears, then it will be used proactively, profusely, and promiscuously. Like the Saskatchewan government now, others will use it whenever they think their policy ends justify the means, without paying attention to the rights the constitution is supposed to protect.

As Chekhov knew, placing a loaded rifle on the stage creates an unstable situation. A good dramatist will resolve the instability with a bang―and probably some casualties. But constitutional actors are not comedians. Even if they are put in a position where a loaded gun is within their reach, their responsibility is not to fire it, but to keep it safe if they cannot unload it, and to instruct those who follow them to do likewise. As for constitutional critics, they should not be cheering for the most theatrical resolution. They might enjoy a drama, but when the shots are fired, they are likely to be aimed at the audience.

Not Withstanding Scrutiny

The Saskatchewan government hasn’t justified its resort to the notwithstanding clause in the Catholic school funding case

Yesterday, I summarized and briefly commented on the decision of the Saskatchewan Court of Queen’s Bench in  in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which held that funding Catholic schools for educating non-Catholic students was an unjustifiable infringement of religious liberty and equality guarantees of the Canadian Charter of Rights and Freedoms. In my view this decision is correct. However, plenty of people disagree. Importantly, so does the government of Saskatchewan, which has announced that it will have the provincial legislation resort to the Charter‘s “notwithstanding clause” to nullify the Court’s decision, ostensibly in the name of school choice. Some thoughtful people, like Emmett Macfarlane and Dennis Baker, are supportive of the idea. In my view, however, it is misguided and hypocritical, not to mention illustrative of why the notwithstanding clause should never be used.

The best justification for occasionally resorting to section 33 of the Charter, which allows a legislature to suspend for a renewable period of up to five years the operation of constitutionally protected right is that the legislature disagrees with the courts’ interpretation of that right. After all, if the truth about rights, to borrow a phrase from Jeremy Waldron, exists at all, it’s not obvious that courts have privileged access to it. Questions about rights, about what counts as justifiable limitations of rights, are difficult, and reasonable people can disagree about them. In the face of such disagreement, isn’t it acceptable for the people’s elected representatives to decide that their views ought to prevail over those of unelected judges?

Trouble is, this solemn scene ― representatives of the people deliberating about rights and coming to conclusions that are reasoned and reasonable, if different from the judges’ ― has not taken place in Saskatchewan. The government doesn’t say that it disagrees with Justice Layh’s views about the scope of religious liberty or equality. It does not argue that the constitutionally protected freedom of religion does not encompass a duty of religious neutrality on the part of the state. It does not say that granting funding for students outside of a school’s denomination to Catholic schools and to no others is consistent with neutrality or not discriminatory. It is content to state the objective of “school choice” ― which, by the way, I think is a laudable objective, but which the government’s lawyers didn’t even dare put to the Court ― as if the end justifies the means, and it is permissible to disregard Charter rights as soon as one has a worthwhile reason for doing so. This is not what the defenders of the notwithstanding clause, or indeed the critics of any judicial enforcement of individual rights, say they have in mind. Why, then, do they defend the Saskatchewan government?

The Charter, or any sort of system that protects individual rights against infringement by the state, is based on the idea that the end does not always justify the means. At most, there is a proportionality test, such as the one embodied in section 1 of the Charter. A pressing social objective can justify some limitations of rights, but no more than is necessary, and in particular, not if less restrictive means are available to the government. Of course, whether the means at issue in a given case are the least restrictive available is a difficult question, and legislatures and courts might disagree about that. But there is no sign that Saskatchewan’s government has given any thought to alternative ways of achieving its professed objective of school choice. Why, then, do those boosters of the “notwithstanding clause” that justify its use by the existence of reasonable disagreement defend this government?

In reality, the government’s position is doubly hypocritical. It is hypocritical, first, because although it is posing as the defender of school choice, it is the government that is ultimately responsible for limiting the choices of the parents at the centre of this litigation. The government funds public schools. Its funding was not sufficient to keep a rural school open. The school board decided to close it, and have students be bussed to a different one. Instead of accepting this, some parents took advantage of constitutional rules allowing them to set up a “separate” Catholic school―in a village where there had never been one―, and non-Catholic parents, who had never had any particular interest in Catholicism, decided to also send their children there. If the choices of these parents mattered as much as the government now says they do, the local public school would have stayed open, and this case would not have arisen.

The government is hypocritical, second, because it has perfectly constitutional options to provide even more school choice than it now does ― in which it appears to take no interest. The government could provide all groups, including all religious groups, with funds to educate students from outside their communities. That would be real, meaningful school choice ― not the rather limited choice of a public or a Catholic school, which is only a choice, as Justice Layh points out, for those who do not mind their children receiving a Catholic education. Sure that might be costly system ― but if school choice is important enough to override constitutional rights, surely it’s worth a little tax raise?

Instead of admitting that its position is driven by fiscal, and presumably ultimately electoral, considerations rather than an authentic concern with school choice, the government compounds its hypocrisy with misleading threats. It claims that “[t]he ruling [in Good Spirit School Division] could also risk provincial funding of 26 other faith-based schools including Luther College, Regina Christian School, Saskatoon Christian School and Huda School.” The press release conveniently doesn’t mention the fact that this funding, which was not actually at issue in the Good Spirit School Division case, is less that the funding Catholic schools receive, and that at least the Huda School was on the side of the plaintiffs in the proceedings. Indeed, I wonder how the people involved the Huda School feel about being used in this way to make the government’s case considering the testimony of the school’s president at trial. Here’s how Justice Layh describes it:

he asked why the Huda School cannot receive funding to educate non-Muslim students, just like Catholic schools receive funding to educate non-Catholic students. The Huda School does not discriminate against hiring non-Muslim teachers (unlike Catholic schools). The majority of its teaching staff is non-Muslim. Dr. Aboguddah testified that the Huda School would welcome non-Muslim students to its growing school of 430 students (in 2016) which would provide an opportunity to build bridges with the broader Canadian community to reduce the stereotyping and negative image affecting the Muslim community in light of recent world events. [397]

A Rabbi similarly testified “that certain advantages would accrue to the small Jewish school in Regina if it received complete government funding for non-Jewish students.” [440] Again, if the government were committed to meaningful, non-discriminatory school choice, it would fund schools equally, regardless of who is behind them. The constitution would not stand in its way. It is its choice not to do so ― and it ought to accept the constitutional consequences of this choice.

Like a court looking to uphold a dubious administrative decision on a reasonableness standard, Profs. Macfarlane and Baker, and those who agree with them, offer their own reasons for why Justice Layh’s decision was wrong. I might return to that in a future post. Here, my point is that the government of Saskatchewan does not give any such reasons. Its justification for overriding this decision cannot withstand scrutiny. And it’s the government, not the thoughtful (if in my view mistaken) scholars, that gets to use the “notwithstanding clause”. If government were run by profs. Macfarlane and Baker, I would have fewer qualms about its ability to override judicial determinations of constitutional rights. But it is not.

As this case demonstrates, real-life governments are largely uninterested in thinking about constitutional rights. If they are allowed to disregard judicial decisions, they will not engage in serious deliberation themselves. They will press ahead with their political objectives, sloganeering and lying along the way. I have said this before ― in the face of judicial decisions with which I virulently disagreed ― and I say so again: if we are serious about constitutionally entrenched rights, we are better off with a categorical presumption against allowing legislatures to resort to the “notwithstanding clause”.

No Money for You

Can Saskatchewan fund non-Catholic students in Catholic schools? Raising government ire, a court says no.

A couple of weeks ago, in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, Saskatchewan’s Court of Queen’s Bench held that provincial funding for non-Catholic students of Catholic “separate” schools in the  province was unconstitutional. Saskatchewan’s government is upset, and has proclaimed its intention to invoke the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms to nullify the effects of this decision. In this post, I will summarize the decision and briefly explain why I think it is correct. I will comment on the use of the Charter‘s override provision separately.

The constitution requires Saskatchewan to allow the formation of, and to provide equal funding for “separate” schools for Catholics and Protestants, whenever one of these two groups happens to be a minority in a given school district and if parents belonging to the minority group request it. The mechanics of this requirement are somewhat complex: section 17 of the Saskatchewan Act, 1905, which created the province from the North-West Territories, makes applicable to it a somewhat modified version of section 93 of the Constitution Act, 1867, which guarantee “right[s] or privilege[s] with respect to separate schools which any class of persons ha[d in 1905]” under the then-existing territorial law. Laws enacted in furtherance of this guarantee are constitutional and not subject to scrutiny under the Charter, because its enactment did not abrogate the guarantee. Any other provincial laws relative to education, including the “separate” schools, are subject to Charter scrutiny like all other legislation in Canada.

The case was a challenge by a public school board to the funding received by a Catholic one for non-Catholic students attending one of its schools. If this funding were not available, the students would have attended a school operated by the plaintiff, and the funding would have followed them there. The case raised two main questions. Is the funding of non-Catholic students attending Catholic “separate” schools part of the guaranteed rights or privileges? If not, is it contrary to the Charter? There were a couple of preliminary issues too: whether the plaintiffs had standing to sue, and whether the school at the centre of the proceedings, St Theodore, was a legitimate “separate” school despite the fact that most of its students were not Catholic. Justice Layh answered both of these questions in the affirmative, and I will say no more of them. The decision is 230 pages long, not too much of it superfluous. I will only focus on the key points here.

 

Justice Layh found that there was no constitutionally guaranteed right for a “separate” Catholic school board to receive public funding for educating non-Catholic students. Only “denominational aspects” of the “separate” schools were constitutionally protected from legislative interference. The aim of the guarantee was to preserve minority religious communities by allowing them to withdraw their children from the majority’s schools and so to avoid assimilation. Moreover, at the time of the guarantee’s entrenchment, Catholics viewed education jointly with non-Catholics with great suspicions, and while constitutional interpretation had to account for new social realities ― notably the fact that Catholics and protestants were no longer the only religious groups of any significance in Canada, making special protections for them anomalies ― it could not import theological developments, such as Catholicism’s greater openness to other religions ― that occurred since the Saskatchewan Act came into force.

As a result, the ability to educate non-Catholics could not be viewed as a “denominational aspect” of the functioning of Catholic schools; it was not essential to their functioning as Catholic institutions. Therefore it was not constitutionally protected. Nor did the requirement of non-discriminatory funding for “separate” schools extend to funding students from outside the religious community for which they were set up. The funding requirement served to protect the distinctive religious character of the schools, not the ability of outsiders to attend them. In short, the provision of funding of which the plaintiffs complained was not a constitutional requirement, but a legislative choice of the province.

This area of the law is quite complicated, and I cannot claim particular expertise on it. To me, however, Justice Layh’s reasons are largely persuasive. It will not come as a surprise to regular readers that I am very skeptical about his take on the role of social change in constitutional interpretation, as I might further explain in a future post, if time permits. But I do not think that this is material here. Justice Layh makes a compelling case about the originalist raison d’être of the constitutional protections for “separate” schools being to allow minority communities to stand on their own, and about there being no legal right to funding for non-Catholic students in 1905. A purely originalist analysis would not, I think, yield conclusions different from his.

Having concluded that the funding of non-Catholic students was not exempt from Charter scrutiny, Justice Layh turned to the plaintiff’s claims that it infringed the constitutional guarantees of freedom of religion and equality. Part of the respondents’ case on this point was that the plaintiff, not being a natural person, was not entitled to make such claims, since only individuals could hold religious beliefs or claim equality rights under section 15 of the Charter. Justice Layh dismissed this argument. In his view, although only an individual could claim that a generally neutral law had a disproportionate or discriminatory effect on him or her, anyone could argue that a legislative measure was unconstitutional on its face, as the plaintiff here was doing. I find this distinction dubious; once the plaintiff is granted standing to sue in the public interest, shouldn’t it be able to advance constitutional claims on behalf of others? Isn’t that the point of public interest standing? But nothing turns on this here.

Justice Layh found that funding non-Catholic students in Catholic schools ― and, importantly, not funding, say, non-Muslim students in Muslim schools or non-Jewish students in Jewish schools ― amounted a breach of the state’s duty of religious neutrality and to discrimination on the basis of religion. Neutrality means treating all religious groups equally, as well as not favouring religion over non-religion or vice versa. Providing money to Catholic schools so that they can educate non-Catholics, instructing them in Catholicism and thus “evangelizing” them, as well as creating goodwill in the community, without providing equivalent opportunities to other religious groups is not acting impartially, and is thus a breach of the Charter‘s religious freedom guarantee as explained, notably in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 (which I explained and discussed here). It is also, ipso facto, discriminatory. I think this is correct, and quite obviously so. There is no meaningful account of religious neutrality on which singling out one group for a favourable treatment denied others is permissible.

There remained the question of a possible justification of these infringements of Charter rights under section 1, as limitations “demonstrably justified in a free and democratic society”. Justice Layh found that no such demonstration had been carried out. Indeed, the provincial government had not even really attempted one. The defendant school division, for its part, argued that funding Catholic schools for students outside of their faith served to provide educational opportunities to all students, and choice to the parents. Justice Layh rejected these objectives, on the basis that they had nothing to do with the limitation of funding of non-denominational students (if I can be forgive this use of the term) to Catholic schools. Public schools could provide educational opportunities, while the objective of enhancing choice could not be advanced by an inherently discriminatory policy. While these objections seem to me to go to the “rational connection” stage of the section 1 test rather than to invalidate the objectives themselves, nothing turns on this. The objections themselves are well taken, and Justice Layh’s conclusion, correct.

In the result, Justice Layh declares that Saskatchewan’s legislative and regulatory provisions allowing funding of non-Catholic students in Catholic “separate” schools is unconstitutional. He adds that “[a]ppreciating that the implementation of this declaration will cause significant repercussions in the province, this declaration is stayed until June 30, 2018.” [476] The stay, I think, is self-evidently appropriate here, and this case should be kept in mind in any future discussions of suspended declarations of unconstitutionality.

As it works its way up the judicial hierarchy, Good Spirit School Division could also produce important rulings on the constitutional issues it addresses ― and I hope that appellate courts will pay attention to Justice Layh’s reasons, which strike me ― despite some reservations ― as generally very careful, well-argued, and perhaps above all lucid. But all of that is likely to be overshadowed by debates about the Saskatchewan government’s invocation of the “notwithstanding clause” to annul Justice Layh’s decision. I hope to say more on that in short order.

Follow Instructions

School prayer is unconstitutional ― even in Alberta and Saskatchewan

A couple of months ago, Benjamin Oliphant wrote, on the Policy Options blog, about a controversy over school prayer in Alberta: some schools still start their days with the Lord’s Prayer, which some parents oppose. Constitutionally, Mr. Oliphant pointed out, the matter is somewhat complicated. A Twitter discussion ensued, but I don’t think that anyone ever took the time to write a follow-up blog post. Now, according to a report in the National Post, the same issue arises in Saskatchewan, giving me an excuse for doing so, however belatedly. (I should note that the parent who is contesting the school prayer seems not to be making a constitutional case, but rather “believes the recital of the prayer may be harmful and has started a petition asking for amendments to” relevant legislation. I express no views on the prayer’s harm, and only consider its constitutionality.)

As Mr. Oliphant explained, on the one hand, courts have held, starting in Zylberberg v. Sudbury Board of Education, 65 OR (2d) 641 (On CA), that school prayer ― even if individual students are not obliged to attend it ― is contrary to the religious freedom guarantee of the Canadian Charter of Rights and Freedoms. On the other, the constitutionally entrenched legislation that created the province of Alberta ― and Saskatchewan as well ― protected “any right or privilege with respect to separate schools which any class of persons have at the date of the passing of [that legislation] … or with respect to religious instruction in any public or separate school.” That provision (section 17 in both the Alberta Act and the Saskatchewan Act) referred to The School Ordinance of the North-West Territories, which specifically provided that, despite a general ban on religious instruction in public schools except in the last half hour of a school day, it would “be permissible for the board of any district to direct that the school be opened by the recitation of the Lord’s prayer.” (Subs. 137(2)) Hence Mr. Oliphant’s question: does the long-standing principle that one part of the constitution (such as the Charter) cannot abrogate another (such as the Alberta Act or the Saskatchewan Act) immunize the recitation of the Lord’s Prayer in those provinces’ schools? )

The answer, in my view, turns on the meaning of the phrase “religious instruction” in section 17 of the Alberta Act and the Saskatchewan Act. If “religious instruction” includes the recitation of the Lord’s prayer, then section 17 presumably protects the right of the local school authorities “to direct” the recitation of the prayer, as part of the general protection of rights “with respect to religious instruction at any public school.” If, however, the prayer is not a form of “religious instruction,” then its recitation falls outside the scope of the protection granted by section 17.

Is, then, the recitation of the Lord’s Prayer “religious instruction”? A prayer is, as the Supreme Court recently had occasion to confirm ― against Québec Court of Appeal’s opinion to the contrary ― undoubtedly a religious exercise. But is it “instruction”? Note that, if a court called upon to decide the constitutional question adopted the originalist approach to constitutional interpretation which, I have argued, the Supreme Court’s majority recently took when discussing legislative bilingualism in Alberta in Caron v. Alberta, 2015 SCC 56, it would need to consider the meaning of “instruction” in 1905, when the Alberta Act and the Saskatchewan Act were enacted. Perhaps the meaning of the phrase has changed in the last century. But I rather doubt it in this case.

As a matter of ordinary meaning of the word in this context, it seems to me that a prayer is not instruction because it does not teach the students who hear it anything about religion. It is telling, I think, though not dispositive, that section 182(3) of the Saskatchewan’s Education Act, which authorizes the recitation of the Lord’s Prayer at the beginning of school day, specifies that it is to be recited “without comment or explanation.” That’s not how one would normally go about “instructing” the students in religion generally, or in the meaning or significance of the Lord’s Prayer specifically.

The legislative context in which the phrase “religious instruction” is used in The School Ordinance also suggests that it does not encompass the recitation of the Lord’s Prayer. The general provision on religious instruction is section 137 (or what would now be numbered as subsection 137(1)), which has the heading “religious instruction.” The exception for prayer is provided for separately, in subsection 137(2), under the heading “Time for the Lord’s Prayer.” For its part, the following section, under the (admittedly ambiguous) heading “Attendance not compulsory during religious exercise,” provides that “[a]ny child shall have the privilege of leaving the school room at the time at which religious instruction is commenced as provided for in the next preceding section … if the parents or guardians do desire.” I think it is reasonably clear that that the idea is that the student is free to go home once the half-hour reserved for religious teaching at the end of a school day begins ― rather than leave the school as it is being “opened” by the recitation of the Lord’s Prayer, and then return.

As a result, I don’t think that the constitutional protection for “religious instruction” in the schools of Alberta and Saskatchewan extends to the recitation of the Lord’s Prayer. Unlike the actual teaching of religion, it is thus not immunized against review under the Charter. And it is quite clear what the outcome of such a review would be. The educational authorities in the Prairies ought to follow the same constitutional instructions that apply to their counterparts in Ontario and elsewhere, and get rid of the Lord’s Prayer.