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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Spring 2014 issue of The Catholic Dimension, and is re-posted here for public reference.
In the Legally Speaking article published in the fall edition of the Catholic Dimension, we explored the concept of freedom of conscience and religion as guaranteed in section 2(a) of the Canadian Charter of Rights and Freedoms and reviewed a number of the primary cases addressing both freedom of religion and freedom of conscience in Canada.
However, in Canada such freedoms are not absolute. They are moderated and balanced as against the “collective good” by the justification provisions of section 1 of the Charter, which both guarantees the rights and freedoms set out in the remaining sections of the Charter and constrains them to reasonable limits expected in a free and democratic society:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Legal proof pursuant to section 1 is divided into two criteria justifying the breach of other sections of the Charter: the “reasonable limits prescribed by law” requirement and the “demonstrably justified in a free and democratic society” criteria.
On the “reasonable limits prescribed by law” portion of section 1, the party wishing to rely upon justification for the breach of a Charter right, must show that the provisions of the imposed law are “reasonably accessible to those which it affects”, precise in that they enable those whom it affects to regulate their conduct pursuant to the law, are not vague, in that they provide a sufficiently clear standard, and are a proper exercise of discretion, in that the discretion granted by the law is appropriately constrained by legal standards (Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2009 S.C.C. 31).
Further, a section 1 Charter defence requires proof on the “demonstrably justified in a free and democratic society” portion of section 1 that the provisions of the law are pressing and substantial, that the means employed in the law are rationally connected to that objective, minimally impair the rights of those which it adversely affects and produce salutary effects which outweigh the deleterious effects of a breach (R v. Oakes, [1986] 1 S.C.R. 103, and Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835).
The leading case on the application of “justification” pursuant to section 1 of the Charter, of a breach of the guarantee of freedom of conscience and religion under section 2(a) of the Charter is Hutterian Brethren of Wilson Colony v. Alberta, [2009] 2 S.C.R. 567. In that case, the Province of Alberta required that all driver’s licenses should have a photograph of the driver, which photograph would be kept in the province’s facial recognition databank for the purposes of identification and prevention of identity theft. The members of the Wilson Hutterite Colony objected to having their pictures taken on the basis that it offended the second commandment:
“You shall not make for yourself a graven image, or any likeness of anything that is in heaven above” (Exodus 20:1-17, RSV).
The most comprehensive discussion of the section 2(a) guarantee of freedom of religion in this case came in one of the dissenting decisions, that of Madam Justice Abella:
“Freedom of religion is a core, constitutionally protected democratic value. To justify its impairment, therefore, the government must demonstrate that the benefits of the infringement outweigh the harm it imposes”.
Justice Abella said, however, that there were circumstances where “the nature of the particular religious duty brings it into serious conflict with countervailing and competing social values and imperatives” requiring that “religious freedoms (be) subject to such limitations ‘as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others...’.” In allowing for some impairment of the rights to conscience and religion, she said:
“’The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided ... only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own’ (quoting from Big M Drug Mart).”
Justice Abella said that both individual and group aspects of freedom of conscience and religion were important to consider, including “the right to manifest one’s religion in community with others”. This recognition that freedom of conscience and religion is both individual and communal was concurred in by the majority of the Court which quickly found that the Hutterian Brethren’s rights to freedom of religion had been infringed given that they sincerely held “a belief or practice that has a nexus with religion; and ... the impugned measure interferes with (their) ability to act in accordance with (their) religious beliefs in a manner that is more than trivial or insubstantial”.
However, the majority decision, in applying the Oakes/Dagenais test set out above, found:
“The goal of minimizing the risk of fraud associated with driver’s licenses is pressing and substantial. The limit is rationally connected to the goal. The limit impairs the right as little as reasonably possible in order to achieve the goal; the only alternative proposed would significantly compromise the goal of minimizing the risk. Finally, the measure is proportionate in terms of effects: the positive effects associated with the limit are significant, while the impact on the claimants, while not trivial, does not deprive them of the ability to follow their religious convictions”.
As a result, the limits placed on the Hutterian Brethren’s freedom of religion by the requirement to be photographed if they wished to hold a driver’s license, was “justified” under section 1 of the Charter.
Another case before the Supreme Court of Canada which addressed section 2(a) protection but justified a breach of freedom of conscience and religious rights by reference to section 1 was Whatcott v. Saskatchewan Human Rights Tribunal, 2013 SCC 11. In that case, Mr. Whatcott distributed flyers in Regina and Saskatoon targeting homosexuals. The Saskatchewan Human Rights Commission determined that the material “promoted hatred against individuals because of their sexual orientation”. One of the defences raised was freedom of religion, on the basis that:
“objection to same-sex sexual activity is common among religious people. They object because they believe this conduct is harmful; and many religious people also believe that they are obligated to do good and warn others of the danger”.
The Supreme Court of Canada dealt with the freedom of religion argument briefly. They said that “the protection provided under s. 2(a) should extend broadly”, that the “Court has consistently refrained from formulating internal limits to the scope of freedom of religion in cases where the constitutionality of a legislative scheme was raised”, found that the claimant sincerely held a belief or practice that had a nexus with his religion, and that the Human Rights provision interfered with Mr. Whatcott’s ability to act in accordance with his religious beliefs, which interference was more than trivial or insubstantial. As a result, the Court found a breach of the guarantee of conscience and religion and turned to the section 1 “justification” analysis.
Applying the Oakes/Dagenais test set out above, the Supreme Court of Canada found that the breach of this fundamental freedom was justified, recognizing that “s. 1 both guarantees and limits Charter rights”, and in the present circumstances:
“it does not matter whether the expression at issue is religiously motivated or not. If, viewed objectively, the publication involves representations that expose or are likely to expose the vulnerable group to detestation and vilification, then the religious expression is captured by the legislative prohibition”.
A similar result was reached by the Supreme Court of Canada in Multani c. Marguerite-Bourgeoys (Commission scolaire), [2006] 1 S.C.R. 256 where a Sikh boy was initially prohibited from wearing a kirpan in public school. The Court acknowledged that an absolute prohibition of a mandatory religious requirement was a breach of the section 2(a) guarantee of freedom of religion, that his belief was sincere and that the infringement was neither trivial nor insignificant. The issue then turned to whether the prohibition was justified under section 1. The Court found that the school boards’ object to provide a safe and secure school environment was pressing and substantial, and the prohibition against the wearing of a kirpan had a rational connection with that object, but that the absolute prohibition against wearing a kirpan did not minimally impair the student’s right as it stifled the promotion of values, multiculturalism, diversity and the development of an educational culture respectful of the rights of others. Finally, the deleterious effects of prohibiting the wearing of a kirpan outweighed the salutary effects such that this infringement was not justifiable in a free and democratic society.
An identical result was held in the case of a mature 14 year old Jehovah witness girl with Crohn’s disease and serious dilution of hemoglobin after initial treatment with IV fluids, refusing a blood transfusion for religious reasons, which was administered under Court order at the request of the Director under the Manitoba Child and Family Services Act. In Manitoba (Director of Child & Family Services) v. C. (A.), [2009] 2 S.C.R. 181 the Court found:
“The limit on religious practice imposed by the legislation emerges as justified under s. 1”.
The Canadian Charter promotes the active engagement of diversity in religious views, the promotion and respect of all religious views in relationship to one another; it promotes religious pluralism, rather than relativism or syncretism. Its protection of conscience and religion it is both individual and collective in nature, not based upon an expressed separation of Church and state, and plural in experience and intent. It recognizes a broad definition of both religion and freedom of religion, and places particular emphasis on the protection of the minority with respect to religious rights. However, freedom of religion in Canada is not absolute. It is subject to justification, in that rights may be infringed where that infringement is pressing and substantial, rationally connected to a legitimate objective, minimally impairs the rights of those which it adversely affects, and where the salutary effects of the breach of rights outweigh the deleterious effects. In this very Canadian way, the individualistic protection of rights in the Charter is balanced by the traditional communal, pluralistic values of the Canadian Constitution.
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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Fall 2015 issue of The Catholic Dimension, and is re-posted here for public reference.
It is generally understood that publically-funded separate Catholic education is constitutionally guaranteed in the Province of Alberta. What is less well understood is the qualitative nature of that protection. Critics of separate Catholic education may be heard to express the opinion that although Catholic education is guaranteed constitutionally, there is no need to put flesh on those bones; that is, there is no need to support it fully and substantively in terms of full and equitable funding, school buildings, maintenance and control over policy, procedure and governance, the right to preferential hiring, promotion and discipline for denominational cause, and the right for Catholic theology, philosophy and doctrine to be fully permeated in all aspects of Catholic schools. The intent of this article is to explore the doctrines of hollow rights and permeation, as some of the constitutional underpinning of the qualitative protection of separate Catholic education in Alberta.
The Constitutional Guarantee
As indicated above, most persons understand the constitutional guarantee of publically-funded separate Catholic education in the province of Alberta.
The Constitution Act, 1867 was negotiated by the fathers of confederation at the Charlottetown Conference of 1864, the Quebec Conference of 1866, and the London Conference of 1867. It is universally understood that Confederation could not have been achieved without protection for denominational education in the new Canada, protection for the rights of Protestant education in the province of Quebec and Catholic education in the Province of Ontario.
The result was an historical compromise. Powers allocated to the federal government were set out in section 91 of the Constitution Act, 1867, and to the provinces in section 92. However, because protection for denominational education was so critical to being able to reach a constitutional compromise, it was set out in a separate section, section 93 of the Act:
“93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;”.
The most often quoted excerpt to this effect is the speech in the House of Commons of Prime Minister Sir Charles Tupper in 1896 when he said:
“… but for assent that in the Confederation Act should be embodied a clause which would protect the rights of minorities, whether Catholic or Protestant, in this country, there would have been no confederation …”.
The issue of denominational education was also central to the entry of Alberta and Saskatchewan into confederation in 1905, and the subject of intense debate and negotiation. Section 17 of the Alberta Act, 1905 and the Saskatchewan Act, 1905 are identical:
“17. (1) Section 93 of The British North America Act, 1867, shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:--
1. ‘Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-West Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.’
2. In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29 or any Act passed in amendment thereof, or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.”
Eleven versions of that section were debated, amended and re-amended in months of debate. The primary actors in the Autonomy Debates and what has been called the North-West Schools Question where Prime Minister Sir Wilfred Laurier, Justice Minister Sir Charles Fitzpatrick and Minister of the Interior, Sir Clifford Sifton, all of whom considered those provisions to be a compromise for the purpose of allowing Alberta and Saskatchewan to come into Confederation. Sir Clifford Sifton is reported to have characterized any failure to reach such a compromise as potentially leading to “a complete smash-up followed up by dissolution and the recasting of the parties on religious and racial lines.”
The constitutional primacy of these denominational education protections was affirmed in section 29 of The Charter of Rights and Freedoms:
“29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.”
The Government of Canada publication: “The Charter of Rights and Freedoms: A Guide for Canadians” explains that these denominational school rights cannot be overcome by reference to other sections of the Charter nor by other quasi-constitution legislation such as the Alberta Bill of Rights or the Alberta Human Rights Act:
“The establishment and operation of religious schools will not be adversely affected by any other provisions of the Charter.
This insures, for example, that neither the freedom of conscience and religion clause nor the equality rights clause, will be interpreted so as to strike down existing constitutional rights respecting the establishment and state financing of schools operated on a religious basis, with students and teachers selected according to their adherence to a particular religious faith.”
The Hollow Rights Doctrine
It is an important doctrine of constitutional law that constitutional rights once granted must not be minimalized nor diminished to “hollow rights”. They must, in all interpretations, be given a large, liberal interpretation. The Supreme Court of Canada in the Bill 30 case (1987) said that separate school rights cannot be interpreted as “an empty shell”, or “illusory (so that) the purpose of the Imperial Legislation is subverted”. Additionally, the Court said in the Ontario Home Builders case (1996) that it is critical the constitutional right “protect the substance of the guarantee”, and not be “stereotyped” at the date of entry into confederation nor “frozen in time”. Additionally, the Court has said in numerous cases including Hirsch v. Montreal Protestant School Commissioners (1926), Greater Montreal Protestant School Board (1989), Ontario Home Builders’ Association (1996), Bill 30 (1987), Reference re: Education Act (Quebec), (1993) and Greater Hull School Board (1984) that in order to avoid the error of making constitutional rights “hollow”, denominational school rights must include “non-denominational rights necessary to give effect to denominational protections”, including “exclusive control of finances and pedagogy”.
Clearly, separate Catholic educational rights must be allowed an expansive and generous interpretation in order to breathe life into the constitutional compromise on which Canada was founded.
The Doctrine of Permeation
In the Moose Jaw School case (1974) the Saskatchewan Courts affirmed “that Roman Catholics expect that religion will permeate a Roman Catholic school system in all its relationships”. The doctrine of permeation was explored at length in Public School Boards Association of Alberta v. Alberta (1996) by Dr. Nick Kach who testified that education in Catholic separate schools prior to 1905 was conducted on an “infusion” or “permeation” basis whereby the religious or denominational aspects of the Catholic faith were “infused into or permeated every subject taught during the school day, from opening prayer through all academic classes”. The philosopher Van Cleave Morris set out that philosophy of permeation:
“It appears, for example, in the affairs of the playground, in the kind of sports that are favoured and opposed, and in the code of sportsmanship by which the young are taught to govern their behaviour. It appears in the school’s definition of the delinquent and in its mode of dealing with him …. it appears in the department of science: in the methods the young are expected to adopt in conducting their experiments …. it appears in the department of social studies: in the problems that are chosen … in the manner in which they are discussed …. it appears in the department of literature: in the novels, the poems, the dramas that are chosen for study, in what is considered good and what is considered bad …. it appears in the organization and the government of the school …. it appears in the program for the general assemblies of the schools: in the various leaders from the community …. it appears in the way the community organizes to conduct its schools: and the provision it makes in its school grounds, buildings, and equipment, and the kind of people it chooses to serve on the school board, and in the relation of the members of the board to the … teaching staff”.
The doctrine that Catholic schools are entitled to permeate Catholicity, Catholic teaching and Catholic dogma in all aspects of its curriculum was specifically recognized by the Supreme Court of Canada in Hirsch (1926), Greater Hull (1984), Greater Montreal (1989) and Mahé (1990), where the Courts recognized that Catholic parents would be entitled to permeate their religion in their school system by exclusive control of pedagogy, exclusive control of maintenance and support of the system, the power to hire, promote, and fire teachers on denominational grounds, and the “exclusive management and control of all aspects of the educational system”.
In Conclusion
It is clear that publically-funded separate Catholic education is here to stay. It is constitutionally protected not only in form but in content and quality. Separate Catholic education is constitutionally protected in its own right, cannot be challenged by reference to the Charter of Rights and Freedoms, the Alberta Bill of Rights or the Alberta Human Rights Act, and includes full management and control of the school system including full permeation of Catholicity in every aspect of the system, management and control by Catholic parents, exclusive control over pedagogy, and the right to full permeation of Catholic philosophy and theology across the system. Those rights cannot be interpreted as “hollow rights” and must be given a full, broad and liberal interpretation so as to reflect the fundamental constitutional compromise upon which this country was founded. Catholic denominational school rights are more than formalistic; they are living, breathing and growing in the understanding of the Gospel and the teachings of the Catholic Church.
Hollow Rights and Permeation...
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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Spring 2001 issue of The Catholic Dimension, and is re-posted here for public reference.
It is easy to take for granted that we have Catholic School Boards in Alberta, that we elect Catholic Trustees to those Boards and that they operate Catholic schools to be attended by our children. However, we often do not pause to ask the question: What makes our Catholic schools Catholic?
Why can't a Public School Board simply open a school and say that it is a Catholic school? Why can't a Public school simply open a classroom at the end of the hallway and call it a Catholic classroom? Why can't a joint Board of Trustees operate some schools which are called Catholic and some schools which are called Public?
In 2000, we had the rare opportunity to explore these questions in the context of exploring Francophone governance, 4 x 4 expansion and joint facilities issues in Alberta. We also had the rare opportunity to have legal affidavits sworn, directly addressing these questions by His Grace Thomas Collins, Archbishop of Edmonton, and His Excellency Frederick Henry, Bishop of Calgary.
Archbishop Collins, in his affidavit, referenced the teachings of Vatican II, the Code of Canon Law, publications of the Congregation for Catholic Education, an address by Pope John Paul II and an article by American Archbishop Pilarczyk entitled "What is a Catholic School?" and said the following which is set out in full:
1. After review of the above documents, I believe that there are some essential principles which describe a Catholic school, including but not limited to the following:
Bishop Henry supplements Archbishop Collins' listing of the indicia of Catholic education by saying that a Catholic school must "offer instruction in the Catholic faith,... (and) participate in Catholic liturgical celebrations and sacraments in their schools without violation of Catholic faith principles". Bishop Henry also emphasizes that "in the Catholic Separate Schools in Alberta, there is a critical tripartite relationship between the parents, Catholic schools and the Catholic parish churches, each playing a vital role in the whole education of children in Catholic schools." He advises that the foundation for Catholic education is the existence of a separate "duly elected and accountable denominational school board" where "trustees are elected by majority vote of Catholic ratepayers in each separate school district" and where those Catholic school trustees "have the constitutional, statutory, moral and religious duty to preserve and enhance Catholic education for the benefit of all children attending Catholic schools."
It is the responsibility of every Catholic elector to ask the critical question: "What makes a Catholic school Catholic?" It is then the responsibility of every Catholic elector to review the structure, organization and delivery of education in their own jurisdiction and answer that question for themselves: are we providing a truly Catholic separate education to our children?
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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Spring 2000 issue of The Catholic Dimension, and is re-posted here for public reference.
The Charter of Rights and Freedoms
The Constitutional enactment which brought Alberta into confederation was the Alberta Act, 1905. Section 17 of that Act, section 93 of the Constitution Act 1867 and sections 41 to 45 of the Northwest Territories School Ordinance 1901, guarantee Catholic ratepayers the right to establish a separate school district, set assessments, collect taxes, permeate Catholicism in all aspects of education and enjoy all the rights, powers, privileges allowed to public school districts.
A history older than Alberta
On July 15, 1870, Canada assumed Rupert's Land from the Hudson's Bay Company, effectively gaining control over education in what is now Alberta and Saskatchewan. In 1875, the first North-West Territories Act was passed. Section 11, entitled public and separate school jurisdictions to establish. There were no restrictions on the geography of those school jurisdictions.
In 1884, the School Ordinance provide that a public or separate school district "comprise an area of not more than 36 square miles" (a 6x6). Separate school districts were not bound by the geography of public school districts. In addition, public or separate school districts could be expanded at the request of landowners. Under the School Ordinance of 1884, four Catholic Public boards (Fort Saskatchewan, St. Albert, St. Leon and Cunningham) and three Catholic Separate boards (Calgary, St. Joachim's (now Edmonton) and Bellerose) were established.
By 1886, the formation of separate districts was restricted to the boundaries of public school districts established on a 6x6 basis, and in 1887, the formation area for public districts, and therefore separate districts, was reduced to twenty five square miles (a 5x5).
By 1901, a separate school district could be established within the boundaries of any public school district established without reference to specific geography (1875-1884), on a 6x6 basis (1884-1887), on a 5x5 basis (1887-1901), or on any other basis allowed in the discretion of the Minister subject to protection of separate school constitutional rights. It was this right of establishment that was constitutionally protected in the Alberta Act, 1905.
Then, in 1913 the basic geography of a school district was again reduced, this time to a 4x4 area.
The 4x4: wrong assumption
For reasons unknown, it became assumed after 1913 that Catholic school districts could only be formed on the basis of 4x4s. This assumption persisted, despite the continuing evolution of public school geography.
In 1913, the Minister was enabled to create public consolidated school districts no longer bound by the 4x4 geographical jurisdictions. In 1916, the Minister was authorized to organize "any portion of the province into a district", so that districts could now be of any size or dimension. By 1919 consolidated school districts were allowed to include any territory of not less than 30 and not more than 80 square miles.
The first Schools Act of Alberta was passed in 1922. This Act recognized basic 4x4 school districts, larger basic school districts "in special cases", consolidated school districts and secondary consolidated school districts. In 1931, a new type of district was added to the jurisdictional list, the "rural high school district".
In 1966, the qualifying boundaries for school districts and consolidated school districts were repealed so the public school districts and consolidated school districts could be established without restriction as to geography. In 1970, the Minister was entitled to establish divisions of any number of public school districts.
In 1988, the Minister was confirmed in the right to establish any portion of Alberta as a public school district, or to establish divisions consisting of any number of public school districts. A separate school district could be established within a public school district and the Minister could by order add land to, or take land from, a district or division, or divide a district or division into two or more districts or divisions. There were no references in this act to specific geographical dimensions for districts or consolidated districts, as those references had been deleted in 1966.
Finally, recent legislative amendments, while preserving all of the above jurisdictions, added the concept of a regional division, either formed on a voluntary basis (School Amendment Act 1993) or forced basis (School Amendment Act 1994).
The 4x4: no foundations in law
There is no foundation in law to require separate school districts to be formed on a 4x4 basis.
Separate School districts were entitled to form between 1875 and 1884 without reference to specific geography; between 1884 and 1887 on the basis of 6x6 jurisdictions, but separate school districts need not have been based upon public school districts; from 1887 to 1913 on the basis of 5x5 jurisdictions; from 1913 to 1966 on the basis of 4x4 jurisdictions, and without restriction as to specific geography from 1966 to present. Yet, the practice continues; the Catholic ratepayer is legally and administratively directed to do just that.
There is no foundation in law for restricting separate school jurisdictions to the original 6x6/5x5 or 4x4 public school jurisdictions.
Public school districts were not limited to such original geographical restrictions. They included, beginning in 1913, consolidated school districts which by 1919 could be of no less than 30 square miles nor more than 80 square miles; from 1922, secondary consolidated school districts; from 1931, rural high school districts; and from 1970, regional districts. Even these larger jurisdictional areas became artificial, being subject to orders of the Minister adding land to, taking land from, conjoining districts, separating districts and otherwise altering the basic shape, configuration and size of these geographical areas. In addition, the Minister always had power and authority to create school jurisdictions without reference to specific geographical boundaries, subject only to the constitutional rights of separate school ratepayers.
There is no foundation in law for restricting formation of separate schools to the geography of public school districts, even including larger district jurisdictions.
The Supreme Court of Canada has made it quite clear that protection of minority educational rights is "itself an independent principle underlying our constitutional order" (the Quebec Secession case, 1998), that educational rights cannot be stereotyped by the type of educational jurisdictions and rights existing at confederation (in the case of Alberta; 1905) (Hirsch v. Montreal Protestant School Commissioners (1928), Greater Montreal Protestant School Board v. The Attorney General of Quebec et al (1989) and Reference re: Education Act (Quebec) (1993)). Likewise, separate school constitutional rights cannot be confined to literal wordings or stereotyped to avoid the purpose and intent of the protection of minority rights (Greater Montreal Protestant School Board v. The Attorney General of Quebec et al (1989), Ontario Home Builders' Assn. v. York Region Board of Education (1996)). Finally, the Supreme Court of Canada has said many times that the constitutional rights of separate school supporters cannot be restrictively interpreted so that they are "hollow rights" which cannot be effectively exercised in the modern context (Reference re: Bill 30 (1987), Attorney General of Quebec v. Greater Hull School board (1984), Greater Montreal Protestant School Board v. The Attorney General of Quebec et al (1989), Reference re: Education Act (Quebec) (1993), Ontario Homes Builders' Assn. v. York region Board of Education (1996)).
Hollow rights wholly illusory
To restrict separate school formation to the archaic boundaries of 6x6s, 5x5s or 4x4s, or even to the larger unified boundaries of consolidated school districts, secondary consolidated school districts, rural high school districts or regional districts, when public school jurisdictions are now comprised of divisions and regional divisions, is only to accord separate school supporters "hollow rights" which are "wholly illusory" with respect to the formation of their districts.
Constitutional protection
It was the intent, purpose and substance of constitutional protection that separate school supporters would be entitled to establish separate school jurisdictions in any area of the province of Alberta which was established and organized for public school purposes.
This purposive interpretation is not to be limited by archaic geographical boundaries.
The challenge
The challenge for Catholic schools now is formation or expansion on geographical areas unfettered by 86 years of administering the 4x4 assumption in Alberta. Perhaps we should envision coterminous boundaries with public school divisions or wards of public school regional divisions, or creative areas for separate school expansion limited only by the needs of separate school ratepayers and students. Perhaps it is time to seize the opportunity to bring separate school education to all Catholic students in Alberta. It would not be impossible for the government to make it happen; all that is required is the political will.
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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Fall 2000 issue of The Catholic Dimension, and is re-posted here for public reference.
The Charter of Rights and Freedoms
In 1982, the Canadian Charter of Rights and Freedoms became law. It provided in section 23 that all citizens whose first language learned and still understood was that of the English or French linguistic minority in any Province, or who had received their primary school instruction in Canada in English or French, or whose older children had received primary or secondary school instruction in English or French, would have the right to have their children receive primary and secondary school instruction in that minority language. The right to minority language education applied whenever the number of s. 23 children were sufficient to warrant the provision to them of minority language instruction in minority language educational facilities.
In Alberta, that minority language educational protection was granted to the Francophone minority.
Before the Supreme Court: Mahe v. Alberta
In 1990, the Supreme Court of Canada heard a case from Alberta which sought to determine whether the right to minority language education, where numbers warranted, included the right to "management and control" over minority language facilities and instruction. Mahe and others argued that the establishment by the Edmonton Catholic Board of a Francophone school, Maurice Lavallee, was not sufficient to satisfy section 23 Francophone education rights. They argued that the Francophone community should be entitled to establish a school board by which "management and control" of French language schools would be accorded directly to the Francophone parents in Edmonton.
The Supreme Court of Canada ruled that the general purpose of section 23 of the Charter was to preserve and promote two official languages and two distinct cultures in Canada and to correct, on a national scale, the progressive erosion of minority official language education. The Supreme Court of Canada said that section 23 encompassed a "sliding scale" of requirements depending upon the number of students involved. They said that where numbers warranted, section 23 may require an independent Francophone school board.
On the other hand, where numbers of Francophone students were lesser, "management and control" might be satisfied by linguistic minority representation on the existing school board.
The Supreme Court of Canada determined that in the Edmonton area, there were sufficient numbers of section 23 students to justify, in both pedagogical and financial terms, the creation of an independent Francophone school. It also recognized that the creation of Francophone school boards might not be compatible with the constitutional rights enjoyed by existing Catholic school boards. It said that any interpretation of section 23 of the Charter "must be consistent with the rights and privileges of denominational schools". The protection of denominational rights consistent with Francophone educational rights would be easily accomplished where there was not a separate Francophone school board, and where members of the denominational minority were entitled to elect a person both of the denominational minority and of the linguistic minority to represent their point of view on the existing separate board. Where numbers warranted an independent school board, the Supreme Court of Canada said, "it is possible to constitute minority language boards along denominational lines."
The Supreme Court of Canada said particularly:
"I do not doubt that the rights of denominational school boards may, in some cases, result in limitations on the type of reorganization which might otherwise be required under s. 23. Denominational school guarantees could split up an eligible group of minority language students in such a way as to preclude the creation of a minority language school which would otherwise be required."
The Alberta Response: Francophone School Authorities
As a result of the Supreme Court of Canada decision in Mahe, the Province of Alberta passed amendments to the School Act, Part 8.1, providing for the creation of four non-denominational Francophone authorities in Alberta; one each for the Edmonton area, northeast, northwest and southern Alberta.
A Question of "Management and Control"
The southern Alberta Francophone authority, established on February 1, 2000, requested management and control of Ecole Ste. Marguerite-Bourgeoys in Calgary. The Calgary Catholic Board opposed transfer of the school because of their concern that the children attending the school would lose the constitutional protections of a guaranteed Catholic education. During an exchange of letters in late 1999 and early 2000, Calgary Bishop Frederick Henry expressed concern with the concept of a single or umbrella Francophone school board responsible for both public and separate Catholic Francophone governance in southern Alberta. He indicated that he would have no choice but to formally deny a school transferred to a non-denominational Francophone Authority, the status of a "Catholic school".
Edmonton Archbishop Thomas Collins stated that a unitary governance management model comprised of a single non-denominational school board, consisting of trustees and electors who are Catholic and non-Catholic, is not sufficient nor appropriate to deliver a fully-permeated Catholic education, consistent with the essential principles of Catholic education. Archbishop Collins stated that a non-denominational Francophone authority operating under a unitary governance management model could not provide a Catholic education that would meet the criteria of the Catholic Church.
There was also a concern that a non-denominational Francophone school program which was "de facto" Catholic, would be found to violate the rights of Francophone children attending the school who did not wish a fully-permeated Catholic education. Such a challenge, which could be taken under section 2(a) of the Charter of Rights and Freedoms, would be, probably, successful.
It was apparent to everyone involved that the right to provide a fully-permeated Catholic education was not constitutionally protected through a non-denominational Francophone authority.
It is clear that only denominational schools are entitled to exercise the constitutional protections accorded by section 93 of the Constitution Act, 1867 and section 17 of the Alberta Act, 1905, and more particularly, to permeate the Catholic faith in separate Catholic schools.
Fixing the Problem in the Short-Term
In June, 2000, the Calgary Catholic Board and the Southern Alberta Francophone Authority entered into an intense negotiation to work out a short-term solution in Calgary which would allow Catholic Francophone parents to provide for their children an education which was constitutionally protected both linguistically and denominationally.
On June 26, 2000, the parties signed an agreement requesting that the Minister of Learning create two new Francophone regional authorities for southern Alberta, a Separate Catholic Francophone Authority and a Public Francophone Authority, and to divide between them the existing non-denominational Francophone authority. The parties asked the Minister of Learning to appoint the existing members of the Southern Alberta Francophone Authority to the respective new boards and to set an election for September 2000 to fill the vacancies on the boards. The parties agreed that the current superintendent and secretary-treasurer of the Southern Alberta Francophone Authority would become the interim superintendent and secretary-treasurer of the Separate Catholic Francophone Authority and that the Separate Catholic Francophone Authority would enter into a contract with the Public Francophone Authority for the purpose of providing the services of the superintendent and secretary-treasurer to that authority.
The agreement between the parties provides that Calgary Catholic maintains actual and legal ownership of the school, but the funding and student count of the school becomes that of the Separate Catholic Francophone Authority. The Separate Catholic Francophone Authority would purchase from Calgary Catholic a complete education and support package, at cost, which would include administrative services, the services of the principal, teaching staff, professional support staff and support staff, for the term of the agreement. The teaching staff of the school remains the teaching staff of Calgary Catholic and the curriculum currently in place at the school would remain during the term of the agreement.
A Reconciliation Team was established to identify and address issues in the school community which were a source of division or conflict. This Team is to plan for a seamless transition and complete transfer of management and control of the school from Calgary Catholic to the Separate Catholic Francophone Authority after the issue of separate Catholic Francophone governance in Alberta is addressed in the longer term.
The Minister of Learning issued a Ministerial Order on July 7, 2000, effecting the terms of that agreement. As a result, in Calgary, in the short-term, Catholic Francophone parents are entitled to send their children to a school operated under a management structure which protects both their children's Francophone linguistic rights and Catholic denominational rights.
Fixing the Problem in the Long-Term
The parties also agreed to request that the Minister of Learning establish an investigative task force for the purpose of recommending legislative amendments to the School Act, so as to create distinct legal entities which would entrench both separate Catholic and Francophone education constitutional rights fully, so that "governance of separate schools which are both Francophone and Catholic will be granted and reserved to the Francophone Catholic community in a manner which enforces the constitution or protections of section 17 of the Alberta Act, 1905 and of section 23 of the Charter." The Catholic and Francophone communities in Alberta await the appointment of that task force by the Minister and the recommendations to amend the School Act so that all regions of Alberta will have access to education which fully protects both Francophone linguistic rights and Catholic denominational rights.
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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Fall 2011 issue of The Catholic Dimension, and is re-posted here for public reference.
We are currently In medias res: in the heart of the matter.
At the time of writing, Bill 18: the Education Act, 2011 is still in limbo. We do not know whether it will progress through legislative process in the fall session to recommence November 21, 2011, be delayed to the spring session, 2012, or die on the order paper; whether it will proceed unamended, receive minor drafting amendments, or be substantially revisioned.
Bill 18: the Education Act, 2011, was given first reading in the Legislature on April 27, 2011 and second reading was moved on April 28, 2011. The Legislature rose for the spring session on May 12, 2011 at which time there had been no debate on second reading.
Bill 18 constituted a fundamental rethinking and rewrite of the current School Act, reorganizing educational governance into the topics: access to education, opportunities for learning, responsibilities and dispute resolution, board powers and elections, structure of school authorities, and education professions. A number of the provisions are of significant concern in the Catholic community.
Section 71 of the Bill, and section 132(4) with respect to francophone regional authorities, provides that separate school residents may elect to vote or run for public school trustee, rather than separate school trustee. Separate school residents maintain their residence in the separate school division, maintain their declaration that they are of the minority faith, but are allowed the additional option to vote and run for public school trustee. No rights are lost to separate school electors; more rights are granted to them. Nevertheless, it is clear that public school electors are unhappy with this grant of additional rights to separate school electors and this may eventually lead to a request from public school electors that they be given the equivalent right to vote and run for separate school trustee, which would be constitutionally and unlegislatively unsound. This grant of additional rights to separate school electors benefits a very small minority within the Catholic community, is contrary to the “no choice” Court of Appeal decision in Schmidt and Calgary Board of Education (1996) and is rife with political and legal consequences now and in the future.
Sections 106 through 119 of Bill 18 establish a new model for formation of separate school districts, colloquially known as the “flower petal” formation. The first step in that formation would be a collaborative effort between the electors, separate and public school divisions to determine an establishment area. In lieu of agreement, the Minister may determine that the establishment area for a new separate school district be the area of the original public school district, together with those districts which are “contiguous” to the “public school district in which the initiating separate school electors reside” and are “located in the separate school region”, thus constituting the “flower petal”. This is an innovative and interesting provision which should be watched with an open mind, but also with caution.
However, these new establishment provisions fail to expressly preserve the traditional “4 x 4” establishment provisions, constitutionally protected by incorporation into section 17(1) of the Alberta Act, 1905 of the provisions of sections 41 through 45 of the School Ordinance, 1901. This constitutional benchmark must always be maintained as the recognized minimal protection for the establishment of separate school districts.
Sections 79 and 81 of the Bill provide for Ministerial appointment of trustees where two attempts to fill a vacancy on a board have been made and no nominations have been put forward, or to allow for the appointment of a trustee to represent First Nation students on the board. Those appointments do not seem objectionable in principle, as long as appointments to a separate school board are members of the denominational minority. This caveat should be expressly stated in the Bill.
Of more concern is the provision in section 95(1) that allows the Minister to establish a school division consisting of “any number of public school districts, separate school districts and school divisions”, which appears to allow a school division to be comprised of a combination of public school districts, separate school districts, public school divisions and separate school divisions. A public school division should only be comprised of public school districts or public school divisions, and a separate school division should only be comprised of separate school districts or separate school divisions, except where the public school division is a Catholic public school division, when it may also be comprised of Catholic separate school districts. This proposed amendment in Bill 18 may allow for rationalization in the Greater St. Albert area and the Sturgeon Valley, but would not otherwise allow “blended“ school boards.
Of significant concern is the provision in section 188(3) of the Bill, which allows the Minister, should space be available in a school building, to direct a board to make that space available to another board. This would be problematic if the Minister determined to direct a Catholic school board to provide space in one of its schools to a non-Catholic school board or vise versa, thus establishing a shared facility which would be contrary to ACSTA’s standing Facilities Covenant.
Another provision of interest is section 55 of Bill 18, which like section 50 of the School Act and section 11.1 of the Alberta Human Rights Act, allows a parent to request that a student be excluded from religious instruction. An exemption should be made to that provision for Catholic schools, where religious instruction or exercises comprise the totality of the school day, with the essential purpose of fully-permeating Catholic theology, philosophy, practices and beliefs, the principles of the Gospel and teachings of the Catholic Church, in all aspects of school life, including in the curriculum of every subject taught, both in and outside of formal religious classes, celebrations and exercises.
These and other provisions of Bill 18 require careful monitoring, and hopefully some necessary amendments in order to preserve the essential Catholicity of our Catholic schools, the right to efficient establishment of new districts, expansion of existing districts, and the maintenance of a truly Catholic education focused on the development of the whole child; mentally, physically, emotionally and spiritually. We are truly, therefore, in medias res.
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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Fall 2013 issue of The Catholic Dimension, and is re-posted here for public reference.
It is trite to affirm that Catholic separate school constitutional rights derive from Section 93(1) of the Constitution Act, 1867:
“. . . nothing in any such Law [in relation to education] shall prejudicially affect any right or privilege with respect to Denominational schools which any Class or Persons have by Law in the Province at the Union”;
and Section 17 of the Alberta Act, 1905:
“ ... nothing in any such Law [with respect to education] shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.”
It is also clear that those constitutional protections survive challenges under the Canadian Charter of Rights and Freedoms, as specified in section 29:
“Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.”
The law, however, provides another set of rights, apart from the constitutional protections specifically with respect to Catholic separate schools, which are of importance to the Catholic community; the Charter protection for freedom of conscience and religion.
Firstly, the preamble to the Charter states:
“Whereas Canada is founded upon principles that recognize the supremacy of God and the Rule of Law ...”.
Section 2(a) contains the basic guarantee of religious freedom:
“Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion ...”.
After the enactment of the Charter, the first decision of the Supreme Court of Canada to analyse the content and breadth of this guarantee of freedom of conscience and religion was Big M Drug Mart [1985], a case in which a convenience store in Alberta was charged with being open on Sunday, contrary to Alberta’s Lord’s Day Act.
Big M Drug Mart specifically addresses what is embodied in freedom of religion:
“A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms…. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination (para. 94).
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free ....
Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is forced to act in a way contrary to his beliefs or his conscience (para. 95).
... The Charter safeguards religious minorities from the threat of ‘the tyranny of the majority’ ”. (para. 96).
In determining what rights are protected under section 2(a), and the rest of the Charter, the Supreme Court of Canada has adopted a purposive approach:
“The meaning of a right or freedom guaranteed by the Charter is to be ascertained by an analysis of the purpose of such a guarantee” (para. 117).
The Court also said that the interpretation of a fundamental freedom should be a “generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection” (para. 118).
The Supreme Court of Canada said in Big M Drug Mart that the purpose of such provisions is to protect the “notion of the centrality of individual conscience and the inappropriateness of governmental intervention to compel or to constrain its manifestation” (para. 122). It also stated:
“... an emphasis on individual conscience and individual judgment also lies at the heart of our demographic political tradition. The ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability, and efficacy of our system of self-government... (para. 123), and
... The values that underlie our political and philosophical traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.... Equally protected, for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice” (para. 124).
In Edwards Books, the Supreme Court of Canada wrestled once again with the Sunday closing issue addressing the Ontario Retail Business Holidays Act determining that the Ontario statute had no religious purpose, required closing only “on holidays” and contained numerous exceptions, allowing the opening on holidays of corner stores, pharmacies, gas stations, flower stores, fresh fruit and vegetables stores or stands during the summer months, educational, recreational or amusement services, prepared meals, laundromat services, boat and vehicle rentals, business necessary to promote the tourist industry, and in limited circumstances, any business that was closed on Saturday for religious purposes. The Court found that even though the Act infringed or denied the “freedom of religion of Saturday-observing retailers” that infringement was justified under section 1 of the Charter, which both guarantees the rights and freedoms set out in the Charter and constrains them to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
However, the Supreme Court of Canada, in the Edwards Books case, made some further interesting comments on the scope of freedom of religion. It said that government interference with conscience and religion will be prohibited whether it is direct or indirect:
“It matters not, I believe, whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable. all coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2(a)” (para. 97).
It also said, importantly:
“The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of one’s self, human kind, nature and, in some cases, a higher or different order of being. These beliefs in turn govern one’s conduct and practices. The constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. For a state-imposed cost or burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice. In short, legislative or administrative action which increases the cost of practicing or otherwise manifesting religious beliefs is not prohibited if the burden is trivial or insubstantial” (para. 98).
Another leading case with respect to the interpretation of section 2(a) of the Charter is the “succah” case from Montreal, Syndicat Northcrest c. Amselem [2004], under section 3 of the Quebec Charter of Human Rights and Freedoms, equivalent to section 2(a) of the Canadian Charter of Rights and Freedoms. In that case, a number of Orthodox Jews built succahs on the balconies of their condominiums; a 3-walled, opened-roofed structure commemorating the forty year period during which the Children of Israel wandered in the desert, and in which they claimed they were to reside during the 9 day festival of Succot in late September or early October. The condominium association claimed each year that the balconies were communal property, and that the building of the succahs on the balconies infringed the condominium bylaws, building codes and adversely affected the aesthetics of the condominium building. The condominium association brought an action for an injunction requiring the succahs to be dismantled.
The Supreme Court of Canada, in holding for the Jewish residents, recognized the foundational principal set out in Reference re: Secession of Quebec [1998] that an important feature of the Canadian constitution was respect for minorities “which includes, of course, religious minorities” and that “respect for and tolerance of the rights and practices of religious minorities is one of the hallmarks of an enlightened democracy ... exist(ing) in a matrix of other correspondingly important rights (and) ... coexist(ing) alongside societal values that are central to the make-up and functioning of the free and democratic society” (para. 1). Importantly, for constitutional purposes, the Court set out a definition of both “religion” and “freedom of religion”. The Court said:
“…religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith” (para. 39).
In defining freedom of religion, the Court said that it:
“…consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official dogma or is in conformity with the position of religious officials (para. 46).
... this freedom encompasses objective as well as personal notions of religious belief, ‘obligation’, precept, ‘commandment’, custom or ritual. Consequently, both obligatory as well as voluntary expressions of faith should be protected .... It is the religious or spiritual essence of an action, not a mandatory or perceived-as-mandatory nature of its observance, that attracts protection” (para. 47).
“Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the Court in the affairs of religion” (para. 50).
In the context of that definition of religion, the Supreme Court of Canada articulated an expansive definition of freedom of religion “which revolves around the notation of personal choice and individual autonomy and freedom” (para. 40), “integrally linked with an individual’s self-definition and fulfilment and ... a function of personal autonomy and choice” (para. 42).
The Court said:
“…these decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective of the validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for Courts to make.... a person must show ‘sincerity of belief’... not that a particular belief is ‘valid’ ” (para. 43).
The Supreme Court of Canada held that in analysing one’s right to freedom of religion, one must only examine whether the belief is “sincere” and not “valid”, because “a Court is in no position to question the validity of a religious belief” and it is not the role of a “Court to decide what any particular religion believes” (para. 44).
However, the Court was careful to point out that the individual enjoyment of religious practice could not impair the rights of others:
“This is so because we live in a society of individuals in which we must always take the rights of others into account. In the words of John Stuart Mill: ‘the only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it’ ” (para. 61).
The Court indicated that “freedom of religion, like all other rights ... may be made subject to overriding societal concerns”:
“…they will still have to consider how the exercise of their rights impacts upon the rights of others in the context of the competing rights of private individuals. Conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. The ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises” (para. 62).
In R v. S (N) [2012], a Muslim female plaintiff in a sexual assault case refused to remove her niqab while testifying in Court. The issue arose as to the balance between her guaranteed right to freedom of religion and the accused’s right to a fair trial. The Supreme Court of Canada began its analysis by explicitly rejecting the “secular response” that would require “witnesses to park their religion at the Courtroom door (as) inconsistent with the jurisprudence and Canadian tradition, and limit(ing) freedom of religion where no limit can be justified” (para. 1). The Court said:
“The long-standing practice in Canadian Courts is to respect and accommodate the religious convictions of witnesses, unless they pose a significant or serious risk to a fair trial” (para. 2).
“... the Canadian approach in the last 60 years to potential conflicts between freedom of religion and other values as been to respect the individual’s religious belief and accommodate it if at all possible. Employers have been required to adapt work place practices to accommodate employees’ religious beliefs ... . Schools, cities, legislatures and other institutions have followed the same path .... the need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canada law. For over half a century this tradition has served us well” (para. 54).
Recognizing the importance of the guarantee of religion, the majority in the Supreme Court of Canada held that a witness wearing an niqab would only be required to remove it if necessary to prevent a serious risk to the fairness of a trial, reasonable available alternative measures would not prevent that risk, and the salutary effects of removing the niqab on trial fairness outweighed the deleterious effects of doing so, including the effects on the witnesses’ freedom of religion. Where a conflict could not be avoided between equally guaranteed rights, a determination should be made on a case-by-case basis.
We should not forget, in our concentration on the constitutional protection of Catholic separate school rights in Alberta, the broad range of protection given to all rights related to conscience and religion by section 2 (a) of the Charter. When read together, these twin protections offer a broad coverage of the right and privilege to hold beliefs founded upon conscience and religion, and to teach those beliefs in a fully-permeated Catholic educational system in Alberta.
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- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Spring 2004 issue of The Catholic Dimension, and is re-posted here for public reference.
The Separate School Regions Establishment and Provision of Services Order, A.R. 109/2002, allows separate school boards the right to expand, at the request of electors, within separate school regions. It is an alternative to the establishment of new 4x4 districts, later amalgamated into existing separate school districts or regional divisions.
Such expansions have been approved by the Minister of Learning for the Grande Prairie and Holy Spirit Catholic school boards and are currently in progress in the jurisdictions of the Calgary, Elk Island, Evergreen, Holy Family, Holy Spirit, Lakeland and Living Waters Catholic school boards.
One of the most significant events during the expansion process is the holding of a public meeting to discuss the request for expansion and answer questions from the public. A number of the questions and answers given at public meetings to date have been fundamental to understanding the following:
- the rights of Catholic electors to such expansion;
- the fundamental difference between expansion and traditional 4x4 formation; and
- the effect of expansion upon Catholic electors, public electors and the community at large.
Set out in this article are a number of the questions which have been asked or may be asked, and answers given with respect to this new process.
Legislation Allowing Expansion of Catholic School Districts
1. Question: What is the specific legislation that constitutionally allows separate Catholic electors to expand or alter the boundaries of established separate school districts?
Answer: Chapter 29 of the Ordinances of the Northwest Territories, 1901, the School Ordinance, contains the following:
"48. The commissioner may by Order notice of which shall be published in the official gazette alter the boundaries of any district by adding thereto or taking therefrom or divide one or more existing districts into two or more districts or unite portions of any existing district with another district or with any new district in case it has been satisfactorily shown that the rights of rate payers under section 14 of the North-West Territories Act to be affected thereby will not be prejudiced and that the proposed changes are for the general advantage of those concerned."
Section 14 of the North-West Territories Act, 1886, as amended in 1898, reads as follows:
"14. The Lieutenant Governor in Council shall pass all necessary ordinances in respect to education; but it shall therein always be provided, that a majority of the rate payers of any district or portion of Territories, or of any less portion or subdivision thereof, by whatever the same is known, may establish such schools therein as they think fit, and make the necessary assessment and collection of rates therefore; and also that the minority of the rate payers therein, whether Protestant or Roman Catholic, may establish separate schools therein, and in any such case, the rate payers establishing such Protestant or Roman Catholic separate schools shall be liable only to assessments of such rates as they impose upon themselves in respect thereof . . ."
The provisions of the School Act which address the above mentioned sections are sections 221.2, Division 2.1: "Establishment of Separate School Regions" and section 229, proceduralized in the Separate School Regions Establishment and Provision of Services Order, M.O. 011/2002, A.R. 109/2002. That is made clear by the provisions of section 22 of that Regulation which specifically adopts the wording of section 48 of the Northwest Territories School Ordinance, 1901:
"22. Upon receipt of a statement from the Public School Board and following a public meeting under section 21 and upon receipt of the minutes of the public meeting, the Minister may, under section 239 of the School Act, add land in the Separate School Region to the separate school district or division if the Minister is satisfied that the addition of the land does not prejudice the rights of separate school rate payers in the expansion area and is for the general advantage of those concerned."
Affect on Traditional 4x4 Formation
2. Question: Does the new consultative expansion process under the Separate School Regions Establishment and Provision of Services Order affect traditional 4x4 formation?
Answer: This new process specifically provides in section 24 that it does not affect traditional 4 x 4 formation which is constitutionally protected and remains unamended in sections 212 through 221, Division 2, Part 8 of the School Act. It merely contemplates an equally constitutionally-protected method of expansion of Catholic Education which is supplemental, and in addition to, the traditional constitutionally-protected 4 x 4 formation.
The Right to Vote
3. Question: In the new consultative expansion process, is it necessary that members of a minority faith who live in the proposed expansion area be given the right to vote for or against the expansion?
Answer: The right to vote of a member of the minority faith is essential with respect to the constitutionally-protected right for "formation" of a new separate school district. However, it is not the test with respect to the constitutionally-protected "expansion" of separate school districts. The appropriate test with respect to expansion is found in section 22 of the Separate School Regions Establishment and Provision of Services Order:
". . . the Minister (must be) satisfied that the addition of the land does not prejudice the rights of separate school rate payers in the expansion area and is for the general advantage of those concerned."
However, we believe that the process for expansion allows for very extensive consultation, participation and co-operation of all parties affected, including but not limited to members of the minority faith.
Fully Permeated Catholic Education
4. Question: Must a Catholic separate school be Catholic and provide a fully permeated denominational education?
Answer: Under the system of separate school 4x4 formation (School Act, Part 8, Division 2, ss. 212-221) it is clear that once a new separate school district is established or formed, it "must have some degree of denominational character," "cannot simply operate a public school by another name" and should offer "formal religious education (as a) . . . means of promoting or preserving Roman Catholic beliefs and values . . . " (Jacobi v. Newell No. 4 (County), (1994) 16 Alta. L.R. (3d) 373 at 395). If that rationale extends to the new system of expansion of separate school districts or regional divisions within Separate School Regions (School Act, Part 8, Division 2.1, ss.221.1 and 221.2) the expanding separate school district or regional division will be required by law to provide a fully permeated Catholic Education. This will include denominational character in the schools in the expansion areas, with Catholic administration, utilizing the approved separate school curriculum and be under the guidance, authority and control of the local bishop.
Census of Catholic Electors
5. Question: Is it necessary to take a census of Catholic separate school supporters as part of the expansion or alteration of boundaries of a Catholic separate school district?
Answer: A census of school electors in the areas proposed for expansion is not a requirement for the expansion or alteration of boundaries of an existing separate school district or regional division (Section 221.2 of the School Act and the Separate School Regions Establishment and Provision of Services Order). A census is a requirement for the establishment or formation of a new separate school district (Part 8, Division 2, Sections 212 to 221 of the School Act). The reason a census is not required under the currently-utilized consultative expansion system is that a new separate school district is not being created. The Minister of Learning is simply using the Ministerial powers provided to him to "add land to . . . a district or a division" (Section 239 of the School Act). The question as to whether Catholics or Protestants are in the majority or the minority is only relevant to the establishment or formation of a new separate school district because the minority status and "separateness" of the existing separate school district has already been established. As a result, a census to establish majority or minority status is not necessary under the Separate School Regions Establishment and Provision of Services Order.
Constitutional Protections for Catholic School Rights
6. Question: What are the basic constitutional protections for Catholic separate school rights?
Answer: Constitutional protections for separate school ratepayers in Canada are set out in the Constitution Act, 1867 in the following section:
"93. In and for each Province the Legislature may exclusively make Laws in relation to Education subject and according to the following provisions:
(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by law in the Province at the Union:"
For Alberta, section 93(1) of the Constitution Act, 1867 is modified by section 17(1) of the Alberta Act, 1905:
"17. Section 93 of the Constitution Act, 1867, shall apply to the said province, with a substitution for paragraph (1) of the said section 93, of the following paragraph: (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said Ordinances."
These constitutional protections are reinforced by section 29 of The Charter of Rights of Freedoms:
"29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools."
Legislation Allowing Formation of Catholic School Districts
7. Question: What is the specific legislation that constitutionally allows separate Catholic ratepayers to form new separate school districts?
Answer: Chapter 29 of the Ordinances of the Northwest Territories, 1901, the School Ordinance, contains the following sections with respect to the formation of new separate school districts:
41. The minority of the rate payers in any district whether Protestant or Roman Catholic, may establish a separate school therein; and in such case the rate payers establishing such Protestant or Roman Catholic separate school shall be liable only to assessments of such rates as they impose upon themselves in respect thereof.
42. The petition for the erection of a separate school district shall be signed by three resident rate payers of the religious faith indicated in the name of the proposed District; and shall be in the form prescribed by the commissioner.
43. The persons qualified to vote for or against the erection of a separate school district shall be rate payers in the district of the same religious faith Protestant or Roman Catholic as the petitioners.
44. The notice calling a meeting of the rate payers for the purpose of taking their votes on the petition for the erection of such school district shall be in the form prescribed by the commissioner and the proceedings subsequent to the posting of such notice shall be the same as prescribed in the formation of public school districts.
45. After the establishment of a separate school district under the provisions of this Ordinance such separate school district and the board thereof shall possess and exercise all rights, powers and privileges and be subject to the same liabilities and method of government as is herein provided in respect of public school districts.
(2) Any person who is legally assessed or assessable for a public school shall not be liable to assessment for any separate school established therein."
The School Act provisions which address the formation rights of separate school electors, as guaranteed by sections 41 through 45 of the Northwest Territories School Ordinance, 1901, are sections 212 through 220, Division 2: "Establishment and Dissolution of Separate School Districts". Those provisions are commonly known as the "4 x 4" provisions of the School Act.
Concerns About Fragmentation
8. Question: Doesn't the expansion of Catholic separate school districts cause a fragmentation of public school education and fragmentation of the community?
Answer: The constitutional compromise forged by the Fathers of Confederation at the Charlottetown Conference in 1864 and at the London Conference in 1866 specifically recognized that this country would not come into being without allowance for members of the minority faith to educate their children in their own faith, even if it meant that for some purposes of education they were "separate" or "fragmented" from the majority public education system. That sentiment was reflected by Prime Minister Sir Charles Tupper, in the House of Commons on March 3, 1896:
". . . I say it within the knowledge of all these gentlemen.... that but for the consent to the proposal of the Hon. Sir Alexander Galt, who represented especially the Protestants of the great province of Quebec on that occasion but for the assent of that conference to the proposal of Sir Alexander Galt, that in the Confederation Act should be embodied a clause which would protect the rights of minorities, whether Catholic or Protestant, in this country, there would have been no Confederation . . . I say, therefore, it is important, it is significant that without this clause, without this guarantee for the rights of minorities being embodied in that new constitution, we should have been unable to obtain any confederation whatsoever."
In addition, the existence of separate schools, alleged to be a "fragmentation" of the community and of the public school system, has provided Alberta with one of the best educational systems in the world, substantiated over and over again by international testing standards. Alberta's success, in part, is due to this dual dimension of the public education system-the Catholic and public school systems. Catholic schools in communities enhance educational opportunities and provide alternative choices for parents. This applies to communities both large and small. The very educational success we are now enjoying internationally is due, in part, to this dual nature of the system that allows choice for parents.
Enrollment of Non-Catholic Students
9. Question: If the separate Catholic school district is expanded, is it required to accept in the expansion area all persons of all denominations for enrollment in its schools?
Answer: Sections 44 and 45 of the School Act require that if a Catholic separate school district is expanded over a new area, then those individuals residing within the expanded boundaries of the separate Catholic school district who are Catholic, will become residents of the Catholic separate school district and cease to be residents of the public school district. However, a school board is required to enroll resident students of another board upon request of the parent of the student, if in the opinion of the enrolling board there are sufficient resources and facilities available to accommodate the student. If non-resident students of the board of an expanding separate school district or regional division make an appropriate request, the board will be required to determine whether there are sufficient resources and facilities available to accommodate the non-resident student and if so, to enroll them in any of its schools, including schools which may be transferred to it by expansion.
Affect on School Utilization Rates
10. Question: Doesn't the expansion of Catholic separate school districts or regional divisions affect the school utilization rates of the public school board?
Answer: The concern with school utilization rates is shared by virtually all rural school boards in Alberta. The solution to low utilization rates must be a joint solution arrived at between rural school boards and Alberta Infrastructure. We recognize that declining population in rural areas, including the issue of school utilization rates, is a complex and multi-faceted issue that needs the attention of both public and Catholic school boards, but it is not a reason to deny anyone their constitutional rights to choose Catholic Education.
Alberta has one of the best educational systems in the world and this has been substantiated repeatedly by international testing standards. Alberta's success, in part, is due to our multi-dimension of the public education system, of which Catholic schools are a part. Catholic schools enhance educational opportunities and provide alternative choices for parents. The very success we are now enjoying internationally is due, in part, to the multi-dimensional nature of our system that allows this choice for parents.
Co-Terminality
11. Question: It is true that when a Catholic separate school district expands or alters its boundaries, it must become coterminous with its public school neighbours?
Answer: It is true that when separate school electors wish to form new separate school 4x4's, they must do so based upon the boundaries of the original and now long obsolete 4x4 public school districts. Section 219(1) of the School Act provides that "the Minister shall by Order establish the separate school district with the same boundaries as those of the public school district." This section falls within Part 8, Division 2, ss.207 through 221 of the School Act, which addresses the formation of new separate school districts by what we know as "4x4 formation." Requests of separate school electors under the Separate School Regions Establishment and Provision of Services Order is not for a new 4x4 formation, but for expansion of an already established separate school district or regional division and provision of services in the expanded area (Part 8, Division 2.1, Sections 221.1 and 221.2 of the School Act). The 4x4 process is completely separate from and not affected by the new consultative expansion process. The 4x4 formation can proceed without the new consultative expansion process, at any time during the new consultative expansion process, or if the process has not resulted in expansion of the existing separate school jurisdiction (Section 24 of the Separate School Regions Establishment and Provisions of Services Order).
Rolled-Up 4x4s
12. Question: What are "rolled-up 4x4s," and are they different than this new consultative expansion process?
Answer: The Minister of Learning has the ability to re-arrange the original and now obsolete public school 4x4's into a single, larger public school district for the purpose of forming in this larger area a new separate school district. Separate school electors in adjoining original 4x4 public school districts are entitled to request that the Minister "roll-up" these original 4x4 public school districts for the purpose of forming a larger separate overlaying school district. These "rolled-up 4x4 formations" are also accomplished pursuant to Part 8, Division 2, Sections 212 through 221 of the School Act and are also completely distinct from and not affected by this new consultative expansion process.
Affect on the Public School District
13. Question: Does the new consultative expansion process take land away from or leave a large hole in the public school district?
Answer: The request for the expansion or alteration of boundaries of a separate school district does not entail the transfer of land from the public school district or division to the separate school district or regional division. The jurisdiction of the public school district or division would not be altered and would always underlie any expanded jurisdiction of the Catholic separate school district or regional division as public school districts always, by definition, underlie separate school districts. There would never be "a large hole" in the area served by the public school jurisdiction, as the public school jurisdiction would be unaltered despite the expansion or boundaries alteration.
Formation vs. Expansion
14. Question: Does Section 221.3 of the School Act require that a new separate school district be formed under Division 2 of the School Act whenever services by a separate school board are to be extended to areas where such services have not been previously provided?
Answer: The Separate School Regions Establishment and Provision Of Services Order is a Ministerial Order confirmed by Alberta Regulation pursuant to sections 221.1, 221.2 and 239 of the School Act. It allows the Minister of Learning to "provide for services by a separate school board in a Separate School Region and is the consultative expansion process. On the other hand, section 221.3 allows the Minister to make regulations in respect of the establishment or formation of a new separate school district in the region "under Division 2." This is an establishment or formation provision, not an expansion provision and references establishment or formation under Division 2, rather than expansion under Division 2.1. Therefore, section 221.3 of the School Act is referable to the traditional 4x4 formation provisions of Part 8, Division 2, sections 212 through 221 of the School Act.
- Details
- Written by Kevin P. Feehan
- Category: Legal
This article was originally published in the Fall 2005 issue of The Catholic Dimension, and is re-posted here for public reference.
The Alberta Catholic School Trustees' Association includes as one of its member boards, the Yellowknife Separate Education District No. 2, established in 1951. St. Patrick Elementary School in Yellowknife opened in 1953 and is now a high school. It has been joined by two other schools, St. Joseph and Weledeh Catholic schools.
Unlike Alberta and Saskatchewan, the various Northwest Territories Acts have never been listed in Schedule "B" to the Constitution Act, 1982 as "constitutionally entrenched," by which these acts would be no longer subject to amendment by Legislation of the Parliament of Canada, but only pursuant to the constitutional amending formula set out in the Constitution Act, 1982. The search for the constitutionally protected rights of Catholics in the Northwest Territories is therefore less direct than in Alberta and Saskatchewan.
In the Northwest Territories, the constitutionally entrenched legislation includes the Rupert's Land and the North-Western Territory Act of 1869, the Rupert's Land and the North-Western Territory Order of 1870, the Adjacent Territories Orders of 1880, and the various constitution acts of 1871, 1886 and 1975. Pursuant to those acts and the Constitution Act, 1867, the federal government was empowered to pass the various Northwest Territories acts which are the constitution of the Northwest Territories and binding upon the legislature of the Northwest Territories, although not constitutionally entrenched with respect to the federal government. That is, a federal government may change the Northwest Territories Act from time to time, as ordinary federal legislation, but these acts are "constitutionally binding" on the Northwest Territories legislature.
The first Northwest Territories Act provision to specifically identify the right to establish a separate school system was Section 11 of the Northwest Territories Act, 1875, which confirmed that the Lieutenant Governor of the Northwest Territories had jurisdiction to pass all necessary ordinances with respect to education, but subject to the condition that the majority of rate-payers in any district or portion of the Territories could establish a public school, and the minority could establish a separate school. The relevant portions of that section read as follows:
" . . . the minority of the rate-payers . . . , whether Protestant or Roman Catholic, may establish separate schools . . . and . . . the rate-payers establishing such Protestant or Roman Catholic separate schools shall be liable only to assessments of such rates as they may impose upon themselves . . . "
That provision was consolidated in the 1880 Act and restated in 1886, although at that date, the authority formerly vested in the Lieutenant Governor was transferred to the Legislative Assembly. By 1906 the authority to establish a separate school was vested in the Commissioner in Council, and these basic constitutional protections were restated in the various Northwest Territories Acts of 1927 (Section 12), 1952 (Section 13(r)) and 1985 (Section 16(n)), where the current protection is almost identical to that first enacted 110 years earlier:
". . . the minority of the ratepayers in the area . . . whether Protestant or Roman Catholic, may establish separate schools . . . , in which case the ratepayers establishing Protestant or Roman Catholic separate schools are liable only to assessments of such rates that they impose on themselves . . . "
The protections granted to separate minority denominational education in the Northwest Territories are equivalent to those protections granted in Ontario, codified in s.93(1) of the Constitution Act, 1867, and in Alberta and Saskatchewan, set out in Section 17 of the Alberta Act, 1905 and the Saskatchewan Act, 1905. Those educational protections are not frozen in time, nor can or should they be comprehensively listed, but they include at least the following:
- The right or privilege to form a new separate school district;
- The right or privilege to levy assessments upon the electors of the separate school district; and
- The right or privilege not to be liable to assessments levied by any party other than the separate school district.
The current Northwest Territories Education Act, preserves this right to separate denominational education in Section 11, which provides that a parent of a student, or an adult student, is entitled to receive an education program through a "public denominational school" in the Northwest Territories.
All of the case law with respect to the rights and privileges of separate school electors in Ontario, Alberta and Saskatchewan are therefore directly applicable to the Catholic separate school electors in the Northwest Territories. The Alberta Catholic School Trustees' Association's advocacy for the protection and enhancement of those rights to Catholic separate education is therefore on the same footing and equally applicable in the Northwest Territories as it is in Alberta.
ACSTA's efforts to protect enhance the rights to Catholic education is on the same footing and equally applicable in the Northwest Territories as it is in Alberta.
- Details
- Written by Kevin Feehan
- Category: Legal
This article was originally published in the Spring 2006 issue of The Catholic Dimension, and is re-posted here for public reference.
There has been considerable "disturbance in the force" lately on the issue as to whether municipalities may persuade the provincial government to retract the education tax assessment base, so as to provide more room for municipal taxation. That request collides with the Alberta Catholic separate school constitutional right to a taxation assessment base founded in constitutional provisions, legislation and case law.
In Alberta, the Constitution Act, 1867, the North-West Territories Acts from 1875 to 1898, the North-west Territories Ordinances, 1901, chapters 29 and 30, the Alberta Act, 1905 and the Charter of Rights and Freedoms, section 29, set out a comprehensive constitutional and statutory framework with respect to those rights. It is clear from those provisions that Alberta is granted plenary rights over education, subject to the protection of minority denominational education rights and those non-denominational rights essential for the protection of denominational rights. Although those rights are not frozen in time, nor should be comprehensively listed, they include at least the right or privilege to form a new separate school district and expand existing districts, the right or privilege to levy assessments upon the ratepayers of the separate school district, and the right or privilege not to be liable to assessments levied by any party other than the Separate school district. The mechanism and method for separate Catholic schools to access their taxation base is set out in detail in the School Assessment Ordinance, 1901, ch. 30, which reinforces the provisions of the School Ordinance, 1901, ch. 29, granting the right to a school assessment base.
The leading case in Alberta with respect to the right to an assessment base is the PSBAA case. In that case an important distinction was made between section 17(1) Alberta Act rights and section 17(2) Alberta Act rights, the former protecting only separate electors, and directed only to protect property assessment support, and the latter protecting both separate and public school electors, guaranteeing equity and fairness in funding as between their boards. In Alberta, therefore, there are two distinct constitutional rights; the right to access the property assessment base for financial support, and the right to equity and fairness in funding. The Court of Appeal of Alberta clearly held that separate Catholic boards had a "special constitutional status" and an absolute right to "requisition taxes directly from ratepayers. Such a right is granted only to separate boards, to protect them from the "tyranny of the majority." Justice Berger specifically said that "the right of the separate schools to tax their supporters was part of the bundle of protected rights and privileges" to which they were constitutionally entitled and that "the right of separate schools to tax and spend is . . . inviolable" to such an extent that the provincial government has no right to regulate how the funds from the opted-out assessment base may be spent by Catholic separate boards. The Supreme Court of Canada agreed that separate school boards have a special constitutional status which allows them "to requisition taxes directly from ratepayers."
In Ontario, the constitutional scheme and legislative scheme are different, as was made evident in that province in the OECTA case which interpreted the constitutional protections granted to separate school supporters in Ontario, as set out in the Scott Act. The Scott Act does not have as strict a division between the right to an assessment base and the right to equity and fairness, and did not constitutionally incorporate two separate ordinances, differentially protecting both constitutional rights, as in Alberta. In addition, the Ontario legislation considered in the OECTA case specifically preserved the right to a school board tax assessment base, a system of taxation declarations, assessments of property for education taxes, the setting of mill rates and the levying and collection of education taxes, dividing the taxes into separate and public school pools. All that the legislation in Ontario did was to suspend the rights of boards to determine, levy and collect their own taxes, based upon this continuing education tax scheme, so long as Catholic separate boards received a fair and equitable distribution of taxes. The Trial Court held that, even in the face of the preservation of the school assessment base, there was a breach of the rights of Catholic separate schools to directly determine, levy and collect their own taxes. The Court of Appeal held that where the assessment base was specifically preserved by the legislation, and where there was a temporary suspension of the right to direct taxation, the right of equity and fairness subsumed the right of direct taxation. The Supreme Court of Canada recognized that as long as "property tax rates are still levied for school purposes and collected by municipalities," and as long as "residential taxpayers continue to designate their education taxes for either the public or separate system" the constitutional right to a denominational tax base has not been altered and the suspension of the school boards' rights to raise funds through local taxation is not unconstitutional. The Supreme Court of Canada specifically said that the "preservation of the assessment for school support, levying of property taxes for school purposes, the collection of those taxes by municipalities and the ability of residential taxpayers to designate their education taxes for a separate system," makes the taxation scheme in Ontario valid. The Supreme Court of Canada declined to rule on what would occur if the legislation attempted to remove the educational tax assessment base altogether.
As a result, there is no conflict between the PSBAA case and the OECTA case, and it is clear, constitutionally, legislatively and in case law, that in Alberta, Catholic separate schools have dual constitutional rights to a declared property assessment base (section 17(1) of the Alberta Act, 1905, and chapters 29 and 30 of the Ordinances of the North-west Territories, 1901) and to equity and fairness in government funding (s.17(2)). Even in Ontario, where that distinction is not as firm, the suspension of a direct right of taxation in school boards was only allowed in the context of the preservation of the educational assessment base, the levying of property taxes for school purposes, the collection of those taxes by municipalities and the designation of educational taxes for separate and public schools.
You may ask why Catholic separate schools would want to continue to access the tax assessment base, when it does not make a financial difference to the overall funding of school boards. The following are nine important reasons for continuing to access the tax assessment base:
- It is a vital connection between school boards and their electors, especially those electors without children in the school system;
- It provides a mechanism for direct accountability of school board trustees to their electors for the quality of education provided;
- It provides a clear link between taxation and representation, the most fundamental principal of any democratically elected organization;
- It creates a structural interest in the local school board, because of the investment required by the electors in that board;
- It supports board population projections which affect funding for new student places;
- It supports the tradition of local decision-making with respect to public education, consistent with the fundamental democratic principal of subsidiary;
- It supports the conclusion of the Alberta Commission on Learning that there is need for an adequate source of stable funding for the education system, affirming the role that the education property tax assessment base has in enhancing public accountability for education;
- The opted-out Catholic separate school declaration is a public record by electors of the extent of support for their schools, providing the government with an indication of overall support and the strength of a publicly-funded Catholic school system; and
- It recognizes and affirms the constitutional right of opted-out Catholic separate school boards to collectively access this assessment base through requisition by their elected boards, as specifically provided in section 93(1) of the Constitution Act, 1867, section 17(1) of the Alberta Act, 1905, and section 29 of the Charter of Rights and Freedoms, as interpreted and affirmed recently by the Supreme Court of Canada in the PSBAA and OECTA cases.